IACHR Concerned About the Implementation of Legislative Reforms with a Regressive Impact on the Exercise of the Right to Protest in Honduras

November 16, 2021

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) and its Special Rapporteurship for Freedom of Expression warn of the potentially regressive impact that the implementation of reforms of the Penal Code and the Special Act on Money Laundering might have on the exercise of human rights in Honduras. Given how they have been drafted, these reforms could affect the right to protest, so the IACHR and its Special Rapporteurship ask the State to ensure that these regulations reflect the relevant inter-American standards.

On November 1, Honduras' National Congress published in the official journal, La Gaceta, several reforms of the Penal Code and the Special Act on Money Laundering in Honduras, among other normative frameworks, which had been approved through Decree 93/21 of October 7, 2021.

Reform of the Penal Code incorporates "unlawfully holding public space" as a form of the crime of misappropriation. Article 378, paragraph 4, provides prison sentences for anyone who "unlawfully holds ground or space intended for the exercise of public goods like the right to use a path, road, garden, park, green area, avenue, or any other place intended for public use or enjoyment" with the aim of preventing another individual from "being able to launch or continue pursuing their tasks, thus affecting the regular exercise of that individual's activities and rights." It is also worth noting that this reform of the crime of misappropriation includes the form of a permanently flagrant violation of the law, which enables the adoption of expedited proceedings, worsens sentences, and adds aggravating circumstances. The reform also enables preventive evictions, without a court warrant.

The IACHR and its Special Rapporteurship for Freedom of Expression think these reforms could lead to unlawful restrictions of freedom of expression and peaceful assembly by restricting the exercise of protests in public places, as well as enable the criminalization of rights defenders. The IACHR and its Special Rapporteurship for Freedom of Expression are also concerned that the lack of consideration of intent as a requirement to commit a crime may enable discretionary actions by justice operators and lead to improper use of this crime category. The IACHR already expressed its concern about previous reforms adopted in 2019 that went into force in June 2020.

The IACHR and its Special Rapporteurship stress that States have the obligation to ensure and facilitate—rather than restrict—the exercise of human rights in social demonstration contexts. The Commission and its Special Rapporteurship further note that applying criminal law to participation in protests is a serious restriction of the right to freedom of expression which is in principle inadmissible based on inter-American standards. States must prevent forced evictions, because these are prima facie incompatible with international law. States must take measures to protect all individuals and communities harmed by these evictions, as stated in the IACHR report on social protests and human rights.

The IACHR also stresses that, in its 2019 report on the situation of human rights in Honduras, it already expressed concern about the improper use of misappropriation as a crime category, mainly against people who defend the rights to land and to a clean environment. In press release 191/21, the Commission further highlighted the persistent and inappropriate use of criminal law to harass defenders, particularly through criminal law proceedings involving the crime of land misappropriation. The State reported on the measures taken jointly by the Office of the UN High Commissioner for Human Rights and the IACHR in the context of the Special Technical Advice Committee (MESAT) to train justice operators on international standards to protect human rights defenders and to prevent and investigate violence against them.

According to publicly available reports, reform of the Money Laundering Act includes incorporating "politically exposed individuals." This includes individuals who work for civil society organizations who manage foreign aid funds, who implement various projects and programs, and who oversee, research, assess, or evaluate public management. This could lead to excessive restrictions of access to international financial aid, because it means these activities might be subjected to the concept of "non risk management." Civil society organizations have said that the new legislation seeks to shut down institutional channels to investigate government irregularities and abuse of power, enabling a culture of secrecy and lack of transparency.

The IACHR and its Special Rapporteurship for Freedom of Expression stress that the right to access international funds—in a context of international cooperation to defend and promote human rights—is protected by freedom of association and that the State has an obligation to respect it, without imposing any restrictions beyond those compatible with the right to freedom of association. The IACHR and its Special Rapporteurship for Freedom of Expression also note that the free and full enjoyment of freedom of association imposes on States the duty to create adequate legal and factual conditions to enable defenders, the media, and reporters to do their work freely. While the obligation to ensure the right to freedom of association does not preclude regulating records, oversight, and monitoring of organizations within each State's jurisdiction, legal requirements must not prevent, delay, or restrict the creation and operations of these organizations.

Finally, the IACHR and its Special Rapporteurship for Freedom of Expression are concerned about the expedited context in which these reforms were approved by the legislature. According to the information the Commission has received, the National Congress passed these reforms in a single virtual session held on October 7, 2021. This session had been called just a few hours in advance and was held on one of the country's main public holidays.

The IACHR and its Special Rapporteurship for Freedom of Expression note that the legality principle demands that legislation to restrict the exercise of fundamental rights must officially be adopted through formally approved acts, ensuring essential public deliberation. Along similar lines, the Inter-American Court has said that "in order to guarantee human rights, it is [...] essential that State actions affecting basic rights not be left to the discretion of the government but, rather, that they be surrounded by a set of guarantees designed to ensure that the inviolable attributes of the individual not be impaired." The IACHR and its Special Rapporteurship for Freedom of Expression note that proceedings to approve these reforms in the National Congress failed to provide minimum conditions to ensure the plurality of voices, public scrutiny, and debate required by legislation of this type.

The IACHR and its Special Rapporteurship for Freedom of Expression therefore call on the State to review these reforms and ensure they conform with the applicable international human rights standards and comply with Honduras' international commitments. In particular, the State must ensure that criminal law cannot be used as a tool to restrict the exercise of freedom of peaceful assembly or the work of rights defenders and journalists.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

The Special Rapporteurship for Freedom of Expression is an office created by the IACHR to promote the defense of the right to freedom of thought and expression in the Americas, considering the fundamental role that right plays in the consolidation and development of any democratic system.

No. 304/21

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