NICARAGUA

            I.               BACKGROUND

            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 reports.

            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 follows:

       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.

               II.               RIGHTS OF THE DEMOBILIZED RESISTANCE FIGHTERS

            A.            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 areas.

            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 Estelí.

            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 Hondureño",  placed 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 seriously wounded.

            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 instructions.

            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 Department.  Reports 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 communities.

            B.            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:[1]  

            Similarly, on June 3, 1993, the Tripartite Commission submitted its second report, which is summarized below:[2]

            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.

            III.               INSTITUTIONAL PROBLEMS

            A.            ARMED FORCES

            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 for 1990-91:

       ...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 constitutional Government.

       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 States:

       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 power.

            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.

            B.            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, etc.

            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 Nicaraguan Resistance.

            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."

            IV.               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 Convention.

       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, 1993.

            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 BED.

            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 democratic government.

       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.[3]

            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."[4]

            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."[5]

            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."[6]

            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:[7]

       -  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;

       -  ensuring unrestricted access to the courts and legal remedies and enabling the victim, when called for, to take action to bring those responsible to justice;

       -  ensuring the effectiveness of the judicial guarantees essential for the protection of human rights, and removing the obstacles that prevent their swift and appropriate application;

       -  guaranteeing due process of law--indictment, defense, evidence and conviction--in public trials;

       -  returning to judges the responsibility for disposition and supervision of persons detained;

       -  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.

            V.               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.[8]

            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 follows:

       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.[9]

            The IACHR further underscored this point in its Annual Report for 1992-93:

       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 officer.[10]

             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 People

            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 proceedings.

            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 of him;

            (3)  if his conduct was influenced by significant physical or psychological ailments or diseases;

            (4)  lack of military discipline due to having been only a short time in military service;

            (5)  rational response to provocations of his chief or superior or subordinate or junior servicemen;

            (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 service;

            (8)  the act was committed due to a mistaken interpretation of required duties or of the interests of the service;

            (9)  other 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 offense;

       (4)  demonstration of sincere repentance through expression of rejection of his improper conduct.

            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 initiative.

            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.[11]

       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.[12]

            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.

            VI.               PERSONAL FREEDOM

            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, stipulates that:

       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 ...[13]

            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.

            VII.               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.

            A.            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:

            1.            Everyone has a right to property, individually and commonly owned.

            2.            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 existence.  Moreover, 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.[14]

            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 society.

            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 "illegal" confiscation.

       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.[15]

            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 development.

            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."[16]  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.[17]

            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.[18]

            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 property.

            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 entered."

            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 their superiors.

            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 measure,"[19]  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 hereby ratified."

            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 institutions...."  It 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 just compensation.

            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 State.

            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 Constitution.

            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 period."  Precarious 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 granted."

            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 affecting-also 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."[20]

            VIII.               CONCLUSIONS

            The points discussed in this report enable the IACHR to draw the following conclusions:

            1.            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 Armed Forces.  

            2.            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.  

            3.            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.  

            4.            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 assured.  

            5.            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.  

            6.            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.  

            7.            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.