honduras: the facts and the law behind the 2009-2010 democratic crisis

8/8/2019 Honduras: The Facts and the Law Behind the 2009-2010 Democratic Crisis

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THE FACTS AND THE LAW

behind the democratic crisis of

Honduras, 2009

A Constitutional and InternationalDemocracy Law Analysis


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THE FACTS AND THE LAW (First Paper in the Series)

Copyright 2010 by The Human Rights Foundation

In cooperation with the HRF Center for Research on Democracy

350 Fifth Avenue, # 4515, New York, NY 10018

Cover design: Kristopher Anderson

The Human Rights Foundation (HRF) is a nonpartisan organization devoted to defending human rights in

the American hemisphere. Grounding our work in a deep commitment to individual liberty, we aim to raise

awareness about both the nature of freedom and the vulnerability of freedom in the Americas.

We recognize the inalienable rights that protect the individual from arbitrary state and legal actions.

We believe that all American nations must acknowledge and protect the freedom of their citizens.

We stand for the possibility of fully democratic American states, limited by the rule of law, that honor and

uphold individual rights.HRF is committed to maintaining consistency, equitability, and accountability with regards to the human

rights cases we choose to undertake. We pledge the fullest possible transparency in all of our decisions,

methods, and principles.

The Human Rights Foundation was incorporated in 2005, and opened its offices in New York in August of

2006. Our International Council brings together a dynamic, experienced, and committed group of global

leaders in the struggle for human freedom and individual dignity.


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THE FACTS AND THE LAWbehind the democratic crisis of

Honduras, 2009

Legal Research Paper

prepared by Javier El-Hage (HRFs General Counsel)

Research Assistants

Luis Yaez (Senior Legal Researcher at HRF)

Alejandro Gutirrez (Junior Legal Researcher at HRF)

Erik Groszyk (Junior Researcher at HRF)

Legal Translators that Contributed to this EditionJohn Paul Bender (Lead Translator)

Claudia Paccieri

Carlos Vaca Valverde

Centa Reck Chajtur

Pablo Salvatierra


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Table of Contents

Executive Summary vii

I. Part One: Honduran Law 17

A. The law: How can the anticipated termination of the presidential term lawfully

take place in Honduras? 18

a. The presidents resignation accepted by Congress 18

b. The absolute vacancy or permanent absence of the president 18

c. Special or absolute disqualification as a result of a conviction sentence

handed down by the Supreme Court 19

d. Other relevant constitutional provisions 33

B. The facts: How was President Zelayas term of office terminated? 37

a. Main events that took place and official documents published prior to,

during, and after June 28, 2009 37

C. Domestic law analysis: Was the premature termination of President Zelayas

term in accordance with Honduran law? 62

a. Constitutionality of the premature termination of President Zelayas term,

as a result of Congresss action 62

b. Constitutionality of the premature termination of President Zelayas term,

as a result of the Supreme Courts action 71

D. Conclusions from the analysis of Honduran Law 90

a. Was the early termination of President Zelayas term, as a result

of Congresss actions, constitutional? 90b. Was the early termination of President Zelayas term, as a result

of the Supreme Courts actions, constitutional? 91

II. Part Two: International Democracy Law 93

A. The law: Under what circumstances may the OAS apply the democracy clause against a

member state? 93

a. Specific events that should trigger the application of the democracy clause 93

b. Democracy clause application procedure 104

c. Actions the OAS may take to foster the restoration of democracy 105

B The facts: How did the OAS respond to the situation in Honduras before during


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dtat, a situation similar to a coup dtat, or an erosion of democracy 148

b. Consistency of the actions taken by the OAS with international

democracy law 158

D. Conclusions from the analysis of international democracy law 187

a. Were pre-June 28 OAS actions carried out in accordance with

international democracy law? 187

b. Were post-June 28 OAS actions carried out in accordance with

international democracy law? 189

c. Were OAS diplomatic initiatives to restore democracy in Honduras

in accordance with international democracy law? 190

III. Annexes

Annex 1. Chronology of Events 193

Annex 2. Chronology of Official Published Documents 277

Annex 3. The presidential trial in Honduras, and in other Latin American countries 283

Annex 4.Persons reported dead or disappeared, and emergency legal provisions 295


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The Facts and the Law behind the Democratic Crisis of Honduras, 2009

Executive Summary

This legal research paper is divided into two parts. Part One analyzes whether PresidentZelayas premature termination was in accordance with Honduran Law. The generalconclusion of this part is that both his expatriation to Costa Rica by the armed forces, as

well as the removal from office by Congress that ensued, were unconstitutional. After a

detailed analysis of the steps that should be followed in the case of a presidential criminaltrial in Honduras, Part One also finds that the Honduras Supreme Court could have used

its constitutional powers to successfully try, suspend, and, eventually, remove President

Zelaya from officeparticularly under criminal charges for abuse of authoritybut

chose instead to validate the unconstitutional actions taken against Zelaya by Congressand the armed forces.

Part Two examines whether the actions taken by the OAS, before, during, and after June28, were in accordance with the OAS Charter or the Inter-American Democratic Charter.

The general conclusion of this part is that, throughout the democratic crisis in Honduras,

the OAS acted as an international agent of the executive power of Honduras, rather thanan organization with the duty to promote and protect democracy in its member states.

Before reaching this conclusion, the legal report evaluated in detail all actions by the

OAS in response to the three anti-democratic events that took place in Hondurasthroughout the crisis: (1) the erosion of democracy carried out by President Zelaya from

March 23 to June 28; (2) the coup dtatcarried out by the armed forces in the morning

of June 28; and (3) the unconstitutional removal effected by Congressalso referred toas impeachment coupthat took place later that same day. According to international

democracy law, each one of these anti-democratic events should have triggered the

application of the democracy clause by OAS organs.

OAS action facing the erosion of democracy (March 23 to June 28, 2009)

The erosion of democracy in Honduras was initiated by the March 23 decision of the

executive branch to call for a popular consultation to be held on June 28. This popular

consultation would ask the Honduran people whether they wanted a ConstituentAssembly to be elected on November 29, the date already designated for the presidential,

legislative, and municipal elections. According to what the Honduran representative toldthe OAS Permanent Council on June 26, if the fourth ballot is victorious, a ConstituentAssembly was expected to take office on November 29 and start drafting a new

constitution. This constitutional reform would take place by circumventing the current

constitutional amendment provisions in the Honduran Constitution, under the followingtwo legal arguments made by the Honduran representative to the OAS: (1) that the


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Human Rights Foundation & HRF Center for Research on Democracy

The consultation was publicly rejected by the National Congress and the SupremeElectoral Tribunal, which jointly have the authority under the constitution, to call for and

administer any type of popular consultation in Honduras. Further, the Attorney GeneralsOffice publicly warned the president that it would present criminal charges against himfor usurping the Legislative and Electoral functions. On May 27, the attorney general

won a judicial victory when the Administrative District Court of Tegucigalpa issued a

preliminary injunction enjoining the president from carrying out acts towards thechallenged consultation. A day earlier, President Zelaya had decreed the change of the

consultations namefrom wide popular consultation to national opinion poll.

Facing this, on May 29, the administrative court complemented its ruling to include any

actions that may lead to the same end as the suspended act, as well as any change interminology, the consultation or inquiry process, which implies an evasion of the

preliminary injunction and this explanatory sentence. In response to this setback,

President Zelaya appeared on television next to the Commander of the Armed Forces,Gen. Romeo Vsquez, ratifying that the consultation was constitutional and that the

armed forces guaranteed that it would be carried out. That day, defying the attorney

generals position, President Zelaya reportedly said, Now they have to arrest thegeneral. As a result, throughout June, the judicial communications enjoining the

consultation and warning of criminal actions were addressed both to the president and tothe chief of the armed forces.

It was in this context that the Honduran executive branch held discussions with the OAS

Secretary General about the type of mission the OAS could send to Honduras in order to

observe and legitimize the opinion poll. On June 9, the Honduran executive sent a formalrequest for an Electoral Observation Mission, but the Secretary General responded

through another letterthat, due to the nature of the act, it would be impossible tosend such a mission. Instead, he said he was sending a Mission of Accompaniment of

the OAS, not to observe, but to accompany, to witness the poll:

On June 19, Ambassador Ral Alconda Semp (head of the Electoral

Observation Mission of the OAS during the primary elections in Honduras in November

2008, and Director of the Department of Democratic Sustainability and Special Missions

at the OAS) declared that the person in charge of the Accompaniment Mission for the

poll of June 28 would be Ambassador Alfonso Quinez (Executive Secretary for

Integral Development and Director General of the Inter-American Agency forCooperation and Development of the OAS). The next day, however, Ambassador Pablo

Gutirrez (Director of the Department for Electoral Cooperation and Observation)

clarified that Alconada, not Quinez, would be responsible for the Accompaniment

Mission.According to the press, Ambassador Alconada was in Honduras on June 27, as


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Executive Summary

that mission, so that thiswhat has already been expressed by Ambassador Alconadaisalso expressed in a written note by the Secretary General.

The emergency meeting of the Permanent Council that day was not called to respond tothe letter by the Honduran Congress, but instead was convened to assist the Honduran

executive because in what the Honduran representative at the OAS denounced as theinsubordination of the armed forces, and the terrible and very painful precedent that a

Supreme Court ruling had set:

In a television interview broadcasted live by Telesur, on June 26, General Romeo

Vsquez said that days earlier he had informed President Zelaya that they were ready tocarry out the mission he had ordered, but that they had a problem of legal nature

because some judges had said that the task was not possible from the perspective of the

countrys legality. General Vsquez had appeared before the president to see whether

he could, still, given his scope of influence as president, try to find a solution to this

problemwe had received many communications from jurisdictional authorities saying

that if we committed that [action], if we complied with the presidents order, we would

incur in an illegality.

In response to the new position of the armed forces, President Zelaya appeared

on national television at approximately 10:00 p.m. on June 24. He informed both the

national and international public, as well as the Honduran people that he had decided to

dismiss the commander of the armed forces, General Romeo Vzquez, and to accept the

resignation of the Minister of Defense, Edmundo Orellana Mercado. As a result of this

presidential communiqu, the commanders of the three military forces of Hondurasthe

army, the air force, and the navyresigned.

On June 25, General Romeo Vzquez filed an action for constitutional protection

with the constitutional chamber of the Supreme Court in response to the presidents

decision, arguing the grave and imminent violation of his fundamental rights, becauseof the arbitrary separation from his position. That same day, by unanimous vote, the

constitutional chamber of the Supreme Court admitted the action and decreed the

provisional suspension of the appealed presidential resolution, until it could reach a

final decision on the merits of the claim. The Supreme Court formally communicated its

interim decision to the president for its compliance.

After finding out that the erosion of democracy in Honduras had escalated, the Permanent

Council instructed the Secretary General to create another special commission, insteadof asking him to withdraw his accompaniment mission from Honduras. This commission

would analyze the facts and contribute to broad national dialogue aimed at findingdemocratic solutions to the current situation. Even though this new mission seemed

favorable to democracy, the Permanent Councils decision was inconsistent with the fact

that the Secretary General was simultaneously accompanying the political act that had


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According to the Honduran press, minutes before 6:00 a.m., four squads from the

national army surrounded the presidential residence in order to subdue the presidentialguard and detain President Zelaya. At around 9:32 a.m., President Zelaya was taken to anAir Force facility, from which he was subsequently flown to Costa Rica. On July 1, in his

address to the General Assembly of the OAS, Zelaya would narrate the following:

It turns out that at about a few minutes past five in the morning, still somewhat

dozy, I started hearing screams, cries, bangs and I heard the first two shotsfast, fast

shots. I immediately got up and walked to the window, to see my personal guard fighting,

throwing themselves, with guns, [against] the hooded military men. More than 200soldiers, all of them with balaclavas, helmets, bullet-proof vests and high-tension

firearms [sic], with guns and daggers, subduing the [presidential] guard, tying them and

beating them against the main entrance door. And you started hearing the gun shots being

fired to open the entrance gates and enter. I descended to the first floor, I knocked on my

daughters bedroom door and said, The soldiers are here, get up.

I went down to the main floor and that is where I was immediately captured.

Eight hooded individuals with helmets approached me, guns to my chest, face, directly to

my person. They came to me and said, Drop your cell phone. Drop your cell phone or

well shootbecause I was carrying a cell phone, because I was speaking with ajournalist to inform them that the military was raiding my houseand they yelled at me,

especially the leader of the group, If you dont drop the cell phone, we will shoot you.

Drop the cell phone! And they had their rifles directly in front of me, aiming at me, and

the poor soldiers knew that they were aiming at the president, because I would tell them,

I am the president, if your order is to kill me, shoot, shoot your weapon. [O]ne of

them snatched the cell phone from me and said, You have to come with us. And, an

hour and 45 minutes later, they were dropping me off in the Costa Rican airport.

Confronted with the facts that indicated the existence of a military coup, the OASSecretary General acted correctly in activating the democracy clause through the

immediate convocation of the Permanent Council. During the meeting of the Permanent

Council, the Secretary General did right in: (1) describing the actions of that morning as acoup and, in legal terms, as an unconstitutional alteration that seriously impairs the

democratic order; (2) proposing to the Permanent Council to arrange for the

implementation of diplomatic measures, including good offices, to foster the restoration

of democracy; (3) saying that the restoration of democracy in Honduras meant thereinstatement of the constitutional president of Honduras; (4) offering his services and

experience as Secretary General so that the Permanent Council would authorize him totake measures that would enable the restoration to occur; and (5) proposing to the

Permanent Council that no further violations of human rights take place.


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Executive Summary

was meetinghad occurred at the moment of carrying out a poll that would not have

been provided for in the Constitution and the law. The intention of this pollaccording

to what he saidwould have been to inquire [the people] directly about the call for aconstituent assembly. Upon hearing this, the Secretary General stopped him and said: I

understand that we were talking about a fourth ballot box to decide on the constituent

assembly. He said that was not case, and that the text of the consultation called for

directly convening a constituent assembly.

In the words of Insulza: I told him that, in my view, nothing justified the

interruption of the institutional order effected through the kidnapping and expulsion of

the president. I told him about our concern and our condemnation of these events.

According to the Secretary General, the Supreme Court responded stating that these

issues had been explained to the president many times, but that, unfortunately, he had notlistened to them, and that, as a result, this action was carried out.

While describing the details of the telephone conversation he held with him,

Insulza said that the president of the Supreme Court was meeting with the president of

[Congress], and other authorities [including the president of the Electoral Tribunal,]

examining the way to restore the constitutional order that was broken. He did not say

how, but I suppose it will be by installing a new authority.

Minutes later, the Secretary General said that he had been informed that, indeed,

Mr. Micheletti was sworn in as presidentI have no idea if interim or de facto.Confronted with these new facts, Insulza proposed that the Permanent Councils

resolution should state that we will not recognize any de facto government that emerges

from this pronunciamento.

President Zelayas expulsion to Costa Rica qualified as an expatriation under Honduran

law, and as a coup dtat under international democracy law. According to Honduran

law, nothing, not even a presidents unconstitutional actions, can justify his kidnapping

and expulsion without a previous trial. According to international democracy law,nothing, not even the antidemocratic actions of a president, justifies the international

communitys condoning of a coup dtat. This is especially true in President Zelayas

particular case, where an independent Supreme Court could have criminally tried him,and, as part of this trial, suspend or remove him. Therefore, regarding the coup on the

morning of June 28, the OAS Secretary General acted in accordance with international

democracy law, when stating that nothing justified the kidnapping and expulsion ofthe president and that, consequently, these facts solely deserved concern and

condemnation.

Nevertheless, in cases of erosion of democracy, it is equally imperative that the action bythe OAS be swift in response to the antidemocratic actions of a president, which, by

definition, threaten the democratic order of a member state. If this response to erosions is

not done in a swift manner, democracy can reach a point of breakdown. When this is the


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for the Supreme Court, so that any criminal proceedings against President Zelaya, and hiseventual suspension or removal from office as a result of the presidential trial, would be

carried out according to the Honduran constitution and under full international support.

Upon hearing that the president of Congress had been sworn in as president of the

republic, the Secretary General reacted simply by proposing to the Permanent Council to

not recognize any de facto government that emerges from this pronunciamento. Havingbeen informed of this new situation, instead of avoiding to engage in dialogue with the

de facto government put in place almost unanimously by the democratically elected

Congress, the Secretary General, without justifying or condoning the impeachment coup

Congress had just committed, should have recognized the repeated anti-democraticactions by Zelaya and offered his good offices in order to: (1) gain as much support from

the international community for the members of Congress, so that the permanent

constitutional succession be reverted and that a provisional succession be put in placeuntil the return of President Zelaya; and (2) gain all the support of the international

community for Congress and the Supreme Court Justices, so that any criminal proceeding

against President Zelaya can be carried out according to the Honduran constitution andunder full international support. None of these actions would have implied the

recognition of the coup dtat, or the recognition of the impeachment coup. On thecontrary, they would have been considered acts of good faith on the Secretary Generals

behalf and demonstrated his commitment to revert the June 28 anti-democratic events,while at the same time recognizing the responsibility Zelaya had as a result of his anti-

democratic actions prior to June 28.

However, at no point did the Secretary General recognize the anti-democratic actions of

President Zelaya (not before or after June 28), nor did he offer his good offices to theHonduran Congress or the Honduran Supreme Court in order to criminally try President

Zelaya via constitutional means. Following the Secretary Generals lead, the OAS

Permanent Council failed to address the erosion of democracy and circumscribed itself toapprove the resolution of June 28 in which it declared that no government arising from

this unconstitutional interruption will be recognized. On June 30, confronted with the

actions taken by the OAS, the Supreme Court of Honduras informed it had validated thecoup dtat and the impeachment coup of June 28. A number of documents were

published by the Supreme Court that day, including search and arrest warrants dated June26, which had allegedly been ordered secretly. But not even these secret orders called

for the expulsion of the president, or for Congress to remove him without having thepower to do so. In the same line, later, on January 2010, the Supreme Court acquitted the

military for having in mind justifiable ends when expatriating Zelaya.


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Executive Summary

on the erosion of democracy that had been taking place under the mandate of PresidentZelaya, but rather limited themselves to condemn the coup dtat and the de facto

government. In response to the OAS ultimatum the new Honduran government declaredits withdrawal from the OAS.

On July 3, the Secretary General traveled to Honduras and met with a group ofrepresentatives of civil organizations, but he did not meet with Congress, nor with the

Attorney Generals Office, nor with the Supreme Electoral Tribunal, nor with any other

institution that he thought had had a direct role in the coup dtat. He only met withjustices of the Supreme Court because he thought they did not have a direct role in the

coup dtat. In virtue of this one conversation, the report prepared by the SecretaryGeneral concluded that the events that transpired on Sunday, June 28 of this year,

constitute an interruption of the institutional and democratic order, legitimized by thelegislative and judicial branches; that the behavior displayed by the de facto regime is

extremely rigid, without a willingness to change their position, but rather, to strengthen

it; and that presented with the inflexible attitude of the de facto regime, there seems tobe no other choice than to adhere to the position assumed by this Assembly and apply

Article 21 of the Inter-American Democratic Charter, with the resulting implications.

It is true that reverting the anti-democratic events in Honduras became far more difficult

after June 30when the Supreme Court indirectly validated the coup and the

impeachment coup. However, the OAS should have tried to achieve this goal byperforming good offices precisely with the former president of Congress, with the current

Congress, and, especially, with the Supreme Court. Nevertheless, the Secretary General

interpreted the July 1 General Assembly resolution as a prohibition to perform good

offices before the democratically-elected Congress and the Supreme Court, includingthem in what he called the de facto regime. On the contrary, both the Secretary General

and, later, the General Assembly treated Zelaya at all times as an exemplary democratic

leader. Considering this biased approach by OAS officials and organs throughout thecrisis up to July 4, all diplomatic initiatives between June 28 and July 4 were expectedly

fruitless in reverting any of the anti-democratic events in Honduras. Instead, they likely

caused most Honduran institutions affected by Zelayas previous actions to becomefurther entrenched in their positions. As a result, the General Assembly applied the

ultimatum and suspended Honduras from the OAS.

Unlike the actions taken by the OAS throughout the crisis, the diplomatic initiativescarried out by the president of Costa Rica since mid-July were appropriate as they were

aimed at reverting the threeand not just oneanti-democratic events in Honduras,

without ruling out the possibility to carry out a presidential criminal trial against Zelaya.


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called on all parties involved in the crisis to sit around the negotiation table and thepresident of Costa Rica explicitly offered his good offices before the democratically-

elected Congress and the new chief of the executive, Roberto Michelettiwho had fromthe outset been recognized as president by the Congress and the Supreme Court. In thefollowing weeks, many member states and the General Secretariat of the OAS aligned

themselves with this new diplomatic approach by President Arias. On August 8, OAS

envoys traveled to Honduras exclusively to meet with Micheletti. To the extent that theOAS eventually aligned its actions with the San Jos Accord proposal by the president of

Costa Rica, they were in accordance with international democracy law because they were

aimed at reverting the three anti-democratic events in order to restore democracy in

Honduras.

According to a prominent 2003 study prepared by a group of experts on collective

protection of democracy, under the auspices of the Council on Foreign Relations, whenthe restoration of democracy has not been achieved through reverting the anti-democratic

events that caused the breakdown of democracy, the international community must get

the anti-democratic regime to agree to hold democratic elections in the shortest timeframepossible, and to allow the international community to monitor them. Accordingly, the

OAS should have decidedly promoted and monitored the elections of November 29 inorder to foster the restoration of democracy in that country. However, in early November,

the Secretary General of the OAS, with the support of the majority of its member states,publicly stated that a team of OAS observers for the upcoming elections of November 29

is truly something we could not even consider. This is the same Secretary General that

five months earlier, in spite of the lack of any international legal provision allowing forthis type of mission, and against a formal request by the Honduran Congress to withdraw

it, did not hesitate in putting together an unprecedented Accompaniment Mission of the

OAS that would observe an opinion poll that, if victorious, would have led to theelection of a Constituent Assembly on November 29. By this action, the Secretary

General once again acted as an international agent of the Honduran executive, rather thanthe leader of an organization with the duty to promote and protect democracy in its

member states. Therefore, he did not act in accordance with international democracy law.

Conclusions

First, the report finds that, confronted with the erosion of democracy in Honduras at the

hands of President Zelaya, the OAS did not act in accordance with internationaldemocracy law because, instead of activating the democracy clause against Zelaya, it

decided to send an unprecedented Mission of Accompaniment that escalated the crisis

in Honduras. Secondly, confronted with the coup dtat carried out by the armed forces,


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Executive Summary

were appropriate as they were aimed at reverting the threeand not just oneanti-democratic events in Honduras, without ruling out the possibility to carry out a

presidential criminal trial against Zelaya. The report concludes that, facing the greatdifficulty of reverting each of the anti-democratic events that took place in Honduras, theOAS should have decidedly promoted and monitored the elections of November 29 in

order to foster the restoration of democracy in that country.

At no point did the OAS recognize the anti-democratic actions of President Zelaya (not

before or after June 28), nor did it perform good offices with the Honduran Congress orthe Honduran Supreme Court in order to criminally try President Zelaya in accordance

with the constitution. Doing so would have likely avoided the consolidation of the coupdtat, avoided the impeachment coup, and avoided the validation of these anti-

democratic events by the Supreme Court. On the contrary, the OAS maintained the pre-June 28 biased position advocated by the Secretary General, and failed to act as a

guarantor of democracy.

If the Secretary General and the Permanent Council had acted in adherence to their

obligations while the erosion of democracy was occurring, it is reasonable to assume that

the OAS intervention would have had a deterrent effect, and that the erosion ofdemocracy, the coup dtat and impeachment coup of June 28, as well as the Supreme

Court validation of these anti-democratic events later, would have been avoided. Sadly,

however, throughout the Honduran crisis the OAS acted as an international agent ofPresident Zelaya, rather than an international organization called to promote and protect

democracy in its member states.


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Abstract

This legal research paper is divided into two parts: one on Constitutional Law, and the

second one on International Democracy Law. Part One analyzes whether President Zelayas premature termination was in accordance with Honduran Law. The general

conclusion of this part is that both his expatriation to Costa Rica by the armed forces, as

well as the removal by Congress that ensued, were unconstitutional. After a detailedanalysis of what are the steps that should be followed in the case of a presidential

criminal trial in Honduras, Part One also finds that the Honduras Supreme Court could

have used its constitutional powers to successfully try, suspend and, eventually, remove

President Zelaya from officeparticularly under criminal charges for abuse ofauthoritybut chose instead to validate the unconstitutional actions taken against Zelaya

by Congress and the armed forces. Part Two analyzes whether the actions taken by theOAS, before, during, and after June 28, were in accordance with the OAS Charter or the

Inter-American Democratic Charter. The general conclusion of this part is that,throughout the democratic crisis in Honduras, the OAS acted as an international agent of

the executive power of Honduras, rather than an organization with the duty to promote

and protect democracy in its member States. First, the report finds that, confronted with

the erosion of democracy in Honduras at the hands of President Zelaya, the OAS did notact in accordance with international democracy law because, instead of activating the

democracy clause against Zelaya, it decided to send an unprecedented Mission of

Accompaniment that escalated the crisis in Honduras. Second, confronted with the coup

dtat carried through by the armed forces, the OAS acted in accordance with

international democracy law by activating the democracy clause and condemning thisaction, but did not act accordingly in its diplomatic initiatives when trying to revert the

situation. Finally, confronted with the presidents unconstitutional removal by Congress,

the OAS did not act correctly because it failed both to condemn this action and to takeappropriate diplomatic initiatives to revert it. The report also finds that, unlike the

actions taken by the OAS throughout the crisis, the diplomatic initiatives carried out by

the president of Costa Rica since mid-July were appropriate as they were aimed at

reverting the threeand not just oneanti-democratic events in Honduras, without

ruling out the possibility to carry out a presidential criminal trial against Zelaya. Thereport concludes that, facing the great difficulty of reverting each of the anti-democraticevents that took place in Honduras, the OAS should have decidedly promoted and

monitored the elections of November 29 in order to foster the restoration of democracy inthat country.

I. Part One: Honduran Law

This part is organized into three sections: the law, the facts, and the analysis of HonduranLaw with regard to the premature termination of the Honduran presidents constitutionalterm. Section A outlines the constitutional and legal provisions that permit thepremature termination of a presidential term in Honduras. Section B details the eventsthat led to the premature termination of President Zelayas constitutional term on June 28,


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2009. Based on the preceding sections, Section C analyzes whether or not PresidentZelayas premature termination was in accordance with Honduran Law.

A. The law: How can the anticipated termination of the presidential termlawfully take place in Honduras?

According to the constitutional and statutory provisions of Honduran law, the prematuretermination of a presidential term is lawful in three instances: The first is the resignationof the president accepted by Congress; the second is the absolute vacancy or permanentabsence of the president; and the third is the disqualification of the president pursuant to a

criminal conviction handed down by the Supreme Court.

a. The presidents resignation accepted by CongressCongresss acceptance of the presidents resignation is the first instance in which apremature termination of a presidential term is possible. Article 205(12) of the HonduranConstitution provides that Congress has the power to accept or reject the resignation ofthe president and the vice-president.1 Consequently, the presidents resignation would

only be effective once Congress has accepted it.2 If Congress were to reject theresignation, the president would have to continue carrying out his office. However, if thepresident maintains his will to resign and opts to permanently abandon his office, apremature termination would likely still occur because of his permanent absence.

b. The absolute vacancy or permanent absence of the presidentThe absolute vacancy or permanent absence of the president is the second way in which a

premature termination of a presidential term is possible. Article 205(12) of the HonduranConstitution provides that Congress has the power to fulfill the vacated post in case ofabsolute vacancy of the president and vice-president.3 This article is consistent withArticle 242, which establishes the line of succession in cases of temporary absence orabsolute vacancy of the president and vice-president.

1See DICCIONARIODELA REAL ACADEMIA ESPAOLA (2001) [hereinafter DRAE] (Renunciar: [1st meaning]Del latn renuntire: hacer dejacin voluntaria, dimisin o apartamiento de algo que se tiene, o se puedetener )


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Part One Honduran Constitutional Law

Unlike other constitutions, the Honduran Constitution does not outline the specific set offacts that may bring about the permanent absence of the president.4 Thus, one must infer

that permanent absence refers both to those legal circumstances set forth by theconstitution as leading to the premature termination of the presidential term (such asresignation or conviction), as well as to any natural circumstance that may produce aphysical disability of the president (such as death, permanent disability, or seriousillness), which prevents him from performing his duties.5

c. Special or absolute disqualification as a result of a conviction sentencehanded down by the Supreme Court

The third way in which a premature termination of a presidential term can take place inHonduras is as a result of a conviction sentence handed down by the Supreme Courtpursuant to a criminal suit brought against the president. Article 313(2)(c) of theHonduran Constitution gives the Supreme Court the power to adjudicate on the legalactions brought against the highest state officials and congressmen. ThroughoutHonduras constitutional history, the president has been included among those higheststate officials.6

Articles 414 to 417 of the current Code of Criminal Procedure (CCP) outline each of thesteps that a criminal suit against the president must follow. According to these provisions,only the Supreme Court may sit through the proceedings in a criminal suit against thepresident from beginning to end. In addition, no prior authorization by Congress isnecessary. Any person may bring a criminal suit against the president of Honduras, solong as it is based on allegations that the president committed one of the crimesestablished in the countrys Criminal Code (CC).

In the case of a guilty verdict or conviction sentence, the Supreme Court can penalize thepresident with a special or absolute disqualification from his office. A special

4 Some constitutions do have an express provision enumerating the situations of presidential vacancy. See,e.g., Bolivia (Art. 170), Ecuador (Art. 145), Venezuela (Art. 233), Colombia (Art. 194), Nicaragua (Art.147) and Per (Art. 113).5 Different constitutions use different terms to refer to what the Honduran Constitution calls permanent

absence or absolute vacancy. See Ecuador (definitive absence), Per (vacancy), U.S. (inability)and Argentina (illness). See also BIDART CAMPOS, Germn Jos, MANUAL DE LA CONSTITUCINREFORMADA, Tomo 3, 1999, at 218 (saying that, in Argentina, the terms illness and inability areconsidered synonyms).6 Before the constitutional reform of 2003, Article 313(2) of the Honduran Constitution provided that theSupreme Court had the power to adjudicate on the criminal actions brought against high state officials,after Congress has declared that there are grounds for a cause of action The high state officials referred


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disqualification ruling would include the inability to exercise the presidency; absolutedisqualification would entail the inability to exercise any other public office or

profession. Both these penalties would also result in the full suspension of the presidentspolitical rights for the period determined by the court.7 The penalty of imprisonmentwould automatically bring about either the special or the absolute disqualification of theincumbent.8 If the president is sentenced to a five-year imprisonment term, specialdisqualification is automatically imposed over that period.9 If he is sentenced toimprisonment beyond five years, a ban from the presidency and any other public office isimposed permanently.10

Below, we will provide a detailed explanation of the procedure that should currentlyapply in the case of a criminal suit against a president of Honduras. First, however, inorder to understand the current features of the presidential trial in Honduras better, wewill briefly outline the evolution of this type of trial from the creation of Honduras to the2003 constitutional reform.

i. The presidential trial in Honduras and the role of Congressbefore 2003

The first Honduran Constitution was adopted in 1825, when Honduras was still a memberstate of the Federal Republic of Central America along with Guatemala, El Salvador,Nicaragua, and Costa Rica.11 Until 2003, when the 1982 constitution was partiallyamended for the twentieth time, the Honduran Congress had the power to authorize or,conversely, to veto the initiation of any trial against the president before the SupremeCourt.12 The authorization was given through a declaration stating whether there aregrounds for a cause of action against the president or, where appropriate, against other

high state officials, at the request of the prosecutor or the plaintiff (see Table 1).13

1. The role of Congress from 1839 to 1965As shown in Table 1, in the constitutions of 1839 to 1965, the Congresss decision thatthere were grounds for a cause of action against the president automatically broughtabout his suspension from office. The suspension thus led to a presidential successionby temporary absence of the president, pending the Supreme Courts ruling on the trial.In the event of a conviction, the presidential succession became final. In case of anacquittal, the suspension was lifted and the president had to be reinstated in office. 14

7 CRIMINAL CODE Arts 48 49


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Currently, there are several Latin American countries that have a presidential trial modelsimilar to that of pre-1965 Honduras, in which the legislature cannot remove thepresident from office but can suspend him until the end of the trial before the SupremeCourt (see Table 2)15. It is important to note that the presidential trial model that gives thelegislature the power to remove the president is also followed by several Latin Americancountries. This type of trial by the legislative power is known in Spanish as juicio poltico(political trial) and is inspired by the presidential impeachment trial in the United States,which is, in turn, inspired by the British impeachment trial.16 In countries that follow themodel ofjuicio poltico, the decision to suspend and/or remove the president is within thepower of the legislature (see Table 3).17

2. The role of Congress from 1965 to 2003The Honduran Constitution of 1965 kept unchanged the congressional power to declarewhether there were grounds for a cause of action against the president, but eliminated anyreference to his suspension from office. The constitution of 1982 (currently in force) keptunchanged the features of the 1965 presidential trial, meaning that the suspension of thepresident is no longer an automatic result of a declaration by Congress, but is instead only

a potential outcome; it is a interim measure that can be taken during the presidential trialby the Supreme Court, not by Congress.

Despite the elimination of this reference to suspension, both the constitutions of 1965 and1982 granted the Honduran Congress the significant power of authorizing or vetoing apresidential trial before the Supreme Court. In this type of presidential trial, Congresssdecision lifts or upholds the immunity that protects the president from criminal suitsarising from the performance of his duties.18 Several Latin American countries follow

this model (see Table 4).19

a. Presidential trial procedure between 1984 and2002

According to Rojas Caron, a Honduran jurist, under the 1982 Constitution of Hondurasand the former code of criminal procedure, enacted October 24, 1984, a presidential trialwould have taken place, in the following manner:

The criminal district court (trial court) judge that finds merit for the trialof any of the officials referred to in the constitution of the republic, under

15 See Table 2: Presidential Trials in Latin America by which the Legislative Power Can Suspend ButCannot Remove the President In Annex 3 about Tables


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common or official criminal charges, shall carry out the initial stages of theproceedings, and shall refrain from arresting the suspect or causing him anyinconvenience.

After these initial stages, the trial court judge shall refer the criminal fileto the Supreme Court, which shall then send a copy to the Ministry of the Interiorand Justice so that it may appear before National Congress for the purpose of thelatter declaring whether there are grounds for a cause of action against thepresident.

The Supreme Court, in virtue of the declaration made by the NationalCongress, shall dismiss or proceed to adjudicate the case. One justice of theSupreme Court shall act as the trial court. The court of appeals shall consist of

the Supreme Court en banc except for the justice who sat initially.20

b. Presidential trial procedure between 2002 and2003

In 1999, the Honduran legislature adopted a new code of criminal procedure. It becameeffective in 2002. In general, this code changed the inquisitorial criminal system to anadversarial system. As to the presidential trial, the new code eliminated the role of the

trial court judge and the Supreme Court during the investigation stage, prior to thedeclaration of Congress. Arts. 414 to 419 of the code effective in 2002 put forth the newspecial features of a presidential trial.21

20 ROJAS CARON,supra note 11, at 469.21 See CODE OF CRIMINAL PROCEDURE [CCP] Arts. 414-419, repealed by Decree No 195-2004 (2002)(Spanish Original: Art. 414.- Investigacin Fiscal. El Ministerio Pblico investigar de oficio o apeticin de la vctima, las acciones u omisiones constitutivas de delitos comunes, en que aparezcanimplicados funcionarios del Estado, que gocen de inmunidad segn la Constitucin de la Repblica o los

convenios internacionales de los que Honduras forme parte. En los delitos cuya accin corresponde a laProcuradura General de la Repblica, ser este organismo el encargado de realizar la investigacin. Durante la prctica de tales investigaciones, el Ministerio Pblico se abstendr de causarle cualquiermolestia a los investigados. Art. 415.- Solicitud al Congreso Nacional. Concluida la investigacin, elFiscal General de la Repblica, o en caso de negativa de ste, la vctima, elevar peticin motivada alCongreso Nacional, para que declare con lugar a formacin de causa al funcionario de que se trate. Lodispuesto en el prrafo anterior, ser aplicable al Procurador General de la Repblica en los asuntos de sucompetencia. A la peticin que se refieren los prrafos que anteceden, se acompaar copia autntica delos antecedentes que obran en poder del Ministerio Pblico o la Procuradura General de la Repblica.Art.

416.- Actuaciones del Congreso Nacional. El Congreso Nacional, vista la solicitud de declarar con lugar aformacin de causa a un funcionario, y con base en los antecedentes e informes presentados por el FiscalGeneral de la Repblica, el Procurador General de la Repblica o la vctima, deber resolvermotivadamente: 1) Que no ha lugar a formacin de causa, en cuyo caso archivar la solicitud; o 2) Queha lugar a formacin de causa contra el funcionario que se trate, quien como consecuencia y sin mstrmite quedar en igual situacin que cualquier imputado. De la resolucin tomada se librar copia alFiscal General de la Repblica al Procurador General de la Repblica o a la vctima en su caso Art 417 -


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ii. The presidential trial in Honduras after the 2003 constitutionalreform

The 2003 constitutional reform repealed Article 205(15) of the Honduran Constitutionand, with it, the power of Congress to declare whether there were grounds for a cause ofaction against the president or other high officials. Through this reform, Congress lost itspower to authorize or veto the presidential trial before the Supreme Court. In order toadapt the CCP to the new constitutional reform, Arts. 414 to 417 were amended and Arts.418 and 419 were repealed in 2004.22Ever since, the entire presidential trial procedure in

Honduras is defined in four articles:23

Article 414. The high state officials and congressmen, against whom a

criminal suit is brought, shall be judged only in accordance with the followingarticles.

Article 415. In the criminal actions brought against any of the personsreferred to in Article 414, the Supreme Court shall first be presented with theindictment or private criminal complaint by the competent authority or thevictim. The indictment or private criminal complaint shall have all the documents

attached that sustain the accusation. For investigative purposes, when theirpresentation may not be possible, the specific location of these documents shallbe indicated.

Article 416. The Supreme Court shall designate one of its justices towitness the preparatory and intermediate phases of the procedure. Four justices

artculo anterior, cabr el recurso de casacin, del que conocer la Corte Suprema de Justicia en pleno. Enla integracin de la Corte, sin embargo, no podrn participar los magistrados que hayan intervenido como

jueces o miembros del Tribunal de Sentencia.Art. 419.- Del sometimiento a proceso de los que gocen deinmunidad.Los diputados y funcionarios pblicos que disfruten del fuero de inmunidad, podrn sometersea proceso voluntariamente y el asunto quedar sujeto a lo establecido en los dos artculos precedentes. Noobstante, en ese caso los diputados conservarn su inmunidad parlamentaria propiamente dicha.).22See DECREE NO. 195-2004, published on December 30, 2004, atthe Honduran Gazette No. 30,584.23Spanish Original:Art. 414.- Los altos funcionarios del Estado y Diputados contra quienes se pretendaproceder para deducirles responsabilidad criminal, slo podrn ser enjuiciados de conformidad a loestablecido en los artculos siguientes. Art. 415.- La Corte Suprema de Justicia conocer del requerimiento,acusacin o querella que promueva la autoridad competente o la vctima en su caso contra las personas a

que se refiere el artculo anterior, debiendo acompaarse los documentos en que se funde, y si no se funde[sic][ ], y si no es posible su presentacin, se indicar el lugar o la oficina en que se encuentren para losefectos investigativos pertinentes. Art. 416.- La Corte Suprema de Justicia, designar a uno (a) de susMagistrados (as) para que conozca del proceso en las etapas preparatorias e intermedia. Para conocer del juicio oral y pblico integrar el Tribunal de Sentencia, con cuatro (4) de sus Magistrados (as); los tresprimeros actuarn en el juicio y el ultimo ser el sustituto. De los tres (3) jueces Titulares designar unopara que acte como presidente quien dirigir el proceso que se desarrollar de conformidad a lo


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shall then witness the public and oral trial; three shall hear the trial, while thefourth shall be the substitute. Among the three acting justices, one shall bedesignated to preside over the trial. He shall conduct the trial in accordance with

the code of criminal procedure. A similar process of designating justices shall befollowed to form the panel that shall judge an interim appeal where applicable. When a criminal suit, arising from the perpetration of the same crime, is broughtagainst more than one person holding any of the offices referred to in Article414, the action shall be judged by the same designated justices following theaforementioned process.

Article 417. A final appeal may be granted against the sentence of thetrial court referred to in Article 416. This final appeal shall be decided by the

criminal chamber of the Supreme Court. If the chamber cannot reach aunanimous decision, the appeal shall be decided by the Supreme Court sitting enbanc, excluding the justices that intervened in the preparatory and intermediatephases, and in the trial.

1. Special features of the criminal procedure of thepresidential trial

As seen above, the constitutional reform of 2003 eliminated Congresss power toauthorize or veto the trial against the president. As a result, a criminal suit against thepresident of Honduras can now be brought directly through an indictment or a formalcriminal complaint, just as any ordinary criminal suit.24 However, as a high state official,the president has the privilege to stand trial solely before the Supreme Court. Under thisimportant privilege, only Supreme Court justices may mediate the different stages of thecriminal proceedings, from the preparatory phase to the potential final appeal. 25 Below,we outline the different stages of the Honduran criminal procedure that would be

applicable in the case of a criminal suit brought against the president of Honduras.

2. Phases of the criminal procedure also applicable to thepresident

The criminal proceedings against high state officialsincluding the presidentconsist ofthree phases that must be completed before reaching a verdict: the preparatory phase,26the intermediate phase,27 and the trial phase,28 with the possibility of an appeal phase.29

As in a criminal case against any citizen, a conviction against the president (as well asany pursuant imprisonment or disqualification penalties) can only derive from a publictrial conducted after the completion of all preparatory and intermediate proceedings.

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However, both preparatory and intermediate phases consist of a number of stages inwhich the presiding Supreme Court justice may render significant interim decisions.

a. Preparatory phaseThe most drastic decisions the designated Supreme Court justice can make against thepresident during the preparatory stage are: to issue an arrest warrant, to decree judicialdetention, to suspend the president from office, or to impose imprisonment until thepublic trial is conducted and a sentence of conviction or acquittal is rendered.Nevertheless, each of these interim decisions must be founded in certain factual

circumstances and comply with specific legal conditions in order not to violate thefundamental rights, freedoms, and due process guarantees of the accused.30 Below, weoutline the specific procedural claims that the attorney general could make during thepreparatory phase of a presidential trial and the conditions they must satisfy for theSupreme Court to grant them.

i. Preliminary investigation and secrecy ofinvestigations

Upon reception of a complaint against the president,31 or upon information that thepresident has perpetrated a public action crime, the Attorney Generals Office mustinitiate a preliminary investigation to determine the existence of the punishable offense,as well as the presidents degree of culpability.32 During the preliminary investigation,the attorney general may summon the president or any person that he believes may beable to contribute to the investigation.33 The attorney general may also conduct personalinquiries: inspect accounting records, documents, or sites within government offices,

conduct forensic investigations, and adopt urgent measures to preserve evidence. 34According to Article 278 of the CCP (regarding the secrecy of investigations), theinvestigations shall be kept secret from anyone who has no part in them until theresorts are presented to the jurisdictional bodies. Additionally, the authorities incharge of the investigation shall seek not to violate the rights of those investigated. 35

ii. Presentation of indictment anddesignation of justice

Once the attorney general concludes the preliminary investigations, he may either closethe case or decide to present an indictment before the Supreme Court to continue with thepreparatory phase.36 In the case of an indictment, the Supreme Court will begin itsparticipation in the preparatory phase by acknowledging receipt of the indictment. 37 At

H Ri ht F d ti & HRF C t f R h D


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that point, the Supreme Court must designate one of its justices to init iate proceedingsand make decisions throughout the preparatory and intermediate phases.38 In addition tothe formal aspects,39 the indictment must contain an indication of the specific offense andits provisional attributes as a crime, a request for the defendants initial appearance incourt, and a request that the date and time be set for the initial hearing of the trial.40

iii. Arrest and search warrantsIn the event that the attorney general deems it necessary to have the presidentdetained,41 the indictment must request the Supreme Court to issue an arrest warrant

against him and to decree his judicial detention until the initial hearing of the trial.

42

Thenational police must execute the arrest warrant, and it must carry out the arrest incompliance with a specific set of rules.43 The request for the presidents arrest and judicial detention must justify, in every situation, the concurrence of the statutoryconditions required by this code.44 According to Article 176 of the CCP, these statutoryconditions are three: (1) that there is danger the suspect will escape, (2) that there isurgency to avoid alteration of the evidence or the crime scene; and (3) that the suspectrefuses to appear before the attorney general after he has been properly summoned.45 If

38See id. Art. 416.39See id. Art. 293.40Id. Art. 285.41Id. Art. 285(2).42Id. Arts. 173(II), 175, 285(1).43See id. Art. 282 (Spanish Original:Reglas a que est sometida la Detencin o Captura de una Persona.Para aprehender, detener o capturar a una persona, los miembros de la Polica Nacional actuarn de acuerdocon las reglas siguientes: 1) Identificarse, en el momento de la captura, como agentes de la autoridad, para

lo cual exhibirn el carnet o placa que los acredite como tales; 2) Hacer uso de la fuerza slo cuando seaestrictamente necesario para el eficaz desempeo de las funciones y en la proporcin que lo requiera laprctica de la detencin; 3) Emplear las armas slo cuando exista riesgo grave inminente o racional para lavida y la integridad fsica del agente o de terceras personas; temer una grave alteracin del orden pblico, osea necesario para evitar la comisin de un delito y no estn disponibles otros medios igualmente eficaces ymenos peligrosos; 4) No cometer ni inducir o permitir que se cometan torturas, tormentos u otros tratos ocastigos crueles, inhumanos o degradantes, tanto en el momento de la captura como durante el tiempo quedure la detencin; 5) No presentar a los detenidos ante los representantes de los medios de comunicacin,preservando su derecho a que se les considere y trate como inocentes y el respeto a su propia imagen; 6)

Informar a los detenidos o arrestados, en el momento de su detencin o arresto, con la mayor claridadposible, sobre el motivo de la detencin y ponerles de manifiesto el derecho que tienen de darle cuenta desu situacin a un pariente o persona de su eleccin; de ser asistidos por un Defensor; de guardar silencio; deno declarar contra s mismos, contra su cnyuge o compaero de hogar ni contra sus parientes dentro delcuarto grado de consanguinidad o segundo de afinidad y de que slo hace prueba la declaracin rendidaante Juez competente; de su derecho a ser examinados por Mdico Forense o, no siendo posible lapresencia de ste sin gran demora por otro mdico disponible a fin de que deje constancia de su estado



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these three conditions are met, the attorney general may also request that the president bedeclared in contempt of court and that migration authorities be given the alert toprevent his escape from national territory.46

If the prosecution also considers necessary that the president be captured or arrested at hisresidence, the prosecutor may request a search warrant,47 according to the rulesestablished by the CCP.48 If the designated justice of the Supreme Court considers allrequests in the indictment applicable, he may issue arrest and search warrants to order thepresident to appear in court.

Finally, if the administrative court or the national police incur in the perpetration of,among other infractions, a violation of the defendants fundamental rights andfreedoms upon arrest, then the defendant may request to have these actions declared nulland void during his initial appearance before the designated Supreme Court justice.49 Ifthe justice carrying out the trial determines that this is the case, he may even declare thesearch and arrest warrants null and void ex officio during the first hearing.50 Such adeclaration will not, however, necessarily result in the nullity of the successive actionsthat were presented, nor does it cover the actions that would have remained unchanged

had the act that gave way to the nullification claim not been committed.51

Moreover, thedesignated justice may consider these claims as rectified if the parties accept itsresults, expressly or tacitly, or if the end that was sought through the challenged act hasbeen achieved.52 Finally, the justice may validate these actions after rectifying theerror or carrying out the omitted act.53

iv. Defendant statement before the designatedjustice and judicial arrest of the president

puedan identificarse los presuntos imputados o testigos y haya que proceder con urgencia, a fin de evitarque quienes estuvieron presentes en el lugar en que se cometi el delito se alejen del mismo, secomuniquen entre s o se modifique en cualquier forma, el estado de las cosas o el lugar del delito; y, 3)Sin justa causa, cualquier persona obligada a prestar declaracin,se niegue a hacerlo despus de haber sidodebidamente citada. Toda detencin preventiva ser puesta sin tardanza en conocimiento del juez

competente y en ningn caso podr exceder de veinticuatro (24) horas. La orden de detencin preventivadeber contener la denominacin de la autoridad de quien emane; el lugar y la fecha de su expedicin; elnombre, apellidos y dems datos que sirvan para identificar a quien debe detenerse, la causa de la detenciny la firma y sello de quien la expide. Salvo en los casos previstos en los Artculos 279, 281 y 282, laPolica Nacional no podr ordenar o practicar la detencin preventiva de persona alguna. (Emphasisadded)).46 Id Art 108



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The first consequence of an indictment or an arrest is the defendants appearance incourt.54 At this time, the judge may take the defendants first official statement and havethe date and time set for the initial hearing.55

In the case of an indictment against the president, the designated justice of the SupremeCourt overseeing the preparatory phase will summon the president for a courtappearance. Once the president has voluntarily appeared before him, the justice must takehis first declaration as a defendant, and set a date and time for the initial hearing of thetrial. Similarly, if the designated justice grants an indictment requesting an arrest warrantagainst the president, he must have him captured and, within 24 hours, 56 have him

brought before the Supreme Court in order to obtain the presidents statement.

57

As with any defendant, the hearing for the presidents initial appearance in court and hisstatement are subject to a specific procedure58 and required to comply with, amongothers, the following constitutional rights and rules for due process:

Article 287. Informing the defendant of his rights. Before the defendant provideshis statement, the judge must outline to him: 1) the content of the indictment,indicating in a clear and precise manner, the charges being laid against him; 2)the rights of all accused persons recognized by Article 101 of the code[ 59], and

54Id. Art. 101.55Id. Arts. 286, 292.56Id. Arts. 285(1), 176(II).57Id. Arts. 286-291.58See id. Art. 290.59Spanish original: Art. 101.- Las personas imputadas y sus derechos. Se considerar imputada toda

persona a quien, en virtud de querella o por requerimiento Fiscal, se atribuya participacin en la comisinde un delito o falta ante los rganos encargados de la persecucin penal, ya se encuentre detenido o enlibertad; o que haya sido privada cautelarmente de libertad en virtud de aprehensin, detencin o prisinpreventivas; como tal, a partir de ese momento, podr ejercer todos los derechos que la Constitucin de laRepblica, los tratados o convenios internacionales y este Cdigo le reconocen, desde el primer acto delprocedimiento hasta su finalizacin. A toda persona imputada se le garantiza su defensa. Tendr derecho,en consecuencia, a: 1) Que la correspondiente autoridad le indique en el acto en forma clara y precisa,cules son los hechos constitutivos de delito que se le atribuyen; 2) Que se le permita comunicar de manerainmediata el hecho de su detencin y el lugar en que se encuentra detenida, a la persona natural o jurdica

que l desee. Si la persona natural o jurdica destinataria de la comunicacin se encontrare fuera delterritorio de la Repblica de Honduras, el hecho de la detencin y el lugar en que se encuentre la personadetenida se pondrn en conocimiento de la representacin diplomtica o consular correspondiente. Endefecto de todos ellos, la informacin se dar al Comisionado Nacional de los Derechos Humanos. Lapersona detenida podr realizar por s misma dicha comunicacin, salvo que se haya decretado lasecretividad de la investigacin, en cuyo caso, lo har la autoridad o funcionario a cuya disposicin seencuentre dicha persona 3) Ser asistida desde que sea detenida o llamada a prestar declaracin por un



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those recognized in subsections 5 and 10 of the same article, pertaining to thedefendants statement; the constitutional right of the defendant not to incriminatehimself or his spouse, or any relatives within the fourth degree of consanguinity

or second degree of affinity; 3) the right to receive counsel[ 60] on the stance heshould take throughout the hearing; and 4) the right to present any evidence thedefendant deems pertinent as part of his defense and require that the AttorneyGenerals Office, with the assistance of the defendants counsel, verify the factspresented against him.

Once he has taken the presidents statement, the designated Supreme Court justice mayorder the presidents judicial arrest or other precautionary measures in lieu of

imprisonment, in preparation for the initial hearing of the trial. In the same resolution, the justice shall set a date and time for the initial hearing. If the justice chooses to decree judicial arrest at this stage, the initial hearing should be set within six days after thedefendants first court appearance; if judicial arrest is not decreed, the initial hearing mustbe set within 30 days of the defendants initial appearance. 61

v. Initial hearing and imprisonment decree

lastimen su dignidad personal; 7) A no ser sometida a tcnicas o mtodos que alteren sus capacidades deconocimiento y comprensin del alcance de sus actos o su libre voluntad, tales como: Malos tratos,amenazas, violencia corporal o psquica, torturas, aplicacin de psicofrmacos, hipnosis y polgrafo odetector de mentiras; 8) A que no se empleen medios que impidan su movilidad durante la realizacin delas actuaciones procesales. Este derecho se entender sin perjuicio de las medidas de vigilancia que encasos especiales y segn el criterio del Juez o del Ministerio Pblico, sean necesarias; 9) A ser asistida porun intrprete o traductor si no conoce el idioma espaol, sea sordomudo que no pueda darse a entender por

escrito o que por cualquier causa no pueda expresarse; 10) A estar presente, con su Defensor, en todos losactos que impliquen elementos de prueba, salvo en los casos en que el presente Cdigo disponga locontrario; y 11)A requerir al Ministerio Pblico para que practique algn acto de investigacin que interesea su defensa, y que no haya sido dispuesto por aqul. En este caso, el Ministerio Pblico resolvermotivadamente lo que estime oportuno en el plazo de veinticuatro (24) horas. Si denegare la prctica de laactuacin requerida, el Defensor de la persona imputada, podr solicitar al Juez de Letras competente queordene su ejecucin y, este, en el plazo de cuarenta y ocho (48) horas, decidir lo conveniente. Si estimaprocedente dicha actuacin, ordenar al Ministerio Pblico que disponga su prctica. La persona que seaobjeto de investigacin por el Ministerio Pblico, aunque no tenga la condicin de imputada, tendr

derecho a presentarse, en su caso, con o sin Profesional del Derecho que lo asista, ante el MinisterioPblico para que se le informe sobre los hechos que se le atribuyen y para que se le escuche. La PolicaNacional, el Ministerio Pblico y los jueces, harn saber, de manera inmediata y comprensible, a la personaimputada o a la que, sin serlo an, pero siendo objeto de investigacin por el Ministerio Pblico,comparezca ante ste para ser oda, todos los derechos a que el presente Artculo se refiere, lo cual se harconstar en acta que deber ser firmada por la persona que ha comparecido o consignarse su negativa. Lainfraccin de este Artculo har que la detencin sea considerada ilegal solamente para los efectos de la



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g f y

During his initial appearance in court, the public prosecutor, as well as the designatedjustice of the Supreme Court, may interrogate the president.62 Once at the initial hearing,however, both the prosecutor and the president must explain and substantiate theirarguments, present any evidence compiled up to that moment, and then request that thejustice decide on the continuance of the judicial process.63

If there are reasonable grounds to believe that the president was involved in theperpetration of the crime attributed to him,64 the justice shall issue an auto de prisin(decree of imprisonment), marking the continuation of the proceedings. In this case,[the justice shall] decide whether to order the preventive imprisonment ofthe accused or

other precautionary measures, after considering the evidence presented.

65

vi. Precautionary measures: suspension from

office and preventive imprisonment

If he decided to issue a decree of imprisonment, the justice shall also decide whatprecautionary measures to take against the president. Among the catalogue ofprecautionary measures, the defendants suspension from office and preventive

imprisonment are the most drastic ones the justice could order.66

Suspension from office would be applicable if the crime charged to the president isamong the crimes against the public administration.67 Unlike the special or absolutedisqualification from office that may occur because of a conviction sentence, thesuspension from office as a precautionary measure is provisional. However, thepresidents suspension from office would activate the presidential succession due to histemporary absence, pending the final ruling of the trial. If the court reaches a guilty

verdict, the temporary absence would automatically turn into a special or absolutedisqualification from office, thus removing him permanently; in case of an acquittal, the

62See id. Arts. 290.63See id. Arts. 294.64See id. Arts. 295-6. Otherwise, the justice must decree his provisional or permanent acquittal. Spanishoriginal Art. 295. Sobreseimiento Provisional. El Juez dictar sobreseimiento provisional si, no obstante

haber plena prueba de la comisin del delito, no hay indicio racional de que el imputado haya tenidoparticipacin en el mismo, pero las pruebas presentadas dan margen para sospechar que si la tuvo y existe,adems, la posibilidad de que en el futuro se incorporen nuevos elementos de prueba , lo cual debensealarse de manera concreta en la resolucin respectiva. Si dentro de los cinco (5) aos siguientes a lafecha del sobreseimiento provisional surgen nuevos elementos de prueba que den base para decretar auto deprisin o declaratoria de reo, el Juez, a peticin del Fiscal o del Acusador Privado, podr ordenar laprosecucin del proceso En caso contrario se estar a lo prescrito en el Artculo 42 numeral 5) Art 296



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precautionary measure would be automatically repealed, and the president would bereinstated to office.

Preventive imprisonment would be applicable pursuant to the commission of any crime.However, preventive imprisonment68 would be applicable only under the followingcircumstances:

1) danger of escape of the suspect; 2) the possible obstruction of investigation bythe accused; 3) founded risk that the accused may rejoin a criminal organizationto which he belongs or is suspected of being a member of and use the means,thereof, to obstruct the investigation or facilitate the escape of other defendants;

and 4) founded risk that the accused will attempt to execute reprisals against theplaintiff or complainant.69

When selecting the appropriate preventive measure against the president, the justiceshould consider the appropriateness and proportionality of said measure with respect tothe ends to be achieved, taking into account the seriousness of the acts and thepunishment that, if convicted, could be imposed, as well as the personal circumstances ofthe accused.70 Similarly, in the resolution where the preventive imprisonment order is

given, the cause or causes for the decision, as well as the evidence resulting fromprevious investigations that were considered grounds for said decision, must be explicitlystated.71

b. Intermediate phase: Preliminary hearing andcommencement of trial

The imprisonment decree and the application of precautionary measures put an end to thepreparatory phase and mark the beginning of the intermediate phase of the proceedings.According to Article 265 of the CCP, the intermediate phase is comprised of three parts:(1) formalization of the indictment; (2) response to the charges laid; and (3) decree forcommencement of the trial. The first two occur at the preliminary hearing and the thirdis a result of the preceding two. The preliminary hearing must be held within 60 days ofthe imprisonment decree.72

According to Article 301 of the CCP, during the preliminary hearing, the prosecutor mustformalize the accusation against the president, at which point the defense counsel mustrespond to the charges.73 Once the hearing is concluded, the designated Supreme Court justice has three days to decide whether there are reasonable grounds for thecontinuation of the trial.74 If so, the justice must issue a decree for commencement of



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trial and order the courts secretary to refer the case to the trial court within the nextforty-eight (48) hours of passing said decree.75

c. Public and oral trial before the trial court andappeal for annulment of trial before the criminalchamber of the court

Since the trial court for the presidents trial is comprised of four additional justices of thesame Supreme Court, the case file registering all acts carried out during the preparatoryand intermediate phases must remain with the secretariat of the Supreme Court. Next, thecourt en banc must designate three justices and a fourth substitute to serve as a trial court,and among them, appoint one justice to preside over the trial.76 As in any criminalproceeding, the final stage of the proceedings against the president shall consist of threeacts: debate or trial preparation; trial conduction; and deliberation and sentence.77

In the preparation stage, both the public prosecutor and the president must review,within ten (10) days, the state of the proceedings and raise any challenges, exceptions, ornullity claims, based on new issues that may have arisen.78 Once the ten days have

elapsed or the challenges have been resolved (whichever comes first), the justicepresiding over the trial shall schedule a hearing to take place within the next ten days,which will allow both parties to present their evidence. 79 Within three (3) days of theadmission of evidence, the justice presiding over the trial court shall set a date and timefor the commencement ofthe public trial, which shall take place between the next ten(10) and thirty (30) days.80

The court must conduct the substantiation of the debate or public oral hearing according

to the specifications of Arts. 319 to 334 of the CCP. These provisions regulate thecommencement of the hearing,81 the declaration of the defendant,82 the collection ofevidence, including witness accounts and expert opinions,83 the closing arguments, andthe trial closure.84 These are the most important acts that take place during the hearing.Following the substantiation of the trial, the court shall issue an acquittal or a convictionsentence.85

75Id. Art. 303. See also, id. Art. 302 (indicating the five elements that must be included in the decree forcommencement of trial).76Id. Art. 416. See also, id. Arts. 335, 441 (indicating that all trial courts in Honduras must consist of fourjudgesthree permanent and one substitute, who must be present throughout the trial),and, id. Arts. 87, 57(citing general situations in which participation of the substitute judge may be needed)



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Finally, in response to the sentence by the trial court, the losing party may file an appeal.This appeal must be resolved unanimously by the criminal chamber of the SupremeCourt. If the criminal chamber cannot reach a unanimous verdict, the Supreme Courtsitting en banc must make the final decision.86

d. Other relevant constitutional provisionsi. The reach of Congresss powers, with regard to the president

According to Article 205(20) of the Honduran Constitution, Congress has the power [to]approve or disapprove of the administrative conduct of the executive branch as well asother government branches and bodies, including the judiciary and the supreme electoraltribunal.87 The disapproval by Congress of the administrative conduct of any of thesestate organs is a purely formal act of rejection that, legally, cannot result in the removalof any public servant from office.88

Constitutional tradition, doctrine, and practice in Honduras confirm this understanding.According to the Honduran constitutional tradition that began with the first Constitution

of 1825, Congress has never had the power to remove the president (the only exceptionsbeing the Constitutions of 1848 and 188089). By contrast, Congress has always had thepower to disapprove of the administrative conduct of the executive branch. 90

86See id. Arts. 318, 359-72.87 CONSTITUTION Art. 205(20) (stating that Congress has the power to approve or disapprove of the

administrative conduct of the executive branch, the judiciary, the Supreme Electoral Tribunal, the SupremeTribunal of Accounts, the Office of the Legal Counsel, the Environment Prosecutor, the Office of theAttorney General, the National Commissioner for Human Rights, the National Registry of Persons, alldecentralized institutions and auxiliary bodies of government.88See CONSTITUTION Art. 321 (setting forth the principle of rule of law or principle of legality, according towhich public servants have no power beyond that conferred upon them by the law in express terms, andany act outside the law is null and entails liability). About the nature of this power of Congress,seeROJAS CARN, supra note 11, at479 (En aplicacin del principio de legalidad, si la Constitucin de laRepblica y las leyes que de ella se derivan, no le otorgan claramente atribuciones a los funcionarios

pblicos, estos no tienen esa autoridad. En un Estado de derecho, toda persona puede hacer todo lo que noest legalmente prohibido, pero al contrario los servidores pblicos slo pueden ejercer su cargo deconformidad con las facultades que le confiera previamente la ley, en caso contrario son responsablesadministrativa, civil y penalmente.); and MONCADA SILVA, Efran, TEMAS CONSTITUCIONALES, 2001, at193, 194 (Como consecuencia [del principio de legalidad], el Congreso, el Ejecutivo y el Judicial notienen ms facultades que las otorgadas expresamente por la propia Constitucin y las dems leyes. Siprofundizamos en el anlisis de la Constitucin llegamos a la conclusin [de] que no existe disposicin



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According to Honduran constitutional doctrine, Honduras adopted a presidentialsystem since its inception, a main characteristic of which is that until 2003, Congress,instead of having the power to remove the president, served as a guardian of the leaders

immunity, since it had to authorize or, conversely, veto any criminal proceedings beforethe Supreme Court. This followed from the constitutional power the Congress had formany years to declare whether there were grounds for a cause of action against thepresident.91

Finally, the constitutional practice in Honduras shows that the disapproval of thepresidential conduct is purely formal in nature. Congress has carried it out in the pastwithout any consequence to the exercise of the presidential term. 92

ii. Article 239 of the Honduran Constitution and the immediatecessation of the presidential term

Article 4 of the Honduran Constitution outlines the obligation of alternability in theoffice of the president (i.e. the prohibition to reelect an incumbent or a former president)and provides that any violation of this obligation constitutes treason.93 In the same line,

Article 239 of the constitution provides that the president or any citizen who violates orproposes the reform of the constitutional provision that enforces alternability shallimmediately cease to hold office and shall be disqualified for the exercise of anypublic office for ten years. However, Article 239 of the constitution fails to establishwhich authority should determine whether the president or another person has violated(or proposed the violation of) alternability, neither who should determine whether as aresult they ceased immediately in the performance of their duties.

91See MONCADA SILVA,supra note 88, at204 (En Honduras nunca hemos tenido [un] sistema de gobiernoparlamentario ni semiparlamentario, y an cuando uno que otro texto constitucional ha introducido algunosmecanismos propios del parlamentarismo como el voto de censura en la Constitucin de 1924, nuestrosistema contina siendo esencialmente presidencialista). Pineda Alvarado, Ral,Interpelacin y mocinde censura,CIPRODEH (stating that the Honduran political system is mega presidentialist) available at:http://www.ciprodeh.org.hn/Articulos%20DDHH/Interpelacion.htm [C