There has been much speculation—none of it idle–about the publication of Friday, May 10, 2019 in the Official Gazette of the Republic of Honduras (La Gaceta) because that day Hondurans realized that Decree 130-2017 containing the new Penal Code, the substantive regulation that regulates crimes and penalties in our country, was published. With six months to go before the effective date, the law’s realization proceeds at an accelerated pace, while the population is preparing for a number of effects that may favor the already tangible social polarization and/or show an improvement in the rate of commission of crimes. This new regulation will enter into force on November 10 of this year, although many actors involved in its production have publicly stated that extending the period before the law takes effect is a possibility, and also that it is subject to a review on certain crimes and penalties that enjoy notorious unpopularity.
None of the national communication sectors was hesitant to react to the announcement. The written and audio-visual media devoted, as expected, a large amount of time and space to this event. The issue that most concerns the public is that the law does not seem to have been reviewed by all sectors before its approval and publication. This, coupled with a modification of criminal offenses, as well as reductions in penalties, has led to increasing suspicion about the real reasons that encouraged the creation of this rule.
That this criminal legislation has both good and bad intentions is the consensus according to human rights organizations, the private sector, international organizations, the American embassy, the population in general, etc., all of whom had something to say about the new criminal justice system. And the question that we all must ask ourselves and especially the lawyers, is whether this new Penal Code is an advance or a setback?
The most relevant groups of crimes that had a significant reduction in penalties are sexual, as well as organized crime where, for example, in the case of kidnapping, the current penalty of a minimum of 20 years of imprisonment, was reduced from 8 to 12 years, and if it is aggravated kidnapping, 12 to 15 years. There is also a notable reduction in drug trafficking sentences. Private property crimes have also been affected, such as vehicle theft, that under the present Code has a penalty of 10 to 15 years, is reduced in the new criminal provision to 4 to 8 years in prison. Crimes of corruption were not omitted either. As an example, the crime of embezzlement of public funds where currently if the amount of embezzlement exceeds L. 1,000.00 the penalty is from 6 to 12 years in prison, under the new code will receive a sentence of 4 to 6 years.
But the New Honduran Criminal Code is not totally negative. New crimes have been defined. That is, behaviors that were not previously punished will be so now. Thus, we must inform ourselves about this new regulation. There is a universal principle in law, Nullum crimen, nulla poena sine lege, which in English means “no crime, no penalty without prior law.” Therefore, the State must identify certain acts as crimes through the processes already established in the Constitution of the Republic of Honduras, and it is through this new decree 130-2017 that new crimes are originated, such as “Forced displacement, contact with minors for sexual purpose by electronic means; sexual exploitation of minors or persons with disabilities; discovery and disclosure of secrets; illegal exploitation of labor; vertical labor harassment; illegal preparation and trade of medicines; doping; experimentation without consent; offense against animal welfare; abandonment of animals; reckless driving; and the liability of legal persons, among others newly recognized. The categorization of new crimes is well-received by the population because those activities that have affected many sectors will now be regulated. Over the past 30 years, social, cultural and economic life has changed in our country and an update of the substantive criminal legal system was long overdue.
However, some of these new criminal charges are not viewed positively, for example, insults and slander “made with advertising,” that is when they are made through print, television, radio, internet or information networks, where there are special circumstances in which the penalty may be decreed in incremental steps. When such behaviors are committed using Web sites of collective disclosure or social networks through the Internet, the respective penalties will be increased from one-sixth (1/6) to one half (1/2). To the majority of the citizenry, this new criminal construct threatens freedom of expression. However, to the supporters of the new code, the penalties in the case of insults and slander have been reduced and are only being regulated in a specific and clear manner.
In my opinion, the Law is consistent in general application and not special for some sectors; to say that it has sought to favor only certain groups is debatable. But no doubt many will request that the new code apply retroactively in criminal matters, as long as doing so favors the accused. Which is to say that, by reducing the penalties in crimes, inmates may request through legal procedures that this reduction be applied to their sentences, allowing them in some cases to receive alternative measures to imprisonment. Thus, one may expect that the law will have a major impact on people who have been deprived of their liberty in cases that have had a high impact on society, such as corruption cases. It is possible that celebrated prosecutions such as the IHSS, the Lady’s Petty Cash, Network of Deputies, the Pandora Case, etc., will be appealed in order to seek under the provisions of the new Code alternative measures to the prison terms in effect at the time of sentencing.
However, further analysis must be done to determine if the New Code is an advance or a setback. And many theories and studies exist on whether increasing or reducing penalties for crimes influence the decrease or increase in the commission rate of these antisocial behaviors. For example, a 1995 study by the economist and professor at the University of Chicago, Steven D. Levitt, “The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation,” argues that the increase or reduction of penalties does not necessarily have a preponderant effect on the crime rate, and we could cite many statistical studies in the Latin American region where similar results were obtained.
Mario Erazo, BLP ATTORNEY.