2018-2022 Criminalisation and detention of CMDBCP environmental rights defenders

The criminalisation and unwarranted detention of human rights defenders in Honduras has been widely documented by national and international human rights organizations (IACHR, 2019: para. 306; Statement at the end of visit to Honduras by the UN Working Group on Business and Human Rights, 2019). This includes the manipulation of the justice system to mount unwarranted criminal investigations, obtain baseless arrest warrants and maintain activists in prison for years as part of unfair judicial proceedings, often in pretrial detention. Created in 2017 to combat corruption and organized crime, the National Court system, which is less independent than the ordinary criminal justice system (OEA MACCIH, 2019), is ironically playing an important role in the factional use of the justice system to serve powerful economic interests to target grassroots movements opposing extractive projects. The ASP1 and ASP2 case illustrates how this process of criminalization not only seeks to discredit legitimate social demands, but also exposes human rights defenders to lengthy detention as well as forcing movements to dedicate their energies to challenge convoluted and arbitrary judicial proceedings. The International Human Rights Law Clinic of the University of Virginia Law School documented many of these abuses and irregularities in its report: "Pretrial Monitoring of the Guapinol and San Pedro Community" (UVA, 2020).

The criminalisation of environmental activists opposing the ASP1 and ASP2 mining project began in October 2018 when a National Court judge in La Ceiba issued a warrant for the arrest of 18 supporters of the Municipal Committee for the Defence of Common and Public Goods (CMDBCP). The minor offences of “illegal occupation (usurpation)”, “criminal damage” and “obstructing a public space” were derived from a complaint by Inversiones Los Pinares (ILP) filed with the Tocoa Public Prosecutor’s Office in early September 2018 in relation with the Encampment for Water and Life that the CMDBCP had set up to protest against the mine. The warrant also served to issue the eviction order against this protest encampment (See Legal Action “2018 Eviction of protest encampment”).

In February 2019, 13 of the accused CMDBCP environmental defenders voluntarily presented themselves to the National Court in La Ceiba, challenging the evidence against them and the application of the National Court jurisdiction over ordinary criminal offences. 

However, during the hearing the judge revealed that the Public Prosecutor had sought a second arrest warrant in January 2019 against 31 members of the community (including 12 of those present). This related to a complaint by the ILP regarding an incident on 7 September 2018 near the CMDBCP Encampment for Water and Life when a protester had been shot and wounded by an ILP security official and a vehicle and company property had allegedly been damaged. The same incident had also led the CMDBCP to file a complaint with the Public Prosecutor’s Office but no action had been taken to hold the ILP security guard to account (UVA, 2020: 13). Instead, the judge produced the undisclosed indictment during the hearing to charge the 12 activists with “illegal deprivation of liberty”, “aggravated arson” and “robbery” (privación injusta de la libertad, incendio agravado, robo), and most importantly, "criminal association" (asociación ilícita). The latter offence falls within the organized crime jurisdiction of the National Court system, and along with the prosecutor’s unsubstantiated claim that the CMDBCP were a criminal gang, served to justify the judge’s competence over proceedings and the decision to place the 12 accused in pretrial detention. 

In March 2019, at preliminary hearings, a different National Court judge in Tegucigalpa dismissed both indictments against the 12 detainees. He ruled that prosecutors and the ILP had not provided sufficient evidence of the crimes nor proof of responsibility of the accused, and that the CMDBCP had been engaged in legitimate protest activities. The 12 activists were released from prison. However, the public prosecutor and ILP appealed the judge's decision. In March 2020, the Appeals Court decided to partially reinstate the dismissed indictment against five CMDBCP activists. This included charges of illegal deprivation of liberty and aggravated arson, the provisional suspension of the charge of robbery and dismissal of the charge of criminal association. However, the Appeal’s Court ruling was not communicated to the CMDBCP’s legal defence until late August 2020. 

In August 2019, seven different CMDBCP activists named in the second arrest warrant presented themselves to judicial authorities seeking a similar acquittal to the decision taken in March 2019. As an illustration of the unreliability of the prosecution evidence, they carried a coffin representing one of the men named in the warrant who had in fact died three years before the alleged offences. However, a new presiding judge admitted uninvestigated claims by an ILP security official as additional evidence and dismissed defence evidence. The latter included arguments that prosecutors had failed to identify specific criminal activity of accused individuals as required by law or to acknowledge official recognition that the CMDBCP was engaged in human right activities (See Legal Artefact entitled “2019 National System for the Protection of Human Rights Defenders official recognition of the CMDBCP as a human rights organization”). The judge committed the men to trial on charges of illegal deprivation of liberty and aggravated arson, but dismissed the charge of criminal association and robbery (UVA 2020: 17). The remaining offences fell outside the National Court jurisdiction, and were not serious enough to merit automatic pretrial detention. However, on 1 September 2019 the judge ordered the seven men into preventive pretrial custody in Olanchito prison, Altantida Department (See also Legal Action entitled: “2018- Legal challenges to criminalization of environmental defenders”).

In November 2019, during a hearing to review the preventive detention order, the National Court judge refused entry to international observers. Despite the absence of evidence and the judge’s own dismissal of organized crime offences, the preventive detention order was maintained on the unsubstantiated grounds that the men might become further involved in organised crime (UVA, 2020: 17). 

An eighth Guapinol defender is also in pretrial detention. He was arrested in November 2018 on the basis of the first arrest warrant against the CMDBCP activists. At the time, he was one of the collective beneficiaries of Inter-American Commission on Human Rights (IACHR) precautionary measures (see Legal Artefact “2014 IACHR precautionary measures on behalf of peasant activists”). These were issued in response to death threats against members of the Unified Campesino Movement of Aguan (MUCA). On 29 November 2018, he was arrested by the police unit responsible for his protection from the Human Rights Defender Protection Mechanism of the Honduran State. In February 2019, he was also indicted on the charges deriving from the second warrant. In March 2021, a judge acquitted him of charges of usurpation and criminal damage from the first warrant, but he remained in pretrial detention on charges of the second warrant. 

Several legal actions were launched by lawyers of the eight Guapinol defenders to challenge their detention and prosecution, but seven remained in pretrial detention in Olanchito prison in Yoro Department, near Tocoa and the eighth in La Ceiba prison (See Legal Action entitled “2018-2022 Legal challenges to criminalization of environmental defenders). In March 2021, the UN Working Group on Arbitrary Detentions (See Legal Artefact entitled, “2021 UN Working Group on Arbitrary Detentions Opinion 85/2020 on the Guapinol environmental defenders”) concluded the eight men were victims of arbitrary detention and called for their immediate release. In December 2021, Amnesty International declared the men to be prisoners of conscience, calling for their immediate and unconditional release (Amnesty International 2022).

In October 2020, in further evidence of the threats facing activists, a human rights defender was shot and killed by gunmen in his home in Tocoa. He was one of 31 individuals named in the first 2018 arrest warrant against protesters opposing the ASP1 and ASP2 licenses (Business and Human Rights Centre, 2020).

In February 2022, amidst national and international concern at the unfairness of the criminal prosecution and trial, the Trujillo Court declared six of eight detainees guilty, sentencing them to a total of 110 years in prison. However, in the wake of the election of a new president, defence motions presented to the Supreme Court arguing that the prosecution and trial were not legal, resulted in the convictions being struck down. Despite the resistance of local judicial officials to this ruling, the last six Guapinol water defenders in custody were released at the end of February 2022.