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October 6, 2020
This week, the Criminal Court with National Competence in Corruption Matters begins evidentiary hearings in the "Fraud on the Gualcarque" case. This case is result of complaints presented by Berta Cáceres, in her role as general coordinator of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH), before her murder in 2016.
On March 2, 2019, the Special Fiscal Unit against Corruption and Impunity (UFECIC, now UFERCO) filed an indictment against 16 former state officials for the alleged crimes of fraud, abuse of authority, violation of the duties of officials, of transactions incompatible with the exercise of public functions, and falsification of documents, all to the detriment of the state.
These crimes were denounced by COPINH in relation to licenses granted to operate Desarrollos Energéticos S.A.’s (DESA) Agua Zarca hydroelectric project on the sacred Gualcarque River in Lenca territory, without free, prior, and informed consent. They constitute crimes that form the basis for human rights violations, fundamentally against the life of the Lenca People, and that led to the murder of Lenca rights activists, including Berta Caceres, as well as ongoing persecution in the affected region.
During the legal process, COPINH has sought to exercise its right as victim to participate as a private prosecutor, but on August 28, 2019, it was excluded from the process after a nullity presented by the defense was accepted. COPINH appealed the decision, then filed an amparo before the Constitutional Chamber of the Supreme Court of Justice on November 4, 2019 in an effort to guarantee its constitutional rights in the process.
It was not until September 24, 2020, just days before the evidentiary hearing was scheduled to begin, that the Chamber finally declared the amparo admissible. In their ruling, however, they did not suspend the criminal proceedings from moving forward and until the amparo is resolved, COPINH's right as a victim to participate in the process is effectively denied.
The delay in the resolution of the amparo is impacting the rights of the victims and reveals a disturbing pattern of excluding COPINH from the judicial proceedings examining the murder of Berta Cáceres and its causes. We are deeply concerned that the delays of the judiciary in responding to legal actions in a timely manner are having a negative impact on the victims and their guaranteed rights of access to justice, due process and fundamental rights under international conventions concerning Indigenous Peoples to participate in the pursuit of justice.
As the Inter-American System reminds us, the procedural institution of amparo, as stated in Article 25 of the American Convention on Human Rights, should be understood as a simple and brief judicial process that aims to protect all the rights recognized by the constitutions and laws of the States Parties and by the Convention. This remedy must guarantee its effectiveness, understood as its capacity to produce the result for which it was conceived and to prevent, halt, or repair the violation of the affected human right.
According to the interpretation of the Inter American Human Rights Court, remedies that result illusory, due to the general conditions of the country or even for the particular circumstances of a case, cannot be considered effective. The time element is key to evaluate the effectiveness of this remedy, as an unjustified delay may constitute a denial of justice.
In this case, considering international human rights law standards, and the right to access to justice of Indigenous Peoples, we are concerned about the limitation of the procedural guarantees that correspond to COPINH.
"Fraud on the Gualcarque" is a judicial process that refers to just one of 51 extractive projects granted by the State of Honduras in Lenca territory which Berta Cáceres and COPINH denounced before her murder in 2016. Although several criminal proceedings related to the Agua Zarca hydroelectric project have advanced, and despite indications through criminal proceedings of its material and intellectual involvement in the murder of Berta Caceres, DESA still maintains a valid license for the Agua Zarca hydroelectric project.
Center for Human Rights Legal Action (CALDH), Guatemala
Center for Legal Assistance for Indigenous Peoples (CALPI), Nicaragua
Center for Human Rights Research and Promotion (CIPRODEH), Honduras
“José Alvear Restrepo” Lawyers Collective Corporation (CAJAR), Colombia
Reflection, Research and Communications Team (ERIC-sj), Honduras
FIDH, within the framework of the Observatory for the Protection of Human Rights Defenders, International
Guatemala Human Rights Commission (GHRC-USA), U.S.
International Commission of Jurists (ICJ), Regional
National Lawyers Guild - International Committee, U.S.
World Organization against Torture (OMCT), within the framework of the Observatory for the Protection of Human Rights Defenders, International
Promise Institute for Human Rights, UCLA School of Law, U.S.
Protection International, Mesoamerica
MACCIH-OEA y UFECIC-MP presentan noveno caso de investigación penal integrada: “Fraude sobre el Gualcarque” http://www.oas.org/es/sap/dsdme/maccih/new/docs/MCH-004.MACCIH-OEA-y-UFECIC-MP-presentan-noveno-caso-de-investigacion-penal-integrada-Fraude-sobre-elGualcarque.pdf?sCodigo=MCH-004/19
Corte Interamericana de Derechos Humanos, El Habeas bajo suspensión de garantías. Opinión Consultiva 8, Párr. 32. OC 8 /87 Accesible en: https://www.corteidh.or.cr/docs/opiniones/seriea_08_esp.pdf
Corte Interamericana de Derechos Humanos, Caso Maritza Urrutia. Sentencia de 27 de noviembre de 2003. Serie C No. 103, párrafo 117
Corte Interamericana de Derechos Humanos, Garantías Judiciales en Estados de Emergencia, OC9/ 87, párrafo 25. Accesible en: https://www.corteidh.or.cr/docs/opiniones/seriea_09_esp.pdf
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