Repeal and Reform Articles of the Penal Code Year 2021

Reform articles 428 and 429 of Decree No. 130-2017 dated January 18, 2018, which contains the PENAL CODE, published in the Official Gazette "La Gaceta" on May 10, 2019, which shall hereafter be read as follows:

SMUGGLING. Commits the crime of smuggling whoever, without authorization from the competent authority, imports or exports from national territory, customs areas, general storage warehouses, sites subject to the temporary import regime, free trade zones, or any other location regardless of its name or purpose, goods or merchandise of any kind, origin or source, through non-authorized or unauthorized places, evading in any manner the intervention of the customs or tax authority, when the value of the goods or merchandise is equal to or greater than five (5) minimum wages, or when the activity is carried out through an organized criminal group regardless of the value of the goods. When apparent concurrence of norms is evidenced from the facts in which smuggling figures as one of the crimes, it must be resolved in accordance with what Article 29 numeral 2) of this Code provides. When it involves prohibited drugs, precursors, firearms, explosives prohibited by special legislation, the penal crime of smuggling shall not be applied, but rather the more serious crimes. When the value of the merchandise is equal to five (5) minimum wages, smuggling shall also be considered: 1. Licit merchandise commerce operations, without complying with the requirements and authorizations legally established for their importation and exportation, or when the authorization was obtained through the provision of false data or documents; and, 2. The possession of foreign merchandise, not intended for personal use that lacks authorization or when such was obtained fraudulently by providing false data or documents. Likewise, the breaking without authority of seals, marks, doors, containers or means of transport and security of goods or merchandise entering the country or being exported is punished with the penalties for smuggling.

PENALTY FOR THE CRIME OF SMUGGLING. Smuggling shall be punished with a prison sentence of four (4) to six (6) years and a fine equivalent to double the value of the goods or merchandise that were the object of the crime. The prison sentence shall be increased by one-third (1/3) and the fine shall be three times the value of the goods or merchandise when any of the following circumstances occur:

• 1)

  The value of the goods or merchandise exceeds fifteen (15) minimum wages;

• 2)

  When the responsible party, by action or omission, is a public employee or official, to whom, in addition, the penalty of special disqualification from office or occupation for five (5) to ten (10) years must be imposed; and, 3. When the person responsible for the crime is a member of an organized criminal group. When the goods or merchandise are considered addictive, harmful or injurious to health, and do not have the mandatory registration or prior authorization for sale in the territory of the Republic, forfeiture shall be decreed and it shall be destroyed. In any tax crime whether smuggling or tax fraud, by paying the amount not received by the State plus fifty percent (50%) of that same value, penal responsibility must be extinguished, provided that the investigations have not been directed against the person who committed the unlawful act. These penalties are imposed without prejudice to those that may additionally correspond for the individual crimes committed during the execution of the smuggling crime.

Reform articles 219, 248, 312, 325, 328, 373, 374, 378, 379, 386 and 439, of Decree No. 130-2017, dated January 18, 2018, published in the Official Gazette "La Gaceta" on May 10, 2019, which contains the New PENAL CODE OF HONDURAS, which shall hereafter be read as follows:

HUMAN TRAFFICKING. Commits the crime of human trafficking and shall be punished with a prison sentence of ten (10) to fifteen (15) years, whoever facilitates, promotes or executes the recruitment, transportation, relocation, reception or acceptance of persons within or outside national territory, for the purpose of being used or forced into any type of exploitation including:

• 1)

  Exploitation under conditions of slavery, servitude, forced labor or services, including begging and the obligation to engage in criminal activities, as well as any other equivalent or similar practice;

• 2)

  Forced or commercial sexual exploitation;

• 3)

  Contracting marriage ...;

• 4)

  Causing ...;

• 5)

  The extraction ...;

• 6)

  Experimentation ...; or 7) Any other purpose contemplated in the Law Against Human Trafficking. The penalty shall be increased by one-third (1/3) when any of the following circumstances occur:

  • 1)

    Using violence, intimidation, deception or, abusing a situation of superiority or necessity of the victim;

  • 2)

    Through the delivery or receipt of payments or benefits to obtain the consent of the person who has control of the victim;

  • 3)

    That the victim is under 18 years of age. The consent ... Even though...

FORCED DISPLACEMENT. Whoever with violence or intimidation forces or attempts to force another person or their family to change or abandon their place of residence, commercial or work activity, their educational establishment or, any location over which they have property rights, shall be punished with a prison sentence of six (6) to nine (9) years. If as a result of the foregoing the death of a person is caused, the penalty of life imprisonment shall be imposed. The penalty provided for in this Article shall be imposed without prejudice to those that may correspond, if applicable, for other crimes committed. The penalties contemplated in the first paragraph of this Article shall be increased by one-third (1/3), when any of the following aggravating circumstances occur: 1. When the acts are committed within the scope of an association for committing crimes or for the benefit thereof. 2. When the perpetrator has the status of authority, public official or employee. 3. When committed to the detriment of persons with disabilities, minors or elderly persons. 4. When the victim is subjected to cruel, inhumane or degrading treatment. 5. When destruction or occupation of the real property results.

SPECIFIC AGGRAVATING CIRCUMSTANCES OF DRUG TRAFFICKING. In the case...:

• 1)

  The substances...;

• 2)

  The guilty party...;

• 3)

  The crime...;

• 4)

  The fact...;

• 5)

  The quantity...;

• 6)

  The conduct...;

• 7)

  They are used...;

• 8)

  They are used...; or,

• 9)

  The conduct... If the circumstance of numeral 3) occurs together with those provided for in numerals 5), 7) or, 9) the prison sentences must be increased by one-third (1/3).

ILLEGAL EXPLOITATION OF NATURAL RESOURCES. Whoever, with infraction.... The penalties.... For the purposes of this Article, Exploitation is considered any activity aimed at obtaining benefit from a resource, including storage, industrialization, commercialization, illegal trafficking, and transfer of the product or by-product derived from the exploitation. The same penalties established in this Article shall be applied to whoever fells, clears or breaks up forest land. When land clearing in forests of forest vocation is carried out, the penalty shall be reduced by one-third (1/3).

INTRODUCTION OF EXOTIC SPECIES. Whoever... When...

EXTORTION. Commits the crime of extortion, whoever with violence, threats or intimidation and intent to gain profit, making use of any means, forces or attempts to force another to perform or omit an act, service or legal transaction, deliver money or movable or real property, to the detriment of their patrimony or that of a third party, for themselves or for any criminal organization, shall be punished with a prison sentence of fifteen (15) to twenty (20) years and a fine of five hundred (500) to one thousand (1000) days at the highest level, without prejudice to those that could be imposed for acts of physical violence or intimidation carried out. If as a result of the foregoing the death of a person is caused, the penalty of life imprisonment shall be imposed. Extortion is considered consummated regardless of whether or not the objective pursued with violence or intimidation has been achieved.

SPECIFIC AGGRAVATING CIRCUMSTANCES. The penalties of the preceding article shall be increased by one-third (1/3) when any of the following circumstances occur:

• 1)

  If the guilty party is a member of an organized criminal group or the crime is committed seeking to favor the organized criminal group;

• 2)

  When the fact...;

• 3)

  When the fact...; or, 4. When as a result of extortion the closure of a company or business of any kind occurs; or 5. When the guilty party is a recidivist. 6. When the guilty party is a public official or employee acting with abuse of the functions of the office. In this case, in addition to the corresponding penalties, the penalty of special disqualification from public office or occupation for twenty (20) to twenty-five (25) years must be imposed."

USURPATION. Commits the crime of usurpation, and shall be punished with imprisonment of four (4) to six (6) years, whoever develops any of the following conduct: 1. Occupies or seizes all or part of a real property, interrupts possession, property right or other real right over all or part of a real property, or destroys or alters the boundaries thereof. 2. Using violence against persons or property, threats, deception, in a hidden or clandestine manner, with abuse of trust, occupies wholly or partially a real property to the detriment of whoever exercises property rights, possession or other real rights thereover. 3. Occupies without authorization, without intent to appropriate and incorporate into their personal patrimony, a real property, dwelling or building belonging to another that does not constitute a residence, regardless of whether it is of public or private ownership. 4. Whoever usurps a real property or real right or detains the land or space corresponding to the right to use public property such as the right of way, highway, street, garden, park, green area, esplanade or other places of public use or domain or any other real estate of the State or municipalities; with the purpose or objective of preventing a Natural or Legal Person legally constituted from being able to develop or continue the exercise of their labors, affecting the normal development of their activities and rights. The penalty stated in the first paragraph of this Article shall be imposed without prejudice to, once the documentation or other evidence is presented that accredits in the administrative or judicial file, the possession or property right or other real right over the real property, or in the case of numeral 4) above the impairment of the right to use public property, the prosecutor or judge hearing the case shall order the eviction of the real property in question or the reintegration of possession or the right that corresponds. In the case of the easement of passage or aqueduct, it shall only be necessary to accredit the possession or property of the dominant real property or parcel. The Crime of Usurpation is considered a continuous or permanent crime, since its consumptive activity does not cease upon its completion, as it is prolonged over time. In this sense, this crime is considered one of continuous flagrance as long as the mandate of this norm is being violated uninterruptedly by the perpetrator or perpetrators, injuring the protected legal interest.

ALTERATION OF BOUNDARIES OR LIMITS. Whoever... The penalty shall be two (2) to four (4) years when the alteration is of boundaries or limits intended to fix the limits of national or communal forest parcels.

USURY. A usurious loan is understood to be one in which an interest notoriously disproportionate to that established in the National Financial System and the circumstances of the case is stipulated, there being grounds to estimate that it has been accepted by the borrower because of their distressing situation, their inexperience or the limited nature of their knowledge in the matter or their mental faculties. In any case, an interest notoriously disproportionate is considered to be one that exceeds by six points the average rate established in accordance with the National Financial System. Whoever, acting as a lender in fact or in law and is not regulated by the National Commission of Banks and Insurance (CNBS), stipulates a usurious loan contract, shall be punished with a prison sentence of two (2) to four (4) years and a fine for an amount equal to or up to double the amount of the credit. For these purposes, loan shall be understood as the contract by which one of the parties delivers to the other a sum of money on the condition of returning the same amount of the same kind and quality plus interest, regardless of whether the formalization thereof is done under the appearance of another type of contract. The penalty provided for in the second paragraph of this provision shall be increased by one-third (1/3), when any of the following circumstances occur: 1. When the lender is a professional registered as such, not regulated by the National Commission of Banks and Insurance (CNBS), and their habitual activity is the granting of loans; or, 2. When the loan is made to persons in a serious economic situation. With the same penalties established in the preceding paragraphs, in their respective cases, shall be punished whoever acquires or attempts to enforce a credit knowing the usurious characteristics thereof. The corresponding penalty shall be imposed increased by one-third (1/3) when the conduct is committed within an organized criminal group.

Add Article 378-A to Decree No. 130-2017, dated January 18, 2018, published in the Official Gazette "La Gaceta" on May 10, 2019, which contains the New PENAL CODE OF HONDURAS.

AGGRAVATING CIRCUMSTANCES OF THE USURPATION CRIME. Usurpation shall be punished with a prison sentence of six (6) to ten (10) years and absolute disqualification, in any of the following cases: 1. When the usurpation is carried out in a National or Municipal Forest Area. 2. When usurpation is carried out using weapons, explosives or any dangerous instrument or substance. 3. When two (2) or more persons intervene. 4. When the real property is being used for residential housing, agro-industrial, industrial purposes, any type of business investment projects or tourism; or are already destined or reserved, at the project level, in the planning or development stage. 5. They are assets of the State or intended for Public Service such as the right of way, highway, street, garden, park, green area, esplanade or other places of Public Use or Domain or any other real estate of the State, or municipalities or real properties considered as Cultural Heritage or Natural Reserve. 6. When once evicted by competent authority pursuant to an eviction order, they return to usurping the property from which they were evicted. 7. The public employee or official who, abusing their status, carries out the usurpation. 8. When due to the usurpation the execution of projects authorized by the State is hindered. With the penalty corresponding to aggravated usurpation shall be punished whoever individually or as a leader of groups of persons, associations or similar institutions, organizes, finances, facilitates, encourages, directs, provokes, or promotes the execution of usurpations of real properties and public assets, in the case that the usurpation remains at the level of attempt the penalty established in Article 378 shall be applied.

Reform the CRIMINAL PROCEDURAL CODE contained in Decree No. 9-99-E, dated December 19, 1999 and its reforms, through the amendment of Article 54 and the addition of articles 26-B and 224-A, which shall hereafter be read as follows: "ARTICLE 54. CRIMINAL JURISDICTION. It shall be incumbent upon criminal jurisdiction... The organs of criminal jurisdiction... Criminal jurisdiction shall be non-extendible and shall include: 1) The knowledge of crimes...; and 2) The knowledge of crimes... The competent judicial body... The resolution of such incidents... Notwithstanding the foregoing, disputes concerning the determination of the civil status of persons, the right of property in cases of real property not linked to current usurpation complaints and those related to the fraudulent or negligent nature of bankruptcy, may only be resolved by civil courts."

To request the exercise of public criminal action in crimes of Usurpation, it shall be necessary for the victim to attach to the complaint the documents that accredit their right over the private real property that is the object of usurpation. In the case of crimes of usurpation of public service assets, a simple complaint shall suffice without the need to attach any documentation, and the authority herein described may always proceed ex officio. Once the complaint for the crime of Usurpation is filed, in accordance with what Article 26 of this Code establishes, the Prosecutor or National Police shall, within a maximum period of forty-eight (48) hours after receipt of the complaint, carry out inspection of the real property, without prejudice to other pertinent proceedings, and the authority that carried out the inspection shall certify the action through an Inspection Report and photographic files, of which a copy shall be delivered to the aggrieved party if they so request." If from the inspection carried out the prosecutor identifies indicia of the commission of the crime of Usurpation, they shall request from the Judge within a period not exceeding 24 hours after the inspection, the Preventive Eviction, as established in Article 224-A of the Criminal Procedural Code. If from the circumstances of the case, the prosecutor considers that delay in eviction could cause irreparable damage, they shall order the eviction immediately, without the need for judicial order, resolving with reasonable grounds the justifications for such, requiring only the approval of the prosecutor's hierarchical superior, in this case, the National Police must carry out the eviction within a period not exceeding forty-eight (48) hours from the order issued by the prosecutor.

PREVENTIVE EVICTION. In the crime of Usurpation, the prosecutor in administrative proceedings or the Judge immediately and as soon as the documentation or other evidence is presented that accredits in the administrative or judicial file respectively, the possession or property right or other real right over the real property, or the impairment of public assets, shall order within twenty-four (24) hours following receipt of the request from any interested party or ex officio in the case of public service assets, in compliance with the principle of neutralization of the effects of the crime, the preventive eviction of the real property or public service asset unlawfully occupied, provisionally granting possession to the complainant who accredits with rational indicia their property. The National Police must carry out the eviction within a period not exceeding forty-eight (48) hours from the order issued by the competent court. Police officers, the Public Ministry (MP), and judicial officials who fail to comply with the actions or deadlines cited in Article 26-B and in this Article shall incur civil, penal and, as appropriate, administrative liability and shall be responsible for the damages and losses caused to the owners of the usurped properties. In case of filing of challenges to the resolution ordering eviction, eviction shall only be suspended when the occupant fully accredits their right of possession over the usurped property. The foregoing without prejudice to the obligation of the National Police to apprehend the perpetrator in flagranti and to cease the criminal conduct and its effects on the protected legal interest.

Reform articles 2, 26, 29, 30 and 47 of Decree No. 144-2014 which contains the "SPECIAL LAW AGAINST MONEY LAUNDERING", approved on January 13, 2015 and published in the Official Gazette "La Gaceta" on April 30, 2015, which shall be read as follows:

DEFINITIONS.- For purposes of this Law, the following are understood as: 1) .... 2) ... 3) .... 4) …. 5) .... 6) .... 7) ... 8) .. 9) .. 10) ... 11) ... 12) ... 13) ... 14) ... 15) .... 16)…. 17) ... 18) MONEY LAUNDERING: Is the process through which appearance of legality is given to assets deriving from illicit activities. 19) ... 20) ... 21) ... 22) ... 23) ... 24) ... 25) ... 26) .. 27) OBLIGATED SUBJECTS: Are those natural or legal persons supervised by the National Cooperative Supervisory Council (CONSUCOOP) and the National Commission of Banks and Insurance (CNBS), which are responsible for the prevention and detection of transactions, suspicious operations and illicit activities through the fulfillment of obligations aimed at identifying, controlling, administering or mitigating the risk of money laundering and terrorism financing, implementing risk-based due diligence measures. 28) ... 29) ... 30) ... 31) ... 32) ... 33) DE-RISKING OR RISK NON-MANAGEMENT: De-risking or risk non-management, is when obligated subjects terminate, restrict, abandon or reduce financial or commercial relationships with clients or categories of clients to avoid regulatory and compliance risks; it is characterized by a complete and exaggerated reaction to risk, adopted by financial institutions, which are simply abdicating their responsibility to exercise their institutional and social function of risk management and not of its administration. 34) POLITICALLY EXPOSED PERSON: Those who hold or have held prominent public functions in the country or in a foreign country, nationals or foreigners to whom an international organization has entrusted a prominent function within or outside the country, civil society organizations that administer external cooperation funds that are dedicated to executing projects or programs of different types, the oversight, investigation, evaluation or analysis of public management, as well as officials or members of political parties who by their capacity to influence state decisions, their business relationships with persons or societies, or over public processes of any kind, may use their influence for their own benefit or that of a third party. This definition does not intend to cover individuals in a middle or lower rank in the above categories. Persons categorized as PEP shall remain in such category for up to 1 year after ceasing in office.

AVAILABILITY OF RECORDS. The records established by this Chapter must be available to the Competent Judicial Bodies and the Financial Intelligence Unit (UIF), for use in investigations and criminal proceedings, regarding the commission of crimes typified in Titles XXV and XXXII of the Penal Code and in cases of definitive deprivation of assets of illicit origin. For purposes of criminal investigations or judicial proceedings, the review of financial information of a natural or legal person shall only be authorized by the competent Judge. The competent Judge shall receive the request and the facts supporting it and shall rule within a period not exceeding 15 days. When the competent Judge authorizes the request to review financial information, they shall send the corresponding official communications to the Financial Intelligence Unit (UIF), who shall comply with the request within the period the Judge establishes. For such purposes the supervised entity is obligated to submit the information to the Financial Intelligence Unit (UIF), within the period established by said Unit. The recording of financial information shall be ordered by the judge as an exceptional measure, only when it is necessary to obtain information regarding the investigation of crimes typified in Titles XXV and XXXII of the Penal Code and in cases of definitive deprivation of assets and there is no other mechanism for effective investigation thereof.

OF THE FINANCIAL INTELLIGENCE UNIT. The Financial Intelligence Unit (UIF) is a body attached to the Presidency of the National Commission of Banks and Insurance (CNBS), as the National Central Unit, responsible for requesting, receiving, analyzing and informing the Public Ministry (MP), about those events that are objectively considered as probable cases of Money Laundering or Terrorism Financing and other financial information related to crimes typified in Titles XXV and XXXII of the Penal Code. The Financial Intelligence Unit (UIF) has as objectives, the receipt, analysis and consolidation of information contained in the forms, records, reports, requests and notifications that, in accordance with this Law, are sent to it, handling them through an electronic database. Likewise, the Financial Intelligence Unit (UIF) is a means for the Competent Judicial Body to obtain the financial information they consider necessary in the investigation and prosecution of crimes typified in Titles XXV and XXXII of the Penal Code. The Financial Intelligence Unit (UIF) must consider all existing international concepts in the matter taking into account modern and secure techniques, for which it must be provided with the necessary resources to develop its functions; it must act as a liaison between the Obligated Subjects, the regulatory and supervisory entities and, the authorities responsible for investigation and prosecution. The ....

OF THE FUNCTION OF THE FINANCIAL INTELLIGENCE UNIT (UIF). The ...:

• 1)

  Receive and analyze Suspicious Operations Reports (ROS), once analyzed, prepare the corresponding intelligence reports and send them to the Financial Intelligence Unit (UIF), to collaborate with their analysis, which may not be used as evidence, having these only an intelligence value and use;

• 2)

  Require from Obligated Subjects, additional information, such as, background and any other data or element that is considered related to financial, commercial or business transactions that may have connection with crimes typified in Titles XXV and XXXII of the Penal Code;

• 3)

  Analyze the information contained in the database of the Financial Intelligence Unit (UIF), in order to detect the existence of transactions or suspicious operations related to money laundering and terrorism financing, as well as identify patterns or trends in such matters. If necessary, the Financial Intelligence Unit (UIF) may request additional information from Obligated Subjects related to the data contained in the database. In the request for additional information, the Financial Intelligence Unit (UIF) must include the reference number assigned to the case. Upon conclusion of the analysis carried out, it must submit to the Public Ministry (MP), an intelligence report making the necessary observations;

• 4)

  ... 5) .. 6) .. 7) .. 8) .. 9) Provide to the Judicial Bodies, the information required regarding subjects investigated for crimes typified in Titles XXV and XXXII of the Penal Code and in cases of definitive deprivation of assets of illicit origin. 10) Communicate to Obligated Subjects the Administrative Closures or other communications issued by the Public Ministry (MP) . Additionally…: 1) ... 2) ...