Honduras: Independence and impartiality of individual judges; Judicial integrity and accountability

Judges must be free to “decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.[1] The prohibition on such acts “from any quarter” underscores its application to both state actors and non-state actors alike. Even within the judicial hierarchy, judges of the same or higher level of court must not interfere with a judge’s exercise of judicial functions, other than as provided for by formal procedures such as appeal.”[2] 

In the exercise of judicial functions, judges must be impartial, and be seen to be impartial.[3] Judges “must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.”[4]

A judicial code of conduct, drafted primarily by judges and members of the legal profession and consistent with international standards,[5] can help to safeguard judicial integrity and protect against conflicts of interest.[6] A judicial code of conduct meeting these criteria and enshrined in the law, should serve as the basis for the determination of cases of alleged judicial misconduct.[7] 

Complaints about judicial misconduct must be processed expeditiously and fairly under an appropriate procedure.[8] The judge in question has the right to a fair hearing before an independent and impartial body. The body responsible for discipline of judges should be independent of the executive,[9] plural and composed mainly (if not solely) of judges and members of the legal profession.[10] The judge’s rights to a fair proceeding, including to notice of the accusations against him or her, to adequate time and facilities to prepare and present a defence including through counsel, to challenge the evidence against him or her and present witnesses must be respected.

Decisions in disciplinary matters must be based on established standards of judicial conduct, and sanctions must be proportionate. Judges may be suspended or removed only where the incapacity or behaviour of a judge renders the individual unfit to discharge his or her judicial duties.[11] Disciplinary investigations and sanctions imposed on a judge should never be based solely on disagreement with a legal opinion or judgment he or she wrote in a decision.[12] 

Decisions and sanctions in disciplinary proceedings should be subject to independent judicial review.[13] 

Judges should also enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.[14] 

 

The Code of Ethical Conduct for the Public Service applies to judges and all other public servants from the executive, legislative and judicial branches of the government.[15]

The Constitution assigns to the National Congress responsibility to ensure compliance by Supreme Court judges with the Code of Ethical Conduct for the Public Service, and in that capacity to conduct disciplinary proceedings against Supreme Court judges.[16]

For first instance and appeal court judges, the 2011 Law on the Council of the Judiciary and Judicial Career Service assigns responsibility for disciplinary and removal proceedings in relation to the Code of Ethical Conduct for the Public Service, to the newly-established Council of the Judiciary and Judicial Career Service. However, Council members are still ultimately selected by the Congress, and therefore the Council remains subject to political influence; further, there is no requirement that the majority of members of the Council be judges (or even lawyers), and at the moment the majority are not in fact judges or lawyers.[17] At present, the Council invokes ad-hoc regulations and the Law on the Council of the Judiciary and Judicial Career Service contains neither a list of disciplinary infractions nor the range of sanctions that may be imposed for breaching those norms (though the Code does affirm the general principle of proportionality of sanctions).[18]

In 2010, three constitutional judges and one magistrate, all members of the Association of Judges for Democracy (Asociación Jueces por la Democracia), were arbitrarily dismissed after allegedly taking part in a peaceful demonstration against the 2009 coup d’état, while judges and court officials who participated in demonstrations in favour of the Government created after the coup d’état were not subject to the same treatment. Two of the sanctions were later confirmed on appeal, one was revoked and one of the judges was entitled to receive benefits.[19] In late 2012, four constitutional judges were also arbitrarily impeached by the National Congress on proposal of the Supreme Court for “acting contrary to the public interest of the State of Honduras”. The sanction was reportedly based on disagreement with a judicial decision taken by the judges on the so-called “Police Purge Law”, where they found the exams required under its provisions, including a polygraph test and toxicological exams, in violation of the right of police officers to privacy and not to be self-incriminated.[20]

Concerns have been raised about the physical safety of judges in Honduras in the context of the number of judges who have been killed and those who have been threatened. According to the National Commission of Human Rights (Conadeh), 84 legal professionals were killed from January 2010 to September 2014.[21] In some cases, the attacks were unofficially linked to members of organized crime under investigation by judges, but in most cases, investigations by national authorities were neither effective nor were those responsible identified or brought to justice.[22]

A draft law for the Protection of Human Rights Defenders, Journalists, Media Workers, and Legal Practitioners proposed by the National Congress, aiming to ensure the safety in work-related activities of, inter alia, judges, prosecutors and lawyers, was pending in the National Congress as of 11 December 2014.[23] This draft law proposes to create, among others, a mechanism to receive and address urgent cases of threats and attacks against lawyers, and it will be competent to determine, inter alia, interim and protection measures.[24]

Additionally, the National Congress recently amended the Criminal Code to raise the minimum and maximum penalties for homicide or murder when committed against specified persons including judges, prosecutors, public defenders, or other “Operadores de Justicia” (which should be interpreted to include lawyers) involved in the “al Combate de la Criminalidad” (the “fight against crime”).[25]

 

Footnotes    (↵ returns to text)

  1. 1. UN Basic Principles on the Independence of the Judiciary, Principles 1-7, in particular ”Principle

    The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Articles 2-8; Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, ”Value

    Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

    Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, Article 1-4.
  2. 2. Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.

  3. 3. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), ”para.

    The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

    UN Basic Principles on the Independence of the Judiciary, ”Principle

    The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article
    A judge shall not sit in a case where a reasonable apprehension of bias on his part or conflict of interest of incompatibility of functions may arise.

    Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, Value 2-4;
     Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Art.5. Impartiality and restraint.

    In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.

    Art.6. Efficiency.

    The judge must diligently and efficiently perform his or her duties without any undue delays.

    Art.7 Outside activity.

    The judge must not carry out any other function, whether public or private, paid or unpaid, that is not fully compatible with the duties and status of a judge. The judge must not be subject to outside appointments without his or her consent.

     Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 8.

    The impartiality of the judge has to be true, real and obvious for the citizens.

     The “seen to be impartial” standard means for instance that, even if an individual judge might in fact be able to ignore a personal relationship to one of the parties to a case, he or she should step aside from the case to protect against a reasonable apprehension of bias.
  4. 4. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), ”para.

    The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

  5. 5. See Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002; International Bar Association Minimum Standards of Judicial Independence, para. 35-42.
  6. 6. SeeBangalore Principles of Judicial Conduct, Preamble and ‘Implementation’.
  7. 7. UN Basic Principles on the Independence of the Judiciary, ”Principle

    All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

  8. 8. UN Basic Principles on the Independence of the Judiciary, ”Principle

    A charge or complaint made against a judge in his-her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

    and ”20;”
     

    Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.

  9. 9. Human Rights Committee, Concluding Observations on Honduras, UN Doc. CCPR/C/HND/CO/1 (2006), ”para.

    The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

    The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

     Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), ”para.

    The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

    The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

     Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), ”para.

    The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

    UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

  10. 10. UN Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), ”para.

    28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

    29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

  11. 11. UN Basic Principles on the Independence of the Judiciary, ”Principle

    Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

    Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

  12. 12. Inter-American Commission on Human Rights, Guarantees for the Independence of Justice Operators, para. 216 and 249 (recommendation 22). See also Inter-American Court of Human Rights, Case of Apitz Barbera et al (“First Court of Administrative Disputes”) v Venezuela, Series C no 182 (5 August 2008), para. 86, emphasizing the strict distinction under international law between, on the one hand, procedures (such as appeal) for challenging the correctness of a substantive legal decision taken by a judge acting within the competence given to them by domestic law, and on the other hand, “disciplinary oversight, which is intended to assess the conduct, suitability and performance of the judge as a public official”. The Court concluded that it was not enough, then, simply to believe that the judge was wrong about the law, there must be “an autonomous reason warranting a finding that a disciplinary offense has been committed.”
  13. 13. UN Basic Principles on the Independence of the Judiciary, ”Principle

    20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 26-31; Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Security of office. 

    A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect. 

     and ”Article

    Administration and disciplinary action. 

    The administration of the judiciary and disciplinary action towards judges must be organized in such a way, that it does not compromise the judges genuine independence, and that attention is only paid to considerations both objective and relevant. Where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies, that include substantial judicial representation. Disciplinary action against a judge can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.

     
    The UN Basic Principles suggest that the principle of independent review “may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”
  14. 14. UN Basic Principles on the Independence of the Judiciary, ”Principle

    Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

    Universal Charter of the Judge Approved by the International Association of Judges on 17 November 1999, ”Article

    Civil and penal responsibility. 

    Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.

  15. 15. Code of the Ethical Conduct of the Public Servant, Decree No. 36-2007, 31 May 2007.
  16. 16. Constitution,

    The National Congress shall have the following powers:

    (15) To perform impeachment of public servants for the reasons set out in Article 234 of this Constitution, according to the procedure established in the Special Law of Impeachment;

    and 234

    Impeachment against the President of the Republic and Presidential Appointees, Magistrates of the Supreme Court of Justice, Deputies of the National Congress, and the Central American Parliament, Municipal Corporations, and all public servants elected by the National Congress, shall proceed when there is a serious complaint against their performance in office, if they act against the Constitution of the Republic or the national interest, and for demonstrating evident negligence, incapacity or incompetence in performing their duties. Regardless of any administrative, civil, and criminal liability, dismissal from office shall be the unique consequence derived from the liability determined through impeachment.

    If the impeachment is filed against the President of the Republic, the prosecution and dismissal process must be approved by three-fourths of the Deputies, in the other cases it will be by two-thirds of the Chamber.

    The President can only be removed from office by the National Congress through impeachment.

    Impeachment and its effects shall not subjected to judicial review and the Decree issued to that effect does not require approval of the Executive Branch.

    Impeachment shall consist of two (2) stages, the Stage of investigation which would last as much time as determined by the Special Act issued for this effect and the Stage of discussion and voting, which will last up to five (5) days from the submission of the report by the Special Commission to the Plenary.

  17. 17. Inter-American Commission on Human Rights, 2013 Annual Report, para. 279-283.
  18. 18. Association of Judges for Democracy, “La independencia judicial en Honduras: Erosionada en el marco de la crisis internacional” (28 October 2013), p. 35.
  19. 19 Inter-American Commission on Human Rights, Adán Guillermo López Lone et al. v. Honduras, Case 975-10, Report No. 70/11 (31 March 2011). See also Inter-American Court of Human Rights, “IACHR takes case involving Honduras to the Inter-American Court” (2 April 2014), last accessed 25 February 2015; and Association for German Judges Press Release, “Nueva Asociación de jueces alemanes da conferencia a universitarios” (23 February 2012), last accessed 25 February 2015.
  20. 20. International Commission of Jurists, La Independencia del Poder Judicial en Honduras (2004-2013) (May 2014), p. 30; Inter-American Commission on Human Rights, 2013 Annual Report, para. 288. See also El Heraldo, “Garantizan debido proceso en investigación a jueces” (24 October 2013), last accessed 16 August 2014.
  21. 21. Center for Justice and International Law, “CEJIL condena los nuevos asesinatos de fiscales en Honduras” (24 October 2014), last accessed 11 December 2014.
  22. 22.International Commission of Jurists, La Independencia del Poder Judicial en Honduras (2004-2013) (May 2014), p.  78, in particular judges Jesús García and Ernesto Velázquez Martínez, the former allegedly killed by members of organized crime. See also International Commission of Jurists, “La CIJ condena asesinato de la Jueza Mireya Mendoza Peña en Honduras” (27 July 2013), last accessed 27 October 2014.
  23. 23. Law for the Protection of Human Rights Defenders, Journalists, Media Workers (draft), 27 May 2014 (last accessed 11 December 2014); Inter-American Commission on Human Rights, 2013 Annual Report, para. 309; El Heraldo, “Aumentan amenazas a muerte contra jueces de lo penal en Honduras” (13 August 2014), last accessed 16 August 2014.
  24. 24. El Heraldo, “CN aprueba en primer debate ley de protección a periodistas” (9 June 2014), last accessed 11 December 2014.
  25. 25. Decree No. 100-2014, La Gaceta, 23 October 2014, num. 33,562.