ALEJANDRO FIALLOS NAVARRO
REPUBLIC OF NICARAGUA
July 20, 2006
1. On August 31, 2004, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition presented by Ivonne del Socorro Lacayo Leal (hereinafter “the petitioner”) in which she alleged that the Republic of Nicaragua (hereinafter “the State”) had violated Articles 4, 7, 8, 11, 23, and 25 of the American Convention on Human Rights (hereinafter “the American Convention”) with respect to Alejandro Fiallos Navarro.
2. The petitioner claims that her husband, Mr. Alejandro Fiallos Navarro, ran for the office of mayor of Managua in 2004, representing a group of political parties called the Alliance for the Republic (APRE). As a result, he reportedly began to receive anonymous threats and was named in absurd legal complaints and lawsuits in which, she claims, the trial judges violated the rules of due process.
3. On August 16, 2004, he was convicted of Abuse of Authority and for Threats by the Second Local Criminal Judge. As a result of this conviction he was sentenced to a 45-day prison term, suspension of his political rights for a year, and a fine of two hundred cordobas. Consequently, he filed for a suspension of the execution of the judgment or conditional conviction and this remedy was admitted. At the start of these proceedings he was arrested – arbitrarily, since at that time, no legal warrant for his arrest had been issued. The petitioner also claims that the judgment by which he was convicted was carried out without ever having been notified or finalized, and that this was intended to disqualify him to run as a political candidate; all this took place with unwarranted delays in the legal deadlines set for the proceedings.
4. Ms. Maria Teresa Mairena Rayo (whose allegations were the reason behind the investigation and criminal prosecution of the alleged victim) withdrew her accusations against Mr. Fiallos on December 23, 2005, and offered an apology for the harm she had caused him. However, the probation period of 18 months imposed by the First Judge of Sentence Execution and Prison Oversight of Managua remained in effect from July 20, 2005.
5. The State, in its reply, provides a summary of all the legal proceedings and the legal analysis chapter of the case file reveals several irregularities that occurred in the proceedings.
6. After examining the parties’ positions in light of the admissibility requirements set out in Article 46 of the American Convention, the Commission decides to declare this case admissible as regards Articles 7, 8, 23, and 25 of the American Convention, in conjunction with Article 1 and 2 thereof. Consequently, the Commission decides to inform the parties of this Admissibility Report, to make it public, and to include it in its Annual Report.
II. PROCESSING BY THE COMMISSION
7. The Commission received the original complaint on August 31, 2004, and recorded it as number 799/04. On January 31, 2005, the petitioner was asked to furnish additional information, and her reply was received on May 9 of that year. On August 16, 2005, the Commission conveyed the petition to the Government of Nicaragua, in compliance with Article 30 (2) and (3) of its Rules of Procedure. On October 21, 2005, the State responded to the complaint and, on October 31, its reply was sent to the petitioner for her comments, which were received on January 13, 2006. On January 23, 2006, the Commission forwarded additional information to the State. To date, no further information has been received from the parties.
III. POSITIONS OF THE PARTIES
A. Position of the Petitioner
8. According to the petitioner, the alleged victim, her husband, Alejandro Fiallos Navarro, was a candidate for the post of mayor of the city of Managua, representing a grouping of political parties called the “Alliance for the Republic” (APRE), in the elections of November 7, 2004. Days after announcing his candidacy, he reportedly began to be targeted on account of his status as a politician, and a series of lawsuits, based on complaints she describes as “absurd,” were initiated against him. She believes that there were irregularities in these criminal proceedings that constituted violations of the alleged victim’s rights and guarantees, and that all of this was intended to deny him the right of being elected to public office.
9. The first of these criminal trials was heard, at the first instance, by the Second Local Criminal Court (case file 1218/04), substitute judge Moisés Rodríguez Zelaya presiding. The petitioner reports that the alleged victim appeared before this court on August 17, 2004, accompanied by his attorney, as he had been summoned to “expand” on his statements in his capacity as the accused; however, the Law on Criminal Proceedings Law contains no provisions regarding the “expansion” of investigations.
10. While at the premises of the court in response to this request, they were violently accosted by police officers, who allegedly locked the door and then forcibly apprehended, arrested, and handcuffed the alleged victim. The petitioner claims, however, that as of that time he had not been informed of any conviction handed down against him, as a result of which his arrest was arbitrary. He was only notified of the judgment after his defense lawyer filed a protest. However, the arrest warrant was officially issued by Judge Moisés Rodríguez Zelaya half an hour after his detention.
11. The petitioner claims the right to appeal to a higher court was violated in that the judgment was carried out without notice of it having being served, as a result of which the alleged victim was denied the material opportunity to appeal against it. In conclusion, the judgment that was carried out was not yet final. In this regard, the Law on Criminal Proceedings states that:
12. The petitioner reports that the alleged victim immediately appealed, but that the appeal was not processed because Judge Rodríguez Zelaya had taken the case file home with him. The next day, however, August 18, 2004, the law of the alleged filed an appeal, which was admitted the following day and as a result of which execution of the judgment was suspended. Processing of the appeal began and, in accordance with the deadlines set in law, the second-instance judgment was due on or before August 26; however, as of the date the petition was lodged with the Commission, no decision had yet been handed down.
13. Nevertheless, because of his arbitrary arrest, the alleged victim filed for a “personal exhibition” or habeas corpus remedy on August 18, 2004; reportedly, however, the Court of Appeals has not ruled on the merits, stating that it does not have competence to do so. The petitioner has not specified the grounds for the lack of competence invoked by the Appeals Court.
14. The petitioner maintains that under Article 61 of the Amparo Law in force in Nicaragua, the judge in charge of executing the judgment was required to order Mr. Fiallos Navarro’s release since he was being held illegally.
15. In addition, the petition lodged with the Commission claims that although Mr. Fiallos Navarro was legally entitled to release on bail that right was denied to him by Judge Moisés Rodríguez Zelaya at the first instance court level. The Code of Criminal Procedure provides that:
16. Additionally, the petitioner states that the alleged victim was arbitrarily deprived of his liberty when the First Criminal District Judge of Managua, on appeal, ordered his release on bail. This arrest reportedly began on August 17, 2004 and concluded on the 24th of that same month.
17. At trial, the alleged victim was convicted of Abuse of Authority and Threats. The verdict of August 16, 2004, had sentenced him to an incommutable prison term of 45 days and a fine of one hundred cordobas for the latter charge, while the conviction for abuse of authority had entailed the suspension of his political rights for a period of one year and a fine of one hundred cordobas. As a consequence, he filed for a suspension of the execution of the sentence or a conditional conviction. This was granted with respect to the arrest, but the suspension of his political rights was left in effect. On June 10, 2005, however, in a later action, the Criminal Chamber (No. 1) of the Managua Court of Appeals upheld the request for a conditional conviction and ruled that the matter be referred back to the first instance court judge for him to determine the applicable period for the introduction of evidence. However, on the day of the 2004 election for the office of mayor of Managua, the punishment imposed on Mr. Fiallos Navarro, which suspended his political rights, was still in force.
18. The petitioner maintains that all domestic remedies have been exhausted since summary criminal trials are not subject to cassation (i.e. a third level of judicial review), and despite the fact that the alleged victim was released on bail, there was an unwarranted delay on the part of the Nicaraguan judicial authorities in the conduct of the proceedings.
19. In a later submission to the Commission, the petitioner claims that the trial judge publicly threatened Mr. Fiallos with again having him arrested without a judicial warrant. All of this was presumably intended to weaken the alleged victim politically as a candidate for the office of Mayor of Managua. As a result of this situation the recusal of the trial judge was attempted, but such acts were not successful.
20. In addition, the Commission was given a list of the criminal prosecutions in which the alleged victim was implicated. The first involved a 2003 case in which María Fernanda Flores de Alemán filed an accusation for the crimes of defamation and slander. In the second, heard by the Second Local Criminal Judge of Managua, he was convicted, in the absence of any evidence whatsoever, to a prison term of 45 days and to a one-year suspension of his right to hold public office.
21. They maintain that the grounds for these criminal investigations and prosecutions were essentially political in nature and not legal, and that all this comprises a series of grave violations of the American Convention on Human Rights.
22. In its reply dated October 21, 2005, the State of Nicaragua provided an itemization and analysis of the proceedings in which Mr. Alejandro Fiallos Navarro was involved. This submission, signed by the Ministry of Foreign Affairs, provides the following information:
23. In the State’s view, it is clear that the complaint and subsequent charges brought by Ms. Maria Teresa Mairena Rayo indicate that the incident was based on a contract or working relationship between her and the Nicaraguan Industry and Development Institute (INIFOM), of which Mr. Fiallos was the Director, and, in addition, that it is also evident that the complainant identified herself on different occasions in different fashions, which indicates a lack of care on the part of the judicial authorities that heard the case, in that they failed to determine the identity of the complainant.
24. Nicaragua also points out that the judicial officials failed to pursue several procedures that they were required to carry out. It notes that Mr. Fiallos Navarro’s defense lawyer was denied the possibility of filing for recusal lodged in accordance with law, on the grounds that “it is to be filed by the principal in the dispute and not by his attorney or counsel,” thereby denying the lawyer’s representative capacity in all procedural undertakings and ruling that the party to the action was Mr. Fiallos Navarro and not his attorney.
25. Similarly, the State underscores the fact that the case file contains a notice of the phase of the proceedings for the introduction of evidence that was served on the public prosecutor’s office, but no record of any such notification given to Mr. Fiallos Navarro’s defense counsel. Nicaragua acknowledges that under its law, this situation is grounds for nullification of the proceedings and “violates the right of defense,” and that this situation was never remedied by either the first- or second-instance judicial authorities.
26. According to the State, the presumption of innocence was violated, as was the right of defense and the right to be judged swiftly by a competent court, all of which are enshrined in Article 34 of the Nicaraguan Constitution. The State further notes that the dispute placed before the criminal judge was a labor matter, and so the question was not heard by its natural judge and, additionally, the maxim that the criminal law is the last resort was ignored.
27. Nicaragua admits that guarantees of due process were denied: bail was not granted at the first instance, as provided for by law; no notice was served regarding the opening of the phase of the reception of evidence; the first-instance recusal was not admitted; and when processing of the recusal began, the request was dismissed on absurd non-legal grounds, stating that the defense counsel was not a party to the proceedings.
28. The State also maintains that the right to personal liberty was violated in that, although a first-instance conviction was handed down against Alejandro José Fiallos Navarro (the alleged victim), Haydeé Acosta Chacón, Edgard Bohórquez, and Patricio Ramón Escobar Altamirano, and that this ruling, since notice had not yet been served, was not yet final, the Second Local Criminal Judge of Managua issued a warrant for the arrest of those who had been convicted, but that it was only carried out with respect to Mr. Fiallos Navarro, who was held in prison from August 17 to 24, 2004.
29. The State also notes that “between August 17 and 19, 2004, five accusations were filed against Mr. Alejandro Fiallos Navarro, the first two arising from complaints lodged by the same judge who convicted him. The other three accusations were made by other individuals involved in the same conflict. The August 17th accusations by Judge Moisés Rodríguez were made the same day that he ordered the arrest warrant to be issued against Mr. Fiallos, when Mr. Fiallos appeared in Court for the notification of the judgment.”
IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY
A. Preliminary considerations
30. The Commission notes that the State, in its reply to the petition, acknowledges that judicial guarantees were violated in the legal proceedings brought against Mr. Fiallos Navarro. Thus, the State affirms that “from an apparently formal point of view, the judiciary appeared to comply with every stage of the procedure; however, there is evidence to indicate otherwise” and the case file says it is “shown that Alejandro Fiallos Navarro’s defense attorney was not notified of the initiation of the evidentiary stage of the proceedings... [a circumstance that] violates the right of defense.”
31. Similarly, the Commission will give consideration to the State’s claim that the alleged victim “was denied his natural judge” in that the issue that was pursued through the criminal courts was essentially a labor matter. It will also bear in mind the State’s admission that “of all those prosecuted and convicted by Judge Moisés Rodríguez, the only person who was imprisoned was Mr. Alejandro José Fiallos Navarro” in spite of the fact that the “judgment … [of] August 16 was neither res judicata nor a finalized ruling…”
32. It will also take into account, in ruling on the admissibility of this petition, that according to the State, Mr. Fiallos Navarro was allegedly named in several criminal complaints, two of which arose “from complaints lodged by the same judge who convicted him.”
33. These elements will be taken into account in determining the prima facie existence of a possible violation, but this shall in no way constitute a prejudgment on the merits of the case.
1. Competence of the Commission ratione personae, ratione