Submission to UN Committee on Economic, Social and Cultural Rights in Honduras

We write in advance of the 71st pre-session of the Committee on Economic, Social and Cultural Rights and its adoption of a list of issues to inform its review of Honduras' compliance with the International Covenant on Economic, Social and Cultural Rights. This submission includes information on judicial and prosecutorial independence, corruption, access to abortion and contraception, discrimination and violence against LGBT people, right to an adequate standard of living for returned migrants, and Indigenous and Garifuna peoples' land rights.

Judicial and Prosecutorial Independence (article 2)

Honduras' justice system has suffered political interference for years. Every seven years, Congress selects all 15 members of the Supreme Court from a list of at least 45 candidates prepared by a nominating committee. Several sources shared that once the list gets to Congress, in practice, political parties have split the 15 vacancies among them, according to the proportion of seats they hold.[1] In addition, when a case involving a political party arrives at the Supreme Court, the case is typically assigned to a justice sympathetic to that party.[2] Five of the current fifteen judges are women.

The term of the current Supreme Court ends in 2023. In July 2022, under intense domestic and international pressure, Congress adopted a law regulating the functioning of the nominating committee, laying out concrete criteria for the selection of justices and making the process more transparent.[3] The nominating committee for the selection of the next justices is set to be established by August 31, 2022.

Lack of transparency and clear criteria has also plagued the selection of lower-court judges and decisions over their professional careers. The Supreme Court president has ultimate power over selection, promotion, transfer, and discipline of lower-court judges. We received information on several cases in which candidates had obtained high scores in selection processes, but other candidates with lower scores were appointed instead. Authorities rarely explained the basis for those appointments.[4]

In addition, certain judges are temporary and appointed outside regular selection processes, according to Asociación de Jueces por la Democracia. Lack of secure tenure exposes such judges to a higher risk of external and internal pressure, as they can fear being removed if they adopt decisions that displease powerful interests.

The mechanism to appoint the attorney general lacks transparency and is highly vulnerable to political interference. The current attorney general, appointed in 2018, was not on the list of five candidates that the nominating committee prepared, despite a constitutional provision that mandates that the attorney general be selected from that list.

In 2023, in addition to selecting Supreme Court justices, Congress is scheduled to select the attorney general, the deputy attorney general, and the Board of Auditors, an entity charged with auditing public resources. It is crucial that these appointments be transparent and based on merit and clear criteria.

Human Rights Watch recommends that the Committee call on the government of Honduras to:

• Introduce a bill to improve the independence of the judiciary, in accordance with international standards,[5] including by:
  • creating a judicial governance system that includes a fair, transparent, and independent mechanism for disciplinary actions for judges, administered by a body that is separate from the Supreme Court and independent of political and other outside pressures, and establishing that judges may only be suspended or removed for reasons of incapacity or behavior that renders them unfit to discharge their duties;
  • establishing clear rules for the appointment, transfer, and promotion of judges, based on their qualifications and integrity, and with a commitment to increasing female representation on the Supreme Court;
  • ensuring the prompt appointment of tenured judges; and
  • establishing clear rules for distribution of cases among judges, to prevent conflicts of interest and vulnerability to internal and external pressures.
• Seek legal changes, including through introduction of legislative proposals, to modify procedures for appointing the attorney general and other high officials to ensure their selection is transparent and based on clear criteria, including qualifications and evidence of integrity, and to prevent political interference.

Corruption (article 2)

Corruption is a structural problem in Honduras. The Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH) resulted in several convictions in corruption cases against high-level officials, many involving the alleged embezzlement of funds that had been allocated to programs necessary to protect and fulfill human rights, such as the rights to health, water, and education, and to alleviate poverty. But MACCIH was unable to spur wider, lasting reforms to strengthen judicial independence. In 2020, the government of former President Juan Orlando Hernández refused to renew its mandate.

Local prosecutors who had worked for MACCIH were integrated into a new prosecutorial unit, Unidad Fiscal Especializada Contra Redes de Corrupción (UFERCO), but they did not receive the same resources and support that they had received for MACCIH and their capacity to investigate corruption plummeted.[6]

Some laws enacted before, during, and after MACCIH that have hindered the fight against corruption and reduced transparency and accountability include:

• Decree 418/2013: the so-called official secrets law, which authorities abused to classify, for up to 25 years, a wide array of documents and actions, including budgets and expenses that had nothing to do with national security;[7]
• Decree 116/2019: barring the Attorney General's Office from investigating a corruption case without a report from the Board of Auditors, providing up to seven years to complete its report;[8]
• Decree 117/2019: shielding legislators, barring any civil, administrative, and penal sanction against them, for actions that they take in the exercise of their duties as legislators, which has been interpreted broadly in at least one case to close an investigation into alleged forgery of official documents;[9]
• Decree 57/2020: requiring that prosecutors always request information in writing from public officials, thus alerting them to the investigation and giving them the chance to hide or modify information about the use of public funds; and allowing seizure of documents only with a judge's prior authorization if, in a "reasonable time," public officials do not provide the requested information;[10] and
• Decree 93/2021: weakening the criminal definition of money laundering, by making it harder to prove money laundering when the origin of assets is unknown, allowing dismissal of many cases under investigation.[11]

President Xiomara Castro signed the repeal of the official secrets law in March 2022.[12] This may help to reinvigorate the Institute for Access to Public Information, which had been unable to provide much information due to the official secrets law.[13] In another positive step, President Castro has also asked the UN secretary general to advance creation of an international commission against corruption and impunity in Honduras.

Human Rights Watch recommends that the Committee call on the government of Honduras to:

• Collaborate with corruption investigations by providing government information about contracts, spending, and other issues of interest to prosecutors.
• Ask Congress to abrogate or amend legislation that has unnecessarily hindered the fight against corruption, including decrees 116/2019, 117/2019, 57/2020, and 93/2021.
• Ensure government institutions declassify and make public information withheld under the official secrets law, except in narrow circumstances defined by law where classification is necessary to protect a legitimate national security interest or privacy rights.
• Work with UN agencies, donors, and other international actors to establish an anti-corruption commission with a broad mandate that includes: (i) investigation and prosecution of individual corruption cases; (ii) proposal of legislative reforms to strengthen the fight against corruption and the rule of law; (iii) training of Honduran prosecutors, judges, police, and others to fight corruption effectively; (iv) close collaboration with Consejo Nacional Anticorrupción (CNA) and civil society organizations to ensure government accountability for the use of public funds.

Access to abortion and emergency contraception (article 12)

Abortion remains illegal under all circumstances, including when the life of the pregnant person is in danger. People who undergo abortions, and those who provide them, face up to six years in prison. In January 2021, Congress passed a constitutional amendment increasing the majority needed to amend the provision banning abortion from two-thirds to three-quarters, complicating future reform.[14] Emergency contraception, or the "morning after pill," which is used to prevent pregnancy after rape, unprotected sex, or a contraceptive failure, is also prohibited.[15]

In 2019, Human Rights Watch documented how Honduras' total ban on abortion and emergency contraception violates the rights of women and girls and puts their health and lives at risk.[16] The report included the testimony of Honduran women confronting the cruel effects of the abortion ban, including a woman forced to bear her rapist's child; a woman facing jail after having a miscarriage; women who had unsafe abortions; a doctor who cannot always act in her patients' best interests; and a pastor who faced death threats for her activism.

In Honduras, from 2015-2019, 56 percent of pregnancies were unintended.[17] Unintended pregnancies can be caused by rape. In 2019, the Public Ministry received 2,773 complaints of sexual violence against women and girls. Based on this data, the most affected age groups include girls between the ages of 10-19 (representing 54 percent of cases), girls between 0-9 (13 percent), and women between the ages of 20-29 (12 percent). In 2021, the number of complaints the Public Ministry received rose to 2,896.[18] Human Rights Watch learned of women who were raped and forced to proceed with their pregnancies.[19]

Honduras' bans on abortion and emergency contraception may have particularly harmful impacts on adolescents. Honduras has the second highest rate of teenage pregnancies among Latin American countries.[20] Between 2004-2020, the adolescent birthrate was 89 per 1,000 girls aged 15-19,[21] higher than the regional average of 61, and more than double the world average.[22] In 2020, 23,180 girls between the ages of 10 and 19 gave birth.[23] While not all these pregnancies are unwanted, adolescents can have more to lose from an unplanned pregnancy - like missing out on school or being pressured to get married - and often have less access than adults to information, resources, and support to be able to safely end a pregnancy.

Abortion bans do not end the practice, but rather drive it underground, which can have negative consequences on pregnant people's health and lives. UN human rights experts estimate that the number of unsafe abortions in Honduras could be between 51,000 and 82,000 per year.[24] In 2021, the Honduran Secretariat of Health reported 10,233 hospital discharges for abortion, which may also include miscarriages classified as abortions.[25] This number, a fraction of the estimated number of unsafe abortions, could be explained by many factors, such as not seeking emergency medical care for complications of abortions done outside the hospital, as well as fear of criminalization or being reported to the police, whether due to an attempted abortion or fear that a miscarriage could be seen as an attempted abortion.[26] This was indeed the result for a 22-year-old woman Human Rights Watch spoke to in 2019, who after going to the hospital to treat a miscarriage, was arrested after doctors called the police for a suspected abortion. She was placed under pretrial supervision and waited over two years for her court date.[27]

Human Rights Watch research worldwide shows that criminalizing abortion not only undermines the ability of women and girls to access essential reproductive health services, but it also exacerbates inequalities and discrimination.[28]

Human Rights Watch recommends that the Committee call on the government of Honduras to:

• Introduce a bill to decriminalize abortion and ensure that the health system is prepared to provide comprehensive sexual and reproductive education and care, including safe abortion care, without discrimination, stigma, or revictimization.
• Abrogate the 2009 resolution prohibiting the promotion, use, sale, or purchase of the emergency contraception pill and ensure that it is available and accessible to all.
• Ensure access to comprehensive sexual and reproductive health information, psychosocial support for women and girls in the event of unwanted pregnancies, and post-abortion care for those who may have had unsafe abortions.
• Propose a bill, or use its executive powers, to protect patient-doctor confidentiality. No criminal proceeding should be started based on information given while seeking health care.

Discrimination and violence against LGBT people (articles 2, 3, 6, 10, 13)

Discrimination and violence against LGBT people are pervasive in Honduras. In 2020, Human Rights Watch released a report documenting abuses against Honduran LGBT people, including discrimination in access to employment and education, domestic violence, sexual assault, and murder.[29]

Honduras has no comprehensive civil law prohibiting discrimination on the basis of sexual orientation and gender identity. In 2013, Honduras enacted a penal code reform that provided for higher penalties for all bias-motivated crimes on grounds including sexual orientation and gender identity,[30] but there are no confirmed convictions.[31] Since 2017, criminal complaint forms have included a box that can be ticked if the victim reporting a crime self-identifies as LGBTI, but the Attorney General's Office told Human Rights Watch in 2020 that a lack of cases indicates "that it is being ignored by the officials receiving the complaints."[32] A new penal code went into effect in June 2020, which maintained these hate crime provisions.[33]

Legal Gender Recognition (article 2)

Honduras has no administrative procedure allowing a person to modify their legal name and gender. Trans people interviewed by Human Rights Watch described constant challenges related to the mismatch between their appearance and the name and sex marker on their official documents: challenges doing everyday activities, such as routine banking or buying a long-distance bus ticket, contributed to a sense of perpetual alienation and exclusion.[34] This also affected employment opportunities. Juan Y., a 35-year-old trans man, told Human Rights Watch that he faced discrimination on the job market, compounded by the fact that his identification documents did not match his gender identity.[35] In May 2022, the president of Honduras committed to creating a legal gender recognition procedure, but her government and the civil registry had not done so at the time of writing.[36]

Right to Work (articles 2, 6)

LGBT people in Honduras experience discrimination both during job searches and in the workplace. Of the twenty-five LGBT Hondurans we interviewed for our 2020 report, eight, including seven trans people and one gay man, described experiences of employment discrimination. William, a 36-year-old transgender man from Comayagüela, said that when he tried to get a job at a beauty salon, they did not want him because he looked like a man. When he tried to get a job in a carpentry shop, he was told they only wanted men.[37]

Access to Education (articles 2, 13)

Seven interviewees told Human Rights Watch that they had experienced bullying and discrimination in educational settings. They described being targeted by peers, teachers, and administrators. Some said they felt compelled to leave school as a result, reducing their opportunities in life and placing them on a path to heightened economic insecurity. Anabel H., a trans woman from Tegucigalpa, said that from age 10, she stopped attending school halfway through every year because of bullying. In high school, she said her classmates threatened to rape her and threw water bottles at her. When she complained to the school director, she was told she should act like a boy if she did not want to be bothered.[38]

Domestic Violence (articles 3, 10)

Human Rights Watch interviewed four LGBT Hondurans who described experiencing domestic violence or neglect at the hands of family members, intimate partners, or both. Anabel H., a trans woman from Tegucigalpa, said that after her father saw her wearing makeup and women's clothing, he kicked her out of the home at age 17. Once on her own, friends introduced her to sex work, the only way they knew to survive. For children under age 18, sex work is considered under international law as one of the worst forms of child labor, and Anabel experienced it as rape.[39]

Human Rights Watch recommends that the Committee call on the government of Honduras to:

• Pass comprehensive civil non-discrimination legislation that explicitly includes sexual orientation and gender identity as protected classes and that covers sectors including, inter alia, education, employment, health, and housing.
• Create a procedure to allow people to change their legal gender on their official documents and records through a simple, administrative process, such as filing an application at the Civil Registry. Legal gender recognition should not include burdensome requirements that violate rights, such as a requirement to undergo divorce, surgery, or psychiatric evaluation before changing one's gender.
• In collaboration with LGBT organizations, conduct a national-level investigation into allegations of employment discrimination on the grounds of sexual orientation and gender identity, and sanction employers who violate national law by discriminating.
• Conduct a public messaging campaign to ensure that both employers and LGBT people are aware of the law that prohibits employment discrimination on the grounds of sexual orientation and gender identity.
• Adopt an anti-discrimination policy that requires all schools not to discriminate against students on the basis of sexual orientation, gender identity or gender expression.
• Adopt an anti-bullying policy that requires all schools to take measures to prevent and respond to instances of bullying based on sexual orientation, gender identity and gender expression.
• Establish support services for young people, including both children and young adults, who are expelled from their homes for reasons related to their sexual orientation or gender identity, including shelter, counseling services, educational services, and job training.

Right to an adequate standard of living, including for returning migrants (article 11)

Violence, lack of opportunity, unemployment, and climate-related disasters continue to push thousands of Hondurans to leave the country.[40] More than 50,000 Hondurans were forcibly returned to Honduras in 2021, almost 80 percent from Mexico and 20 percent from the US.[41] Just from January through July 2022, over 56,000 were returned.[42]

Civil society organizations, UN agencies, and Honduran agencies working at airports and at the border provide deportees with some assistance. But once inside Honduras, returned migrants are on their own, as there is no effective reintegration program. Unsupported in their communities, some opt to head for the US again. Only those who express fear of violence if they return home receive some support, consisting of a review by UN agencies of relocation possibilities in other parts of the country and monitoring of their situation, according to UN representatives.[43]

Human Rights Watch recommends that the Committee call on the government of Honduras to:

• In addition to addressing human rights abuses, violence, inequality, effects of climate change, and other drivers of displacement and migration, work with UN agencies, donors, and civil society to create a reintegration program that addresses returnees' specific needs. These include work, security, family reunification, and services for survivors of gender-based violence, including access to emergency contraception and support for children on the basis of best-interest assessments.

Indigenous and Garifuna Peoples' Land Rights (articles 1, 2, 11)

The Honduran state has granted rights to land and exploitation of natural resources to companies and well-connected individuals through contracts that lack transparency and elicit allegations of corruption, without proper consultation with communities, without considering their rights to land and resources, and with poor or non-existent implementation of their right to free, prior, and informed consent, Indigenous and Garifuna communities said. [44] In 2018, the government introduced a bill to regulate the right to free, prior, and informed consent, but Indigenous and Afro-Honduran organizations rejected it saying it did not guarantee the effective exercise of this right and they had not been included in the bill's drafting process. The bill is still pending.

Indigenous and Afro-Honduran communities report enormous obstacles to obtaining title to traditional lands. In cases where communities were able to obtain land titles, parts of their ancestral territory were excluded. And even after they received formal documentation, some communities faced court-ordered evictions when third parties presented state-issued titles to the same land, Indigenous and Afro-Honduran organizations told Human Rights Watch.[45]

A 2013 law of Zonas de Empleo y Desarrollo Económico (ZEDE) created areas where private companies were granted extensive operational and functional autonomy.[46] Indigenous and Afro-Honduran organizations say that such zones were created without proper consultation.[47] Congress has since revoked the law, but dismantling ZEDE that are currently functioning remains an issue.[48]

Human Rights Watch recommends that the Committee call on the government of Honduras to:

• Create and implement a clear, transparent, and expeditious mechanism for cadastral mapping and issuance of collective titling of Indigenous and Afro-Honduran territories.
• Send a bill to Congress to create and implement, in consultation with Indigenous and Afro-Honduran communities including women, effective mechanisms on consultation, including free, prior, and informed consent regarding decision making on land use changes and other developments that may affect those communities.
• Establish a plan for dismantling operations that ZEDE created without proper consultation, or that violated the rights of residents. While the legal process for dismantling ZEDE is ongoing, establish a fair, participatory compensation mechanism in cooperation with communities and residents negatively impacted by ZEDE areas.