Overview of drug laws and legislative trends in Honduras

Trend

In recent years, Honduras has become the country with the highest levels of violence in the world. According to figures from the United Nations Office on Drugs and Crime (UNODC), in 2012 the country had a murder rate of 92 per 100,000 people. Organised crime and its connection with drug trafficking may be one of the causes of this increase in violence. Drug trafficking gangs use the country as a transit point on the route to the United States. The violence is related to the conflicts between the gangs in their dispute over territory, extortion, money laundering, etc. Several legislative initiatives were proposed in 2012 to reduce drug trafficking and improve transparency and effectiveness in the judicial system and the security forces.

Law

The law currently in force is Decree N° 136/89, enacted on 23 November 1989. This special law is called the “Law on the improper use and illicit trafficking of drugs and psychotropic substances,” and it was modified by Decree 86/93. The law’s objective is to control, prevent, combat and punish the production, trafficking, possession and illicit use of narcotic and psychotropic substances.

Drug Law and legislative trends in Honduras

Under Decree 126/89, the cultivation and production and the trafficking and transport of drugs are punishable as crimes, as is the illicit use and possession of drugs. Article 7 prohibits the production, planting, cultivation and gathering of plants or seeds that contain ingredients that may be considered narcotics or controlled substances. The article gives some examples, such as poppy and peyote – the latter being well known for its hallucinogenic effects.

The range of penalties is quite wide overall, from a minimum of 3 years to a maximum of 20 years in prison in the case of the crime of drug trafficking. In the case of possession for use (Article 26), for the first offence the law says that the person arrested must be interned in a rehabilitation centre for up to 30 days, as well as having to pay a fine ranging from 500 to 1000 lempiras. In the case of a second offence, the internment period is 30-90 days and the fine 1000-5000 lempiras. And if someone commits the same offence for a third time, they would be interned until considered reintegrated into society.

It should be emphasised that if the person concerned is a dependent drug user, the law states that they will be ordered to go into a rehabilitation centre even if it is their first offence. In practice, however, that is not how the law operates. Because no state-run rehabilitation centres exist, these internment and social reintegration measures cannot be carried out. What actually happens is that, once the judicial process has been initiated for the alleged possession or trafficking, if the quantity seized is considered minimal – based on the crime laboratory report – the judge will understand it as possession for immediate personal use and set the person free.

Article 27 also provides for foreign citizens to be expelled from the country when they are found in possession of drugs, even when the quantity they are holding is for their own use. As far as the quantity considered to be for immediate personal use is concerned, as in other countries in the region the decision is left in the hands of the judge, who will bear in mind the circumstances of the events and the quantity seized to determine whether it is a case of narcotics trafficking or possession for personal use.

With regard to the issue of extradition, both the Constitution (Article 102) and the Criminal Code (Article 10) used to forbid the extradition of Honduran citizens alleged to have committed a crime abroad but currently residing in their home country. In 2012 the Supreme Court approved changes to Article 102 of the Constitution to allow the extradition of Honduran nationals accused of three specific crimes: drug trafficking, terrorism and organised crime. It should be recalled that an extradition treaty between the US and Honduras has been in place since 1927, but it only permitted the active extradition of US citizens found on Honduran soil. Weeks after the reform was introduced, the US filed for the extradition of the alleged drug trafficker Carlos Arnoldo Lobo. This is the first in a long list of extradition requests that the US plans to present.

Finally, Article 39 mandates the setting up of an organisation called the Honduran Institute for the Prevention of Alcoholism, Drug Addiction and Drug Dependence (IHADFA), whose role is to implement and coordinate government programmes and public sector activities involving research, prevention, treatment, and the physical and social rehabilitation of users of controlled substances.

The law’s impact on the prison situation

According to figures compiled by the Centre for Prison Studies International (PRI), in 2011 the prison population in Honduras reached a total of 12,336 inmates, 50.1% of whom were under preventive detention, meaning that they had not been sentenced. Officially, Honduras’s prisons have the capacity to hold 8,625 inmates. This means that we are once again seeing the same situation of prison overcrowding that is repeated in practically all Latin American countries. It is worth pointing out that, according to a study carried out by the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders, ILANUD, of a total of 9,453 people being held in prison in 1996, 789 were there for having committed the crimes of trafficking or possession of narcotic drugs. Figures compiled in 2004 by the General Directorate of Preventive Services (DGSEP) indicated that the majority of prisoners were incarcerated for narcotics trafficking offences and crimes against property, which implies a considerable increase.

Legislation and Reform

Proposals to change the law and reform the judicial system and security forces

June 2012 – Honduras set up a Public Safety Reform Commission with the purpose of bringing about a transparent and effective judicial system. The commission presented a proposal to reform the Law on the Public Prosecutor’s Office and the Judicial Council, as well as a proposed constitutional law on state security and the security forces. At the moment, Honduras’s national police force is known for its lack of effectiveness and for the numerous cases of corruption involving gangs of drug traffickers seeking to move their merchandise through the country.

November 2012 – a new proposal for a law on drugs. The inter-institutional commission delivered to President Porfirio Lobo the draft of a new law to replace the now obsolete Law on Drugs from 1989. One key feature of this new proposal is a special chapter devoted to the possibility of shooting down aircraft carrying drugs that invade Honduran airspace. According to several sources, more than 70% of the light aircraft trafficking cocaine from the Andean region to the North American market passes through Honduran territory. The protocol that must be followed is quite strict: once a “hostile” aircraft is intercepted, the Honduran air force must fly in its path and communicate with the pilot to order it to land. If the pilot does not obey, the air force will fire warning shots first, and then proceed to shoot the plane down, providing that a competent higher authority has given the go-ahead for all this to take place.

Honduras in the international debate on drug policies

The debate initiated by President Pérez Molina of Guatemala in 2012 when he proposed decriminalising drugs in Central America has been on the agenda at several summits and other meetings between heads of state in the Americas.

The president of Honduras, together with his counterparts in El Salvador and Nicaragua, expressed their total rejection of the idea in a joint communiqué, in which they state that they do not believe that this option will solve the problems of drug trafficking. Although he does not back that initiative, President Lobo has declared that it is necessary to accept shared but differentiated responsibilities. To act against the drugs market, each country needs to take responsibility for the aspect relevant to it. The responsibility for controlling production lies with the producer countries such as Colombia; the control of trafficking should be the responsibility of the countries that serve as the transit route for drug shipments due to their geographical location (Guatemala and Honduras); while countries like the United States should take responsibility for controlling drug use. The United States in particular is one of the countries with the highest demand for drugs, as well as being the main recipient of the vast majority of the drugs that are brought from Latin America.

In the speech he gave at the 67th UN General Assembly in September 2012, President Porfirio Lobo placed emphasis on the fact that Honduras is neither a consumer nor a producer country. Instead, the cartels use the country as a transit route, leaving a huge number of victims in their wake, and this should therefore be seen as a matter of international concern.