Law on the National Mechanism for Prevention Against Torture and Other Cruel, Inhuman or Degrading Treatment

This Law has as its purpose to establish the technical, institutional and budgetary framework of the National Mechanism for Prevention Against Torture, Cruel, Inhuman or Degrading Treatment, in accordance with the provisions of the Optional Protocol to the Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment. Its provisions are of public order.

In accordance with the provisions of the Optional Protocol to the Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment, the mandate of the National Mechanism shall be to examine periodically the treatment of persons deprived of liberty in places of detention, with a view to strengthening protection against torture and other cruel, inhuman or degrading treatment and to issue recommendations, proposals and observations to the competent national authorities. Hereinafter it shall be referred to as: National Mechanism.

For the purposes of the intervention of the National Mechanism, the following shall be understood as:

• 1)

  TORTURE: Those actions, omissions, conditions or procedures carried out by public authority that cause physical or mental suffering to the person, the suppression or diminution of their faculties of knowledge, discernment or decision, or that in any other manner gravely undermine their personal integrity when the same are produced by reason of discrimination or pursuing some crime, the extortion of confession or any other determined purpose, regardless of the nature thereof;

• 2)

  DEPRIVATION OF LIBERTY: Any form of detention, retention, imprisonment or involuntary custody of a person, national or foreign, who is subjected by order, instigation or express or tacit consent of a police, fiscal, judicial, administrative or other public or private authority; and,

• 3)

  CRUEL, INHUMAN OR DEGRADING TREATMENT: Any action or omission that undermines the dignity and physical and psychosomatic integrity torture; These definitions shall be understood in light of innovations that are incorporated into domestic law.

The principles of this Law are:

• 1)

  Legality;

• 2)

  Administrative, technical and budgetary independence;

• 3)

  Inter-institutional cooperation, especially with institutions subject to the mandate of the National Mechanism;

• 4)

  Transparency;

• 5)

  Operational simplicity and non-formalism;

• 6)

  Confidentiality in the handling of information, in accordance with the following article;

• 7)

  Citizen participation; and, 8) Equitable representation of genders, ethnic groups, other groups and expressions of national plurality, on the basis of the principles of equality and non-discrimination.

Personal data or any type of information harmful to the rights of the person deprived of liberty and third parties, obtained in the fulfillment of the mandate, shall be kept in confidence with respect to those who do not have a legitimate interest. This obligation encompasses the Committee, its collaborators and the employees and officials thereof. The content of this article shall be understood without prejudice to the reports that must be rendered and the principle of transparency that governs this Law.

For the purposes of this Law, places of detention are considered, and therefore subject to the mandate of the National Committee, all those where persons deprived of liberty remain or are presumed to be located, regardless of whether the same have been recognized in accordance with the Law as a place of custody or sentence enforcement or whether their ownership is public or private. Likewise, institutions that are responsible for these shall be subject to the mandate.

The mandate of the National Mechanism shall be exercised by the National Committee for Prevention Against Torture, Cruel, Inhuman or Degrading Treatment (CONAPREV), which shall be a special body, endowed with administrative, technical and budgetary autonomy. It shall exercise its functions at the national level, and may establish regional offices or representations, in accordance with what its Regulations provide. For the purposes of this Law it shall be referred to as The National Committee.

In accordance with the provisions of the Optional Protocol regarding the independence of this body, the National Committee shall be composed of three (3) experts, who shall serve for a term of three (3) years, non-renewable except for one additional term, who shall be designated as follows:

• 1)

  One (1) by the Executive Power;

• 2)

  One (1) by the National Congress; and,

• 3)

  One (1) by Civil Society Organizations that work in the prevention of torture and the rehabilitation and reinsertion of persons deprived of liberty. The representative of Civil Society Organizations shall be designated by a General Assembly of the same, in accordance with the provisions of the General Law of Public Administration. This same rule shall apply to the members of the Consultative Council. The members of the National Committee may not dedicate themselves to other public or private positions, except those related to teaching or health assistance, as long as it is not incompatible with the exercise of their functions on the National Committee.

The National Committee shall act as a collegial body; it shall be considered legally constituted when at least two (2) of its members attend its sessions. The Presidency and Secretariat of the collegial body of the Committee shall be rotated among its members, by internal decision of the same, which shall be made in the last fifteen (15) days of the period that ends. The members of the National Committee must verify by themselves the results of the investigations carried out by this body. Their responsibilities are indelible, except in cases of force majeure or acts of God, in accordance with what is established in the Regulations of this Law.

The National Committee may direct recommendations to the institutions subject to its mandate, which may have general or particular scope or provide direct follow-up to their implementation.

The members of the National Committee must meet the following requirements:

• 1)

  Be Honduran by birth;

• 2)

  Be over thirty (30) years of age;

• 3)

  Be a citizen exercising their rights;

• 4)

  Be unmarried;

• 5)

  Possess a university degree linked to the mandate of the mechanism, with a minimum of five (5) years of experience in Human Rights matters; and,

• 6)

  Be of recognized honesty and notorious good conduct.

The following may not be members of the National Committee:

• 1)

  Those who hold positions in the governing bodies of political parties registered in the country;

• 2)

  Those who have been convicted of willful crime or offense in matters of Human Rights;

• 3)

  Those who are in default with the Public Treasury;

• 4)

  The President and Vice President of the Republic; the Magistrates of the Supreme Court of Justice; the Secretaries and Under-Secretaries of State; The heads of the superior bodies of government and administration of the entities of the decentralized Public Administration or the special bodies of the State;

• 5)

  Those who are active members or in retirement situation of the Armed Forces of Honduras and the security forces of the State;

• 6)

  Those who are concessionaires of the State for the exploitation of natural resources or contractors of services or other public matters financed with State funds or who, for such reasons, have pending accounts with the State; and,

• 7)

  The spouse or relative within the fourth degree of consanguinity or second degree of affinity of the persons included in the preceding numerals.

The National Committee shall have the following powers:

• 1)

  To comply with and verify compliance with the Convention Against Torture, Cruel, Inhuman or Degrading Treatment and its Optional Protocol, as well as other international instruments on the subject;

• 2)

  To request information from public and private institutions subject to the National Mechanism;

• 3)

  To conduct inspections of institutions subject to the National Mechanism, which shall be conducted constantly and at least once (1) per month and as often as necessary;

• 4)

  To request from the National Human Rights Commissioner, Public Ministry, State Secretariats, Judicial Power, and any other public or private entity, the necessary support for the fulfillment of its functions;

• 5)

  To convene the members of the Consultative Council to collaborate with its functions;

• 6)

  To maintain direct contact with the International Subcommittee for the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment, and to receive from it information and technical assistance;

• 7)

  To maintain contact and collaboration with other national and international institutions that work on the matter, including the subscription of cooperation agreements;

• 8)

  To issue recommendations to the State of Honduras in order to improve the treatment and conditions of persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment;

• 9)

  To participate in the legislative process of bills on the subject matter of its mandate, as well as proposals and observations to existing laws;

• 10)

  To communicate to the competent authorities every act of torture and other cruel, inhuman or degrading treatment of which it becomes aware;

• 11)

  To receive information from natural or juridical persons about any matter or incident that involves torture, cruel, inhuman or degrading treatment and to proceed to investigate them;

• 12)

  To promote the conduct of information and awareness campaigns regarding torture, cruel, inhuman or degrading treatment, with the support of the media;

• 13)

  To approve its Annual Operating Plan and Budget, incorporated into the General Budget of Income and Expenditure of the Republic. The salary scale of the National Committee shall reflect criteria of equity and institutional productivity;

• 14)

  To designate an Executive Secretary and to propose it to the President of the Republic, for the purposes of his appointment, as well as to request his removal;

• 15)

  To issue the guidelines necessary for the proper functioning of the Executive Secretariat;

• 16)

  To define in regulation the organization, operation, positions and salaries of the personnel of the Executive Secretariat, in accordance with this Law;

• 17)

  To require and receive from the Executive Secretariat the respective technical, logistical and budgetary support;

• 18)

  To require and receive from the Executive Secretariat reports on management and finances, both annual, quarterly and as appropriate; and,

• 19)

  Other powers that by designation of the Convention Against Torture, Cruel, Inhuman or Degrading Treatment and its Optional Protocol or this Law and its regulatory provisions are within its competence.

The members of the National Committee may be removed from their positions for the following causes:

• 1)

  Expiration of the mandate;

• 2)

  Resignation;

• 3)

  Death or permanent incapacity;

• 4)

  Conviction for willful crime; and,

• 5)

  Other causes that are contemplated in the Regulations of this Law.

The institutions subject to the National Mechanism and those whose institutional mission obliges them to comply with the International Convention Against Torture, Cruel, Inhuman or Degrading Treatment and its Optional Protocol are obligated to provide the necessary cooperation. Officials responsible for the breach of said obligations shall incur such responsibilities as may be appropriate under law.

SUPPORT STRUCTURE. The National Committee shall have an Executive Secretariat and this in turn shall have a minimal organizational structure, whose principal organs shall be:

• 1)

  General Secretariat;

• 2)

  Administrative Management;

• 3)

  Technical Management; and,

• 4)

  Internal Audit. The internal organization and functioning of the Executive Secretariat and its dependencies shall be established in the Regulation of this Law.

ADVISORY COUNCIL. The Advisory Council of the National Mechanism for Prevention Against Torture, Cruel, Inhuman or Degrading Treatment is hereby created as a specialized advisory organ of the Committee. It shall be composed of one (1) representative:

• 1)

  The Pro-tempore President of the National Committee;

• 2)

  A representative of the National Commissioner of Human Rights;

• 3)

  A representative of the Special Office of the Prosecutor for Human Rights;

• 4)

  A representative of the Execution Courts; and,

• 5)

  Two (2) representatives of civil society organizations working in matters subject to the mandate of the National Mechanism. The members of the Advisory Council shall serve for three (3) years and shall make their decisions by simple majority. The Presidency and Secretariat shall rotate among all members by internal designation of the same, which shall be carried out in the last fifteen (15) days of the period that ends. The first convocation for the establishment of the Advisory Council shall be carried out by the Secretary of State in the Office of Governance and Justice and successive convocations shall be carried out by the Secretary in office of the Advisory Council as required. The Advisory Council may call upon other institutions or natural persons so that individually or in working groups, they contribute to its institutional purpose. Said working groups shall be established permanently on the core topics of this matter.

POWERS OF THE ADVISORY COUNCIL. The powers of the Advisory Council shall be:

• 1)

  To advise the National Committee on matters of prevention of Torture, Cruel, Inhuman or Degrading Treatment against persons deprived of liberty;

• 2)

  To contribute to the National Committee in the achievement of its mandate;

• 3)

  To conduct specialized studies on the matter of prevention of Torture, Cruel, Inhuman or Degrading Treatment against persons deprived of liberty;

• 4)

  To make proposals for the improvement of the National Mechanism;

• 5)

  To cooperate with the National Committee in training programs, both internal and external;

• 6)

  To cooperate with the National Committee in resource management;

• 7)

  To review technical reports on the compliance with the mandate of the National Mechanism; and,

• 8)

  Others established in the Regulation.

PERSONNEL SELECTION CRITERIA. Without prejudice to what is established in the Regulation, the Committee shall approve a manual of positions and salaries, in which the requirements for entry into the career system shall be established. The personnel of the National Committee shall be selected through competitive processes, in accordance with the criteria of equal opportunities, transparency, merit and competence, established in the Manual of Positions and Functions. No employee or official may receive a contract or agreement or be hired for a function that has not been provided for in the manual of positions and salaries nor as a result of any process other than that provided for in this Law and shall enjoy the labor and social benefits that are recognized in the regulatory provisions.

BUDGET OF THE NATIONAL PROTECTION MECHANISM. The budget of the National Committee shall be prepared by itself and incorporated annually in the corresponding Fiscal Year of the General Budget of Income and Expenses of the Republic for each year. In the exercise of its powers, the National Committee may enter into cooperation and collaboration agreements to supplement its budget with non-refundable funds from international cooperation.

TRANSITORY PROVISIONS. The first convocation for the integration of the Committee shall be made by the President of the Republic through the Secretary of State in the Office of the Presidency, on February 1, 2009, and the election of the same no later than March 31 of that same year.

REGULATION. The National Committee shall issue the Regulation for the application of this Law within thirty (30) days after its formal integration.

EFFECTIVE DATE. This Law shall enter into force twenty (20) days after its publication in the Official Gazette La Gaceta. Done in the city of Tegucigalpa, municipality of the Central District, in the Hall of Sessions of the National Congress, on the first of October of two thousand eight. ROBERTO MICHELETTI BAIN PRESIDENT JOSE ALFREDO SAAVEDRA PAZ SECRETARY ELVIA ARGENTINA VALLE VILLALTA SECRETARY To the Executive Branch. Therefore, Let It Be Executed. Tegucigalpa, M.D.C., October 31, 2008. JOSE MANUEL ZELAYA ROSALES PRESIDENT OF THE REPUBLIC THE SECRETARY OF STATE OF THE PRESIDENTIAL OFFICE ENRIQUE FLORES LANZA