On 2 March 2019, the Special Fiscal Unit Against Corruption and Impunity (UFECIC, now UFERCO) filed a prosecutorial injunction against 16 former state officials for the alleged crimes of fraud, abuse of authority, violation of the duties of the officials, negotiations incompatible with the exercise of public office and falsification of documents, to the detriment of the state.
Crimes reported by COPINH related to the granting of licenses to operate the Agua Zarca hydroelectric project of the company Desarrollos Energéticos SA (DESA) on the sacred river Gualcarque in Lenca territory, without free, prior and informed consent. These are crimes which form the basis of human rights violations, fundamentally against the life of the Lenca People, and that led to the murder of Lenca rights activists, including Berta Cáceres, as well as the ongoing persecution in the affected region.
During the trial, COPINH has sought to exercise its right as a victim to participate as a private prosecutor, but on August 28, 2019, COPINH was excluded from the trial after the acceptance of an annulment presented by the defence. As a result, COPINH appealed the decision and then filed an ‘Amparo’ (constitutional protection of fundamental rights) to guarantee its constitutional rights in the trial before the Constitutional Chamber of the Supreme Court of Justice on 4 November 2019.
It was only on 24 September, days before the evidentiary hearing began, that the Chamber declared the Amparo admissible, but without suspending the ongoing criminal proceedings. As long as the Amparo remains unresolved, this effectively denies COPINH’s right as a victim to participate in the process.
The delay in the resolution of the Amparo is affecting the rights of the victims and highlights a worrying trend of excluding COPINH from the judicial processes examining the murder of Berta Cáceres and its causes. We are deeply concerned that delays by the judiciary in responding to legal actions in a timely manner are having a negative impact on victims and their guaranteed rights of access to justice, due process and fundamental rights under international conventions on indigenous peoples to participate in the pursuit of justice.
As the Inter-American System recalls, the procedural institution of Amparo, as indicated by art. 25 of the American Convention on Human Rights, must be understood as a simple and brief judicial process that aims to protect all the rights recognised by the constitutions and laws of the States Parties and by the Convention. This remedy must guarantee its effectiveness, understood as its capacity to produce the result for which it was conceived and to prevent, stop or redress the violation of the human right affected.
According to the interpretation of the Inter-American Court, remedies which, because of the general conditions of the country or even the particular circumstances of a given case, are illusory, cannot be considered effective. For the assessment of this effectiveness, the time element is key, as an unjustified delay may constitute a denial of justice.
In this case, considering the standards of international human rights law, and the right to access to justice for indigenous peoples, we are concerned about the limitation of the procedural safeguards to which COPINH is entitled.
It is worth mentioning that “Fraud on the Gualcarque” refers to a judicial process linked to one of the 51 projects granted by the State of Honduras in the Lenca region that Berta Cáceres and COPINH denounced before her murder in 2016. Although several criminal proceedings related to the Agua Zarca hydroelectric project have developed, the DESA company still maintains a valid license for the implementation of said project, despite several indications shown in the criminal proceedings of its material and intellectual involvement in the murders.