Law for the Protection of Witnesses in Criminal Proceedings

CREATION OF THE PROGRAM. This Law is intended to create the Witness Protection Program in Criminal Proceedings, which shall be under the direction and coordination of the Public Ministry.

PURPOSE. The Program referred to in the preceding article has the purpose of providing protection to Witnesses in Criminal Proceedings who, as a consequence of their effective and efficient participation therein, are admitted to the Program. The protection of the Program shall extend to the spouse, household partner, family members, or other persons related to the Witness who, by virtue of their testimony, find themselves in a situation of risk in accordance with this Law and its Regulations. SECTION II PRINCIPLES AND DEFINITIONS

PRINCIPLES: All actions regarding the protection referred to in this Law shall be governed by the following principles:

• 1)

  VOLUNTARINESS: To be admitted to the Program or to withdraw from it, the written consent of the protected subject shall be required, without prejudice to the grounds for exclusion set forth in the regulation issued for such purpose;

• 2)

  CONFIDENTIALITY OF PROTECTIVE MEASURES: Those who have knowledge of protective measures or have intervened in their preparation, issuance, and execution, whether public servants or private individuals, shall have the obligation to maintain in strict confidence the identity of the beneficiary or beneficiaries of the Program and any other information that could lead to their disclosure or location. The violation of this provision shall result in the criminal, civil, and administrative penalties that may be applicable under law;

• 3)

  TEMPORALITY: Protective measures shall subsist as long as the factors that motivated them exist in accordance with this Law;

• 4)

  RESPONSIBILITY: Officials or employees who intervene in the protection procedure shall refrain from making unauthorized offers regarding protection; the violation of this principle shall generate the responsibilities that may be applicable under Law;

• 5)

  BASIS FOR PROTECTION: Every protection procedure shall be based on the verification of the nexus between the decisive and indispensable procedural participation of Witnesses and the factors of threat and risk against them;

• 6)

  AUTONOMY: The Program independently defines the protective measures that correspond to each case, in accordance with the terms and conditions set forth in this Law and its Regulations;

• 7)

  OPTIMIZATION OF EVIDENCE: Whoever initiates criminal action shall refrain from proposing Witnesses at risk whose purpose is to ratify facts that can be proven through evidence or physical evidence obtained during investigation or inquiry;

• 8)

  SOLIDARITY: Private entities, non-governmental organizations, and other members of society shall collaborate with the Program to apply security measures and provide the necessary assistance for adequate protection;

• 9)

  CONCURRENCE: State entities at all levels shall participate and provide the necessary support to the Program for the proper implementation of security and assistance measures defined in each case;

• 10)

  EFFECTIVENESS AND EFFICIENCY: The Program is an instrument for the effectiveness and efficiency of justice;

• 11)

  SUBSIDIARITY AND SPECIALIZATION: Protective measures shall only be applied to Witnesses who participate or may come to participate in Criminal Proceedings, in those cases where the situation of risk cannot be minimized through ordinary public safety measures;

• 12)

  INVESTIGATION: To enter the Program, it shall be necessary to conduct a threat and risk investigation carried out in the form and terms determined by this Law and its Regulations;

• 13)

  PROPORTIONALITY: Protective measures must respond to the level of risk in which the person receiving them finds themselves and to the available resources of the Program, within the framework of respect for constitutional guarantees;

• 14)

  GRATUITY: The protective measures contained in this Law shall not generate any expenses to their recipients; and,

• 15)

  SPEED: The actions carried out under the framework of this Law shall be executed without any delay.

DEFINITIONS. For the purposes of this Law, the following definitions are established:

• 1)

  PROGRAM: It is the set of protective measures for Witnesses in Criminal Proceedings, adopted by the competent authority within the framework of this Law and its Regulations;

• 2)

  APPARENT ENTITY: It is the entity created and authorized by the Program, through which security plans are developed and executed in whole or in part, in order to protect the identity and location of both persons incorporated into the program and those who work in it;

• 3)

  WITNESS: Any person who has information necessary for the clarification of a criminal case and whose participation or possible participation in Criminal Proceedings represents a risk to themselves or another person, in accordance with this Law;

• 4)

  PROTECTION: It is the application of the Program to address the risk supported by the protected person and their family environment. It translates into socio-economic, psychological, medical support and other actions aimed at satisfying previously evaluated needs; and,

• 5)

  RISK: Probability of occurrence of real or imminent damage to the life, personal integrity of the witness or threat, the latter understood as real intimidation executed by any means against the Witness in Criminal Proceedings in the terms of this Law and its Regulations.

STRUCTURE OF THE PROGRAM. For the development and application of the Program, the following structure is established:

• 1)

  Consultative Council of the Program;

• 2)

  The Direction of the Program;

• 3)

  The Regional Units of the Program.

CONSULTATIVE COUNCIL. The Consultative Council of the Program is composed in the following manner:

• 1)

  The Attorney General of the Republic, who shall preside over it;

• 2)

  The General Director of the Office of the Fiscal; and,

• 3)

  The Director of the Protection Program. The Consultative Council shall appoint a Secretary, at the proposal of the Attorney General of the Republic, selecting from the permanent personnel of this institution, who shall be responsible for recording the minutes, issuing convocations at the instruction of the Attorney General, and following up on the agreements issued by the latter. The Consultative Council may convoke other State institutions to coordinate aspects related to the Program.

FUNCTIONS OF THE CONSULTATIVE COUNCIL. The functions of the Consultative Council are:

• 1)

  Define policies related to the Program in accordance with this Law;

• 2)

  Coordinate with the Direction of the Program the execution of plans and projects related thereto; and,

• 3)

  Support the other activities necessary for compliance with this Law.

DIRECTION OF THE PROGRAM. The Direction of the Witness Protection Program of the Public Ministry created by this Law shall be in charge of the development and execution of the policies and decisions adopted for the application thereof.

APPOINTMENT AND REMOVAL. The Program shall be in charge of a Director who shall be appointed by the Attorney General of the Republic and may not be removed except for any of the causes established in the present statute of the Career of the Public Ministry. Their Attributions shall be established in the Regulations.

REQUIREMENTS TO HOLD THE POSITION OF DIRECTOR. The requirements to hold the position of Director are: 1) Be a lawyer of recognized integrity; and, 2) Have a minimum of eight (8) years of professional experience as a fiscal, judge, public or private defender in criminal matters. CHAPTER III PROTECTION SECTION PROTECTIVE MEASURES

PROTECTIVE MEASURES. The Director of the Program may adopt any of the following measures:

• 1)

  Departure from the place of risk;

• 2)

  Temporary or permanent relocation of the protected Witness within or outside the country;

• 3)

  Change of identity;

• 4)

  Modification of physical features; and,

• 5)

  Any other measures necessary to guarantee the life as well as physical, psychological, occupational security and the integrity of persons.

ADDITIONAL MEASURES. Additionally, to the measures contained in the preceding article, the Director of the Program may recommend to the Fiscal in charge of the case, following technical study, the promotion before other authorities, the establishment among others, the following additional measures: police, penitentiary, or procedural jurisdictional measures, which are described as follows: POLICE MEASURES 1) Immediate departure of the Witness and their family group from the place of risk; 2) Surveillance, monitoring, and police patrol; 3) Means and modalities of emergency police communication; and, 4) Accompaniment of the witness by a police officer (escort). PENITENTIARY MEASURES 1) Penitentiary protection measures. PROCEDURAL JURISDICTIONAL MEASURES 1) Methods of voice or physical appearance distortion and any other technical instrument that protects the identity and/or physical integrity of the witness; 2) Anonymity or protection of identity and confidentiality thereof; 3) Video-conferencing; and, 4) Guarantee of preference in case processing in jurisdictional proceedings, ensuring its confidentiality.

STAGES OF THE PROCEDURE. The protection procedure comprises the following stages:

• 1)

  ENTRY TO THE PROGRAM. Entry to the Program shall require an application for admission addressed to the Director thereof, by the Fiscal of Knowledge.

• 2)

  EVALUATION OF THE APPLICATION. Once the application is presented to the Director of the Program, with the support of their multidisciplinary team, they shall verify the nexus between procedural participation, threat, and risk situation and shall proceed to assess the eligibility of the candidate and their adaptability to the Program;

• 3)

  ADMISSIBILITY TO THE PROTECTION PROGRAM. Once the nexus between procedural participation, threat, and risk situation has been verified, the competent authority shall take into account the following aspects for the admission of a witness to the Protection Program. a) The candidate must meet the following admissibility requirements contained in the Regulations governing the Protection Program; and, b) The candidate must agree with the conditions of the Program and formalize their will by signing the respective incorporation agreement.

• 4)

  DECISION ON ENTRY TO THE PROGRAM. After the relevant evaluation, the Director of the Program must pronounce themselves in a timely and reasoned manner regarding the admissibility of the candidate to the Program. When entry of a witness to the program is denied, the application for incorporation may be re-evaluated by express order of the Attorney General, provided it concerns conditions not previously considered or new or subsequent facts. This decision shall not be subject to any administrative appeal; and,

• 5)

  IMPLEMENTATION AND FOLLOW-UP OF MEASURES. Protective measures must be viable and proportional to: the risk situation; the importance of the case; the transcendence and suitability of the testimony; the vulnerability of the person to be protected; the capacity of the candidate to adapt to the conditions of the Program; and, the capacity of the agent generating the risk situation to carry out the damage. The competent authority must follow up on the protective measures implemented and those adopted in coordination with competent national or international public or private entities when circumstances so warrant.

AGREEMENTS. The General Office of the Fiscal, as the central authority, may enter into agreements with institutions or bodies of other States, international organizations, and with non-governmental organizations on cooperation in order to obtain support for the development of the Program.

COORDINATION MECHANISMS. When protection actions are executed between the Program and any other public or private entity, the internal mechanisms for handling confidentiality and secrecy of information shall be coordinated in order to guarantee the confidentiality of the identity and location of the Witness.

PUBLIC SECTOR COLLABORATION FOR THE APPLICATION OF PROTECTIVE MEASURES. Every public authority is obligated to provide collaboration for the execution of protective measures at the request of the Program Director, under penalty of the corresponding administrative and criminal sanctions. SECTION III BENEFITS ARTICLE 17.- EXEMPTIONS. All protected persons shall be exempted from the payment of fees, taxes, contributions and public charges that these authorities normally collect for the provision of these services, provided that they have a direct relationship with protection.

PROTECTED PUBLIC SERVANTS. Public servants incorporated into the program shall enjoy paid leave for a maximum period of one (1) year, from the time protection is granted to them. After said period has elapsed, if the situation has not been normalized, the State shall grant them severance, recognizing all their rights.

PROTECTED WORKERS. Workers incorporated into the program shall enjoy the right to suspension of the labor relationship for up to six (6) months. After said period has elapsed, if they are unable to return to work due to the risk persisting, employers shall pay them their labor benefits and indemnities.

NOTIFICATIONS. In order to enjoy the rights conferred in the two (2) preceding articles to public servants and workers, these shall give notice to the employer within a period not exceeding five (5) days, by means of the Program.

TAX OBLIGATIONS. When due to reasons of protection, persons incorporated into the Program have not or cannot comply with their tax obligations, both formal and material, they shall be exempted from all responsibility until the normalization of their situation, with said matter being verified to the Executive Tax Revenue Office (DEI) by the Program Director.

GUARANTEE OF NON-MODIFICATION OF MEASURES. Judges shall not be able to limit, modify or suspend the protective measures agreed to by the Program for the benefit of persons incorporated in it. CHAPTER IV BUDGET AND CONTROL

BUDGET. The Secretariat of State in the Office of Finance shall allocate the necessary resources for the creation, implementation and operation of the Program. As of the fiscal year 2008, the Public Ministry shall include in its annual budget project the budgetary items necessary for its implementation. Additionally, the Program may receive, through the Public Ministry, resources from inheritances, bequests and donations which shall be deductible from income tax, as well as those from cooperation.

CONFIDENTIALITY OF EXPENDITURES. The expenditures that are ordered or executed for the purposes provided in this Law shall have a reserved character. In no case shall the identity of the Program beneficiary or any other information that leads to it or to their location be revealed. Likewise, in order to guarantee the confidentiality of the information that supports reserved expenses and that may lead to the location or identification of protected witnesses, the Program may execute resources through the use of an apparent entity. Expenditures executed from the protection program shall be considered reserved expenses incurred in a state of emergency, and shall not be subject to the rules and procedures of state contracting established in the Public Contracting Law, its Regulation, or the norms that modify or replace it. Budget execution shall be subject to subsequent control by the Superior Court of Accounts. CHAPTER V FINAL AND TRANSITORY PROVISIONS

GUARANTEE OF LEGALITY. The application of this Law shall not diminish any of the guarantees and rights contained in the Constitution of the Republic and international instruments ratified by the State of Honduras.

RECRUITMENT AND SELECTION. The officials and employees that form part of the structure of the Program shall be subject to the provisions of the Public Ministry Law and the Public Ministry Career Statute, as well as their regulations. ARTICLE 27.- GRADUALISM OF THE PROGRAM.- Given its nature, the Program shall be implemented gradually and progressively, in accordance with the available resources and applying the principles and objectives provided in this Law and its Regulation.

REFORMS TO THE MONEY LAUNDERING LAW. To reform article 23 of Decree No. 45-2002, dated March 5, 2002, containing the Money Laundering Law, which henceforth shall be read in the following manner:

Upon completion of the criminal proceedings in the crimes referred to in this Law, when the sentence is final and orders the penalty of forfeiture, the sale by public auction of the goods, movable and immovable, tangible, intangible and non-material shall proceed, provided that their destruction is not legally appropriate, an auction that shall be held fifteen (15) days after its publication in two (2) newspapers of national circulation. In this case, the proceeds from the sale and the seized money including bank deposits, securities and other credits, as well as fines, shall be distributed by OABI in the following manner:

• 1)

  Up to twenty-five percent (25%) for the units that participated in the seizure thereof; if several units are involved, the aforementioned percentage shall be divided by OABI taking into consideration their degree of participation in the seizure;

• 2)

  Up to twenty-five percent (25%) for the Witness Protection Program of the Public Ministry;

• 3)

  Up to twenty-five percent (25%) for institutions that work in crime prevention and rehabilitation of offenders; and,

• 4)

  The remaining twenty-five percent (25%) shall be allocated to what is stipulated in the third paragraph of Article 20 of the Money Laundering Law.

SEIZED GOODS. The Office of Seized Property Administration, a dependency of the Public Ministry, shall be responsible for overseeing the custody, administration and liquidation of all goods, products or instruments of the crime in which the administrative judicial authority has seized, secured or sequestered in accordance with the Law, with twenty-five percent (25%) of the proceeds from liquidation being assigned to the Witness Protection Program.

REGULATION. This Law for purposes of its application must be properly regulated within one hundred twenty (120) days counted from its effective date, by the Public Ministry.

EFFECTIVE DATE. This Law enters into force twenty (20) days after its publication in the Official Gazette La Gaceta.

PURPOSE SECTION II PRINCIPLES AND DEFINITIONS

PRINCIPLES: 1) Voluntariness 2) Legal Reserve 3) Temporality 4) Responsibility 5) Foundation of Protection 6) Autonomy 7) Optimization of Evidence 8) Solidarity 9) Concurrence 10) Effectiveness and Efficiency 11) Subsidiarity and Specialization 12) Investigation 13) Proportionality 14) Gratuity 15) Expedience

DEFINITIONS: 1) Program 2) Apparent Entity 3) Witness 4) Protection 5) Risk CHAPTER II ORGANIC STRUCTURE OF THE PROGRAM

STRUCTURE OF THE PROGRAM

ADVISORY COUNCIL

FUNCTIONS OF THE ADVISORY COUNCIL

DIRECTION OF THE PROGRAM

APPOINTMENT AND REMOVAL

REQUIREMENTS TO HOLD THE POSITION OF DIRECTOR CHAPTER III PROTECTION SECTION I PROTECTION MEASURES

PROTECTION MEASURES

ADDITIONAL MEASURES. Police Measures; Penitentiary Measures; Procedural Jurisdictional Measures. SECTION II PROTECTION PROCEDURE

STAGES OF THE PROCEDURE 1) Admission to the Program. 2) Evaluation of the Request. 3) Admissibility to the Protection Program. 4) Decision regarding admission to the program. 5) Implementation and monitoring of the measures.

AGREEMENTS

COORDINATION MECHANISMS

COLLABORATION OF THE PUBLIC SECTOR FOR THE APPLICATION OF PROTECTION MEASURES SECTION III BENEFITS

EXEMPTIONS

PROTECTED PUBLIC SERVANTS

PROTECTED WORKERS

NOTIFICATIONS

TAX OBLIGATIONS

GUARANTEE OF NON-MODIFICATION OF MEASURES CHAPTER IV BUDGET AND CONTROL

BUDGET

RESERVE OF EXPENDITURES CHAPTER V FINAL AND TRANSITORY PROVISIONS

GUARANTEE OF LEGALITY

RECRUITMENT AND SELECTION

GRADUALITY OF THE PROGRAM

AMENDMENTS TO THE MONEY LAUNDERING LAW

SEIZED ASSETS

REGULATIONS

EFFECTIVE DATE