Decree 291-2013 Reform to the Judicial Council Law and Judicial Career Law
Congreso Nacional
- Decree: 291-2013
- Published: February 19, 2014
- Issuing body: Congreso Nacional
- Gazette: 33,359
- Category: Constitutional
Summary
This decree reforms the Judicial Council Law to modernize the administration of justice in Honduras. It establishes new Council powers, such as creating courts in special zones, conducting trust tests on judges and judicial officials, and approving salary increases. It also strengthens the independence of the General Inspectorate of Judicial Bodies and regulates clear disciplinary sanctions for Judicial Power employees, prioritizing their improvement and good performance.
Considerations
Whereas the approval of the Law of the Judicial Council responds to a need to modernize the Judicial Branch by separating the administration of justice from the functional administration of that Branch of State, as has been done in modern legislation.
Whereas it is necessary to establish that the General Inspectorate of Judicial Bodies must have functional and administrative independence within the Judicial Branch in order to carry out work consistent with the requirements of the population in matters of security by also applying confidence tests to members of the Judicial Branch.
Whereas the employees and officials of the Judicial Branch, while they have rights, also have obligations in the fulfillment of their jurisdictional and administrative functions, and in the exercise of their functions they assume civil, administrative, and criminal responsibilities, as appropriate, making it necessary to establish a system of responsibility pertinent to the purpose that their sanctions be clear and lead primarily to guarantee good service and correct performance in the exercise of their positions and have as their main object the correction of the judicial official; and that penalties have proportional, reasonable, and justified application in relation to the infraction committed, without prejudice to the right of defense and the guarantees of due process.
Whereas in recent legislation competencies have been added to the Judicial Council that must be added to the Law of the Judicial Council, such as those established in articles 303 and 329 of the Constitution of the Republic.
Whereas the National Congress has the power to create, decree, interpret, reform, and repeal laws. THEREFORE,
Articles
To reform Articles 3, 4 literal b), 6, 9, 23, 24, 34, 36, 41, 63 and 74 of the Law of the Council of the Judiciary and the Judicial Career, contained in Decree No. 219-2011 dated November 17, 2011, which shall be read as follows:
The Council has the following powers:
- a)
...;
- b)
...;
- c)
...;
- d)
...;
- e)
...;
- f)
Direct and administer the Judicial Career and the Judicial School;
- g)
...;
- h)
Publish the Judicial Gazette in electronic and physical form;
- i)
...;
- j)
Approve increases in the salaries of judges, magistrates, officials, public defenders, administrative and jurisdictional personnel of the Judicial Branch in accordance with the General Budget of Income and Expenditures of the Republic for the respective fiscal year, approved by the National Congress in relation to Article 50 of the same Law;
- k)
Create courts with exclusive and autonomous jurisdiction in zones subject to a special regime in accordance with Articles 303 and 329 of the Constitution of the Republic at the request of the Committee for the Adoption of Best Practices of Employment and Economic Development Zones (ZEDE);
- l)
Appoint, following a competitive process, judges and magistrates in zones subject to a special regime from a list of ten (10) persons presented by the Committee for the Adoption of Best Practices of Employment and Economic Development Zones (ZEDE), or remove them at the request of said Committee;
- m)
Conduct confidence evaluations of the magistrates of Courts of Appeal, judges, officials, administrative, jurisdictional and technical personnel of the Judicial Branch in a general or selective manner, including toxicological, psychometric, polygraph tests, patrimony studies and investigations, performance evaluation and compliance with legal deadlines; Patrimony investigations may extend to relatives of the officials mentioned in this Article up to the second degree of affinity and fourth degree of consanguinity. Failure in the polygraph test shall not by itself be grounds for justified dismissal. For patrimony investigation, the Council may be assisted by the National Commission of Banks and Insurance (CNBS), the Property Institute (IP), the Superior Court of Accounts (TSC) and other agencies as required;
- n)
Any other powers conferred by the Constitution and applicable Laws, as well as any other complementary or analogous power that is deemed necessary for the proper performance of its obligations. For the fulfillment of its functions, the Council shall count on the auxiliary divisions established in this Law, which shall be under its direction and subject to its decisions.
The Council is composed of five (5) Principal Councilors and two (2) alternates as follows:
- a)
...;
- b)
Two (2) representatives of the associations of Judges and Public Defenders;
- c)
...; and, d) ... The proposal... From these lists... The candidates...
The members of the Council shall serve for a period of five (5) years, and may be re-elected for only one additional term, with the exception of the Magistrates of the Supreme Court of Justice who shall not serve longer than the constitutional period for which they were elected. Councilors who perform functions in the Judicial Branch or another State institution shall be granted official leave and shall return to the exercise of their previous position. While serving as councilors, they shall refrain from participating in any political activity, union matters, or associations of the Judicial Branch.
The activity of Councilors is incompatible with:
- a)
The exercise of any other public office, administrative, union, union or association position in the Judicial Branch, whether remunerated or not; Nor may they be members of union organizations within the Judicial Branch;
- b)
...; and, c) .....
The General Inspectorate of Judicial Bodies is the technical division functionally and administratively independent from the Council, responsible for the inspection and verification of the administrative functioning of the courts and courts of appeal of the Republic and of the personnel under its charge. Its organization, the exercise of its activity and other functions shall be established in a Regulation. The head of the General Inspectorate of Judicial Bodies must meet the same requirements required to be a member of the Council of the Judiciary and shall serve for the same period as the Councilors. The Principal Inspector and the Deputy Inspector shall be appointed by the National Congress from a list of five (5) candidates for the positions proposed by the Council of the Judiciary, and they shall have functional and administrative independence.
The General Inspectorate of Judicial Bodies shall conduct its activity to guarantee the proper functioning of these bodies, excluding from its powers the inspection of the scope and content of judicial decisions, against which only procedural remedies are available. Likewise, inspection cannot include the privacy of judges, that is, the space of cultural, social, religious and political freedom of the same. The inspection work aims at the verification and control of the functioning of the services of the Administration of Justice and compliance with the duties of judicial personnel, identifying their respective deficiencies, weaknesses and strengths, all in pursuit of their improvement. Similarly, the activity of inspection and its results shall be conducted with absolute transparency with respect to the persons who have requested its action and those who are subject to inspection, and they may know the corresponding file at all times. The General Inspectorate of Judicial Bodies may perform its functions of its own motion, at the request of a party or at the request of the Council. The results of inspections, investigations and corresponding reports must be sent to the Council.
The Selection Tribunals shall be composed of:
- a)
...;
- b)
...;
- c)
One (1) Trial Judge, Peace Judge or Public Defender, appointed at the proposal of the associations of Judges or Public Defenders;
- d)
...; and, e) ...
The selection process shall be developed according to the following phases: a) ... b) Toxicological, psychometric, polygraph tests, performance evaluation or labor and socioeconomic investigation; and, c) ... The polygraph and psychometric tests shall not by themselves eliminate any applicant.
To enter directly in the category of Trial Judge, applicants who meet the requirements enumerated in the preceding Article shall be subject to the selection tests that the Council convenes for this purpose. Likewise, to enter directly in the category of the Public Defender subsystem, applicants must meet the same requirements required to participate in the open and public competitive process in the category of Trial Judge of the preceding Article. The Council shall establish, by regulation, the evaluation criteria for the merit competition phase, the content and program of the examinations, theoretical and practical tests, as well as the duration and content of the training that the pre-selected candidates shall receive at the Judicial School.
The infractions that generate responsibility in the performance of the duties of employees and officials shall be sanctioned with the disciplinary measure that corresponds to its severity and that aims at the reform of the judicial server, without prejudice to the civil responsibility that corresponds. To guarantee good service and correct performance in the exercise of their duties, the following measures are established:
- a)
Private reprimand, verbal or written;
- b)
Fine;
- c)
Suspension from duty without pay;
- d)
Demotion to a lower class or grade position;
- e)
Transfer; and, f) Dismissal. Disciplinary sanctions shall be applied to servers of the Judicial Branch as previously described. For the purposes of applying sanctioning measures, they are classified as minor, less serious and serious. Private reprimand shall be applied in the case of minor infractions; the fine shall not be less than the value of five (5) days of salary earned by the judicial server, nor greater than one-fifth of the monthly salary; and shall be regulated according to the severity of the infraction committed. Suspension from duty without pay proceeds when it comes to serious infractions or recurrence of minor ones, which shall not be less than eight (8) days. The sanctions of fine, demotion, transfer and dismissal shall be applied by means of summary information after hearing the reasons and defenses of the judicial server, conducting the pertinent investigations and presenting the respective evidence.
Matters not provided for in this Law shall be resolved by the Council based on the provisions of laws and regulations of special career regimes, applying the principle of the most favorable norm to the judicial server. Similarly, for purposes of this Law and its application, the legal requirements and rights established with respect to Trial Judges, both for their appointment, whether promoted from the position of Peace Judge or directly, as well as for their promotion to the category of Magistrates of Courts of Appeal, shall be applicable in the same manner to the category of the Public Defender subsystem.
This Decree shall enter into force on the day of its publication in the Official Gazette. Done in the city of Tegucigalpa, municipality of the Central District, in the Hall of Sessions of the National Congress, on the thirteenth day of the month of January of two thousand fourteen. MAURICIO OLIVA HERRERA PRESIDENT, BY THE LAW RIGOBERTO CHANGCASTILLO SECRETARY ÁNGEL DARÍO BANEGAS LEIVA SECRETARY To the Executive Branch. Therefore: Execute. Tegucigalpa, M.D.C., January 22, 2014. PORFIRIO LOBO SOSA PRESIDENT OF THE REPUBLIC The Secretary of State in the Offices of Interior and Population CARLOS ÁFRICO MADRID HART
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