Decree 153-2010 Reform to the Asset Forfeiture Law

Reform Decree No. 27-2010, dated May 5, 2010, containing the "LAW OF DEFINITIVE DEPRIVATION OF OWNERSHIP OF PROPERTY OF ILLICIT ORIGIN". Chapter II, Article 3, numerals 13) and 14), and suppressing numerals 15) and 16) of this Article, Chapter V, Article 15, Chapter VI, Articles 25 and 26, and Chapter XIV, Articles 70, 71, 72, 73, 74, 75, 76, 77 and 78, which hereinafter shall be read as follows: CHAPTER II OF DEFINITIONS

DEFINITIONS.- For the purposes of this Law, the following shall be understood as:

• 1)

  JUDGMENT: Consists of the final resolution issued by the Competent Judicial Authority, whereby it declares or does not declare the definitive deprivation of ownership of property, products, instruments or gains. The judgment rendered in accordance with this Law is declaratory in nature;

• 2)

  PROPERTY: Assets of any kind, corporeal or incorporeal, tangible or intangible, movable or immovable and legal documents or instruments, whatever their form, including electronic or digital, that certify ownership or other rights over such property, such as bank credits, traveler's checks, bank checks, remittances, shares, securities, obligations, bills of exchange, letters of credit and others;

• 3)

  PRODUCTS: Property obtained or derived directly or indirectly from an illicit activity, or that lacks legal economic foundation for its origin;

• 4)

  INSTRUMENTS: Things or objects and/or means, used or intended to be used or for use in any manner, in whole or in part in an illicit activity;

• 5)

  PRECAUTIONARY, CAUTIONARY OR SECURITY MEASURE: The temporary prohibition of transferring, converting, encumbering or alienating, or moving property, products, instruments or gains; or their temporary custody or control, by order issued by the Competent Judicial Authority or the Public Prosecutor's Office.

• 6)

  SEIZURE: Consists of the temporary prohibition on the competent authority to deprive of possession, use or mobilization of property, products, instruments or objects used or with respect to which there is evidence that they have been used in the commission of illicit activities referred to in this Law, or that lacks legal or economic cause for its origin;

• 7)

  FORFEITURE OR CONFISCATION: It shall be understood as the permanent deprivation of ownership of property, products, instruments or gains, decreed by the competent Judicial Authority, through final judgment; The application of forfeiture or confiscation, in accordance with this Law, is not binding on the criminal liability of the owner or one who possesses property, a product, instrument or gain; In the event that the one who possesses the property, product, instrument or gain, under any title, is subject to criminal proceedings, the judgment rendered in that case shall not alter the confiscation measure;

• 8)

  CONTROLLED DELIVERY: It is the special investigative technique that consists of allowing illicit activities or those suspected of drugs, prohibited substances or substances by which the aforementioned have been substituted or cash money, instruments or objects of value, arms, ammunition explosive devices and other objects or instruments required as corpus delicti under investigation to be delivered, enter, transit or leave Honduran territory, with the knowledge and under the supervision of the competent authorities, for the purpose of: a) Identifying the persons and organizations involved in the commission of crimes; and, b) Identification of property, products, instruments or gains, to achieve dispossession and gather evidentiary elements with the objective of providing assistance to foreign authorities with that same purpose.

• 9)

  UNDERCOVER OPERATIONS: Are special investigative techniques in which the participants act under covers (facades) in which their identity is concealed, such as: infiltration carried out by a police officer or other legally constituted authority, assigned as an undercover agent with the purpose of penetrating within a criminal organization; a) Infiltration carried out by a police officer or other legally constituted authority, assigned as an undercover agent with the purpose of penetrating within a criminal organization; b) Penetration of criminal structures through the use of informants who are part of them or can introduce themselves more easily than undercover agents, with the support of the latter and/or undercover operations to support other investigative proceedings.

• 10)

  INFORMANT: Is the person who voluntarily provides to police agencies or other bodies linked with the administration of justice, useful information for investigations concerning the commission of illicit activities and the identification and location of the property referred to in this Law. The informant, with the knowledge of the aforementioned agencies and under special protection in their actions, may participate under certain terms in undercover operations;

• 11)

  ASSET ANALYSIS: Consists of the special investigative technique or the means used to establish whether a person has economic capacity or not. It is based on the analysis of all financial and field information that has been obtained from the person, their family group, friends and any other human being related to them. All this information is obtained through investigations;

• 12)

  ILLICIT ACTIVITY: Is any activity committed in violation of the Laws, such as unlawful enrichment, money laundering, drug trafficking, terrorism, financing of terrorism, human trafficking, extortive kidnapping, extortion, blackmail, commercial sexual exploitation crimes, trafficking in human organs, murder for hire, reward or remunerative promise, as well as others that affect:

  • a)

    The public health or the health of the population of the State of Honduras;

  • b)

    The economy;

  • c)

    Public administration;

  • d)

    Property;

  • e)

    Natural resources and the environment;

  • f)

    Freedom and security; and, g) The internal or external security of the State of Honduras; or any other activity that causes asset increase of property, products, instruments or gains without legal or economic cause for its origin;

• 13)

  OAI: Office for the Administration of Seized Assets; and,

• 14)

  UIF: Financial Information Unit. CHAPTER V OF THE PROCESS OF DEPRIVATION OF OWNERSHIP, DIRECTION OF THE INVESTIGATION AND MECHANISMS FOR OBTAINING INFORMATION IN INSTITUTIONS

TECHNICAL LEGAL DIRECTION AND ASSET INVESTIGATION.- It is the responsibility of the Public Prosecutor's Office, or the Technical Legal Direction regarding the investigation of assets and their origin referred to in this Law. The Public Prosecutor's Office, for the practice of asset investigation, shall be assisted by the National Police, or any other entity authorized by Law. CHAPTER VI OF THE OBLIGATION TO REPORT

THE OBLIGATION TO REPORT.- The Attorney General of the Republic; the Superior Court of Accounts; the State Secretariat of Finance; the Executive Tax Revenue Directorate (DEI); the State Secretariat of Security; the Directorate to Combat Drug Trafficking; the National Commission of Banks and Insurance; natural and legal persons referred to in Article 37 as reformed of the Law Against Money Laundering and those who carry out activities described therein; any public or private institution; the Prosecutor or Agent of Courts; the Criminal or Jurisdictional Judge or any other natural person, who in the development of any activity or process becomes aware of the existence of property, products, instruments or gains of doubtful or unusual origin, must inform the Public Prosecutor's Office, so that the proceeding for definitive deprivation of ownership of property of illicit origin is initiated. It is understood that protective measures shall be adopted regarding the identity of the natural person who provides the information. If the information was provided in a tendentious manner or with the purpose of causing harm, the person who provided it shall assume the civil, criminal and/or administrative liabilities that the legislation provides.

COMPENSATION TO THE INDIVIDUAL.- The natural person who timely and effectively contributes or provides collaboration for obtaining elements to declare the definitive deprivation of ownership shall receive compensation from the State of ten percent (10%) of the total obtained in accordance with the liquidation of the property or commercial value when these are allocated to the State. CHAPTER XV OF THE ADMINISTRATION OF PROPERTY AND ITS DISTRIBUTION

OF THE ADMINISTRATION, CUSTODY AND SAFEKEEPING OF PROPERTY.- Property upon which a precautionary or security measure falls, shall be placed at the disposal of the OABI, for its administration, custody and safekeeping or return when necessary. For this purpose, the Participating Institutions, such as the Supreme Court of Justice, State Secretariat of Security and State Secretariat of National Defense shall accredit one member as observer and liaison before the OABI. The OABI for the administration of cash money, securities, monetary resources and others, shall open accounts in financial institutions, distributing them in the order for money, subject to precautionary measures and money on which a final judgment of deprivation of ownership has been rendered. In both cases the cash money shall be deposited in bank accounts in favor of the OABI. In these accounts, monetary resources and securities shall also be deposited, those derived from sales of perishable goods and movable property, and those obtained from the sale or early alienation of property. The yields generated in these accounts shall be distributed in accordance with this Law, in case a judgment of deprivation of ownership is rendered. Real property shall be administered in accordance with what the OABI establishes. In the case of property that warrants special care, such as motor vehicles, the OABI may use State facilities for its custody and safekeeping. The OABI may lease or enter into other contracts that maintain the productivity of the property, ensuring their use in favor of the State. The yields obtained from these activities shall also be distributed in accordance with this Law in case the definitive deprivation of ownership is declared or returned to the owner, in the contrary event.

OF THE ALIENATION, AUCTION OR EARLY SALE.- Fungible goods, generic goods and/or movable property that run the risk of perishing, being lost, depreciating or deteriorating in their administration involve harm or disproportionate cost to the State at the time of returning them if applicable, or that are immovable when a judgment of deprivation of ownership is rendered, may be alienated, auctioned or sold early by the OABI seeking to obtain the greatest return. The same shall apply when it is a matter of movable property or other animals. The alienation, auction and early sale referred to in this Law shall be authorized by the Judicial Authority, through a request to be made by the OABI with notice to the Attorney General of the Republic.

AUCTION OR DONATION OF PROPERTY IN STATE OF DETERIORATION.- Property whose definitive deprivation of ownership is in a state of complete deterioration that makes repair or improvement impossible or excessively costly, the OABI, by properly reasoned resolution, shall auction or donate it as appropriate, with prior authorization from the Attorney General of the Republic. When it is movable property that presents alterations in its identification, the OABI to make the donation or auction, shall comply with what is provided in the second paragraph of Article 67 of this Law.

THE PROVISIONAL USE OF ADMINISTERED PROPERTY.- In cases of property, product, instruments or gains, that are being administered by the OABI or are at its disposal and no resolution has been rendered that defines their legal situation, this, prior notice to the Attorney General and the Superior Court of Accounts, may authorize the provisional use of seized property or property with precautionary measures, which by their nature require to be used to prevent their deterioration. The provisional use of such property shall be authorized when a damage or fire insurance contract or other damage protection has previously been established thereon. The insurance shall have the purpose of guaranteeing replacement for deterioration or destruction, when the characteristics and value of the property warrant it. It is understood that expenses incurred in the contracting of insurance policies shall be paid by the institution or agency to which it is assigned. The procedure to be followed for the assignment and its compliance shall be done in accordance with the OABI Regulations. When seized property constitutes cash money and is subject to security measures, the OABI, with prior authorization from the Attorney General of the Republic, may arrange for provisional use thereof, in accordance with the distribution established in this Law. In this case, the State, through the OABI, shall act as guarantor, in order to ensure the availability of resources and their products, in case the definitive deprivation of the property is declared inadmissible.

THE CREATION OF A SPECIAL FUND.- There is created the Special Fund for Social Prevention and Fight Against Organized Crime, which shall be constituted as a special account, opened in a Financial System institution in the name of the OABI and administered by it. The Fund and other property administered by the OABI shall be supervised through an auditor appointed by the Attorney General of the Republic, to whom they must report. The auditor referred to in this Article shall be appointed by the Attorney General of the Republic and shall meet the same requirements and impediments established to be Director of the OABI.

THE DUTY OF THE OABI TO RENDER REPORTS.- The OABI must render each month to the Attorney General of the Republic, a detailed report on the management of property with a copy to the Participating Institutions, through the accredited liaisons. Likewise, it shall send a complete copy of each file in which it makes management decisions regarding requests presented to it concerning the handling of property.

THE AUCTION AND ALLOCATION OF FORFEITED OR CONFISCATED PROPERTY.- The property, products, instruments or gains, upon which a declaratory judgment of definitive deprivation of ownership falls and consequently the forfeiture or confiscation thereof, shall be auctioned when appropriate or otherwise allocated to the institutions corresponding under the terms established in this Law. In cases where it is appropriate to auction the property, products, instruments or gains, the OABI shall do so within ten (10) days following receipt of the final judgment from the judicial authority declaring the deprivation of ownership of the property, products or instruments or gains. When property is allocated, it shall be distributed by the OABI as follows: 1) If it is vehicles, equipment or weapons not for exclusive use of the Armed Forces, priority shall be given to the Special Units of the Public Prosecutor's Office and State Secretariat of Security, giving preference to the central intervention units with the objective of strengthening this fight; and, 2) If it is equipment or weapons for exclusive use of the Armed Forces, they shall be placed at the disposal of the State Secretariat of National Defense; if it is maritime vessels or aircraft they shall be placed at the disposal of the State Secretariat of National Defense and the State Secretariat of Security, and shall be used priority to support the Public Prosecutor's Office and the State Secretariat of Security, for the prevention and prosecution of crime in general, illicit drug trafficking, money laundering and organized crime.

RECOGNITION OF RIGHTS IN THE JUDGMENT.- If in the judgment the rights of a pledge holder or mortgagee in good faith exempt from liability are recognized over the property, the OABI may pay what is owed for pledge and mortgage that affect property, products, instruments or gains subject to definitive deprivation of ownership and shall proceed to its sale or auction, and shall pay the credit under the terms that the judgment or resolution so indicates. The same shall proceed when the auction, sale or early sale of property, products, instruments or gains subject to precautionary, cautionary or security measures is carried out. The judgment that declares the deprivation of ownership without merit shall further order the revocation of the precautionary or security measures that have been rendered or executed. If it is cash money, it shall be ordered returned or if there are accrued interest. If it is other property, it shall be returned, or the insurance contract subscribed prior to the deduction for administration expenses incurred by the OABI or the institution assuming the insurance shall be made effective.

THE DISTRIBUTION OF FORFEITED OR CONFISCATED PROPERTY.- Except as provided in Article 73 of this Law, once the judgment declaring definitive deprivation of ownership and forfeiture of the property, products, instruments or gains becomes final, the OABI shall proceed to distribute the cash money, plus its yields, profits or interest, that are at its disposal for having been seized, as well as that which has been deposited as a product of property auctions, early sales and others. The distribution shall be made following the following rules:

• 1)

  Forty percent (40%) for Units that directly work in the fight against organized crime, assigned to the State Secretariat of Security and State Secretariat of National Defense, Public Prosecutor's Office, that have participated in the investigation, identification or seizure of property, products, instruments or gains, on which a final judgment of deprivation of ownership has been rendered. When multiple Units participate, the aforementioned percentage shall be distributed equally. The Judicial Branch shall be included in the distributions made in accordance with this Article. Likewise, in the distribution of this percentage, any other Unit or Institution, whether national or foreign, that eventually participated in the investigation, identification or seizure of the property, products, instruments or gains referred to in this Law, may be included;

• 2)

  Eight percent (8%) for the OABI, for its maintenance and procedure expenses under this Law;

• 3)

  Eight percent (8%) for Institutions that work in Programs to assist victims of illicit activities contemplated by this Law, or their compensation if appropriate;

• 4)

  Four percent (4%) for the allocation of witness protection programs;

• 5)

  Ten percent (10%) for the natural person who timely and effectively contributed or assisted in obtaining evidentiary elements that served to render the declaratory judgment of deprivation of ownership. In case there are several persons who contributed, the OABI shall divide the percentage;

• 6)

  Ten percent (10%) for the Municipal Mayors' Offices where the property subject to definitive deprivation of ownership is located, for job creation projects. If there are several Municipal Mayors' Offices, the benefit shall be divided among all of them. Said percentage shall be used for the recovery of public spaces and implementation of pilot projects for harmonious spaces of coexistence;

• 7)

  Seven percent (7%) for programs and assistance centers that work in the prevention and rehabilitation of youth with addiction problems such as: drug addiction, alcoholism and substance dependence, distributed proportionally by the State Secretariat of Health, assigning quantities to the Centers that they deem appropriate.

• 8)

  Three percent (3%) for the Council to Combat Drug Trafficking;

• 9)

  Five percent (5%) for the Special Fund for Social Prevention and Fight Against Organized Crime. In this fund shall be deposited in turn, the percentage corresponding to numerals 3) and 5) of this Article when its distribution is not executed; and,

• 10)

  Five percent (5%), for the budget item called BONUS TEN THOUSAND (10,000). When the seized money has been distributed in accordance with Article 73 of this Law, the same shall be deemed distributed definitively. Likewise, when provisional use of seized property is authorized, the distribution of such property shall be done in accordance with the percentages established in this article.

This Decree shall enter into force from the day of its publication in the Official Gazette La Gaceta. Given in the city of Tegucigalpa, municipality of the Central District, in the Session Hall of the National Congress, on the ninth day of the month of September in the year two thousand ten. ALBA NORA GÚNERA OSORIO PRESIDENT, BY LAW GLADIS AURORA LÓPEZ CALDERÓN SECRETARY JARIET WALDINA PAZ SECRETARY, BY LAW To the Executive Power. Therefore: Execute. Tegucigalpa, M.D.C., September 27, 2010. PORFIRIO LOBO SOSA PRESIDENT OF THE REPUBLIC The State Secretary of the Department of National Defense. MARLON PASCUA CERRATO The State Secretary of the Department of Security. OSCAR ARTURO ÁLVAREZ GUERRERO