Observation Day 3

Observatory for Justice of the Guapinol River Defenders

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Date: December 09, 2021

Important points: Expansion/modification of charges is formalized. Answer to charges. Arbitrary court resolution. Replenishment resource.

The parts:

According to article 306 of the Criminal Procedure Code (CPP), the trial will be carried out continuously, with the presence of the Sentencing Court, the parties and the other persons who have been authorized to intervene in it.

Sentencing Court of Trujillo, Colón.

Presiding Judge Franklin Marvin Arauz Santos

Judge Ricardo Geovanny Rodríguez Barahona

Judge Henry Geovany Duarte Zaldivar

Defense Attorneys:

Kenia Veliza Oliva Cardona on behalf of Jeremías Martínez Días

Heriberto Efrain Ramirez Cisneros representing Ewen Alexander Cedillo and

José Abelino Cedillo

Carlo Antonio Jimenez Borjas representing Porfirio Sorto Cedillo

Edy Alexander Tabora on behalf of José Daniel Márquez Márquez

Mario René Rojas on behalf of Orbin Nahun Hernández

Omar Menjivar Rosales on behalf of Arnold Javier Alemán Soriano

Rodolfo Zamora representing Kelvin Alejandro Romero

Public Ministry:

Prosecutor Karen Edith Martinez Guardado

Prosecutor Humberto José Gonzales Ferrera

Private Prosecutors:

Miguel Lara; Esquire

Steve Fajardo; Esquire

Summary of hearing:

Taking into consideration, not having electricity or a generator that would allow live transmission of the proceedings, a petition was presented by the defense attorneys to the Court to allow the audio recording by the defense attorneys during the course of the proceedings of the trial, which was admitted by the Court based on article 346 of the Criminal Procedure Code that establishes, “Either party may request authorization to record or film totally or partially what happens during the debate, and the president, in case of to accede to the petition, it will order the necessary measures to avoid impeding the development of the trial .”

Opening, Normalization of the Accusation and Response to Charges

The Court declared the trial open, beginning with the reading of rights and corresponding warnings on the development of the trial for the defendants and later gave the floor to the Public Ministry to carry out the formalization/modification of the accusation/charges, on the facts and charges presented against the Guapinol River Defenders, later the defense was granted the floor to answer to the charges presented.

We observe that in the formalization of the charges, the Public Ministry presented a general narrative of facts about the accusation, ignoring the existence of the 8 defendants who had to be individualized and, on the other hand, specifying their level of participation in the events that are attributed to them.

On the other hand, we are concerned that after the presentation of the facts, this same Public Ministry, arguing the principle of objectivity contained in article 93 of the CPP that establishes, "in the exercise of its functions the Public Ministry will act with absolute objectivity and will ensure the correct application of criminal laws”, they have tried to include a new crime within the accusation presented against the Defenders, who appear in this trial defending themselves against the following three crimes:

-Crime of Unjust Deprivation of Liberty against José Santos Corea

-Crime of Aggravated Arson against José Santos Corea

-Crime of Aggravated Arson against Inversiones Los Pinares

• In this hearing, the Public Ministry wanted to introduce a new crime of Aggravated Damages against Inversiones Los Pinares, as established by the new penal code, violating procedural guarantees, the right to defense established in article 14 of CCP1 and the procedural norms established for the development of the trial in article 3212 of the same procedural order, which establishes the possibility of modifying or expanding the accusation in case of new facts related to the object of the trial, an issue that does not happen in this case, since the The Public Ministry and the Private Prosecution have tried to present a new crime based on the same facts that have already been dealt with throughout the process.

• We are concerned that this petition raised by the Public Prosecutor's Office and the Private Prosecution has been declared admissible by the Court without taking into account the defense arguments based on the violations of guarantees and rights that govern criminal procedure, such as the principle of innocence. , the right to defense and the principle of motivation, since said resolution has exceeded what was requested by the parties, initially because the Public Ministry bases its expansion on the same facts that have been presented throughout the process , which consist of the burning of a container and the alleged damage to another container, owned by Inversiones Los Pinares. The defense pointed out that the same facts have been pointed out throughout the process, so there is no introduction of new facts as established in Article 321.
  

  • 1 Article 14 CPP. The right of defense is inalienable. The accused and his defender have the right to be present in the proceedings that include evidence and to formulate the petitions and observations they deem appropriate, without prejudice to the exercise of the disciplinary power of the corresponding authority, when the rights in question harm the course normal of acts or process. The bodies in charge of criminal prosecution will be obliged to enforce with equal zeal, not only the facts and circumstances that establish and aggravate the responsibility of the accused, but also those that exempt, extinguish or mitigate it.

• 2 Article 321CPP. Expansion of accusation. If during the trial there is news of circumstances or facts, related to the fact that is the subject of the trial, that have not been mentioned in the accusation and that may modify the legal classification or the penalty of the crime, the prosecutor or the private accuser may modify their qualification or orally expand the accusation so that those are considered during the debate. If the circumstances or events indicated in the extension require new evidence, either party may request the suspension of the trial and the accused, for his part, will have the right to request an extension of his statement. Even though evidence is not necessary, the defendant's defender may also request the suspension of the trial for the precise time, to prepare the defense against the extension of the accusation. The correction of simple material errors, or the inclusion of any circumstance that does not essentially modify the imputation or affect the right of defense, will not have the character of extension. In case of discovery of new, independent facts, related or not with the fact object of the trial that may constitute a crime, a different procedure will be opened for their separate investigation and prosecution.

Arbitrary Resolution of the Tribunal

• The Court declared the expansion of facts carried out by the Public Ministry, admitting the inclusion of the new crime of aggravated damages against Inversiones Los Pinares, without the due motivation established in article 139 of the CPP.

AS AN OBSERVATORY FOR JUSTICE OF THE GUAPINOL RIVER DEFENDERS, WE ARE CONCERNED ABOUT WITNESSING THESE TYPES OF RESOLUTIONS THAT VIOLATE THE RIGHT OF THE ACCUSED TO HAVE A FAIR TRIAL AND ARE COVERED WITH ALL PROCEDURAL GUARANTEES.

Appeal for Reconsideration

• Today the defense has filed an appeal for reconsideration against an arbitrary resolution, which lacks the motivation and which incurs in the non-observance of the law contained in article 12 of the CPP, since the Public Ministry based on the principle of objectivity, wants the Court to include a new crime that:

1. It aggravates the situation of the accused who initially have been defending themselves from three crimes.

1. It does not present new facts that could justify the expansion of this accusation.

1. The new crime that the Public Ministry intends to include is a crime of public action at a private request, which also lacks the due authorization of the victim for it to proceed.

1. Said resolution also exceeds the functions of the Court since it decides on something that the parties have not indicated in their arguments, such as the expansion of facts.

Our Requirements

• At the opening of this trial we are concerned to see this type of action by the Public Ministry and likewise that these actions are endorsed in unfounded resolutions by the Court.

• Today, the trial has been suspended and it has been called for tomorrow, December 10, International Human Rights Day, at 9:00 AM to hear the corresponding resolution on the appeal for reconsideration presented.

• As an Observatory, we urge the Court to make up for tomorrow with a resolution adhering to the law and respectful of the aforementioned guarantees, established in the Honduran Criminal Procedure Code, the Constitution of the Republic and International Standards.