Law on Amparo

Every person has the right to seek amparo in the cases and for the effects expressed hereinafter: 1. So that they are maintained or restored in the enjoyment of the rights and guarantees established by the Constitution. 2. So that, in concrete cases, it is declared that a law, a regulation, or a disposition of the authority is not applicable to them for being unconstitutional. 3. For their immediate exhibition, when they are illegally imprisoned, detained, or deprived in any manner in the exercise of their individual freedom, or who suffer undue burdens, even though the restriction were authorized by law. 4. In cases of military discharges or illegally executed registrations.

When the amparo has the object of claiming acts against the person or their freedom, the writ of habeas corpus or personal exhibition shall be used. In the case of other rights and guarantees being violated, the proceeding shall be conducted in the manner explained in Chapter IV.

For the writ of amparo to be admissible, any act is sufficient from which the disturbance or deprivation of the aforementioned rights and guarantees may follow; or that the fulfillment of a law that is considered unconstitutional be required, or the order, resolution, or mandate against which recourse is made in the cases of the previous article be communicated. The repetition of a demand for amparo based on the same facts and the same legal considerations as the previous one shall be dismissed summarily. CHAPTER II JURISDICTION

It falls exclusively within the competence of the Courts of Justice to hear writs of amparo and personal exhibition, in the manner determined in the following articles.

The Supreme Court of Justice shall hear and resolve: 1. The writ of unconstitutionality provided for in subsection 2 of article 1. 2. Violations committed by the President and Commander General of the Republic and by the Secretaries of State. 3. Violations committed by the Courts of Appeal. 4. Violations committed by the Superior Court of Accounts. 5. Violations committed by employees with general jurisdiction in the Republic.

The Courts of Appeal, in their respective jurisdictions, shall hear and resolve: 1. Violations committed by the Departmental or Sectional Judges and Justices of the Peace, in cases of preventive jurisdiction. 2. Violations committed by departmental or sectional employees of the political, administrative, or military order.

The Judges of Letters of Departmental or Sectional jurisdiction, in their respective jurisdictions, shall hear and resolve: 1. Violations executed by those inferior in the hierarchical order, according to the subject matter. 2. Violations committed by the Municipalities or any of their members, including the Police Mayors and Auxiliary Mayors. 3. Violations executed by employees not included in the foregoing provisions.

If there be more than one Judge of Letters in the same jurisdiction and the writs are brought against officials who are not subordinates in the hierarchical order of the Courts, the Judges of Letters shall be competent by prevention.

The Departmental or Sectional Judges and any other authority shall provide immediate assistance, whenever they are required or have notice of the seizure or restriction of the freedom of any person, executed by private individuals.

When a Judge or Court declares itself incompetent to hear a demand for personal exhibition or amparo, it shall pass it in original form to the competent official, no later than within twenty-four hours, so that they may proceed with it according to law. Failure to comply with this provision shall be punished with a fine of ten to twenty-five lempiras. CHAPTER III WRIT OF PERSONAL EXHIBITION

The writ of personal exhibition may be brought by the aggrieved party or any other person in their name, without need of a power of attorney, in writing, verbally, or by telegraph. Whenever the competent authority has notice of a person being illegally detained, it shall order their personal exhibition ex officio. In case of violence, burdens, or vexations ordered by the Warden or Chief of the establishment, the subordinate executors are obliged to report the fact to the Judge, to the Court of Appeal, and to the Supreme Court of Justice, under the penalty of fifteen to fifty lempiras in fines if they fail to do so. The competent authority, to whose knowledge the facts referred to in the two preceding subsections are brought, shall immediately conduct an investigation of the case and shall do all that is proper in accordance with law. In the event of failing to do so, it shall be considered as a co-author of the detention, vexations, or burdens.

It is illegal and arbitrary, except in the case of a crime in flagrante delicto: 1. Any verbal order of arrest or imprisonment. 2. One that does not emanate from a competent authority.

Whoever requests the exhibition shall express the facts that motivate it, the place where the offended party is located, if known, and the authority, official, public employee, or person considered responsible.

As soon as the Court or Tribunal receives the request, it shall decree the exhibition, if warranted, and shall appoint an Executing Judge, which may be any authority of the civil order or citizen of notorious honesty and education residing in the place where the offended party is located, or a nearby location.

The office of Executor shall be gratuitous, and no citizen may refuse to hold it, except for reason of illness, under the penalty of ten to twenty-five lempiras in fines, or of being tried for disobedience, in case of recidivism.

The Executor shall proceed immediately to comply with the writ of habeas corpus. To that effect, he shall notify the respective official or employee, who shall deliver to him at that moment the aggrieved person, together with the report or background information of the case, which shall not prevent the continuation of the investigation of the fact being prosecuted; and, for such purpose, he shall leave an extract of the principal proceedings.

The Executor shall record the hour in which he receives the mandate, that of the notification to the employee or official, and that of the delivery of the aggrieved person, and shall report on the fulfillment of his commission to the Court or Tribunal that appointed him, who shall approve or disapprove, as he deems appropriate under law, what has been done by the Executor.

The Executor Judge is obliged to decree, within the law, all security measures that are indispensable against the prisoner or detainee.

If from the examination of the background information it appears that the detention or restriction is illegal, the Executor shall decree the freedom of the aggrieved person and the cessation of the restrictions or vexations; and if the imprisonment is in accordance with law, the Executor shall issue an order directing that the case proceed on its course. Freedom shall be decreed under bond in accordance with the rules of the Procedural Code, and the Executor Judge may authorize the signing of the bond. A certification of the bond document shall be given to the Instructor Judge or official who motivated the recourse.

The authority, official, public employee, or private person against whom the writ of habeas corpus is requested shall obey immediately the writ of habeas corpus and what is resolved by the Executor Judge, under the penalty of twenty-five to fifty lempiras fine, without prejudice to being tried for the crime of disobedience, prosecution which the Court or Tribunal shall order immediately by telegraph or telephone, if necessary. Equal obedience is owed, under the same penalties expressed and also suspension of the functions of his office, to the resolutions of the Court.

When the official who disobeys the writ of habeas corpus is an employee or agent of the Executive Power, the Supreme Court shall immediately bring it to its knowledge, so that within twenty-four hours it may execute what has been ordered. If the Executive Power refuses or allows the term to pass without carrying out the writ, the Supreme Court shall record the fact and shall report to the Legislative Congress, without prejudice to ordering the prosecution of the disobedient employee. In the case that the Supreme Court of Justice does not bring to the knowledge of the Executive Power, within the term stated in this article, the disobedience of the said employee or agent, or fails to record in the proceedings that fact, or omits reporting it to the Legislative Congress, the recurrent has the right to present a complaint before the latter, in order that it be declared with grounds for initiating proceedings against the members of the Court, their reinstatement be decreed, and their prosecution be ordered before the corresponding judicial authority.

The Courts and the Executor may request the assistance of the armed forces for the fulfillment of their resolutions, and the Executive shall do so immediately without any pretext, being able to resort to the assistance even of private parties.

Telegraphic messages relating to the writ of habeas corpus shall be transmitted urgently and without charge, and proof of deposit shall be given. The chiefs of the respective offices shall be responsible for the failure to comply with this provision, under penalty of twenty-five to fifty lempiras fine, without prejudice to the criminal action that may correspond.

After examination of the background information or in view of the report, the Court shall continue the procedure in accordance with what is provided in Chapters IV and V. CHAPTER IV WRIT OF AMPARO

The demand for amparo shall take place against any authority or official whether they act on their own or in compliance with a law or order of a superior; and may be filed by the aggrieved person or by any other civilly capable person, without need of power of attorney. The demand for amparo shall be filed in writing, in which shall be set forth:

• 1)

  The act, resolution, order, or mandate against which the complaint is made;

• 2)

  The constitutional guarantee that is considered violated;

• 3)

  The designation of the authority, official, or public employee against whom amparo is requested;

• 4)

  Statement of the proceeding or matter in which the resolution, order, or mandate complained of has been issued, and the remedies that have been used to obtain its correction;

• 5)

  In the case of the second subsection of article 1, the law, regulation, or provision in question shall also be stated. In the same petition or afterwards, the suspension of the act may be requested, if the case is included in the following article. No demand for amparo shall be admitted if any of the requirements enumerated in this article is omitted. 1 Reworded in the terms of Decree No. 125 of October 30, 1967, published in the Official Gazette number 19322 of November 21, 1967, the full text of which appears at the end as an annex.

The act or fact complained of shall be suspended, provided that from its execution results an irreparable damage or burden, or that it is evident the lack of jurisdiction or competence of the authority, employee, or agent against whom the recourse is filed, or when the act is of those that no authority can legally execute.

When provisional suspension is requested, and this is appropriate in accordance with the preceding article, the Court shall grant it upon the request of the plaintiff alone and under his responsibility, and notice shall be given, by telegraph if necessary, to the authority, official, or employee in question, who must obey and refrain from executing the act against which complaint is made, and if they do not obey, they shall be punished with a fine of fifty to one hundred lempiras, without prejudice to the other liabilities that may be applicable.

In the same order in which the point on suspension is resolved, or immediately if this has not been requested, the Judge or Court shall request the background information, or, in its place, a report from the authority, official, or public employee against whose acts or resolutions amparo has been filed, who shall comply with what has been ordered within twenty-four hours plus one day for each twenty kilometers of distance. The sending of the background information shall not prevent such officials or employees from continuing the investigation of the fact they are pursuing, and for such purpose, they shall leave an extract of the principal proceedings. Once the background information is received, the plaintiff shall be granted a view for forty-eight hours to formalize his request in writing. This writing and the background information shall be given a view for the same period to the Prosecutor. If within the stated term the background information or report is not sent, the right or guarantee that motivates the recourse shall be deemed violated, and it shall be resolved without further proceeding, except in the case of fortuitous event or force majeure.

After the term of the view has expired, the Court or Tribunal shall pronounce sentence within the three following days, if the point is purely one of law, or shall open the case to proof for eight days, if there are facts to be proven and any of the parties has requested it. When the proof is to be given outside the place of trial, one additional day shall be granted for each twenty kilometers of distance.

Every authority or official has the obligation to give the parties, without any delay, certification of the documents they request as evidence in amparo proceedings; and the Court that hears it may agree ex officio on expert evidence or inspection when it deems it necessary. If the authorities or officials required refuse to issue the indicated certifications, they shall incur a fine of twenty-five to fifty lempiras, without prejudice to the other liabilities to which they may be subject in accordance with the Penal Code.

Evidence is public. It shall be received within the terms established by this law and shall be evaluated in accordance with the rules of the Code of Procedure.

Upon conclusion of the evidence period, the case file shall be made available to the parties for a period of twenty-four hours to present their arguments; and within the three following days the Court shall render judgment, granting or denying the remedy. Once notified, if it has been rendered by the lower courts, the case file shall be sent for review to the Supreme Court of Justice. The judgment favorable to the plaintiff shall be executed provisionally when the act imputed does not merit a penalty exceeding three years. When the remedy is for illegal military enlistments or registrations, the Court shall resolve their cancellation. CHAPTER V REVIEW JUDGMENT

The Supreme Court of Justice shall decide with only the examination of the case file, within six days of having received it, reforming, confirming or revoking the consulted judgment, and shall immediately communicate by telegraph the operative part to the official who rendered it in the first instance, ordering its compliance.

If the Court or official who rendered the judgment in the first instance, or the authority, official or employee who motivated the remedy, does not immediately proceed to execute what is provided in the judgment, the Supreme Court of Justice, at the request of a party or ex officio, shall commission another authority of the place or a citizen, who with the character of Executing Judge shall give due compliance with what is ordered, and shall order the prosecution of the offender for the crime of disobedience. The Executor represents the Court that appointed him, enjoys the prerogatives and immunities of the members of such Court and may not refuse to perform the assignment except for illness or other just cause, at the discretion of the Court that appointed him. For the efficacy of what is provided in this article, the respective Court, or the Executor, as the case may be, may request the assistance of the public force, and in its absence that of citizens, who are obligated to provide it and shall be considered as agents of the authority.

If despite the judgment the act that motivates the remedy is consummated, the Court shall order the prosecution of the guilty party or parties, sending certification of the proceedings to the competent authority, if it is not the one rendering judgment. If the guilty party enjoys the prerogatives established in Articles 101, Attribution 14, and 144, Attribution 4 of the Political Constitution, notice shall be given to the Supreme Court of Justice for the appropriate purposes. CHAPTER VI CASES WHERE REMEDY OF AMPARO IS INADMISSIBLE

The remedy of amparo is inadmissible:

• 1)

  In purely civil judicial matters, with respect to the parties who intervene or have intervened in them and to third parties who have available resources or legal actions in the same judgment, and against final, executory judgments in criminal cases;

• 2)

  Against resolutions rendered in amparo proceedings;

• 3)

  Against acts consummated in an irreparable manner;

• 4)

  When the effects of the claimed act have ceased; and, 5. Against acts consented to by the aggrieved party. The Judge or Court shall summarily reject the amparo complaint that is inadmissible. During the proceedings, it shall dismiss the case as soon as the ground for inadmissibility appears in the case file.

Acts of an administrative nature are presumed to be consented to when no remedy of amparo has been filed within sixty days following the date of notification made to the claimant, or from when the claimant becomes aware of it. CHAPTER VII GENERAL PROVISIONS

In the cases referred to in subsection 2 of Article 1, the procedure established in Chapter IV of this law shall be observed, insofar as it is applicable.

The terms established by this law are peremptory and non-extendable; and the simple omission, without just cause, of the prescribed procedure during such term produces liability; but if a term expires on a holiday, the following business day shall be considered as the last day of the term for purposes of law.

The fines imposed by virtue of this law shall be enforced by the Court that knows of the remedy, through the means of constraint if necessary, and shall be applied to the Justice Fund.

The judgments in amparo remedies do not produce the effect of res judicata. The favorable ruling does not excuse the Instructing Judge from his obligation to continue the inquiry until the investigation is exhausted.

In matters of evidence, letters rogatory, dispatches, notifications, citations and summonses, the provisions of common procedural laws shall be observed, insofar as they are applicable.

If the Court reviewing the remedies referred to in this law notes defects in the procedure, it shall impose on the guilty parties in the same judgment the disciplinary penalties it deems just in accordance with common law.

In cases of habeas corpus, or whenever there is urgency, the Courts shall communicate their orders or resolutions by means of telegraphic dispatches, ordering so in them themselves. In such case, they shall also provide that the receiving telegraph offices and the officials or persons to whom the dispatches are directed give immediate notice upon receipt.

Causes of liability are: the admission or non-admission of the remedy, the decree or non-decree of suspension of the violative act and the granting or denial of amparo, against the provisions of this law. The delay in the processing of these remedies, in the transmission or delivery of the dispatch issued or in its compliance, shall be punished by the respective Courts with a fine of fifty to one hundred fifty lempiras, which shall be applied to the Justice Fund, without prejudice to any other liabilities that may be appropriate. If the Court is a collegial body, the fine shall be applied in full to each of its members.

The Commanders of prisons, Mayors, Guards or persons in charge of the custody of prisoners shall provide a signed copy of the order of imprisonment to the person in their custody or to any other person who requests it. If they refuse or delay its delivery for more than six hours, they shall incur a fine of twenty-five to fifty lempiras.

The judgment shall be limited to protecting or granting the protection sought to the persons in the case that is the subject of the remedy, without making any declaration regarding the act that motivated it.

In these proceedings ordinary paper shall be used.

The amparo proceedings pending upon the entry into force of this law shall be processed and resolved in accordance with the prior law.

This law shall come into force twenty days after its promulgation, thereby repealing the Law of Amparo issued on September 30, 1924 and its reforms. Given in Tegucigalpa, in the Chamber of Sessions, on the fourteenth of April of nineteen hundred thirty-six. DECREE NUMBER 125

THE NATIONAL CONGRESS, DECREES:

To reform articles 25 and 36 of the Law of Amparo, which shall be read as follows:

The demand for amparo shall be filed against any authority or official, whether acting on their own account or in compliance with a law or order of a superior; and may be filed by the aggrieved person or by any other person with legal capacity, without the need for a power of attorney. The demand for amparo shall be filed in writing, in which the following shall be stated:

• 1)

  The act, resolution, order or mandate against which the claim is made;

• 2)

  The constitutional guarantee considered to be violated;

• 3)

  The designation of the authority, official or public employee against whom the amparo is requested;

• 4)

  Expression of the judgment or proceeding in which the resolution, order or mandate claimed was issued, and the remedies that have been used to obtain its correction;

• 5)

  In the case of the second clause of article 1, the law, regulation or provision in question shall also be stated. In the same request or thereafter, the suspension of the act may be requested, if the case is covered by the following article. No demand for amparo shall proceed if any of the requirements enumerated in this article are omitted.

The amparo remedy is inadmissible:

• 1)

  In purely civil judicial matters, with respect to the parties that intervene or have intervened in them and to third parties who have available legal remedies or actions in the same proceeding, and against final, executed judgments in criminal cases;

• 2)

  Against resolutions issued in amparo proceedings;

• 3)

  Against consummated acts that are irreparable;

• 4)

  When the effects of the claimed act have ceased; and, 5. Against acts consented to by the aggrieved party. The Judge or Court shall summarily reject the demand for amparo that is inadmissible. During the course of the proceeding, the Court shall dismiss the proceedings as soon as the grounds for inadmissibility appear on the record.

This decree shall enter into force as of the date of its publication in the Official Journal "La Gaceta". Effective as of the Official Journal La Gaceta number 19322 dated November 21, 1967. Given in the city of Tegucigalpa, Central District, in the Chamber of Sessions of the National Congress, on the thirtieth day of the month of October of nineteen hundred sixty-seven.