The Inter-American Commission on Human Rights (IACHR) has
continued to closely monitor the human rights situation in Nicaragua
over the course of 1993. Since
the publication of the last Annual Report, numerous events have
occurred which require careful consideration.
This section therefore serves as an update to information
considered by the Commission in the respective sections of its annual
The IACHR wishes to emphasize its deep concern about the
deterioration of the human rights situation during the period covered
by this report. This
deterioration is due mainly to the resurgence of violence in both
rural and urban areas; the civil authorities' lack of control over the
military and police structures; and the ineffectiveness of the
agencies responsible for administering justice as regards
investigating and punishing those guilty of serious crimes committed
after the present Government assumed office.
All these circumstances, combined with a major political and
institutional crisis, create a state of legal and social insecurity
among the population which results in the constant occurrence of human
rights violations contrary
to the American Convention on Human Rights.
This current situation is the outcome of a set of phenomena
that the IACHR, on repeated occasions, has drawn attention to in an
attempt to prevent the very same situation which prevails in the
country at this time. The
fact is that in its Annual Report for 1989/90 the Commission stated as
The election results have been followed by a period of
difficult negotiations to address the serous problems besetting
Nicaraguan society. Thus,.
it is considered that the Sandinista People's Army should be separated
from the Party and placed under civilian control, along with the units
under the Ministry of the Interior:
the Sandinista Police, the State Security, and the National
Penitentiary System. The
demobilization of the Nicaraguan resistance is another hard-to-shovel
problem, on which the Catholic Church is actively working through His
Eminence, Cardinal Obando Bravo, ONUCA, and the Commission on
Follow-up and Verification. Of special importance to the new Government was to undertake
the task of recovering weapons that they found in the hands of the
civilian population. The
Inter-American Commission on Human Rights trusts that the first
democratic transfer of power in Nicaragua's recent history, after a
positive experience with the exercise of political rights, will be a
decisive step toward solving problems within the framework of
democratic institutions and full respect for human rights...Annual
Report 1989-1990, pages 163-164.
In this report, the IACHR again reviews the various factors
that are negatively impacting the human rights situation in Nicaragua. It accordingly considers:
the position of the demobilized forces (rural and urban
violence and reports of the Tripartite Commission); the problems in
exercising the right to justice; due process;
individual freedom; and the right to property rights.
Finally, the institutional problems associated with the Armed
Forces and the State Security agencies are analyzed.
RIGHTS OF THE DEMOBILIZED RESISTANCE FIGHTERS
RURAL AND URBAN VIOLENCE
One of the most serious problems facing the Nicaraguan
Government since April 1990, has been the demobilization of former
members of the Nicaraguan Resistance Movement.
To this end, the Government made a number of commitments aimed
at reabsorbing these men back into civil society including grants of
land and other resources to enable them to engage in productive work.
For their part, both the former Resistance members and the
former members of the Sandinista People's Army (EPS) made an
undertaking to turn in their arms, however, since July 1991, and
despite the fact that the disarmament process has been completed,
groups of former Resistance fighters are still operating in the north
of the country, claiming among other things, a climate of insecurity
brought about by the arbitrary nature of Army and Police actions,
together with failure on the part of the Government to meet its
undertakings to provide land and bank credit.
Moreover, former members of the EPS have taken up arms again on
the grounds that they feel threatened by the actions of the other
groups. Quite clearly--on
the basis of the information provided--civil society is unprotected
against the violence and criminal acts perpetrated by both groups
coupled with the disproportionate response of the Army and Police in
seeking to put down rebel actions in both the rural and the urban
According to information furnished to the IACHR, there are
apparently some 1,200 armed men operating in the north of the country
who, in the first six months of the year, have been the cause of 62
deaths, 44 abductions and more than 120 attacks on civil vehicles.
Because of this violence, on May 18, 1993, the President of
Nicaragua, Violeta Barrios de Chamorro, suspended certain
constitutional guarantees for a 30-day period.
The guarantees suspended the inviolability of the home, the
requirement of a court order to detain a person and the requirement
that an individual not be held for longer than 72 hours during a
police investigation. The
municipalities and provinces covered by these measures were:
Quilalí, Jícaro and Murra in Nueva Segovia; San Juan de Río
Coco in Madríz; and San Juan de Limay, Pueblo Nuevo and Condega in
Despite the steps taken by the Executive Branch to curb the
violence, on July 21, 1993, 150 former members of the EPS calling
themselves the "Frente Revolucionario Obrero and Campesino"
(FROC) (Workers and Peasants Revolutionary Front) and led by the
Honduran citizen Víctor Manuel Gallegos, known as "Pedrito El
under siege the city of Estelí, located to the north of Managua.
According to information provided, the re-armed groups wanted
the Government to provide financing for small and medium farmers, to
legalize landholdings distributed by the previous government, to
create sources of employment, to provide access to health services and
not to privatize education. The
next day, the Government sent Army troops to Estelí to re-establish
order. In the course of
this operation there was a confrontation between the re-armed groups
and the Army which left 22 persons dead, 98 wounded and 9 missing.
The IACHR was also informed that two children died during the
actions, while 27 women, 5 elderly persons and 18 children were
The IACHR was further informed that on August 19, 1993, at
approximately 11:30 a.m., members of the re-armed group known as
"Frente Norte 3-80" (former members of the Nicaraguan
Resistance), abducted a 38-member inter-institutional commission which
had been sent by the Government to the northern locality of Caulatú,
in the Quilalí Department, to negotiate the disarming of said group,
which is headed by José Angel Talavera, known as "El Chacal."
The self-styled "Commando Frente Norte
3-80" abducted, among others, Sandinista deputies Carlos
Gallo and Doris Tijerino, Lieutenant Colonel Ramón Ernesto Sosa
(Chief of the Special Disarmament Brigades) and the Vice Minister of
Social Action, Nora Arguello. As
a condition for releasing the hostages, the group demanded the
immediate dismissal of the Minister of the Presidency, Antonio Lacayo;
the Chief of the Armed Forces, Humberto Ortega, and the Chief of State
Security, Lenín Cerna, and further called for performance of the
commitments given by Violeta Chamorro's Government when it took office
regarding provision of land and technical assistance to demobilized
members of the former Nicaraguan Resistance.
The Government's negotiations with the rebels to secure the
hostages' release were brought to an impasse at first by the movement
of EPS troops into the area, contrary to the re-armed group's
However--according to information provided--this tense calm was
broken just 24 hours later when an armed group of "recompas"
(former members of the EPS) attacked the headquarters of the Unión
Nacional Opositora (UNO) in Managua and took some 50 hostages,
including journalists and opposition leaders.
Among those taken were the Vice President, Virgilio Godoy,
the former President of the Legislative Assembly, Alfredo César, and
the Social Christian leader Humberto Castilla.
This attack was carried out by the self-styled
"Commando por la Dignidad y la Soberanía" and was a direct
reprisal for the Quilalí hostage-taking.
The IACHR was also informed that the leader of the operation,
Donald Mendoza, known as "Comandante 31," a retired former
Sandinista military man, called for release of the governmental
delegation still held by "El Chacal" and the immediate
formation of a negotiating commission to be headed by Cardinal Miguel
Obando y Bravo. Finally,
the hostages held by the two sides were released on August 26, 1993,
thanks to parallel negotiations conducted by representatives of the
church, human rights groups, the Government, the International
Verification Commission of the Organization of American States and the
Sandinista National Liberation Front (FSLN).
The IACHR has also been informed that acts of violence have
continued in the northern locality of San Ramón, in Matagalpa
indicate that on August 31, 1993, a group of former EPS men under the
command of Mamerto Herrera entered that locality seeking the immediate
release of his brother, who had been jailed for common crimes.
The following day, at about 1:00 a.m. it is further reported
that a patrol of National Police and EPS troops burst into the town
firing indiscriminately with a view to neutralizing the rebels.
The IACHR was informed that four people were killed and five
wounded as a result. Two of the five dead belonged to the group of "recompas"
(former EPS men) and the other three were civilians.
According to reports received, on September 20, 1993, a
transport strike was held following the Government's decision to raise
the price of fuel by 13.5% and to impose a new tax on vehicle
ownership. This strike
left two dead and a considerable number wounded, together with damage
to public and private property after the police were ordered to clear
the roads. According to
information provided, the armed confrontation started in the afternoon
of Tuesday, September 21, on the road running out to the international
airport, in the eastern part of Managua, and lasted for some 30
minutes. The IACHR has
been informed that the dead were identified as Saúl Alvarez, Police
Commander, and Romelda Martínez, a housewife, who was in her home.
It is relevant to note that the strike and the acts of violence
were masterminded--according to the reports received--by the National
Transport Commission, an organization of Sandinista-affiliated
cooperatives publicly directed and supported by the FSLN through its
Secretary General, Daniel Ortega.
The Commission has additionally received information that in
mid-November, 1993, four EPS helicopters carried out
bombardments designed to intimidate the civil population of three
communities in the municipality of Murra in Nueva Segovia Department.
Apparently, the people of these communities were obliged to
take refuge in Honduras because the Army started an operation under
the slogan "For Peace and Stability."
This operation reportedly was intended to combat the "Frente
Norte 3-80" rebels; however, the military conducted
indiscriminate bombardments of the above-mentioned
REPORTS OF THE TRIPARTITE COMMISSION
The Tripartite Commission was established on October of the
President of Nicaragua, Violeta Barrios de Chamorro, for the
purpose of analyzing and determining the reasons for violations of the
human rights of the former members of the Nicaraguan Resistance.
The Tripartite Commission's mandate also includes the
examination of cases of violence that have impacted other segments of
the population in the context of the social conflicts and, finally,
the examination of cases in which the presumed perpetrators of the
acts are former members of the Nicaraguan Resistance.
The Commission is made up of one member of the Executive
Branch, Cardinal Miguel Obando y Bravo, and the International Support
and Verification Commission of the OAS.
The Tripartite Commission's powers include the formulation of
recommendations to the President of the Republic concerning the cases
it has investigated. In
the period since its establishment, the Commission has submitted two
reports containing recommendations on a total of 28 cases relating to
53 former Nicaraguan Resistance fighters who were victims of homicide.
The first report was submitted on February 15, 1993 and
contains the following statistical data:
Similarly, on June 3, 1993, the Tripartite Commission submitted
its second report, which is summarized below:
According to the information provided by the Tripartite
Commission, of a total of 28 cases of homicide of former members of the
Nicaraguan Resistance, only four were properly investigated, while in
the other cases the official investigation left much to be desired
(i.e., were conducted some time after the event, irregular,
insufficient, incomplete, etc.). The
analysis made by the Tripartite Commission also points to a considerable
degree of coverup or negligence on the part of the authorities
responsible for performing the investigations.
Finally, the reports indicate a high level of impunity since only
two arrests have been made in connection with these 28 killings of
former Nicaraguan Resistance members.
The latter point was commented on by the Tripartite Commission in
its first report, as follows:
The Commission considers impunity to be one of the most
significant negative factors for genuine application of justice in
Nicaragua. The Tripartite
Commission's recommendations, in keeping with its mandate, must be
interpreted as a clear signal to all of Nicaraguan society, highly
polarized as it is, that it is not permissible to take justice into
one's own hands, and that it is feasible through proper recourse to the
procedures established in the law, to ensure justice and the
strengthening of reconciliation and peace.
The IACHR wishes to express its concern about the findings of the
investigation carried out by the Tripartite Commission; however, it must
also voice its hope that the Nicaraguan Government will act
satisfactorily upon the latter Commission's recommendations.
The Inter-American Commission on Human Rights has received
information that a new political and institutional crisis arose on
September 3, 1993, when the President of Nicaragua, Violeta Barrios de
Chamorro, announced in a message to the nation that the Commander of the
Army, General Humberto Ortega, would be relieved of his command in 1994
and that other changes would also be made in the Armed Forces.
This announcement was repeated during ceremonies which marked the
fourteenth anniversary of the Sandinista People's Army (EPS), and
sparked slighting comments from former President Daniel
Ortega and his brother Humberto (Commander of the EPS) against President
Chamorro. The fact is
that--according to the information provided--General Ortega told the
press that until such time as the new Military Organization Law was
approved, he could not say how long he would continue to head the Army.
Subsequently, together with his brother Daniel, the General had a
sharp verbal exchange with President Chamorro in the presence of Nicaraguan
authorities and representatives of the diplomatic corps.
Following these events, it is reported that the Government sent
the Sandinista Assembly, the topmost authority of the Frente Sandinista,
a letter signed by fifteen ministers protesting the unacceptable lack of
respect displayed by Daniel Ortega to the President of Nicaragua.
On the other hand, the Military Council of the Army met on an
urgent basis and, in the absence of General Ortega, approved a
declaration rejecting the dismissal of its present commander and denying
any plans for a coup d'etat or insubordination vis-a-vis the
civil authority. For its part, the Nicaraguan Government requested a special
meeting of the Permanent Council of the Organization of American States
in order to inform it regarding the prevailing situation and secure
support for the Constitutional Government of President Chamorro.
The foregoing simply confirms previous statements made by the
IACHR stressing the urgent reformation of the Military Organization
Law of the EPS, since it is this law which concentrates in the Army
General Command, a set of powers that constitutionally belong to the
President of the Republic. For
instance, the role of the Army is not clearly defined, neither is it
regulated in such a way as to subordinate it to the civil authority.
The IACHR analyzed this situation as follows in its Annual Report
...that the power of the security forces is due to the authority
granted to members of the Sandinista Front under the Law on the Military
Structure of the Sandinista People's Army.
The genesis of this law is itself somewhat unique, since it was
approved by President Ortega on December 20, 1989, during the
Legislative Assembly's recess, and published in the official Gazette on
February 23, 1990, which came out in March of that year.
The provisions of that law invest the Army with certain
authorities that undermine functions that, under the Constitution,
belong to the President of the Republic.
Thus, the Commander in Chief of the Sandinista People's Army--who
is appointed by the Military Council and is to be the highest ranking
officer with greatest seniority- directs all matters of any consequence,
including appointing officers and deciding what posts they will hold,
setting up production, supply and service activities associated with
Army business, deciding whether foreign troops will be allowed to move
through Nicaraguan territory, etc.
It is also up to the Commander in Chief to decide on the
structure and membership of the military unit charged with guaranteeing
the safety of the President. The
Inter-American Commission has listened with concern to the serious
allegations of the biased manner in which the security forces have been
acting, and testimony, that they have become a state within a state,
acting in concert with one particular political party and to the
detriment of the civilian authority of the democratically elected
In this connection, the Inter-American Commission on Human Rights
considers it appropriate to cite from the preamble of resolution AG/RES.
1044 (XX-0/90) of the General Assembly of the Organization of American
That the system of representative democracy is fundamental for
the establishment of a political society wherein human rights can be
fully realized and that one of the fundamental components of that system
is the effective subordination of the military apparatus to civilian
Information has further been received to the effect that on
September 6, 1993, following the above-mentioned institutional
crisis, the Nicaraguan Government, the Unión Nacional Opositora (UNO)
and the Frente Sandinista, sought to initiate a dialogue with the aim of
arriving at a "National Pact", however, these negotiations-in
which the Secretary General of the OAS participated--broke down a week
later. The main point on
which the parties were unable to agree was the demand by UNO that the
ten center group deputies, who are dissidents from UNO and aligned with
the Executive Branch and the Frente Sandinista de Liberación Nacional (FSLN),
should resign. UNO also
wanted reforms of the Political Constitution, restructuring of the
cabinet and of the electoral and judicial tribunal, and assignment of
functions to Vice President Virgilio Godoy, who is currently not
included in President Chamorro's Government.
STATE SECURITY ORGANS
By means of Presidential Decree No. 44-93, the Executive
Branch created the Directorate of Intelligence Affairs on October 15,
1993. This directorate is
to report to the Office of the President and its basic purpose will be
to gather information and make analyses of questions such as defense of
the constitutional order, national security, maintenance of peace and
stability in the country, illegal narcotics traffic, contraband, tax
evasion, subversion and terrorism, illegal traffic in arms and persons,
The directorate will be headed by a civilian director general,
who will have three assistant directors under him:
an assistant director for the Ministry of the Interior, which
position will be occupied by a representative of the Ministry of the
Interior; a police assistant director, which position will be
occupied by a Deputy Chief of the National Police; and a military
assistant director, who will be the Military Chief of the Directorate of
Information for Defense (DID), who is appointed by the Army.
The IACHR has received information that human rights groups are
unhappy with these changes, because upon the establishment of a new
State security agency, the DID should have been disbanded, since it is
alleged to have been involved in serious human rights violations.
Concern has further been expressed that with the establishment of
a new intelligence structure, there could be a risk that, if the person
named as director general lacks the necessary expertise, those who will
actually end up running it will be the police and army representatives
appointed as assistant directors.
Also during the period covered by this Annual Report, Colonel Lenín
Cerna Juárez was promoted to Inspector General of the EPS.
According to information provided, Colonel Cerna, who used to be
Chief of the Directorate General of State Security under the previous
Government, and who also held similar positions in the present
Government's DID, was promoted in mid-October 1993, amid severe
criticisms by the organizations concerned with defense of human rights.
The human rights groups have consistently accused Cerna of
torturing political prisoners, including the recently deceased Arístides
Sánchez, a former member of the leadership of the now disbanded
The IACHR was further informed that the promotion of Colonel
Cerna makes him the third-ranking officer in the EPS, after Armed
Forces Chief General Humberto Ortega and Major General Joaquín Cuadra,
Chief of the military General Staff.
It has also been pointed out that Colonel Cerna's new position is
incompatible with his past, since in accordance with the new powers
conferred on him by the Military Organization Law, he "will
supervise compliance with the orders and instructions of the General
Command of the Sandinista People's Army, relations with civil society,
and the human rights commissions."
RIGHT TO JUSTICE AND DUE PROCESS
The Inter-American Commission on Human Rights is concerned
that it continues to receive complaints about the compartmentalization,
politicization and slowness of the Judicial Branch - factors that
unquestionably affect the exercise of the right to justice and due
process. Human rights
organizations have reported that large numbers of human rights
violations such as homicides, abductions, arbitrary arrests, death
threats, and attacks against human rights activists, continue without
being investigated and, therefore, without those responsible being
punished. Reportedly, one
of the reasons behind this state of affairs is that officials
responsible for investigation and/or the administration of justice,
take the position, a priori, that investigatory proceedings cannot be
started. It has further
been affirmed that this is a reflection of the fact that there are no
career opportunities in this field and that the reforms planned in the
Judicial Branch have still not yet been carried out.
Evidence of this is provided by the lack of investigation of and
punishment for serious crimes committed while the present Government has
been in office. For
instance, during the period covered by this Annual Report, no progress
has yet been made toward ascertaining the facts concerning the killings
of Jean Paul Genie Lacayo (Oct. 28, 1990); of the former chief of the
Nicaraguan Resistance, Colonel Enrique Bermúdez (Feb. 16, 1991); and of
the former President of the National Association of Owners of
Confiscated Property, Arges Sequeiras (Nov. 23, 1992).
The IACHR considers it pertinent to note in this connection, that
the American Convention on Human Rights is very clear in establishing
the obligation of the States parties to guarantee free and full
enjoyment of the freedoms recognized in it.
In the same way, the Inter-American Court of Human Rights,
in its judgment of July 29, 1988, in the Velásquez Rodríguez case,
affirms as follows:
The State is obliged to investigate every situation involving a
violation to the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim_ full enjoyment of such rights is not restored
as soon as possible, the State has failed to comply with its duty to
ensure the free and full exercise of those rights to the persons within
its jurisdiction. The same
is true when the State allows private persons or groups to act freely
and with impunity to the detriment of the rights recognized by the
In certain circumstances, it may be difficult to investigate acts
that violate an individual's rights.
The duty to investigate, like the duty to prevent, is not
breached merely because the investigation does not produce a
satisfactory result. Nevertheless,
it must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends
upon the initiative of the victim or his family or upon their offer of
proof, without an effective search for the truth by the government.
This is true regardless of what agent is eventually found
responsible for the violation. Where
the acts of private parties that violate the Convention are not
seriously investigated, those parties are aided in a sense by the
government, thereby making the State responsible on the international
plane. Inter-American Court
of Human Rights judgment of July 29, 1988, Velásquez Rodríguez, pages
155-156 paragraph 176 and 177).
In this context, the human rights groups have voiced their
concern about the numerous cases of serious violations of the right to
life and personal security and the danger of leaving these violations
un-investigated, since this would amount to creating a system of
inaction designed to promote impunity and would, therefore, be contrary
to the purpose and intent of the American Convention on Human Rights,
which, moreover, forms part of Nicaragua's domestic legal system.
In this regard, the IACHR was informed that both the institutions
charged with human rights surveillance--the Catholic Church, the Bar
Association--and a broad range of political and national groupings spoke
out against an amnesty recently approved by the Congress of the Republic
that will benefit all persons who have committed political crimes and
common crimes connected with such political crimes up till August 28,
In point of fact, the IACHR has received information that this
amnesty law was approved by the National Assembly on August 17, 1993,
with the support of only 45 out of the 92 Sandinista "center"
group deputies making up the full Congress of the Republic.
Immediately prior to the voting, the Unión Opositora (UNO)
deputies withdrew from the process, reiterating their rejection of the
amnesty and repudiation of the Board ("Junta Directiva")
elected shortly after the installation of Parliament in December 1992. Finally, the law was promulgated by the Executive Branch on
September 9, 1993.
According to information provided, the initial draft version of
the amnesty law would have covered crimes committed up to July 12,
however, this date was extended on two consecutive occasions, first to
benefit the rearmed groups that took the city of Estelí and then,
secondly, to benefit the other irregular groups responsible for the
hostage-takings in the Quilalí municipality and in the UNO
headquarters in Managua.
Since April 25, 1990, the date on which President Chamorro's
Government took office, three amnesty laws have been promulgated:
the first on May 10, 1990, which granted a total amnesty to all
Nicaraguans who had committed political crimes or common crimes
connected with the political ones, up to its publication date; the
second law extended the amnesty period to December 22, 1991, while the
present one extended it still further to August 28, 1993.
It has further been noted that the latest amnesty law would
benefit the retired EPS colonel who heads the "Fuerzas Punitivas de
Izquierda" and is presumed to be behind the killing of the then
President of the National Association of Owners of Confiscated Property,
Arges Sequeiras. In actual
fact, according to information provided, Frank Ibarra Silva, Diego
Javier Espinoza Herrera and Germán Lacayo Guerrero, the presumed
perpetrators of said crime, took advantage of the latest amnesty decreed
by the Government and turned in their arms to the Special Disarmament
Brigade (BED) on September 22, 1993, in the locality of El Dorado in
Jinotega Department. The
IACHR has also been informed that the Attorney General of the Republic,
Dr. Guillermo Vargas, has affirmed to various media that Frank Ibarra
would be tried for this killing; however, the National Police have
not yet moved to arrest him, although his whereabouts is known to the
Also during the period covered by this Annual Report, the IACHR
received information that at the beginning of November 1993, two senior
officers of the BED committed serious irregularities in the city of
Estelí by including 72 common criminals in a list of persons covered by
the amnesty, in order to oblige a Civil Judge of that city to release
them. According to the
information provided, Lieutenant Colonel Ramón Ernesto Sosa and Major
Marcos Arévalo, members of the BED, forced the Civil Judge of Estelí,
Alfredo Mairena, to release the convicts, who included various
individuals who did not meet the criteria of the most recent amnesty
law. Apparently, the judge
at first refused to release the convicts, but a group of their relatives
together with armed men put pressure on him so that he ultimately agreed
to let them go.
The information received also indicates that a Magistrate of the
Supreme Court of Justice approved the release of the convicts and
required the judge to comply with the orders given by the BED officers.
The IACHR considers it necessary to reiterate what it has already
stated on previous occasions regarding amnesties:
Therefore, the Commission considers that only the appropriate
democratic institutions--usually the legislature--with the participation
of all the representatives sectors, are the only ones called upon to
determine whether or not to decree an amnesty of the scope thereof,
while amnesties decreed previously by those responsible for the
violations have no juridical validity.
Independently of the problem of proving guilt, which in every
case must be determined individually and with due process guarantees by
a pre-existing court which applies the law in force at the time the
crime was committed, one of the few matters that the Commission feels
obliged to give its opinion on in this regard is the need to investigate
the human rights violations committed prior to the establishment of the
Every society has the inalienable right to know the truth about
past events, as well as the motives and circumstances in which aberrant
crimes came to be committed, in order to prevent repetition of such acts
in the future. Moreover,
the family members of the victims are entitled to as to information as
to on what happened to their relatives.
Such access to the truth presupposes freedom of speech, which of
course should be exercised responsibly; the establishment of
investigating committees whose membership and authority must be
determined in accordance with the internal legislation of each country,
or the provision of the necessary resources so that the judiciary itself
may undertake whatever investigations may be necessary.
The Commission considers that the observance of the principles
cited above will bring about justice rather than vengeance, and thus
neither the urgent need for national reconciliation nor the
consolidation of democratic government will be jeopardized.
The IACHR further wishes to make clear that agreements of a
political nature concluded between the parties in no way release the
State from the obligations and responsibilities it has assumed with the
ratification of the American Convention on Human Rights and such other
relevant international instruments as may be applicable.
In this context, it must be borne in mind that Article 27 of the
Vienna Convention on the Law of Treaties prohibits a State from invoking
domestic law for not complying with the obligations imposed by an
international treaty. Accordingly,
Nicaragua, as a State party to the American Convention on Human Rights,
has "the legal duty to (...) thoroughly investigate, with the means
at its disposal, such violations as may have been committed within the
sphere of its jurisdiction in order to identify those responsible, to
impose on them the pertinent penalties and to ensure adequate redress
for the victim."
Also during the period covered by this Annual Report, the IACHR
has continued to receive information on another of the problems
confronting the administration of justice in Nicaragua, specifically,
the slowness of the Judicial Branch in trying cases of human rights
violations. The IACHR has
been analyzing the serious obstacles that the Judicial Branch as an
institution, and the judges themselves, are encounter in implementing
autonomous and efficient administration of justice in the hemisphere.
These obstacles are, in general, due to various factors,
"from a variety of norms, such as domestic law, as in the
diminution or suspension of constitutional guarantees for the correct
administration of justice, or the absence of norms to ensure authentic
juridical, administrative and economic independence of the Judiciary.
In other cases, the source is the lack of support from political
or police authorities in implementing the Judiciary's decisions, or the
lack of protection for judges against acts of vengeance or professional
reprisal protection for judges against acts of vengeance or professional
reprisal for the exercise of their authority, which inhibits them in
their role as judge. In
conjunction with delays in trials due to unwieldy legislation and the
lack of information regarding many crimes, these factors have led in
more than one case to a shrinking credibility in the administration of
justice, and even in law itself, which regrettably is also undermining
confidence in democracy itself."
The IACHR adds that: "Apart
from the fact that the rule of law must be in full effect, with the
principle of separation of powers duly observed, and the fact that
administrative measures are needed to provide judges with suitable
material means for protecting their security, the autonomy, independence
and integrity of the members of the judiciary calls for measures that
will ensure unrestricted access to the courts and legal remedies, trials
conducted in accordance with the principles of due process of law, and
the conclusion of such trials, within a reasonable time and with
judgments that address all points involved."
In this connection, the IACHR considers it appropriate to
reiterate certain of the recommendations it put forward in a study on
the measures necessary to foster the autonomy, independence and
integrity of the members of the Judicial Branch.
This study was made in response to a recommendation by the
General Assembly of the OAS. The
recommendations in question relate essentially to the guarantees that
should characterize the administration of justice, the implementation of
which, and their adaptation to the particular circumstances of each
State, being the responsibility of its authorities:
- guaranteeing that
the executive and legislative branches will not interfere in matters
that are the purview of the judiciary;
- providing the
judiciary with the political support and the means needed for it to be
fully able to perform its function in guaranteeing human rights;
- ensuring the
exclusive exercise of jurisdiction by the members of the judiciary, and
eliminating special courts;
- guaranteeing that
judges cannot be removed from office as long as their conduct remains
above reproach, and ensuring that panels are set up to consider that
cases of judges who are accused of unethical conduct or corruption;
- preserving the
rule of law and declaring states of emergency only when absolutely
necessary, in keeping with Articles 27 of the American Convention on
Human Rights and Article 4 of the International Covenant of Civil and
Political Rights, structuring this system in such a way that it does not
affect the independence of the different branches of government;
unrestricted access to the courts and legal remedies and enabling the
victim, when called for, to take action to bring those responsible to
- ensuring the
effectiveness of the judicial guarantees essential for the protection of
human rights, and removing the obstacles that prevent their swift and
- guaranteeing due
process of law--indictment, defense, evidence and conviction--in public
- returning to
judges the responsibility for disposition and supervision of persons
- guaranteeing that
judges will be immediately notified of all facts and situations in which
human rights are restricted or suspended, regardless of the legal status
of the accused;
- removing the
procedural obstacles that cause trials to run on for extended periods of
time, so that cases may be tried within a reasonable period and settled
by means of judgments covering all points involved;
- ensuring separate
hearings of criminal cases and of civil or administrative disputes
involving damages for injuries and losses.
THE DUTY TO ADOPT PROVISIONS OF DOMESTIC LAW
Article 2 of the American Convention on Human Rights - to which Nicaragua is a State party - specifies
that: While the exercise of
any of the rights or freedoms referred to in Article 1 is not already
ensured by legislative or other provisions, the States Parties undertake
to adopt, in accordance with their constitutional process and the
provisions of this Convention, such legislative or other measures as may
be necessary to give effect to those rights or freedoms effective." For its part, the Inter-American Court of Human Rights
has analyzed Article 2 of the American Convention by means of its
Advisory Opinion No. 13, as follows:
A state may violate an international treaty and, specifically,
the Convention, in many ways. It may do so in the latter case, for example, by failing to
establish the norms required by Article 2.
Likewise, it may adopt provisions which do not conform to its
obligations under the Convention. Whether
those norms have been adopted in conformity with the internal juridical
order makes no difference for these purposes.
In these circumstances, there should be no doubt that the
Commission has in that regard the same powers it would have if
confronted with any other type of violation and could express itself in
the same way as in other cases. Said
in another way, that it is a question of "domestic
legislation" which has been "adopted pursuant to the
provisions of the Constitution ," is meaningless, if, by means
of that legislation, any of the rights or freedoms protected have been
violated. The posers of the
Commission in this sense are not restricted in any way by the means by
which the Convention is violated.
At the international level, what is important to determine is
whether a law violates the international obligations assumed by the
State by virtue of a treaty. This
the Commission can and should do upon examining the communications and
petitions submitted to it concerning violations of human rights and
freedoms protected by the Convention.
In this context, the IACHR - in accordance with the powers conferred upon it by the American
Convention - has drawn the Nicaraguan Government's attention to
the urgent need to reform Decrees 591 and 600 which regulate the
military criminal jurisdiction. In
point of fact, in its Annual Report for 1991 the IACHR stated as
It is claimed that the exercise of the right to justice is also
jeopardized the existence of the military code invoked in all cases in
which members of the Armed Forces are involved, considerably hindering
clarification of those situations affecting such personnel.
The IACHR further underscored this point in its Annual Report for
Another problem that concerns the exercise of the right a fair
trial is that the law on the Office of the Military Inspector has still
not been amended. Under
that law, police charged with common crimes are under military
jurisdiction; the military courts are also authorized to try civilians
charged with involvement in a crime committed with or against a police
It is pertinent to
note in this regard, that Decree No. 591, the "Law on Organization
of the Military Judge Advocate's Office and Military Criminal
Procedure," and Decree No. 600, the "Provisional Law on
Military Crimes," were issued on May 2, 1980 by the Government
Junta of National Reconstruction and as such, form part of Nicaragua's
current legal system. These
two decrees regulate the conduct of military criminal proceedings,
responsibility for which is assigned to the Office of the Judge Advocate
General Sandinista Armed Forces. The
latter Office and the Military Legal Offices are made up of the Military
Judge Advocate, the judges, the military prosecutors under him and such
secretaries as are appointed. Appointment
of the Judge Advocate General of the Sandinista Armed Forces and of the
staff of his office will be an exclusive function of the General Command
of the Sandinista People's Army (Articles 1, 3 and 6).
The IACHR considers it appropriate to set out and analyze the
following articles of Decree No. 591:
Article 18. Jurisdiction
for criminal proceedings in respect of any punishable act in which a
member of the military is involved shall lie with the Military Legal
Offices, even if some of the participants or the victim are civilians.
Article 52. The
Prosecutor and the court shall weigh the evidence on the basis a
full and objective examination of all the circumstances in light of the
law and being guided by Sandinista judicial thinking.
Article 248. The
reopening of a case is a special procedure designed to correct legal
errors or cases of manifest injustice that may have been committed
during the conducting of a military criminal case, designed to ensure
that Sandinista people's justice prevails, provided an unappealable
judgment has been given in such cases.
Article 249. This
procedure can be instituted by the following persons: - the
Commander in Chief and Chief of the General Staff of the Sandinista
Article 255. This
special procedure shall be conducted without parties.
After examining the case, the court shall consider only such
evidence as it deems strictly indispensable for arriving at the truth,
or which if it exists has come to light after the conclusion of the
Article 261. The
General Command of the Sandinista People's Army and the higher
Ministry of the Interior authorities in the sphere of the respective
agencies directed by them, shall have extensive powers to take
all measures designed to ensure better application of this law.
In the same way, they may pardon any individual tried or punished
by the Military Criminal Justice authorities subordinate to them, when
reasons of a military nature aimed at preserving the high interests of
the Sandinista People's Revolution so require.
Articles 4, 5, 7 and 16 of Decree No. 600 (Provisional Law on
Military Crimes) complement Decree No. 591 as follows:
Article 4. The
requirement of criminal liability shall be replaced by disciplinary
liability, in crimes where this possibility is permitted, provided the
following requirements are met:
(1) good discipline
observed by the member of the military concerned prior to act and
successes achieved in political and military training;
(2) if the
individual concerned committed the act in question due to physical
fatigue or exhaustion caused by excessive pressure of services required
(3) if his conduct
was influenced by significant physical or psychological ailments or
(4) lack of military
discipline due to having been only a short time in military service;
response to provocations of his chief or superior or subordinate or
(6) the illegal
conduct of the chief or superior or of the subordinate or junior
serviceman caused commission of the act;
(7) commission of
the act under influence of another serviceman more senior in the
(8) the act was
committed due to a mistaken interpretation of required duties or of the
interests of the service;
circumstances that the military service, the political, moral and
disciplinary state of the unit or Sandinista juridical thinking make it
advisable to take into consideration.
Whether such special circumstances apply shall be determined by
the chiefs concerned, or by the military prosecutors or courts.
Article 5. A
serviceman shall be exempt from criminal liability if, being on sentry
or patrol duty or in performance of other guard services, he makes
rational use of his arms to repel a manifest attack against the persons
or objects he is protecting or has in his custody, together with the
personnel who jointly form part of the service he is performing; and
similarly, if in the course of performance of these services, his orders
or warnings, as laid down in military regulations or orders of the
General Command of the Sandinista People's Army or of the senior
authorities of the Ministry of the Interior, are not heeded.
Article 7. The
following shall be extenuating circumstances for servicemen, in addition
to those listed in the Criminal Code Law:
(1) good military
conduct prior to commission of the offense;
(2) performance of a
heroic act before or after commission of the offense;
(3) performance of
important services for the country before or after commission of the
(4) demonstration of
sincere repentance through expression of rejection of his improper
Article 16. The
effects of the remission of the principal penalty of deprivation of
liberty may be extended to all or certain of the accessory penalties
imposed. The military
courts, which shall make moderate use of this option, may grant
conditional remission of the penalty at the request of the military
chief of the collective or political or union organization to which the
individual concerned belongs, of the prosecutor or even upon their own
Review of the foregoing compels the IACHR to note that the mere
existence of Decrees Nos. 591 and 600 is sufficient to create conditions
that could lead to violations of the right to justice, due process and
equality before the law, since both decrees give considerable scope
for the exercise of discretion and subsequently, leave the decision as
to whether the individuals concerned should be punished or set free up
to the military high commands. Moreover,
analysis of these decrees reveals that a set of political criteria have
been introduced into the consideration of evidence, a fundamental stage
in any trial. This places
soldiers of the Sandinista People's Army on a different level from the
rest of Nicaraguan society, with a negative impact on the rights
enshrined in the American Convention on Human Rights.
The IACHR further considers that the extension of military
jurisdiction to include the trying of common crimes solely on the ground
that such crimes have been committed by servicemen does not offer the
guarantees of an independent and impartial court laid as down in Article
8.1 of the American Convention on Human Rights.
In this connection, the doctrine of the IACHR is quite clear, as
detailed in the following:
Replacing the normal jurisdiction of those courts with military
justice has--both because military judges are subject to political power
and because they are less well trained in the law--generally meant
seriously undermining the guarantees to which all accused persons are
entitled. Moreover, in many
proceedings it is not unusual to find military or police officers as the
only witnesses when charges are brought.
The conclusion has to be drawn that such semblances of trials
lack may of the basic elements of normal judicial proceedings.
These limitations deriving from the structure and composition of
the military courts can only be justified by the truly exceptional
nature of the situations in which these courts must act.
The widespread and virtually routine intervention of peace-time
military courts in the consideration of a very broad category of acts
necessarily constitutes an abuse of the purposes for which they are
envisaged. Even so, not
only the existence of exceptional and limited situations in time and
space justify the intervention of these courts; there must also be clear
institutional interrelationships that make it possible to control both
the elaboration of rules for assigning them jurisdiction and the
exercise of the powers with which they are invested.
In view of the foregoing, the IACHR wishes to emphasize, once
again, its concern about the fact that Nicaragua, as a State party to
the American Convention, has not amended its domestic legislation,
specifically Decrees 591 and 600, to make them compatible with the
requirements established by the Convention.
It should be noted that these two decrees have been in effect for
over thirteen years since their inception on May 2, 1980.
Nicaragua deposited its instrument ratifying the American
Convention on September 25, 1979.
With regard to personal freedom, the IACHR was informed that
Silvio José Peña Rivas and Silvio René Vega Zúñiga are still
serving prison sentences for the murder of Pedro Joaquín Chamorro on
January 10, 1978. In
connection with their cases, the IACHR considers it appropriate to
reiterate what it stated in its Annual Report for 1991:
The Inter-American Commission also heard complaints claiming that
the amnesties had not been fully applied, since those sentenced for the
murder of Pedro Joaquín Chamorro, which occurred on January 10, 1978,
were still being detained, despite the efforts deployed by the President
of Nicaragua to obtain their release. According to the denunciation, the fact that those persons
had not been allowed to benefit from the amnesty constituted an act of
discrimination, since Article 1 of Law No. 100 of May 9, 1990,
Full and unconditional amnesty be granted for all political
offenses and related common offenses, committed by natives of Nicaragua
prior to the date of publication of the present Law.
This pending trial, still at large, and prisoners that have
served out their sentence, as well as those who have been granted a
simple pardon ...
The IACHR has to express its concern about this situation,
because by now, all those
who were initially condemned for the murder of Pedro Joaquín Chamorro
have been released, except for Silvio José Peña and René Vega Zúñiga.
These two individuals were sentenced to 30 years imprisonment, of
which Silvio José Peña has served over 15 years and René Vega Zúñiga
four years. According to
information provided by the Nicaraguan Government, the amnesty of May
10, 1990 cannot be applied to these two men, because they were sentenced
for a common crime, which means that they cannot be considered guilty of
a political offense. However, in some quarters it is considered that the killing
should be categorized as a common crime linked with political motives,
since Pedro Joaquín Chamorro was referred to on repeated occasions as
the "Martyr of Public Freedoms" on account of his constant
struggle for democracy and human rights.
The IACHR trusts that the Nicaraguan Government will shortly
resolve the situation of these two men.
RIGHT TO PROPERTY
Another of the serious and complex problems which continue to
beset Nicaraguan citizens and one which directly impacts the general
human rights situation in the country is the question of property
rights. According to the
information provided during the period covered by this Annual Report,
the process of returning and/or providing compensation for certain
properties arbitrarily confiscated by the previous government is still
moving slowly. In this
connection, the IACHR has in earlier reports drawn attention to the
various obstacles that have hindered a solution to the problem.
For example, the main factors involved have been listed as the
numerous pieces of legislation promulgated in different periods, the
ways in which the properties were allocated coupled with the resistance
on the part of the beneficiaries to the pressures brought to bear by the
legitimate owners and, finally, the unwillingness of the police
authorities to enforce the orders issued by the first National
Confiscations Review Commission because its decisions normally affected
persons connected with the previous government.
In order to understand the current complex situation, a
comprehensive analysis of the problem is called for.
In the following paragraphs, the IACHR considers the legal
protection of the right to property in both the domestic and the international
context, together with the various legal systems that have affected
these rights since February 1990.
LEGAL PROTECTION OF RIGHT TO PROPERTY
Various international human rights instruments, both universal
and regional in nature, have recognized the right to property as
featuring among the fundamental rights of man.
Examples are provided by the Universal Declaration of Human
Rights and the American Declaration of the Rights and Duties of Man.
Although these instruments are not legally binding, they
establish universal and regional rules which have become rules of
international customary law and, as such, are considered obligatory in
the doctrine and practice of international law.
Thus, Article 17 of the Universal Declaration of Human Rights
states as follows:
Everyone has a right to property, individually and commonly
No one may be arbitrarily deprived of his property.
For its part, Article 23 of the American Declaration of the
Rights and Duties of Man states that:
Every person has a right to own such private property as meets
the essential needs of decent living and helps to maintain the dignity
of the individual and of the home.
Moreover, the interdependence and indivisibility of all human
rights is nowadays unquestionable and, in this context, the importance
of property ownership, as a contributory factor toward the securing of
peace and economic and social development of a State, is assuming
growing significance. The
United Nations Human Rights Commission, through its independent expert
Luis Valencia Rodríguez, has analyzed this aspect as follows:
A trend has been observed to consider the right to life as a
broader and more general concept, characterized not only by the fact of
being the legal basis of all the rights, but also by forming an integral
part of all the rights that are essential for guaranteeing access for
all human beings to all goods, including legal possession of same,
necessary for the development of their physical, moral and spiritual
deprivation of this legal possession, especially during armed conflicts,
jeopardizes the right to life.
While all human rights are clearly indivisible and
interdependent, the right to shelter is the right most closely connected
with the right to individual property.
Since the right to an adequate dwelling can be an integral and
important part of the right to property ownership, lack of same can be
considered as abridgement of other fundamental rights such as the right
to freedom and personal security.
The indivisibility of human rights and the interdependence of
civil and political rights and of economic, social and cultural rights
form part of modern civilization. The freedom of a person is not only violated if he is
attacked physically or morally, but also when he is deprived of the
means to live in dignity and denied the material requisites that are
indispensable for a normal life.
On the basis of the foregoing, we can affirm that every person's
right to individually and commonly owned property is of special
importance for fostering the general enjoyment of other fundamental
human rights. Following
this line of thinking, we now proceed to analyze the American Convention
on Human Rights, a binding regional instrument to which Nicaragua is a
State party. In effect, the
Convention follows a more
progressive approach to the rights of property, while at the same time,
establishes Social interest
as a limitation to enjoyment of such rights.
In this way, a state may acquire the property of another only if
three considerations are met: (1)
payment of just compensation; (2) reasons of public utility; and (3)
observance of the forms established by law.
For better understanding of the above paragraph, Article 21 of
the American Convention on Human Rights should be cited:
1. Everyone has the right to
the use and enjoyment of his property.
The law may subordinate such use and enjoyment to the interest of
2. No one shall be deprived
of his property except upon payment of just compensation, for reasons of
public utility or social interest, and in the cases and according to the
forms established by law.
3. Usury and any other form
of exploitation of man by man shall be prohibited by law.
While the American Convention specifically establishes reasons of
public utility or social interest as the sole limitation on the right to
private property, it also clearly sets certain guarantees against
arbitrary actions by the State in order to prevent expropriation without
compensation or illegal confiscation.
Luis Valencia of the United Nations Human Rights Commission also
analyzes this point in his report as follows:
In general it is recognized that a State has the right to pass
such laws as it considers necessary for regulating the use of property
in accordance with the general interest or to ensure payment of taxes or
other charges or penalties. It
is important that these regulatory powers of the State do not give rise
to expropriation without compensation or to "arbitrary" or
The legislation of many States and the provisions of
international treaties stipulate that no one shall be deprived of his
property except "for reasons of public utility" or
"public interest." They
further specify that the State may only limit these guaranteed rights
"in accordance with the conditions establish, by law," which
constitutes a guarantee against arbitrary actions by the State.
In this respect, it is important to note that international law
recognizes, as a general principle of the right to private property,
that the State must in all cases compensate nationals or foreigners when
it expropriates their property.
It is clear from the above-quoted instruments that the
right to property can be considered an inalienable right, concerning
which no State, group or person may undertake or carry out activities
designed to suppress the rights set forth in said international
instruments, including the right to property.
Accordingly, no State-especially
if it is a party to a binding international instrument-may
expropriate property without payment of just compensation, while such
expropriation must further be justified by reasons of public utility or
social interest and be effected in accordance with the forms established
by law. Now the fact is
that the Nicaraguan legal system includes various instruments which
protect the right to property but which-according to the
information provided-have not served in practice to afford
effective protection of that right.
Thus, in the first place, Article 46 of the Political
Constitution of Nicaragua of 1987 lists all the international
instruments protecting human rights and incorporates them as part of the
country's domestic legal system:
In the national territory every person shall enjoy state
protection and recognition of the rights inherent in the human person,
unrestricted respect, promotion and protection of human rights, and full
effectiveness of the rights detailed in the Universal Declaration of
Human Rights; in the American Declaration of the Rights and Duties of
Man; in the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights of
the United Nations Organization, and in the American Convention on Human
Rights of the Organization of American States.
Article 44 of this Political Constitution then expressly refers
to the right to private property as follows:
Nicaraguans have the right to personal property that will
guarantee them the goods necessary and essential for their integral
Moreover, Title II of the Civil Code establishes a set of
measures to protect property. Thus,
Article 615 defines ownership as "the right to enjoy and dispose of
a thing, without any other limitations other than those established by
law. The owner has right of action against the holder of the thing
to claim it back." In
this way the owner can exercise his rights against private individuals
or against the State. Article
617 of the Civil Code then complements this provision as follows:
No one can be deprived of property except in virtue of the law or
on the basis of a judgment based on it.
Expropriation on grounds of public utility must be justified by
the law or by a judgment based on it; and shall not be effected without
prior compensation. In case
of war, it is not essential that compensation be provided in advance.
If these requirements are not met, the courts shall give
protection and, if applicable, shall return the property to the owner.
As is evident, this article establishes a set of guarantees
against arbitrary confiscation and further obliges the State to give
compensation in cases of expropriation for public utility.
These guarantees are based fundamentally on the requirement that
expropriations for reasons of public utility have to be legally
demonstrated to be necessary and can only be effected with prior
compensation, except in cases of war.
The law further extends its protection of the right to property
by requiring the courts to confirm the owner's ownership and to return
to him any property confiscated illegally.
Nicaraguan civil law also provides for acquisitive prescription
of ownership or "usucaption," the Latin definition of which is
"Uscapio est adjectio dominii per continuationem possessionis
temporis lege difiniti," which can be rendered as "acquisition
of ownership by continuing in possession for a period set by law."
This legal Institution is defined in Article 868 as the
"means for acquiring a right or discharging a duty or obligation,
by time elapsed and under the conditions specified by law."
Acquisitive prescription operates for both personal property and
real estate. In the case of real estate, the property must have been held
for ten years to acquire ownership, provided the following requirements
are met: (1) based on just
uncontested title; (2) in good faith; (3) uncontested; (4) continuous;
and (5) public. Also as
regards real estate, it is relevant to note that prescription can take
effect on special basis without the above-listed requirements, but
then a three-year period is required.
In the case of movables, prescription takes effect in two years
provided that possession is uninterrupted, uncontested and held in good
faith and with just title. Failing
this, prescription takes effect in five years.
After the above exposition of the main characteristics of
acquisitive prescription of ownership, it is necessary to note that
the law also includes a mechanism for safeguarding ownership, since
acquisitive prescription does not apply in the case of confiscated
property. Article 876 of
the Civil Code in fact states as follows:
No time limit shall apply to the right to claim back confiscated
Nicaraguan legislation also uses the Public Register as another
form of protection of property. Thus,
Title XXV, Chapter II, of Nicaragua's current Civil Code is devoted to
the Public Property Register. One
of the most important guarantees offered by this register is the fact
that only one title can be recorded for any particular piece of
property, since the registrar is prohibited from entering a new title if
there is an earlier entry relating to the same property.
This is confirmed by Article 3954 of the Civil Code, which reads:
"Once a title transferring ownership of a property has been
entered, no other title may be entered that contradicts said
title." Article 3955
of the Civil Code then complements the preceding article by instituting
a supervisory mechanism to cover register entries:
"all entries made in other registers concerning a property
shall be duly noted in the Property Register entry."
One final rule laid down in the Civil Code that warrants citing
is Article 19 of the Rules of Procedure of the register-as amended by Decree No. 371-which reads:
"The first entry in respect of any property shall be the
title deed or the supplementary deed; if this is not done, no other
title or right relating to the property in question can be
To this extensive listing of legislation forming the legal
framework for protection of the right to property can also be added
the Ownership Disputes or Injunctions (possessory actions of a summary
nature) established in Title XXIII, Articles 1650 et seq., of the Code
of Civil Procedure.
The constitutional remedies available include action for
protection applicable against acts by officials that violate
constitutional provisions concerning the right to property.
Then in the criminal law field, Nicaragua punishes offenses
committed against private property; for instance, Title IV of the
Criminal Code provides for punishment of larceny, robbery,
cattle-rustling, squatting, illegal penetration, etc.
The proper functioning of these juridical mechanisms for
protection of the right to property requires that the Judicial Branch
perform its obligation to apply the law and, if need be, to order the
police authorities to perform their part by enforcing court decisions.
It has been noted that the problem began to develop when the
police openly and systematically refused to obey court orders,
essentially because the decisions affected persons benefited by the
previous government. As a
result-according to the information provided-the
will to administer justice was weakened in the Judicial Branch, which
was made up mostly of officials belonging to a particular political
party and hierarchically subject to the instructions and interests of
The outcome was that-again
according to the information received-the legal provisions and
procedures for protection of the right to property were gradually
affected because they were neutralized in practice by the same
authorities who refused to comply with the judicial decisions.
It was also a fact that the Judicial Branch lost credibility to
the extent that there was a considerable decline in property ownership
suits brought by private individuals.
B. ANALYSIS OF THE DIFFERENT
LEGAL SYSTEMS THAT HAVE AFFECTED THE RIGHT TO PROPERTY IN NICARAGUA
To be able to understand the origin of the various phenomena that
have negatively impacted the right to property in Nicaragua, a review of
the various legal instruments issued since 1979 is required.
Thus, on July 20, 1979, the Government Junta of National
Reconstruction issued Decree No. 3 by which it empowered the Attorney
General to take over, requisition and confiscate all property belonging
to the Somoza family and military personnel and officials who fled the
country as of December 1977. This
decree was supplemented by Decree No. 38 of August 8, 1979 to the effect
that "the powers conferred upon the Attorney General would also
include the power to freeze or seize, as a precautionary measure, any
transaction, property or business of persons associated with Somocismo,
about whom a denunciation had been received; or property, that because
of information, in the hands of the Attorney General, should be liable
to preventive seizure. to
these ends, the Attorney General could take such measures as it deemed
appropriate, so that, without impairing productivity, the businesses
which were frozen or seized were guaranteed as a precautionary
Subsequently, laws were promulgated providing for the transfer to
the State of the property of persons absent from the country for longer
than six months (Absentees Law).
According to information furnished to the IACHR, these decrees
enabled the previous government to commit various and serious abuses in
regard to property. For
instance, it has been reported that while confiscations were aimed
primarily at the Somoza family and those closely connected with it, such
confiscations were also applied indiscriminately and arbitrarily against
persons who did not belong to the Somoza family and had never been
connected with it.
Subsequently, on February 25, 1987, the National Assembly
repealed Decree 760-"Appropriation
by the State of Abandoned Properties," also known as the Absence
Law. However, Article 2 of
the law repealing the decree stated that:
"All actions taken on the basis of Decree No. 760 are
The IACHR has further been informed that the process of abuses
against the property of many Nicaraguans was brought to a head when the
previous government lost the election.
According to information received, between February 25 and April
25, 1990, the Legislative Assembly passed Laws 85, 86 and 88 authorizing
large-scale transfers of numerous rural and urban properties to
members of the Frente Sandinista.
Thus, Article 1 of Law 85 specifies that "The State will
guarantee the Right of Ownership of all Nicaraguans who, as of February
25 of the current year, occupied by allocation, possession, or any other
form of tenure, dwelling houses owned by the State and its
has been observed that in this way ownership was guaranteed for those
who had no legal title. Article
3 of the law expands its effects to include property of private
individuals: "For the
purpose of this law, property owned by the State or the institutions
mentioned in Article 1 shall be understood to mean not only property
that is in process of registration or subject to any pending
administrative, legal or judicial procedure or process or in any other
way pending completion of legalization, but also properties that the
State administers as owner; the latter shall be expropriated by
operation of law."
Article 4, for its part, stipulates that "By the entry into
effect of this law, right of ownership shall be transferred to the
persons, physical or juridical, who as of February 25 of the current
year were occupying under the terms of this law, the dwellings
and properties included in the preceding articles."
Article 10 of Law 85 has been the subject of numerous criticisms
because it gives exemption "from national and municipal taxes
payable on such properties up to the date of entry into effect of this
law," thereby placing the persons who obtained these State
properties in a privileged position.
Moreover, Article 10 also establishes another privilege for the
beneficiaries by waiving the requirement that notaries must see the tax
payment records and other documents required by law for the granting of
public deeds a measure that also impacts the treasury.
Finally, it specifies that any mortgage or encumbrance on the
properties covered by the law shall be officially canceled.
Similarly, Law 88, known as the Agrarian Property Protection Law,
confers upon holders of agrarian titles (who previously were granted
only the beneficiary use of land) ownership of the same (Article 2).
This law requires Public Property Registrars to enter the new
provisional or permanent Agrarian Reform Titles in the Property
Registers as well as in the new Agrarian Property Register without
regard to costs or procedures. In
effect, the entries in the
new register are duplicated in the margins of the Public Property
Register, thereby creating a dual registry which is considered
inadmissible in Nicaraguan law.
On March 24, 1993 the Supreme Court of Justice issued an opinion
on whether these laws are in effect, following a question submitted by
Dr. Martha Lorena Lacayo. The
Court declared that Laws 85, 86 and 88 are in force and must be applied,
since the rights acquired are still and will continue to be fully valid.
The Court reportedly based its opinion on the non-retroactive
effect of laws and item IV of the Preliminary Title of the Civil Code:
All real rights acquired under a law and in accordance with it
shall remain in effect under the jurisdiction of another..."in
order to defend the agrarian titles granted prior to Law No. 133 -
partially vetoed - which repealed Laws 85, 86 and 88.
The Supreme Court concluded its opinion by noting that the
Registrar of Real Property was to enter the Agrarian Reform titles
extended and acquired under said laws and also to enter transactions
referring to an Agrarian Reform title.
This Supreme Court opinion gave rise to a number of contrary
opinions on the part of specialists in the matter.
It was pointed out that the Court had not taken into account that
there are property rights that are fully protected by law since they
were acquired prior to the laws in question and to which the provision
of the Preliminary Title of the current Civil Code should be applied
with all juridical rigor. It
has further been observed that the Supreme Court did not have the
forethought to verify whether the Agrarian Reform titles were issued
legally in private respect of properties owned by the State or others
belonging to other private juridical persons whose property the State
could not dispose of, except in the event of expropriation and specific
need or declared public interest, and then only with the appropriate
This, then, was the legal context that prevailed prior to the
Government of Violeta Barrios de Chamorro.
Next we will analyze the different pieces of legislation passed
in the course of her Government. One
of the first decrees issued by 1990 the new Government after the 1990
elections was Decree 11-90 establishing an administrative body:
the National Confiscation Review Commission. This commission's main purpose was to review the
confiscations effected by the Sandinista government, estimated at some
25,000 agricultural and urban properties.
The first Attorney General, Duilio Baltodano - who also acted as chairman of the National
Confiscation Review Commission - started a review of the claims
submitted and proceeded to grant the returns which, in his opinion, were
justified under the legal criteria adopted.
However, according to the information provided, the police
systematically refused to enforce the Commission's orders, thereby
preventing a satisfactory solution to the problem.
Subsequently, an action for relief was filed against Decree
11-90, on which the Supreme Court ruled on May 27, 1991, by
declaring the National Confiscation Review Commission partially
unconstitutional as regards the cases involving conflicting private
interests, which could only be heard by the Judicial Branch.
It has been noted that the Supreme Court's decision was applied
retroactively, since many of the persons who were awarded return of
their property did not in fact receive it because of the police's
unreadiness to enforce the Commission's orders.
It was in these circumstances that in August 1991 the National
Assembly approved Law No. 133 which ordered expropriation of
properties that had been acquired under Laws 85, 86 and 88, or else, as
appropriate, that properties acquired under those laws should be
recovered by the State in order to be returned to their legitimate
owners. This law also
ordered cancellation of all grants of enterprises administered by the
The immediate comments heard following approval of this law were
that it demonstrated the Legislative Branch's good faith but did not
represent a solution to the problem since besides being costly it had
the serious defect that in expropriating the holders, it would be
recognizing them as true owners of the property and, although this was
not the intention, in accordance with general principles of law, the
Government would then have been in the position of having to give
compensation for the value of the properties thus expropriated to
persons who were not the true owners of same.
In the end, Law No. 133 was vetoed by the Executive Branch, when
sent it back to the National Assembly observing that it violated the
Then, the Executive Branch, by means of Decree 35-91 of
August 19, 1991, established the "Oficina de Ordenamiento
Territorial" placed under the Ministry of Finance, with the main
purpose of "assisting in the organization of real property in
accordance with current legislation" (Article 1), with
responsibility for reviewing property acquisitions or transfers effected
under Laws 85 and 86, and also "in cases of allocations with title
deeds issued under the Agrarian Reform program, the beneficiaries of
which entered into possession between February 25, 1990 and April 25,
1990" (Article 2). It
is also relevant to note that the Government expanded the functions of
this office by Decree 48-92 of September 9, 1992, in order to
ensure review of allocations, titlings or assumptions of possession of
agricultural land between February and April 1990.
It has been observed that the real objective of this office is to
confer legality or effects of ownership on occupants of properties not
belonging to them, who have met the requirements of Laws 85 and 86.
In other words, to ensure implementation of those laws.
The IACHR has already referred to this matter in its Annual
Report for 1992-93, as follows:
... the Inter-American Commission on Human Rights has received
reports that the Land Office continues to legalize the de jure
and de facto situations of the new beneficiaries of urban housing
and lots and the farm lands arbitrarily distributed on a massive scale
during the period of transition from the Government of the Sandinista
Front to that of Mrs. Chamorro. The
original property owners are given very little in the way of a hearing.
The fact is that during the period covered by this Annual Report,
the IACHR has continued to receive information on the negative effects
being produced by the de facto decisions of the Oficina de Ordenamiento
Territorial, because the occupants of the properties concerned consider
themselves to be real owners, which gives rise to serious conflicts with
the rightful owners who, having acquired their properties legally and in
good faith, have justified reasons for defending them.
On September 9, 1992, the National Confiscation Review Commission
was re-established in order to continue with the review of
confiscations carried out and to adopt the appropriate decisions.
To this end, an Office of Compensation Assessment was established
by Decree No. 51-92, under the Ministry of Finance, with a view to
determining the value of properties that could not be returned
This office also estimates the possible obligations of the owner
of the confiscated property vis-a-vis the State.
On this point, the IACHR has received information to the effect
that certain individuals whose properties were confiscated by the
previous government have had to accept compensation in the form of bonds
under a second resolution of the Review Commission, notwithstanding the
fact that return of their properties had been ordered by the first
Commission. According to
the information provided, this anomaly arose because the police did not
enforce the orders of the first Commission at that time and also because
many of the properties concerned were transferred to private individuals
through state agencies.
Accordingly, the Nicaraguan Government issued a new decree-No. 56-92 of October 15,
1992-instituting a system of compensation by means of bonds for
persons whose property was expropriated by the previous government and
cannot now be returned to them. This
decree provides for compensation with government bonds issued by the
Ministry of Finance, with interest at 3% p.a., value maintenance with
respect to the U.S. dollar and a term of 20 years, being redeemable in
advance: (a) if used to
purchase assets owned by the State and its institutions, under
privatization programs; (b) if the State receives funds from the
privatization of specific enterprises; and (c) if the State's economic
situation so permits.
The IACHR has been informed that the few persons who have
accepted compensation these bonds are unhappy with them because they
cannot be used for paying taxes and are currently trading at 30% of
their face value.
Finally, during the period covered by this Annual Report, the
IACHR has been concerned to receive reports that the National Assembly
has approved suspension for nine months of executive action (evictions)
to enforce civil judgments based on precarious tenure.
The law suspending evictions from properties distributed by the
previous government also specifies (Article 2) that "precarious
possession actions in respect of dwellings instituted prior to the entry
into effect of this law are also hereby suspended for the same
possession is a legal term relating to loan for use and is referred to
in Article 3446 of the Nicaraguan Civil Code:
If the loan was precarious, i.e. neither its duration nor that of
the use of the property were agreed, and such is not determined by the
practice of the people, the lender may request the return of the
property any time he pleases. In
case of doubt, the burden of proof shall lie with the borrower.
The tenure of a property not owned by the user, but occupied
without any prior contract and without the knowledge of the owner or
simply tolerated by the latter, shall also be categorized as precarious.
According to the information provided, the Sandinista deputies
proposed this law, which was then promulgated by the Executive Branch.
It has further been pointed out that at the time the law was
promulgated a large number of cases were under consideration by the
Judicial Branch and were on the point of being decided in favor of the
rightful owners, because the presumed beneficiaries of Laws 85 and 86
had falsified documents or sought to appropriate properties which on
account of their size could not be covered by said laws.
The IACHR has also received information to the effect that many
of these cases involved persons who, when the previous government came
to power, set themselves up in large luxury homes and then claimed that
they were beneficiaries under Laws 85 and 86 promulgated prior to the
end of the Sandinista regime. It
has also been reported that some of the precarious tenure actions
concerned persons who, at the time Laws 85 and 86 were promulgated, were
renting some property but ceased paying the rent in order to be able to
take it over when the owner was not affected by the confiscation decree.
According to information given to the media by the Attorney
General, Dr. Guillermo Vargas Sandino, the law suspending actions on
grounds of precarious tenure will not affect actions initiated by the
Attorney General's office concerning cases of properties involving Law
85. However, he admitted
that suspension of evictions on grounds of precarious tenure will be a
problem for the Judicial Branch and for persons who have actions in the
ordinary courts to seek to recover confiscated properties.
For his part, at the beginning of July 1993 Judge Oswaldo Medrano
also told the media that the actions had been brought to a halt where
they were, despite the fact that some persons had won their cases and
all that remained to be done was to evict the occupants.
He further gave as his opinion that the National Assembly should
have consulted the judges, prosecutors and other persons with a clear
understanding of the ownership question.
Suspension of the judicial processes by means of a law approved
by the Congress of the Republic is a matter of serious concern to the
IACHR, since Nicaragua as a State party to the American Convention on
Human Rights has undertaken "to ensure that any person claiming
such remedy shall have his rights determined by the competent authority
provided for by the legal system of the state, and (...) to ensure that
the competent authorities shall enforce such remedies when
By signing and ratifying the American Convention, Nicaragua has
also undertaken to provide everyone under its jurisdiction with simple
and prompt recourse to a competent court or tribunal for protection
against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by the Convention.
In this respect, the law approved by the Congress of the Republic
that suspends actions based on precarious tenure for nine months is
retroactively-many persons who trusted in such remedies for
protection against acts that violate their fundamental rights.
It should be noted, finally, that the Inter-American Court
of Human Rights, in its latest Advisory Opinion states that "A
state may violate an international treaty and, specifically,. the
Convention, in many ways. It
may do so in the latter case, for example, (...) it may adopt provisions
which do not conform to its obligations under the Convention.
Whether those norms have been adopted in conformity with the
internal juridical order makes no difference for these purposes.
(...) As the Court has said, the fulfillment of a constitutional
requirement "does not always prevent a law passed by the
Legislature from being in violation of human rights."
The points discussed in this report enable the IACHR to draw the
The complex situation prevailing during the period covered by
this Annual Report gives rise to serious concerns on the part of the
IACHR, since situations of violence in the country have worsened and
this has generated, in turn, greater violations of the right to life and
personal security. It is
further observed that civil society has been the most affected since it
is in the midst of violence by armed groups and the excesses of the
The limitations on the effectiveness of human rights as a result
of this situation have been caused to some extent by the retention in
the military structures of persons concerning whom there are grave
suspicions of violations of these rights and by the unwillingness of the
Judicial Branch to investigate reported human rights violations.
This is evidenced by the failure to investigate and punish
serious crimes committed since the present Government assumed office.
A further contributory factor is the failure to act on
recommendations made in previous IACHR reports regarding the need to
reform a number of pieces of legislation that affect the exercise of the
right to justice. Moreover,
this report analyzes Decrees 591 and 600 which regulate military
criminal jurisdiction, and it is demonstrated that these decrees give
the military courts powers that are incompatible with the competent,
independent and impartial court called for by the Inter-American
Convention on Human Rights. The
IACHR trusts that the Nicaraguan Government will adopt appropriate
domestic law provisions concerning its constitutional and legal
procedures, in order to review and amend these decrees.
It should also be noted that the Law on the Military Organization
of the Sandinista People's Army has not yet been reformed.
The IACHR has referred to this law on various occasions,
observing that it concentrates a set of powers in the military that
impair the functions the constitution assigns to the President of the
Republic. It is necessary
to reiterate here the statement made by the General Assembly of the
Organization of American States to the effect that one of the essential
elements of a democratic system is effective subordination of the
military apparatus to the civil power, if human rights are to be fully
With regard to the right to property, the IACHR has observed in
the course of the period covered by this Annual Report that the same
problems that are causing serious frictions in Nicaraguan society are
still persisting. Progress
with the arbitrarily return of and/or compensation for certain
properties arbitrarily confiscated by the previous government is still
slow. The IACHR also wishes
to draw attention to the fact that it has been demonstrated that there
are different juridical mechanisms for protecting the right to property
in Nicaragua, but that it is fundamental that the Judicial Branch
perform its obligation to apply the law and that the respective
authorities execute the courts' decisions.
Regarding this latter point, it is also necessary that no laws be
promulgated that limit the powers of the Judicial Branch to order the
restoration of the rights of persons affected by violations of their
right to property. This in
connection with the law recently approved by the Congress of the
Republic that orders suspension of actions based on precarious tenure.
The IACHR wishes to place on record, once again, that the
property problem must be resolved within the juridical framework of the
American Convention on Human Rights, to which Nicaragua is a State party
and which has been incorporated into the Nicaraguan constitutional
system. In this connection,
observance of the right to property is fundamental for the development
of juridical institutions in which person can participate freely and
without any discrimination and where the other fundamental rights and
freedoms are protected.
Finally, the IACHR wishes to express its hope that Nicaragua will
adopt the measures necessary to fully ensure the rights and freedoms
enshrined in the American Convention on Human Rights.
In this context the Commission is prepared to collaborate with
the Nicaraguan Government in the attainment of total effectiveness of
these rights in the country.
Inter-American Commission on Human Rights, Annual Report for
1985-86, p. 192-193, Chapter V, "Fields in which steps
have to be taken to render human rights more effective, in
accordance with the American Declaration on the Rights and Duties of
Man and the American Convention on Human Rights".
Inter-American Commission on Human Rights, Annual Report for
1985/86, pp. 193-194, "Fields in which steps have to be
taken render human rights more effective, in accordance with the
American Declaration on the Rights and Duties of Man and the
American Convention on Human Rights."
Inter-American Commission on Human Rights, Annual Report for
1992/93, pp. 214-215, "Measures necessary for rendering the
autonomy, independence and integrity of the members of the Judicial
Branch more effective."
United Nations, "El derecho de toda persona a la propriedad
individual y colectiva," final report submitted by Luis
Valencia Rodríguez, Independent Expert, E/CN.A/1993/15, December
18, 1992, pp. 69 and 89.