US embassy cable - 02TEGUCIGALPA2967

GOH POSITIVE INITIATIVES TO RESOLVE OUTSTANDING LAND CASES: DRAFT LAW AND ARBITRATION

Identifier: 02TEGUCIGALPA2967
Wikileaks: View 02TEGUCIGALPA2967 at Wikileaks.org
Origin: Embassy Tegucigalpa
Created: 2002-10-28 16:40:00
Classification: UNCLASSIFIED//FOR OFFICIAL USE ONLY
Tags: EINV EAID EAGR PGOV AMGT HO
Redacted: This cable was not redacted by Wikileaks.
This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 05 TEGUCIGALPA 002967 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR WHA/CEN, WHA/PPC, AND EB/OIA 
LABOR FOR ILAB 
STATE PLEASE PASS TO USAID FOR LAC/AA 
STATE PASS TO USTR, EXIM, OPIC 
STATE PASS TO USED IDB, USED WB, USED IMF 
 
E.O. 12958: N/A 
TAGS: EINV, EAID, EAGR, PGOV, AMGT, HO 
SUBJECT: GOH POSITIVE INITIATIVES TO RESOLVE OUTSTANDING 
LAND CASES: DRAFT LAW AND ARBITRATION 
 
REF: a) Tegucigalpa 01756 b) Tegucigalpa 02833 
 
1. (SBU) Summary.  Clear property ownership is important to 
improving the well-being of the Honduran urban and rural 
poor, as well as to the resolution of outstanding Amcit 
investment disputes.  Although the GOH has not formed a 
small Commission to address the outstanding Amcit disputes 
as Embassy had encouraged (see ref a), Honduran officials 
instead plan two complementary efforts: legislation to 
create a National Property Institute (INAP) and a 
legislative change that would allow arbitration of selected 
land expropriation claims.  These actions are welcome and 
indicative of a thoughtful approach by the Maduro government 
but are not expected to result in significant progress on 
Amcit land cases in the near term.  Embassy has supported 
GOH efforts to address the complicated land tenure issue 
with a variety of USAID and Public Affairs projects and 
through extensive discussions with Embassy contacts.  End 
Summary. 
 
------------------------ 
A System for Arbitration 
------------------------ 
 
2.  (SBU) The Supreme Court will soon recommend to the 
National Congress an amendment to Honduran law to allow 
arbitration of pending land cases.  This draft bill, which 
was provided to former Ambassador Almaguer and WHA A/S Reich 
during his recent visit to Honduras, deals explicitly with 
cases involving action or inaction by the Honduran 
government at the national or local level (expropriation 
claims).  The claimant's case must currently be in process 
under administrative or judicial procedures.  If the case 
has already exhausted all legal avenues (final Supreme Court 
decision made) the claimant cannot apply for arbitration. 
Note: This prevents use of the arbitration mechanism by a 
claimant in one of the Embassy's oldest land cases, Alfred 
McDaniels, who lost his appeal to the Honduran Supreme Court 
for compensation for his investment in a banana farm that 
was taken over by squatters.  Mr. McDaniels requested USG 
espousal for his case in 2000.  End note. 
 
3. (SBU) Under the proposed legislation, a case would be 
eligible for arbitration if: 
 
a) The legal proceedings have taken more than half the 
allowed time and the case has not yet been resolved; 
b) The delay in the proceedings is not caused by a lack of 
action on the part of the individuals, their 
representatives, or attorneys; 
c) The deadline to file the petition in the case's 
respective court level or procedure has not passed; 
d) The private party requests arbitration within six months 
of the effective date of this law; and 
e) The Attorney General determines that arbitration is 
consistent with this law. 
 
4. (SBU) Once the Attorney General's office concurs with 
arbitration in a particular case, the parties would sign an 
arbitration agreement.  The signed agreement would be 
submitted to the judge or other authority working on the 
dispute, requesting that the legal case be suspended.  The 
case would then go to arbitration. 
 
---------------------------- 
A Land Institute is Proposed 
---------------------------- 
 
5. (SBU) A small group of lawyers working for the Minister 
of the Presidency is preparing a proposal for the National 
Congress to create a unified property registry called the 
National Property Institute (INAP).  The INAP would be 
responsible for the development, execution and 
administration of a national policy on real estate, liquid 
assets, business property and intellectual property.  This 
institute would be composed of a board of directors, an 
executive directorate, the National Center for Registry and 
Surveys, the National Center for Property Policy and 
Regulations, an Inspector General, a Complaint Resolution 
Commission and the Director Generals. 
 
6. (SBU) The Board of Directors would be made up of the 
President of Honduras and various Ministers such as the 
Minister of Industry and Trade, Minister of Justice, 
President of the umbrella association for the private sector 
group (COHEP) and others.  It does not include a member 
representing the National Agrarian Institute (INA), the 
Honduran agency that implements the Agrarian Reform Law. 
INA will continue to be responsible for titling national 
lands fit for farming and distributing land to peasant 
groups; however, INA would have to get their titles through 
the proposed National Property Institute. 
 
7. (SBU) Within the INAP, the National Center for Registries 
and Surveys would be responsible for unifying and regulating 
the efficient functioning of registries and surveys for all 
of Honduras.  The National Center for Property Policy and 
Regulations would serve as a body for proposals and dialogue 
dealing with property issues such as the security and 
transparency of registered transactions, dispute settlement, 
and public outreach, among others. 
 
8.  (SBU) Whereas the arbitration proposal is designed to 
facilitate resolution of old squatter and expropriation 
cases involving the State, the land institute is designed to 
avoid the current proliferation of private land title 
disputes in the future.  In the proposal, land registration 
would be the exclusive jurisdiction of the INAP.  Any 
negative responses to land inscriptions would be sent before 
the Dispute Resolution Commission.  All resolutions issued 
by the Dispute Resolution Commission division would be 
considered final and binding. 
 
---------------------- 
A Resistance to Change 
---------------------- 
 
9. (SBU) The Property Registry proposal recently ran into 
some resistance within the Honduran Supreme Court.  Under 
the 1974 Property Registry Law, the courts ordered that the 
National Registry be combined with the national cadaster (a 
public record, survey, or map of the value, extent and 
ownership of land as a basis of taxation).  However, the 
National Registry falls under the jurisdiction of the 
Supreme Court, while the Ministry of Government and Justice 
houses the national survey. In the last 28 years, neither of 
these two government entities has been willing to give up 
its jurisdiction to the other, so the registry and the 
survey have remained separate, non-communicating entities. 
Meanwhile, the cadastral survey was not maintained and 
became outdated.  The Maduro administration therefore had to 
begin from scratch in early 2002.  The proposed legislation 
creating the INAP would pull both the registry and cadastral 
survey from their respective ministries, moving them to the 
new agency that would be independent of any ministry and 
would fall under the authority of the executive branch. 
Supreme Court Magistrates, despite participation in some of 
the planning and recent regional land tenure seminar, have 
indicated reluctance to relinquish control of, and revenues 
from, land registration. 
 
----------------------------------------- 
A National Survey and Registration System 
----------------------------------------- 
 
10. (U) Former Tegucigalpa Mayor, Henry Merriam, is the 
national coordinator for the World Bank-funded 
Administration of Rural Areas Project (PAAR) under the 
auspices of the Ministry of Agriculture, and is expected to 
become the first director of the INAP.  Under Merriam, the 
PAAR has coordinated two pilot topographic, satellite and 
global positioning system (GPS) surveys in the areas of 
Comayagua and the Bay Islands.  In the Islands, an Inter- 
American Development Bank (IDB) sustainable development 
project team, PMIB, under the auspices of the Ministry of 
Tourism, was responsible for preparation of the USD 1.5 
million catastral survey. 
 
11.  (SBU) The GOH intends to complete all future surveys 
throughout Honduras directly through PAAR. After each 
regional survey is completed, it will be integrated with the 
local registry.  This is when ownership of the surveyed land 
will be accounted for and discrepancies and/or title 
disputes will be flagged under the new system. 
 
12. (SBU) In the Bay Islands, once the cadaster was 
completed, the GOH began the process of determining land 
ownership.  This includes the process of joining the survey 
results with the existing public registry, which is 
anticipated to take 2 to 3 months to complete. In the Bay 
Islands, is estimated that 5 percent of all land parcels 
equivalent to roughly 32 percent of all land area is in 
dispute. Of the roughly 12,000 total plots of land in the 
Bay Islands, about half have been registered. There are 
still almost 6,000 parcels to be titled and registered.  The 
remaining land to be titled is labeled as "occupied," 
meaning people live on it, but it is national land and no 
title has ever been issued. The squatters will have to pay 
the government just 10 percent of the assessed value of the 
land in order to title and legally take possession of it. In 
the second project area, Comayagua, surveys have been 
completed in just 8 of the 21 municipalities.  The remaining 
surveys and process of rectification with existing 
registries should be completed by July 2003. 
 
13. (U) Upon completion of the surveying process, in order 
to keep the cadaster current it must be merged with the 
public land registry. This is no easy job given the aged, 
disorderly state of the records.  In the Bay Islands, for 
example, public registry book volumes 3 and 5 are in pieces 
in shoeboxes due to old age and rodent appetites. 
Nevertheless, a new software system is being developed to 
unify the cadaster and the registries and should be ready 
for use by October 31, 2002.  This computer system will have 
computer generated survey drawings, digital satellite 
downloaded imagery, and scanned registry documents.  As an 
attempt to combat fraud, the new land registry will not only 
maintain an image of the parcel, but also a photograph of 
the owner of record and a fingerprint. The proposed land 
registry computer system will be able to cross-reference the 
fingerprint and photos of the owner from any public registry 
in Honduras.  The project hopes to be able to issue real 
documents to the public by January 2003. By February 2003, 
the first registry link between the Bay Islands and 
Comayagua computer systems should be connected and 
communicating to one another. 
 
--------------------------------------- 
A Financial Lift for the Municipalities 
--------------------------------------- 
 
14.  (U) Earlier this year, the Honduran Supreme Court 
signed a decree which requires any party wishing to buy 
property in the Bay Islands to present the cadaster for the 
piece of property first, in order to prove the land is not 
in dispute, before the transaction can take place.  Though 
the cadaster is currently only an administrative tool, under 
the proposed legislation, the cadaster would become a legal 
document as well.  Since the cadaster in the Bay Islands 
became effective, the municipalities on all three major 
islands have seen an increase in tax revenues.  On the 
island of Utila until recently, the average tax collection 
was 300,000 lempira a year (around USD 18,000).  Thanks to 
the cadaster, the municipality is now expecting to receive 
6.5 million lempira (USD 388,600) annually.  During the 
first month, the municipality had reported receiving 4.5 
million already (roughly USD 270,000).  On the island of 
Roatan, the municipality of Roatan should receive 16 million 
lempira (USD 956,000) in tax revenue and the municipality of 
Santos Guardiola expects 8.5 million lempira (USD 508,000). 
The municipality on the island of Guanaja will benefit by 7 
million lempira (USD 418,000) in annual tax revenue. 
 
------------------------------------- 
Implications for Amcit Land Disputes 
------------------------------------- 
 
15. (SBU) The Embassy continues to manage a caseload of 
roughly 180 cases, of which 32 are active land cases and 22 
are active commercial disputes.  Of the total cases, we are 
aware of 13 American citizen claims totaling 17 
expropriation cases against the GOH (some Amcits have more 
than one property case pending).  Only three of those cases 
have exhausted all legal avenues up through the Honduran 
Supreme Court and would therefore not be eligible to apply 
for the proposed arbitration process.  On the face of it, it 
appears that 13 of the 17 pending cases could qualify for 
the arbitration process if requested by the American citizen 
claimants.  One case could potentially qualify for 
arbitration if the Amcit's attorney files for 
unconstitutional recourse with the Honduran Supreme Court to 
reactivate her case.  It would remain to be seen, however, 
how the eligibility criteria would be enforced. 
 
16. (SBU) Post has found that even when an American citizen 
receives a favorable court ruling, it is difficult if not 
impossible to get the local municipalities to enforce the 
rulings, such as the long standing case of the Valenzuela 
family.  The Honduran Supreme Court ruled in April 1992 in 
the Valenzuela's favor, recognizing the Valenzuela's clear 
title over the property known as "Jerico".  However, the 
local Mayor refuses to recognize the Supreme Court's ruling 
and allegedly continues to allow the municipal land 
registrar to register some Jerico lands under a different 
name, "Capiro", but using the same known tax identification 
number. 
 
17.  (SBU) The level of alleged corruption in the Honduran 
judicial system also remains high.  In August 2002, American 
citizens Jean and Roger Moore were forcefully evicted from 
their home in the Bay Islands on Roatan  (ref b). 
Government officials openly admit the judge in the Islands 
ignored legal guidelines and available evidence in allowing 
this eviction to occur and in delaying the processing of 
their requests for appeals and injunctions.  It is possible 
that Embassy advocacy and high level government and Supreme 
Court attention in this case may help push it toward a just, 
prompt resolution.  However, it is indicative of the 
frustrations that Amcit claimants face in these private (non- 
expropriation) land disputes. 
 
18. (SBU) Another important variable for the future is the 
continuing problematic role that the National Agrarian 
Institute plays in squatter cases.  In some Amcit cases, INA 
has agreed to expropriate land for land reform despite the 
unsuitability of the land for agriculture and the lack of 
funds to compensate the owners.  In some cases, such as the 
Norma Bogran case, INA has failed to pay compensation and 
then reversed its expropriation decisions long after 
communities have been built on the land, thus denying the 
Amcit claimants both compensation and his or her property. 
To add insult to injury in the Bogran case, the land was not 
used by the landless farmers but was instead sold quickly to 
wealthy Hondurans; the appeals court in this case recently 
ruled that the statute of limitations was expired, even 
though INA had waited ten years to reverse its expropriation 
finding).  Finally, INA (and the GOH as a whole) do not have 
a consensus on how to deal with conflicting land claims that 
involve Garifuna and other indigenous groups.  All that 
said, the Embassy has not seen any new INA cases arise since 
the advent of the Maduro administration. 
 
-------------- 
USG Assistance 
-------------- 
 
19. (SBU) The lack of a clear property ownership system is a 
major problem in Honduras and a constraint in providing 
access to assets by the poor.  Security of property rights 
is an essential element of a sound environment for broad- 
based economic growth. USAID is actively involved in 
supporting the policy debate surrounding land administration 
and land-use planning issues.  Through the Honduran 
municipal association, USAID has financed the creation of 
mayoral commissions that participate in the policy dialogue 
of specific issues with their respective legislative 
commission counterparts.  In the case of legislative bills 
that have been introduced in the Honduran Congress, such as 
the land-use planning framework, these commissions have 
engaged in working sessions to address specific policy 
issues.  Similar commissions will be established once the 
land administration bill is introduced.  USAID is also 
organizing study tours around these land issues for the 
benefit of both the legislative and mayoral commissions. 
 
20. (SBU) In 2001, USAID sponsored a study to assess the 
property registration system in Honduras. This study was 
conducted by Instituto Libertad y Democracia (ILD) and the 
Honduran Counsel for the Private Sector (COHEP).  The Public 
Affairs section of the Embassy has supported this work with 
distribution of Hernando De Soto's book The Mystery of 
Capital. On July 16, Embassy PAS held an Interactive 
Dialogue Program (video conference) with Hernando de Soto. 
The Honduran interlocutors included: Luis Cosenza, Minister 
of the Presidency, Sergio Zavala, Attorney General, Miguel 
Pastor, Mayor of Tegucigalpa and Segisfredo Infante editor 
of the daily newspaper, la Tribuna. Former Ambassador Frank 
Almaguer served as moderator for this dialogue. The Embassy 
received wide press coverage of the event. 
 
21. (SBU) Last February, ILD presented the findings of the 
ILD/COHEP study to President Ricardo Maduro, the Economic 
Cabinet and other institutions.  There was consensus among 
government officials of the importance of implementing a 
sound property registration system in Honduras, and the work 
to date on development of the INAP and trying to improve 
land cadasters and the land registry reflects this 
consensus. 
 
22. (SBU) ILD is proposing follow-on work to the 2001 
registration project. Full implementation of the ILD program 
takes place in five phases: awareness, diagnosis (assessment 
done by ILD/COHEP in 2001), reform design, implementation, 
and capital formation and good governance.  On October 14, 
ILD met with GOH officials (Arturo Alvarado, Ministry of 
Finance and Ricardo Callejas, President of the Commission 
for Modernization of the State) to present the proposal for 
the "reform design" phase, with an estimated cost of USD 6 
million.  Implementation costs (phase 4) can range between 
USD 50 million to USD 80 million. 
 
23. (SBU) On September 24-26, the Fourth Meeting of the 
Central American Legislators Group (Red Centroamericana de 
Legisladores) took place in Tegucigalpa. The main objective 
of the event was to promote awareness of the need for 
national and regional legal frameworks that support 
decentralization processes and good local governance. 
Approximately 140 participants, consisting of legislators, 
mayors, and heads of land registries discussed land 
administration policy and municipal management issues, 
experience with land cadasters, land tax policies, land 
titling and management. This event was sponsored by USAID and 
the IDB. 
 
24. (SBU) GOH officials remain in close contact with the 
Economic Section of the Embassy and USAID on their plans and 
possible obstacles.  They have asked for continued 
assistance, as feasible, in raising public awareness of the 
importance of improved land tenure and property rights.  The 
GOH is also working closely with the World Bank, IDB and 
other donors to seek funds for the cadastral and land 
registration projects. 
 
PALMER 

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