Reform to the Code of Criminal Procedure on Preventive Detention (10-06-2020)

Reform Article 184 of the Criminal Procedure Code, created through Decree No. 9-99-E, of December 19, 1999, which shall be read in the following manner: "ARTICLE 184. SUBSTITUTION OF PREVENTIVE DETENTION. Provided that the risks referred to in Article 178 can be avoided by the application of another measure less restrictive of the liberty of the defendant, the Judge may, ex officio or at the request of a party, impose on the accused, in place of preventive detention, one or more of the measures included in numerals 4), 5), 6), 7), 8), 9) and 10) of Article 173.

The aforementioned measures may be imposed simultaneously or successively. The Judge shall ensure strict compliance with the imposed measure, for which purpose he must have the support of the National Police and any other State security institution. Alternative measures to preventive detention cannot be imposed if there is serious risk that the intended purpose will not be achieved. In cases where the accused does not have the capacity to post a bond of economic nature, bond by oath may be decreed, which shall consist of swearing an oath to submit to the proceedings. Bond by oath must be decreed together with the measure referred to in numeral 6) of Article 173 and any other that the Judge deems appropriate. In no case shall the application of another precautionary measure other than preventive detention be permissible in crimes of drug trafficking, special rape, weapons trafficking, or crimes related to criminal groups known as "maras or gangs".

TRANSITIONAL. JUDICIAL PROCEEDINGS IN GENERAL. During the validity of the emergency decreed by COVID-19, the parties in judicial proceedings may submit their requests by electronic mail to the competent Judicial Organ, in a format that, while not allowing its alteration, does allow its printing. The receiving Judicial Organ shall record receipt of the document to the sender, forwarding the email to the other parties appearing in the proceedings that have provided an electronic mail address and leaving a copy in the case file, with the Secretariat required to report it for prompt resolution within the corresponding legal timeframes. The resolutions issued by the judicial organs while the COVID-19 virus health crisis lasts must be notified immediately to the parties by any form of telematic or electronic communication, with the Office Secretariat recording such notification. For the foregoing, the Judicial Branch must notify the general public of the electronic mail addresses of each Judicial Organ that is providing service during the health emergency.

TRANSITIONAL. FUNCTIONING OF JUDICIAL ORGANS. The Judicial Organs that the Judicial Branch determines must provide service during the time in which the health emergency is decreed due to the COVID-19 disease may carry out their duties and make their decisions by telematic means, using any mechanism authorized by the Judicial Branch that guarantees communication between the members of the Judicial Organ, auxiliary officials, and the parties to the case. In collegiate judicial organs, the physical integration of its members shall not be required for decision-making, being able to conduct deliberations in a synchronous or asynchronous manner by telematic mechanisms or by any communication technology that allows a record to be made, provided that such mechanisms are authorized by the Judicial Branch.

The publicity of the decisions adopted, except in cases of confidentiality established by law, shall be carried out through publication of those decisions on the Judicial Branch portal. Communications between Judicial Organs with public or private institutions may be carried out by any form of telematic or electronic communication, except those that the Constitution of the Republic and special laws determine must be strictly in writing, such as the apprehension of a person, the release of a detained person, or the registration, modification, or revocation of the prior legal status of registrable assets. In any case, the recipient of the judicial order may verify its authenticity through direct communication to a single, permanently available contact that the Judicial Branch shall establish for such purpose.

TRANSITIONAL. MANDATORY REVIEW OF THE PRECAUTIONARY MEASURE OF PREVENTIVE DETENTION. The judicial organs, during the health emergency, shall proceed to conduct ex officio review of the precautionary measure of preventive detention for persons being prosecuted who, according to the respective judicial and/or penitentiary record, have a pre-existing illness that places them within the at-risk population for contracting the COVID-19 Virus, provided that such diagnosis is supported by necessary clinical and laboratory examinations and has been determined prior to the health emergency. The diagnosis of pre-existing illnesses in a person in preventive detention for which there is no record of prior existence before the health emergency caused by the COVID-19 Virus shall be carried out by medical personnel and specialists when the case requires it, from the State Public Health System. For the purposes of this Article, the following shall be understood as the at-risk penitentiary population for contracting the COVID-19 Virus: immunosuppressed patients or those with HIV, cancer patients, those with autoimmune diseases, hypertension, diabetes, high cholesterol, coronary disease, dementia, atrial fibrillation, chronic obstructive pulmonary disease in its two variants: pulmonary emphysema and chronic bronchitis, bronchial asthma, kidney diseases, congestive heart failure. The Judicial Organ must proceed to conduct the review in accordance with what the previous transitional Article provides, substituting the precautionary measure with detention in the accused's own home or in that of another person who consents to it. Upon expiration of the period designated for the health emergency, the competent Judicial Organ shall conduct a new review of the precautionary measure, adjusting it to the personal conditions that prevail at that time in each specific case. The provisions contained in this Article are not applicable when, in the judge's opinion, the person being prosecuted is considered highly dangerous due to belonging to an organized criminal group or because the crime occurred under this modality, or due to the possibility of reintegration into criminal activity by the accused; or when it concerns habitual offenders as defined in the Criminal Code, in which cases the review of preventive

detention shall be limited to ordering the Penitentiary Institute to adopt measures that minimize health risks.

TRANSITIONAL. The National Penitentiary Institute is ordered to condition special spaces with appropriate protective measures to prevent COVID-19 transmission for the serving of prison sentences for those persons who, in accordance with medical opinion, are determined to be: immunosuppressed patients or those with HIV, cancer patients, those with autoimmune diseases, hypertension, diabetes, high cholesterol, coronary disease, dementia, atrial fibrillation, chronic obstructive pulmonary disease in its two variants: pulmonary emphysema and chronic bronchitis, bronchial asthma, kidney diseases, congestive heart failure, or persons over sixty years of age, and who have not been able to benefit from the modification of the preventive detention measure designated in the previous Article. To this must be added other types of measures such as the use of biosecurity equipment by external persons, the restriction of visits while the state of health emergency remains in effect, among other measures, which must be of a general, preventive, and containment nature regarding contagion.

TRANSITIONAL. As an exception to the provisions regulated in the National Penitentiary System Law contained in Decree No. 64-2012 dated May 14, 2012 and published in the Official Gazette "La Gaceta" of December 3, 2012, edition No. 32,990, and its amendments, as well as its Regulations, during the validity of the emergency decreed by COVID-19, persons who are enjoying the benefit of pre-release are exempt from returning to the penitentiary center on the days that pursuant to the granting of the benefit correspond to them; to ensure that the objectives of the benefit are achieved, the National Penitentiary Institute must implement the control and surveillance measures it deems appropriate, being able to have the support of the National Police and any other State security institution, or through the use of computer-based systems.

This Decree shall enter into force from the date of its publication in the Official Gazette "La Gaceta". Given in the City of Tegucigalpa, municipality of the Central District, held in Virtual manner, on the twenty-fourth day of the month of April of two thousand twenty. MAURICIO OLIVA HERRERA PRESIDENT JOSÉ TOMÁS ZAMBRANO MOLINA SECRETARY ROSSEL RENÁN INESTROZA MARTÍNEZ SECRETARY To the Executive Power. Therefore: Let it be executed. Tegucigalpa, M.D.C., June 2, 2020 JUAN ORLANDO HERNÁNDEZ ALVARADO PRESIDENT OF THE REPUBLIC THE SECRETARY OF STATE IN THE OFFICES OF GOVERNANCE, JUSTICE AND DECENTRALIZATION HÉCTOR LEONEL AYALA ALVARENGA