Comparative law and justice/Honduras

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Part of the Comparative law and justice Wikiversity Project

EStevens508 00:33, 2 May 2011 (UTC)

Honduras

Basic Information

Honduras is the second largest country in Central America with an area about the size of Tennessee. It borders the Caribbean Sea to the North, the North Pacific Ocean to the South and is located between Guatemala, El Salvador and Nicaragua. The capital is Tegucigalpa. Honduras became an independent nation in 1821, freeing itself from Spain's control. For two decades there was mostly military rule until a freely elected civilian government came to power in 1982.The government is a democratic constitutional republic. The population is estimated to be 7,989,415. The infant mortality rate is 20.44 deaths/1000 live births. The life expectancy at birth is 70.61 years which ranks it 144th in the world. The climate is mostly subtropical in lowlands and temperate in the mountains. The country is made up of mostly mountains in the interior and coastal plains. Cerro Las Minas is the highest point in the country with an elevation of 2,870 meters. Spanish is the official language with some amerindian dialects. The main ethnic groups that comprise the population are 90% Mestizo (mixed Amerindian and European) , 7% Amerindian, 2% Black, 1% White. Eighty percent of the total population is literate and the average time spent in school systems for children is eleven years. The Honduran Constitution guarantees freedom of religion and the separation of church and state forbidding a national religion. Roman Catholics comprise the majority of the religious population. Protestant membership has been increasing since the 1980's but is still minuscule compared to the Roman Catholic population. The country was ravaged by Hurricane Mitch in 1998 with 5,600 casualties and $2 billion in damage.

Coat of Arms of Honduras

A pyramaid in Tegucigalpa

Iglesia Juticalpa

Brief History

Honduras' geographical features have contributed to it being a somewhat isolated country. There are few ports on the Pacific side of the country which has limited economic progress through trade. The lack of development in Honduras has lead to a relatively unsteady government throughout it's history. For much of it's history the government of Honduras has been corrupt, disorganized, and politically unstable. Military coups have been a frequent occurrence in the country as well. The lack of a strong and productive central government has left Honduras vulnerable to extortion and exploitation from other countries and corporations. In the first half of the twentieth century the United Fruit Company and the Standard Fruit company both exercised tremendous power over the government and many believe that these two companies were as powerful as the president. A rise in nationalism and a stronger economy over the last half century have changed this direction even as Honduras remains dependent on other nations. There were border conflicts with El Salvador in the 1990's and security concerns with Nicaragua in the 1980's. Honduras today is attempting to achieve the advantages of modernization while avoiding the bloody conflicts that have been prevalent throughout Central America in recent history.

Economic Development, Health, and Education

Honduras is considered a developing country as it is one of the poorest in the western hemisphere. The 2009 GDP per capita was $1,829 with 65 percent of the population living in poverty. Honduras was heavily affected by the recent economic downturn with the GDP decreasing by 2.1 percent. Recently, Honduras has variegated its economy to include more export processing along with it's heavy reliance on traditional agriculture. Pervasive slash and burn farming and illegal logging practices have contributed to the degradation of its vast forests. More than half the population of Honduras (53 percent), live in rural areas and fifteen percent of the population lives on below $1 a day. Some of Honduras' natural resources include: arable land, forests, minerals, and fisheries. Agriculture comprises 14.2% of GDP with services being 57.9% and manufacturing 27.9% and the remaining percentage of GDP being trade.

Governance

Honduran Constitution

Honduras established its present government through its constitution which was created in 1982. The form of government is republican, democratic, and representative. The government is divided into three branches: legislative, executive, and judicial. Honduras has made notable progress towards having a more credible government. The regimes of the past were often headed by military leaders who paid little attention to having a free and open government. It is a duty of all citizens to vote in elections. The president, who is the head of the executive branch, attains that position through elections. The president and the national congress have the authority to select justices to the Supreme Court of Justice. Honduras has a unicameral National Congress with 128 seats. The Executive, Legislative, and Judicial branches have authority to bring forth an initiative of law. No law can become official until three debates have taken place on three different days except in extreme circumstances where the law can be voted on and approved by a simple majority by members of Congress. After a law has been approved by the National Congress, it is then passed to the Executive branch for final approval. Honduras is a civil law country which means that laws are only valid after they have completed the entire procedure of becoming a law and published in the Official Gazette.

Elections

Citizens of Honduras are considered to be carrying out a duty when they vote in elections. Ones vote is obligatory, direct, free, and secret. The president is elected by plurality vote to serve a four year term. The 128 members of the National Congress are elected through an open-list proportional representation format to serve four year terms. In order to vote in elections in Honduras one must be a minimum of eighteen years old, and have Honduran citizenship. Voting in Honduras is compulsory meaning that it is required of all citizens to participate in elections however there are no sanctions for not voting. For a candidate to be eligible to run for office in Honduras they must be of a certain age, and have Honduran citizenship and residency.

Judicial Review

There is a role for judicial review in Honduras even though it is a civil law system. The Supreme Court of Justice has original and exclusive jurisdiction over hearing and deciding matters brought before the court. An individual can petition the court to hear a case that they feel has impacted their direct, personal, and legitimate interests. The Honduran legal system has also adopted habeas corpus and amparo proceedings as part of the constitutional gaurentees.

Courts

The judicial system of Honduras contains four layers of courts. It consists of the Supreme Court of justice, courts of appeals, courts of first instance (Juzgados de Letras), and justices of the peace. The Supreme Court of justice is the highest level of the court system and contains fifteen judges. It is the court of last resort and hears cases that have passed through the lower courts. The Supreme Court of justice is further broken down into three different chambers:civil, criminal and labor. Each chamber of the Supreme Court of justice contains three justices. The Supreme Court of justice has many duties and privileges which include: appointing judges to the lower courts and public prosecutors, the power to decide whether or not a law is unconstitutional, hearing impeachment trials of high-ranking government officials (the National Congress must first bring impeachment charges), and producing the official record of the court.

The level below the Supreme Court of justice are the courts of appeals. They hear cases that haven't been settled by the lower courts. These courts contain three judges and these judges must be lawyers and must be at least twenty five years old. The judges of this court have the power to appoint justices to the courts of first instance. Courts of first instance are trial courts that are spread throughout the country. Courts of first instance handle an array of cases including criminal, civil, family, juvenile, tenant, labor and contentious administrative. Judges who sit on this level of the court system must be at least twenty one years old and most of them contain degrees in juridicial science, however, there are many who do not hold this degree. The lowest level of courts are the justices of the peace. They are only involved in minor crimes and act as investigating magistrates. These courts only have a small jurisdiction usually only over municipalities of 4,000 or less. Crimes that are more serious are sent to the courts of first instance. The requirements to become a justice of the peace are: you must be at least twenty one years old, live in the municipality that you work in, and have the ability to read and write. There have been many criticisms of the judicial system of Honduras because it is believed to be highly politicized. There are new justices appointed to the supreme court every four years with the new president. In the past decade, Honduras has been attempting to transition from an inquisitorial trial system, to an adversarial system where the presumption of innocence is a right given to those accused. Honduras however does not use juries as part of their trial system.

Punishment

Capital punishment in Honduras has been abolished for all crimes. There are a total of 11,589 inmates in Honduran prisons with a rate of imprisonment of 161 out of 100,000. Corporal punishment is strictly prohibited in Honduran schools. It is unlawful for corporal punishment to be handed down as a punishment, however, it is legal in the home to some degree. Corporal punishment is an unlawful punishment for a committed crime, but it is not specifically outlawed as a form of discipline in penal institutions. Prisons in Honduras are overcrowded and extremely violent. The country's rampant gang problem leads to high numbers of rival gangs being imprisoned together. Gang fights are common with many of them leading to deaths. In 2006 at the National Penitentiary (about 20 Kilometers north of the capital), a riot broke out between different gang members leading to 13 deaths. Over one hundred people died in a fire in an overcrowded prison in the city of San Pedro Sula . The government has received criticism from human rights groups about new laws delivering mandatory sentences of twelve years for gang members. Many believe there is not enough focus on rehabilitation in the Honduran penal system and that the only thing offered to criminals is prison. This has exacerbated the severe problem of prison overcrowding. The prison that burned down in San Pedro Sula killing 103 people was designed to hold 800 inmates but was housing 1,960 when the fire ocurred. The juvenile justice system in Honduras has expanded in recent years including establishing juvenile courts in eight departments. The Honduran justice system however has a "zero tolerance" rule when it pertains to crime. Law enforcement personnel have targeted the youth population as a major source of crime. In many cases the rights of juveniles under the age of eighteen are ignored. It is thought that the poor prison conditions and lack of rehabilitation and reintegration programs in prisons only exacerbates the problem of youth crime.

Legal Personnel

There are approximately 7,500 total police officers in Honduras ,however, only 2,500 of them are on duty at a time. The police force is not adequately staffed or paid and many of the officers lack training and resources. Coordination between police divisions is lacking as they don't have standardized types of information. Police divisions share little information with one another about the pervasive gang violence that runs rampant throughout the country. The police system in Honduras can be described as decentralized and uncoordinated. There is an overall shortage of poice officers and investigators which renders its policing system somewhat ineffective. The various departments throughout the country do not share information and there is no national police force.

Law Enforcement

"Honduras's increasing crime and violence rates have pushed the military into law enforcement activities, blurring the line separating military and non-military roles. This law-enforcement role had been carried out before the coup, and is even contemplated in the Constitution. The latter allows for military assistance to public security institutions to fight terrorism, arms trafficking and organized crime. Even before the coup, the military had expressed its desire to fight drug trafficking. Most recently, newly elected Honduran President Porfirio Lobo, with U.S. support, agreed with the heads of the Armed Forces to increase the fight against narcotic trafficking in Honduras. More worrisome are executive and congressional decrees issued in May and June of 2010, respectively, ordering the Army to assist police forces. The Inter-American Human Rights Commission (IACHR) raised alarm over the instructions established by the Executive decree: the military will provide police forces with military personnel and equipment to help them carry out their functions. The congressional decree goes even further by ordering the Army to assist the police in stopping the violence in the country. This is a clear indication that a militarization of policing is taking place in Honduras, reasserting the role of the military as a superior force relied upon to solve any type of problem." Honduras is not unlike most other Central American countries in that it has a high level of corruption in the government. Honduras had a level of 2.4 on the corruption perceptions index 2010 which ranks it as one of the more corrupted countries in the world with one being the most corrupt and ten being highly clean.

Crime Rates and Public Opinion

Like almost all of Central America, Honduras is a civil law country.. Because Honduras is a Civil law country, there is not much role for precedent or judicial review. Also, all law must be found in the code and not based on prior court decisions. Crime in Honduras is incredibly prevalent and United States tourists are discouraged from visiting. U.S. citizens have been the victim of murder, kidnapping, rape, assault, and property crimes. In 2009 alone sixteen Americans were reported murdered. Poverty and gangs contribute to Honduras' high rate of crime. According to the United Nations Development Program (UNDP), Honduras had 4,473 murders in 2008 in a country with a population of 7.3 million people, giving it one of the highest per capita murder rates in the world. Theft and kidnapping are commonplace in Honduras where many unsuspecting tourists are targeted. Due to Honduras' high level of gang activity, about one third of the population have a feeling of insecurtiy. The country's media and government emphasize this gang problem which is thought to contribute to the feeling of insecurity. A survey conducted in 2004 by Mitch Seligson showed that eighteen percent of the population thought that delinquency, crime, violence, drug trafficking, and gangs were the most pressing problems facing the country. This survey also found that twenty percent of those victimized were twenty six or younger. Because of the lack of faith in the government to protect its citizens, private secruity agencies and gun sales have greatly increased.

Rights

The Honduran Constitution defines several inherent individual rights for its citizens. Among these rights are the abolition of the death penalty, and the prohibition of torture, cruel, inhuman, or degrading treatment.

"Article 65.- The right to life is inviolable.

Article 66.- prohibits the death penalty.

Article 67.- To which it is by birth will be considered born for everything that he favors within the limits set by law.

Article 68.- everyone has the right to respect its physical, mental and moral.

No one should be subjected to torture, or penalties or cruel, inhuman or degrading treatment.

All persons deprived of liberty shall be treated with respect due to the dignity inherent in human beings.

Article 69.- personal freedom is inviolable and only under the laws may be restricted or temporarily suspended.

Article 70.- All hondurans have the right to do what it does not affect another and nobody is obliged to do what is legally prescribed or prevented from running what the Law does not prohibit.

No person shall be justice by itself, or exercising violence to claim their right.

No personal service is required, nor should be free of charge, but under law or judgment based on Law.

Article 71.- Any person may be detained or imprisoned for more than 24 hours, without being put to the order of competent authority for his trial.

The judicial detention to enquire may not exceed six days from the moment in which produces the same.

Article 72.- Is free the issuance of the thought by any means of disseminating, without prior censorship. They are responsible to the law that abuse this right and those who, by means direct or indirect restrict or prevent the communication and circulation of ideas and opinions.

ARTICLE 73.- printing, the radio stations electrical, television and other means of emission and dissemination of ideas, as well as all its elements, may not be confiscated or confiscated, nor closed or interrupted their work on the grounds of crime or lack in the issuance of thought, without prejudice to the responsibilities in which it is incurred on these grounds in accordance with the law.

No company dissemination of ideas may receive grants from governments or foreign political parties. The Law will establish the sanction that corresponds to the violation of this precept.

The address of the newspapers print, radio and television, and the intellectual guidance, political and administrative of the same, it will be conducted exclusively by hondurans by birth .

Article 74.- may not be restricted the right of issuing the thought by indirect methods or means, such as the abuse of official controls or individuals of the material used for printing of newspapers; of the frequencies or belongings or apparatus used to disseminate information.

Article 75.- The Law governing the issuance of thought, may establish prior censorship, to protect the ethical and cultural values of society, as well as the rights of persons, especially for children, adolescents and youth.

The commercial propaganda of alcoholic beverages and tobacco use will be regulated by law.

Article 76.- guarantees the right to honor, to personal privacy , family and self-image.

Article 77.- guarantees the free exercise of all religions and cults without pre-eminence, provided they do not contravene the laws and public order.

The ministers of the various religions, may not hold public office or in any form political propaganda, on grounds of religion or using, as a means to that end, of religious beliefs of the people.

Article 78.- Are guaranteed freedoms of association and assembly provided that they are not contrary to public order and to the morality.

Article 79.- everyone has the right to meet with other, peacefully and unarmed, in public demonstration or assembly, in connection with their common interests of any kind, without the need to notice or special permit.

The outdoor meetings and the political in nature may be subject to a system of special permission for the sole purpose of ensuring public order.

Article 80.- Any person or persons association has the right to submit requests to the authorities either on the grounds of particular interest or general and to obtain a prompt response in the legal limit.

Article 81.- everyone has the right to freedom of movement, leave, enter and remain in the national territory.

Nobody can be forced to move of domicile or residence, but in the special cases, with the requirements that the Law said.

Article 82.- The right of defense is inviolable.

The inhabitants of the Republic have free access to the courts to exercise their stock in the form that brought the laws.

Article 83.- Corresponds to the State appoint attorneys for the defense of the poor and to ensure the people and the interests of children and incapable. Give them legal assistance and represent judicially in defense of their individual freedom and other rights.

Article 84.- nobody may be arrested or detained but under mandate writing of competent authority, issued with the legal formalities and by reason previously established in the law.

However, the offender in-flagrante may be apprehended by any person for the sole purpose of surrender to the authority.

The arrested or detained must be informed in the act and with any clarity of their rights and the facts that he is charged; and in addition, the authority to be enable communicate his detention to a relative or person of your choice.

ARTICLE 85.- Any person can be arrested or detained but in places as determined by law.

ARTICLE 86.- Every person on trial, which is being detained , has the right to remain separate from those who have been condemned by judgment.

Article 87.- prisons are establishments of security and social defense. Efforts will be in them the rehabilitation of detained and their preparation for the work.

Article 88.- There will be No violence or coercion of any kind on people to force or declare.

No one can be compelled to issue-criminal, disciplinary or police, to testify against itself, against your spouse or partner of home, not against their relatives in the fourth degree of consanguinity or second of affinity.

Only will test the statement given to a competent judge .

Any statement obtained in violation of any of these provisions, is null and void and those responsible incur penalties that established by law.

Article 89.- Every person is innocent until it has declared its responsibility by competent authority.

Article 90.- Nobody can be tried but by judge or court with the formalities, rights and guarantees that the Law provides .

Recognizes the jurisdiction of war for the crimes and offenses of military order. In any case, the military courts may extend its jurisdiction on people who are not in active service in the Armed Forces.

• Interpreted by Decree 58/1993
• Amended by Decree 189/1985

Article 91.- When in a crime or lack of military order was involved a civilian or military low, try the case the competent authority of the ordinary.

• Amended by Decree 189/1985

Article 92.- may not be provided for imprisonment without appropriate full of having committed a crime or offense that worth of deprivation of liberty, and without a rational indication of who is the author.

In the same way will be the declaration of prisoner.

ARTICLE 93.- Even with auto imprisonment, any person can be taken to prison or detained in it, if given sufficient guarantee in accordance with the law.

ARTICLE 94.- anyone penalty without having been heard and expired at trial, and without that it has been imposed by enforceable judgment of Judge or authority.

In cases of constraint and other measures of the same nature in civil matters or labor, as well as in the fine or arrest in the field of police, always must be heard the affected.

Article 95.- No person shall be punishable by not previously established by law, and may not be tried again by the same punishable acts that led previous prosecutions.

Article 96.- The Law does not have retroactive effect, except in criminal matters when the new law favors the offender or prosecuted.

Article 97.- nobody may be sentenced to infamous, proscritivas or confiscatory.

It provides a penalty of deprivation of liberty in perpetuity. The criminal law determine its application for those crimes in the commission of which circumstances serious, offensive and degrading treatment, which by its impact cause shock, rejection, outrage and revulsion at the national community.

The custodial sentences for simple offenses and the accumulated by several offenses are fixed in the Criminal Law.

• Amended by Decree 46/1997 and ratified by Decree No. 258/1998.

ARTICLE 98.- Any person may be detained, arrested or dam by obligations that are not come from crime or lack. 

ARTICLE 99.- homes are inviolable. No income or registration can be verified without the consent of the person who inhabits or resolution of competent authority. However, it may be paved, in case of urgency, to prevent the commission or impunity for crimes or avoid serious damage to the person or property.

Except for the emergency cases, the raid of the home cannot be verified of six o'clock in the afternoon at six o'clock in the morning, without incurring liability.

The Law will determine the requirements and formalities for that takes place the admission, registration or burglary, as well as the responsibilities it may incur who carried out.

ARTICLE 100.- everyone has the right to the inviolability and the secrecy of communications, in particular of postal, telegraph and telephone , except judicial resolution.

The books and vouchers of traders and the personal documents, only are subject to inspection or control of the competent authority, in accordance with the law.

Communications, books, records and documents referred to in this article, which are violated or be, will not make faith in trial.

In any case, it will be saved if the secrecy in respect of the matters strictly private that they have no relation to the subject matter of the action of the authority.

Article 101.- Honduras recognizes the right of asylum in the form and conditions established by law.

When appropriate in accordance with the Law revoked or not to grant asylum, in any case is ejected the pursued political or to the refugee, to the territory of the State that can claim.

The State does not allow the extradition of criminals for political offenses and related common.

ARTICLE 102.- No honduran may be expatriate nor delivered by the authorities to a foreign State.

ARTICLE 103.- The State recognizes, promotes and ensures the existence of private property in its broader concept of social function and without limitations than those who for reasons of necessity or the public interest Law.

Article 104.- The right of ownership does not harm the eminent domain of the State.

Article 105.- prohibits the confiscation of property.

The property cannot be limited in any way because of political crime.

The right to claim the confiscated property is imprescriptible.

Article 106.- Nobody can be deprived of their property but because of necessity or public interest qualified by the law or by resolution based on law, and without compensation justipreciada.

In case of war or internal unrest, is not indispensable that compensation is after, but the payment will be given, not later than two years after the completion of the state of emergency.

Article 107.- The land of the State, ejidal, communal or private property , located in the area adjacent to the neighboring States, or on the coast of both seas, in an extension of forty (40) kilometers inland from the country, and those of the islands, islets, reefs, escolladeros, square, sirtes and sand banks, may only be acquired in domain, owned and taken to any title, by hondurans of birth, by integrated companies in full, by partners hondurans by birth and by the State institutions under penalty of invalidity of the respective act or contract. It apart those cases of acquisitions of domain, of possession in the coastline of both seas, in the islands, islets, reefs, escolladeros, square, sirtes and sand banks, when they are designed to projects for tourism development, duly approved by the Executive Branch in accordance with a Special Law.

Are also excused from this provision, the urban property within the limit specified in the previous pórrafo; whose domain, possession and tenecia will be purpose of a special legislation.

It prohibits property registrars the registration of documents that contravene these provisions.

• Amended by Decree 294/1998

Article 108.- Any author, inventor, producer or trader shall enjoy the exclusive ownership of their work, invention, mark or trade name, according to the law.

Article 109.- taxes shall not be confiscatory.

No one is obliged to pay taxes and other taxes which have not been legally decreed by the National Congress, in regular sessions .

No authority apply provisions in contravention to this precept without incurring the responsibility to determine the Law.

ARTICLE 110.- Any person with free to manage their property, can be deprived of the right to complete its civil affairs by transaction or arbitration"

Family Law

There are several methods of obtaining Honduran citizenship. It can be obtained by birth, naturalization, and by descent. To gain citizenship by birth a child must be born in the country or on a vessel in Honduran territorial waters. If a child is born abroad then they can achieve Honduran citizenship as long as one of the parents is a citizen of Honduras. There are numerous methods of becoming a naturalized citizen: Central American birth and reside in Honduras for one year, Spaniards and Spanish-Americans who have resided in Honduras for two years, anyone who has resided in Honduras for at least three years, a person who has married a Honduran citizen.

Inheritance laws in Honduras are handled by the civil court. The Honduran legal systems allows persons to leave their estate to anyone they wish, but the estate must cover the expenses left behind by the deceased. If a deceased person does not leave a will, their estate will be distributed first to the descendants (children) of the deceased. If the deceased person has no children then the estate goes to the parents or grandparents. If the deceased has no children and no living parents or grandparents then the estate goes to the brothers. The spouse of the deceased would receive the estate if the departed person has no close relatives or brothers. Finally, if the deceased person has no relatives then his or her estate is distributed to the municipality.

Human Rights

Honduras has an overall high level of murder but there are also a high number of women who have been killed there as well. In 2008 312 women were killed which outraged many women's rights groups. Honduras has had a lingering problem with government corruption and ineffectiveness. In 2009 four policemen were convicted of killing two environmentalists, and three weeks after being sentenced, two of the convicts escaped and another did shortly after. The government also has difficulty in solving missing persons cases. Since the 1980's there have been 125 cases of disappearance that have yet to be solved. The United Nations has criticized the Honduran government for not being thorough enough in pursuing these cases. During a coup d'etat by the military in June of 2010, excessive force and violence were used by authorities to counter the political unrest and demonstrations. President Jose Manuel Zalaya Rosales was forcefully removed from power on June 28 of 2010 by a group of opposition politicians which was also backed by the military. Attacks and intimidation were prevalent during this time against opposite sides of the movement. Although the Honduran Constitution explicitly outlaws all forms of discrimination, women still receive unfair treatment in Honduran society. Personal relationships between men and women are mostly influenced by tradition and sexism. Feminist movements in the 1980's and 1990's have improved living conditions for women overall but some discriminatory laws are still in place. An example of one of these laws is the possibility for a woman of "good reputation" to carry out a prison sentence in her marital home.