OEA/Ser.L/V/II.53
doc. 25
30 June 1981
Original:  Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS
IN THE REPUBLIC OF NICARAGUA

CHAPTER IV

RIGHT TO A FAIR TRIAL AND TO DUE PROCESS   [1]/

A.          General Considerations

          1.          There is one fact that cannot be disregarded when considering the new organization of public institutions in Nicaragua, especially the judiciary, which, it was felt, had to be restructured and restaffed practically overnight.  As has been said, during the first days of the new order Nicaragua underwent a period of misgovernment and anarchy, as logical consequence of the nature of the change which had taken place; at the outset the country lacked all the elements of public  administration, police, and the administration of justice.

          Resolving the problem of a lack of services and civic servants was undoubtedly one of the most difficult and delicate tasks that the Revolutionay Government had to confront.

          2.          On of the first acts of the Government of national Reconstruction was to recreate the judiciary in order “to restore peace, lay the foundations for establishing a broad-based, democratic system of government, and undertake the great task of national reconstruction in the political, social and economic spheres, for which purpose the proper juridical system is necessary.”

          The Supreme Court, the Courts of Appeal and the Superior Labor Court, were dissolved by Article 4 of the Fundamental Statute, and the following day the names of the new members of the Supreme Court were released; in the days that followed, the Official Gazette carried the names of the magistrates appointed to the other Courts of Justice.

          The decision taken by the government of national Reconstruction to do away with all the elements of the previous administration of justice who had been accused of corruption, prevarication, or of having a compliant and deferential posture vis-à-vis the previous administration, was based on the new Government’s hope of establishing a more just juridical system; to accomplish this, a judiciary that would guarantee a correct, independent  and timely administration of justice was considered essential.

          3.       Moreover, it should be pointed out that while a change of personnel was underway in the highest echelons of the judiciary and in the higher courts, the new Government kept the juridical structure virtually intact, by leaving the Organic Law of the Courts of Justice of July 19, 1894, with certain slight variations, in force.

B.          Organization of the Administration of Justice

          1.          Apart from the Organic Law of the Courts of 1894, various legal provisions governing the organization and functioning of the Judiciary are still en effect, as of this time, either in whole or in part. [2]/

          The Fundamental Statute of the Government of national Reconstruction of July 20, 1979, provides the following in Chapter V, entitled Courts.

Article 21:  The Judiciary shall be comprised of a Supreme Court, the Courts of Appeal, and the Superior Labor Court, whose judges shall be appointed by the Government Junta, and by the district and local judges and other officials appointed by the Supreme Court.

Article 22:  The structure and functions of the courts and judges shall be governed by the laws currently in existence, provided they do not contravene, or are not expressly or tacitly amended by, the  present Fundamental Statute or by other laws or decrees of the government of National Reconstruction.

          2.          In view of the fact that the Junta’s program set forth the advisability of ensuring that the Judiciary have exclusive jurisdiction, that it function with the necessary competence and independence of judgment of its members, and that it restore the correct application of justice, and guarantee the full enjoyment of the rights of citizens, Decree No. 9 of the Government of national Reconstruction, dated July 21, 1979, appointed seven attorney as justices on the Supreme Court.  Previously there had been nine members on the Supreme Court.

          The seat of the Supreme Court-according to that decree—is to be in the city of Managua.  During the transition period, until such time as a new constitution is enacted, the members of the Court shall serve as long as the Government Junta serves.  The powers and duties of the Supreme Court shall be established in Article 120 of the Organic Law of the Courts and in its own regulations.

          3.          Under the law, the six Courts of Appeal are subordinate to the Supreme Court.  These six courts are located in the following cities: Estelí, León, Bluefields, Granada, Masaya and Matagalpa.  The present government of National Reconstruction, by means of a number of government decrees.

          Each of the Courts of Appeal has six magistrates and two chambers: one criminal and one civil. The duties and power of those courts are set forth in Title Vi, Chapters I through III, Articles 71 through 104 of the Organic Law of the Courts.

          4.          One level down in the hierarchy is the local judge and the district judges, whose powers and responsibilities are described Article 27 through 41, and 46 through 70, respectively, of the Law of the Courts, currently in force.  Each departmental capital has a district court and as a rule, the small townships have their local judges or justices of the peace.  The Supreme Court appoints both, local judges and district judges.

          5.          As part of the administration of justice, mention must also be made of the Office of the Attorney General—which replaced the Public Justice himself.  Article 2 of Law 327, which governs the functions and attributes of the Ministry of Justice, states that the Minister of Justice shall also be the Attorney General. Decree No. 36 of the Junta of the Government of national Reconstruction provides that the Office of the Attorney General is part of the Executive branch is the legal representative of the State.  Among its functions are prosecuting crimes against the State, receiving complaints, establishing the guarantees for the release of those indicated for crimes, intervening in proceedings in to the observance of the standards on detainees and prisoners and presenting reports, opinions and advice that the Executive branch or state bodies request.

C.       The Special Emergency Tribunals

          1.          The day after its installation, the Government of national Reconstruction promulgated the Law on the Maintenance of Public Order and Security, Decree No. 5; two days later, it enacted the national Emergency Law.  As their titles indicate, these laws were designed to deal with the emergency situation, to restore order and social peace, to counteract the outbreaks of violence and disorder that had occurred and to establish regulations covering the cease-fire, illegal possession of arms, sabotage, looting, vandalism, speculating, profiteering, contraband and others.

          These same emergency laws also punish the dissemination of counter-revolutionary manifestos, a failure to return to work in the private and public sectors, trafficking in foreign currency, concealment and transfer of property, and other actions related to the violence and political problems of that time.

          2.          The Government Junta by means of Decree No. 34, created special emergency tribunals that, according to the law, are competent to hear and decide the violations set forth in those emergency laws.

          According to information the Commission received, the special emergency tribunals were created at a time when the situation was still tense, in order to contain the post-revolutionary violence, anarchy and power vacuum the new Government encountered.  In some instances, the crimes listed in these laws were defined in vague and imprecise terms.  The proceedings were extremely summary, proceedings; almost all were oral, with the exception of the indictment and the sentence and, as an exception, certain formalities that were considered essential.

          3.          The special emergency tribunals created in August of 1979 never actually functioned; they were never even set up.  The competence and procedure of those tribunals were transferred to the regular courts in November.  If not entirely, at least in large part, the transitory and exceptional emergency laws have ceased to have legal effect.  Thus, Decree No. 383 of April 9, 1980, repealed the Emergency Law and other laws have repealed some of the articles in the Law on the Maintenance of Public Order and Security.

D.       The Special Tribunals

          1.          On November 29, 1979, the Junta of the government of national Reconstruction promulgated Decree No. 185, whereby it established Special Tribunals “to hear cases of crimes described in the Penal Code, committed by members of the military, officials and civilian employees of the previous regime, and any other individual, who, protected because of his or her association with them, participated in the commission of crimes, either as authors of, or accomplices or accessories thereto, and who are being detained or were apprehended while these tribunals exist.”

          The law establishing these Special Tribunals was referred to the Supreme Court.  In an important opinion, the Supreme Court came out against the bill that was submitted to it for consideration; its opinion was that it should be the regular courts that hear the cases against individuals to be judged by such tribunals.  The Supreme Court recommended that a greater number of judges be assigned to the regular courts. [3]/

          2.          Ignoring the recommendation of the Supreme Court, the government Junta proceeded to establish these tribunals, and gave them jurisdiction and competence throughout Nicaragua, except with respect to minors and individuals that had been extradited.

          To establish the corresponding order of authority, it was decided that the first three lower courts would be subordinate to the First Appeals Court, the second three, to the Second Court of Appeals, and the last three, to the Third Court of Appeals.

          Each court was composed of three individuals, one of whom has to be an attorney or a law student about to graduate, the members of the tribunal had to be over 21 years of age and of good moral standing.  The same qualifications were required for the alternates.  That law also established a General Coordinator for these tribunals.  It was provided that the President of the Court, whether it was a lower court or a court of appeals, was to be an attorney or law student.

          3.          As stated earlier, the Special Tribunals created on November 29, 1979, began to function at the end of that year, and concluded their work on February 19, 1981.  According to information provided to the IACHR by the government of Nicaragua, of a total of 6,310 prisoners at the time of the triumph of the revolution, a total of 1760 were released, either as a result of pardons or dismissal of their cases.  Some 229 were acquitted, and 4,331 wee sentenced as follows:  1,648 to 5 years or less; 283 from 6 to 10 years; 898 from 11 to 15 years; 277 from 16 to 20 years; 394 from 21 to 25 years; and 831 from 26 to 30 years.

          4.          What follows are some of the most important procedural aspects of these special tribunals.

          a)          Preparations for trial

          The same law that created the Special Tribunals also established the procedural mechanism to which these bodies had to adhere in the performance of their functions.  The law made provision for two instances, the first of which was in three stages:  the first stage was preparation of the indictment or report, which was the job of the military authorities in charge of the preliminary investigation; the second when the individuals under investigation by the military were placed at the disposition of the Office of the Special Prosecutor; the third when the Special Prosecutor presented the indictment before the Special Tribunal.  At that point the tribunal assumed jurisdiction over the trial.

          5.          Further, it should be pointed out that this law distinguishes between the individuals to be tried by the Special Tribunal.  For those detained after November 29, 1979, the date on which the law was issued, numerically the minority, within 24 hours of their arrest, the Office of the Special Prosecutor was required to be informed of the charges to be investigated.  This period could be extended up to twenty days if the investigations had not been completed, and an additional ten days with the authorization of the Office of the Prosecutor.  If the extensions given to the military to complete the investigation were not sufficient, in exceptional cases the time-period could be extended to a maximum of three months.  [4]/

          For individuals detained before November 29, 1979, that is, for approximately 90% of the persons detained in Nicaragua, these individuals were not protected by the deadline set for delivering them to the Special Tribunal for trial. [5]/

          b)          The indictment

          6.          Having concluded the preliminary investigation, the office or military authority in charge, referred the results to the Office of the Special Prosecutor, which could either release the detainee and file the records or press charges, at this point in time became the “accused” in the eyes of the Special Tribunal.  No time limit was set by law by which the Office of the Special Prosecutor had to carry out this responsibility.

          The many indictments shown to the Commission substantiate that membership in the National Guard was sufficient to charge former National Guardsmen with one or more of the three following crimes provided for and punishable under the existing Penal Code:

          i)          Conspiracy to commit crime, contained in Article 493 of Chapter         I entitled “Conspiracy and instigation to commit crime and defense of crime” which appears in Title XI of the section of Crimes against the Public Order;

Article 493:  Any person who is part of a conspiracy or band of three or more individuals, organized for the fixes purpose of committing crime through the common agreement and reciprocal assistance of the associate members, shall be punished by 1 to 3 years imprisonment, notwithstanding the punishment due to him for the crimes that he commits.  That punishment shall be increased by one third for those who served as leaders or directors of the conspiracy.

          ii)          Crimes against the international order, contained in Article 551 of the Chapter entitled: “Genocide, trafficking in women and children and other crimes,” which appears in Title XIV in the section on Crimes of an International Nature;

Article 551:  Any person who during an international or civil war commits serious acts that violate the international conventions on the use of weapons, treatment of prisoners and other laws on war commits a crime against the international order and shall be punished by 10 to 20 years imprisonment.

If the acts in question have no serious consequences for the individual or the populations affected, that punishment shall be 2 to 10 years imprisonment.

          iii)          Murder or aggravated murder, covered in Article 134 and 135 of Chapter I, entitled “Patricide, homicide, murder, infanticide,” which appear in Title I of Book II of the section entitled Crimes against Persons.

Article 134:  Any person who kills under any of the following circumstances is a murderer:

1)      Through treachery.

2)       For a price or in exchange for the promise of remuneration.

3)       By asphyxiation, fire or poisoning.

4)       With malice aforethought.

5)       Through cruelty, by deliberately and inhumanely increasing the victim’s suffering, by confining him in a cell, by whipping or other similar torment.

6)       When braking and entering a domicile with the intention of burglarizing, and when the assault is made with that same intention be it in a populated or unpopulated area or on roadways.

The individual convicted of murder shall be punished by 15 to 30 years’ imprisonment.

Article 135:  Any person, who in committing the crime of murder provided for in the preceding article, exacerbates it by any of the following acts, shall be guilty of aggravated murder:

1)       The crime of rape or indecent abuse of the victim.

2)       Mutilation or dismemberment of the victim’s body.

3)       Multiple murder of two or more persons at the same time, or in succession, if the murderers follow the same criminal plan.

The individual found guilty of aggravated murder shall be given a sentence of 30 years in prison, and no mitigating circumstances shall be taken into account.

7.          The indictments against members of the ex-National Guard were very often similar.  Slight variations were made in each case to avoid service, i.e., the army, air force, etc.  Essentially, the indictment said that the accused was a former Guardsman and that he had enlisted of his own free will.  It then gave a brief account of his military history, describing almost all of his merits, distinctions and promotions as demerits and proof of his absolute obedience and loyalty to Somoza and his cabal, and as the prize for having played a leading role in the perpetration of brutal massacres.

In describing the evidence and the crime, the indictment ceased to be individual and personal, as it had been thus far, and moved into the realm of generalizations.

8.          In case No. 7584 of Lt. Col. Byron Pineda Galo, [6]/ a former officer of the National Guard responsible for the bureaucratic functions of the supply office, (functions that are civil and not military, such as the purchase of clothing, office supplies, cleaning supplies, spare parts for land vehicles, etc.) the indictment states the following:

…that his status as the individual in charge of the supplies of the Air Force gave him an opportunity to demonstrate his unwavering obedience and loyalty to Somoza and his cabal, by dropping 1500-pound bombs on the civilian population and massive machine-gunning thereof.”

          The file contains no evidence to the effect that Pineda Galo knew how to fly an aircraft, rather , it contains irrefutable evidence to the contrary.  The indictment said that he dropped 1000 and 500 pound bombs, but did not explain how he was able to do so from behind his desk.  It accused him further, of being the author of massive machine-gunning of persons, without there being any shred of evidence or any witness to accuse him of such actions.

          The generalizations continue as follows:

The rubble in our cities today and the thousands and thousands of innocent people who died, the brutally mutilated bodies, massacred during the heavy bombings, are living proof of the destruction he wrought.  It is impossible to find a word in the dictionary to describe what was done, since the atrocities committed are beyond description and belief.

9.          In the Commission’s view, the indictment must be very precise and clear in establishing the acts specifically attributed to the accused.  The same precision must be required in labeling the crime with charges and the penalty.  As for the danger and harm caused by charges that do not adhere to these juridical guidelines, Italian Professor Eugenio Florián states the following.

          It goes without saying that vague and elastic charges are harmful and contrary to civil order. History offers many examples in the religious, philosophical and political spheres.  Such charges make the defense difficult and leave room for judicial abuse.  [7]/

          The indictments contained in the files that the Commission had an opportunity to review, which had been sent together with the denunciations of individuals whose rights were allegedly violated during the judicial proceedings, unfortunately lapse into very general, vague and imprecise statements, as said earlier, when describing the crimes and assessing the evidence.

          10.          Thus, in case No. 7698, presented to the Commission in connection with two chauffeurs who were members of the National Guard, one part of the indictment states the following:

As our entire nation is aware, the National Guard (G.N.), the Office of National Security (OSN), the Armored Battalion and groups of civilians who used their position to support the Somoza dictatorship, which was brought down on July 19, 1979 with the triumph of the revolution, tortured, raped, and mutilated, in every way imaginable, young girls and women of the countryside, murdering in order desperately to put down a people’s rebellion in defense of it interest against one of the bloodies tyrannies that ever existed in Latin American.  In the course of their activities to sustain so corrupt a regime as the one created by the dictator, which ruled our land for 45 years, they did not hesitate to bombard entire cities, such as Estelí, León, Matagalpa, with the most modern weapons of mass extermination, among them napalm, mortar shells, 250-, 500-. And 1000-lb bombs, rockets, incendiary bombs, in an effort to take the backbone out of the revolutionary struggle.  There sere also the bloody methods of the O.S.N. and the national Guard, each of which was intent upon carrying out its mission against the people.  They were infamous for committing all manner of crimes against life and persons by their absolute disregard for the most basic humanitarian standards, their blatant contempt for human dignity, their violation of the most fundamental, norms and principles of international law united nations and the Organization of American states (OAS) Resolutions, the Geneva Conventions, which had been established to protect human rights; to continue to remain in any one of these repressive bodies is an admission of a total lack of scruples and of a determination to keep the people in ignorance and humiliation, a people whose one desire was to live and work with honor; the wake of crime and murder which saw 45,000 Nicaraguans die in the last two years during their struggle to destroy this system imposed by the forces DEMAND JUSTICE, and they ask that these individuals be found guilty and sentenced to the terms requested in this indictment.

The prisoners JUAN ANTONIO GUTIERREZ GARCIA and           ARMENGOL SILVA RODRIGUEZ as conscious and willing members of the ranks of the OSN, the National Guard, and the First Armored Battalion, endorsed, gave their consent to, and participated in, the commission of all of the crimes committed by those organizations.

          11.          The same system of indictment used against former national Guardsmen appeared in the judgments against the high officials of the former government and former members of the Partido Liberal Nacionalista and against persons accused of having collaborated with paramilitary organizations.

          c)          The Trial

          12.     The indictment gave way to formal initiation of the trial.  Having head the indictment, the Tribunal issued an “order of provisional detention,” thereby altering what was in fact a state of indefinite detention for those arrested prior to November 29, 1979, who constituted the majority.  The indictment having been presented and the order for initiation of the proceedings having been handed down, within three days the statement of the accused was to be taken and he was to be read the charges against him.  Once the statement was received and the corresponding examination was conducted, the tribunal was to advise him of his right to appoint defense counsel, which did not have to be an attorney.  If the individual did not do so, the Court appointed counsel for him.

          13.          At this point, the proceedings began to move very rapidly.  Once defense counsel was named, either by the accused or by the tribunal, the defense counsel had only 24 hours to complete the two steps necessary for the defense: first, to sturdy the case, and second, to prepare the defense.  The time period was inadequate and proper exercise of the right of defense was virtually impossible.

          14.          During the trial testimony was received for eight days, which could be extended four more days.  Within this period, the defendant was to offer such evidence as he deemed pertinent; the prosecution did the same.

          With regard to evidence, the Law on the Special Tribunals introduced the principle of free or unrestricted evidence, a principle contrary to and distinct form the principle of legal evidence, which consists first in determining which proofs are legally admissible and the hierarchical order of their validity.

          Pursuant to this system of free evidence in the proceedings against former members of the National Guard and the so-called Somocists detainees the members of the Special Tribunals were to evaluate the evidence and take it into consideration—as the law states—“by assessing it according to their conscience,” thereby posing another serious problem with respect to these trials.  The members of the tribunals, some of whom has no legal training, found that the law did not say what evidence should be rejected, how the evidence should be presented or what criterion should be used to evaluate it.  Upon reviewing case files at the Special Tribunals, the Commission found many proofs that did not refer to the facts, but instead were value judgments about the individuals or the facts under investigation.

          The admission of free evidence is based on the principle probations non sunt coartandae, in other words, that evidence should not be limited.  However, in the Commission’s view, while the intent to admit a broad range of proofs may be good in itself, in practice no restrictions or limitations on the kinds of proofs presented could lead to a result other than the one sought, which is determination of whether certain actions occurred, and whether those acts constituted a criminal offense.  The system of free evidence and the free evaluations of that evidence, are procedures more  conductive to judicial error than the system of legal evidence.  There is always room for some degree of judicial error in the administration of justice, which must be controlled and avoided by eliminating mechanisms which, by excess or defect, expose or induce judges to commit more errors.

          15.          The nature of the evidence obtained by means of publicly requested testimony in advertisements in the newspaper Barricada, and by the Office of the Special Prosecutor, merits special comment.  Almost daily, the newspaper Barricada, an official organ of the Sandinista National liberation Front, ran photographs of the accused on every page; it requested that the general public participate in identifying the authors of the excesses that were committed during the previous regime.  The problem was not that the publication in question called for participation in the administration of justice, but rather the way it did this, and the content of such reports; many portrayed all the individuals whose photographs appeared in the newspaper as being for all practical purposes, the authors of the crimes for which they were going to be brought to trial or were being tried, even though the Special Tribunals had not yet passed sentence against them.

          This type of call to cooperate with revolutionary justice creates certain doubts with respect to any evidence or testimony that may have been obtained by these means.  To illustrate how the voluntary witnesses can be influenced, mention should be made of the photographs of the defendants published by the newspaper Barricada in connection with the case of Byron Pineda Galo, case No. 7584.  Under the headline “MORE HENCHMEN BEFORE  THE COURTS,” the public was invited to take part in the trials as follows:  “The people has an opportunity to do justice.  Unmask these Somocists criminals.  Our people should go to the Special Tribunals and testify as to the massacres perpetrated by these hordes.  [8]/

          16.          Once the taking of evidence is concluded, the Tribunal, in secret session, hands down a decision as to the guilt or innocence of the accused, deciding the case on the evidence presented and what was said in his defense by the accused and by his defense counsel.  If the accused was found to be innocent, the Court ordered his immediate release; if not, three days subsequent to the decision the Court handed down a guilty verdict.