1. On May 7, 1996,
the Inter-American Commission on Human Rights hereinafter “the
Commission”) received a petition filed against the Republic of Nicaragua
(hereinafter “the State” or “the Nicaraguan State”), alleging that
the State refused the benefit of impecunious litigation to 8,288 people
who did not have the wherewithal to deposit surety bonds in two civil
suits for breach of contract brought before the Sixth Court of the Managua
Civil District against the Coca Cola Company and others. The plaintiffs
wanted the company to honor the terms of its “Coca Cola Crazy Number”
promotion, which offered to reward specially marked soda-bottle caps with
up to 50,000 cordobas (equal to approximately USD $7,200). The
complainants alleged that they held winning numbers and demanded that the
company pay the prizes it had offered.
2. In filing their
suits, the plaintiffs asked the judge to allow them the benefit of
impecunious litigation, arguing that most of them were out of work and
their incomes did not exceed five hundred cordobas a year (around
USD $72), the amount set by Nicaragua’s Code of Civil Procedure for said
benefit to be granted.
3. The petitioners
claim that the State is responsible for violations of the right to a fair
trial (Article 8), the right to equal protection of the law (Article 24),
the right to judicial protection (Article 25), all in conjunction with the
duty of respect and ensuring those rights (Article 1(1)) and the
obligation of adapting domestic legislation (Article 2), set forth in the
American Convention on Human Rights (hereinafter “the Convention”), by
reason of the judicial ruling handed down on December 17, 1993, by the
Fourth Civil Court of the Managua Civil District, which refused the
plaintiffs the benefit of impecunious litigation and ordered the deposit
of a surety bond to cover costs in the amount of 29,036,000 cordobas
(equal to approximately USD $4,177,152).
4. During its
processing of this case, the Commission made itself available to the
parties to offer its services in friendly settlement proceedings; in
addition, a working meeting was held with the parties. However, the State
refused to accept this procedure and instead asked the Commission to
declare that Nicaragua was not responsible for the alleged incidents. In
connection with this, the State pointed out that the two trials, together
with the remedies of annulment, repeal, and appeal filed by the
complainants, were pursued in accordance with Nicaraguan civil procedure,
with all applicable judicial guarantees, and pursuant to the terms of
domestic law and the American Convention.
5. At its 108th
special session, and after analyzing the legal and factual elements
reported by the parties during its processing of the petition, the
Commission decided to declare this case inadmissible.
PROCESSING BY THE COMMISSION
6. On May 28,
1996, the Commission opened Case 11.630, transmitted the relevant parts of
the complaint to the State and gave it a period of 90 days to submit its
reply. On June 11, 1996, the
petitioners sent the Commission additional information on the domestic
proceedings, which was sent to the State for comments.
7. On August 22,
1996, the State submitted its comments, in which it reported that most of
the plaintiffs were professionals, technical workers, and merchants, and
that the Nicaraguan magistrates had for that reason refused them the
benefit of impecunious litigation. The State’s reply was transmitted to
the petitioners on October 25, 1996.
8. On December 2,
1996, the Commission received the petitioners’ comments, claiming that
many of the plaintiffs, when they filed suit, were out of work or were
variously employed as bricklayers, housewives, schoolteachers, etc. On
December 5, 1996, the petitioners sent the Commission copies of additional
documents related to the case file. Both communications were transmitted
to the Nicaraguan State on December 23, 1996, and resent on February 20,
9. On April 23,
1997, the petitioners asked the Commission for information on the current
status of the case, pointing to the State’s delay in replying. On May
20, 1997, and January 23, 1998, the Commission once again asked the State
for its comments on the petitioners’ reply. On February 26, 1998, the
petitioners sent the Commission additional information, which was
subsequently sent to the State on February 6, 1998.
10. On January 26,
1998, the Commission decided to make itself available to the parties to
offer its services in friendly settlement proceedings, pursuant to the
terms of Articles 48(1)(f) of the Convention and 45(4) and 45(5) of the
11. In a note dated
March 17, 1998, the petitioners accepted the Commission’s friendly
settlement proposal. On March 24, 1998, however, the State reported that
it would not accept a friendly settlement in this case because the
Nicaraguan State had in no way restricted or limited the plaintiffs’
access to justice.
12. On June 19,
1998, the Commission received a further communication from the petitioners
asking for a report to be issued under Article 50 of the Convention. The
Commission sent this information to the Government on June 30, 1998. On
September 4, 1998, the Commission received comments from the State
confirming its position. The Commission sent this information to the
petitioners on September 21, 1998.
13. On October 21,
1998, the petitioners repeated their request for a report on the merits of
the case on account of its current status and the State’s refusal to
accept a friendly settlement. The petitioners’ communication was
transmitted to the State on December 2, 1998.
14. The State
replied on February 2, 1999, and repeated its position regarding this
case. The Commission forwarded that information to the petitioners on
March 30, 1999. Subsequently, on March 5, 1999, the petitioners repeated
the request they had placed before the Commission in their previous
communication. On March 30, 1999, the Commission sent the communication to
the State for its comments.
15. The petitioners
submitted their comments on April 30, 1999, and asked the Commission to
recommend that the Nicaraguan State repeal Article 939 of the Code of
Civil Procedure. In
accordance with procedure, this communication was sent to the State on
June 15, 1999, for its comments. On
August 17, 1999, the Commission received the State’s reply, ratifying
each and every one of its previous claims.
16. During their
working visit to Managua on December 3, 1999, the Rapporteur for Nicaragua
and the lawyer in charge of that country’s cases asked the State’s
representatives for this case to be processed by means of the friendly
settlement mechanism. The
State rejected that request, on the grounds that it had committed no human
17. At the
petitioners’ request, on March 6, 2000, the Commission and the parties
held a working meeting with a view toward reaching a friendly settlement.
On that occasion the petitioners asked the State to publicly
recognize its responsibility, pay the costs of processing the case, give
the victims a symbolic compensatory payment, in the event that the case
could not be reopened, make full amends to the victims, and implement an
education campaign for the population as a whole regarding the meaning and
scope of the right to justice. The
Commission granted the State a period of 30 days to reply to this list of
18. In a
communication dated April 10, 2000, the Nicaraguan State rejected the
friendly settlement proposal and repeated its position vis-à-vis
each of the points. In accordance with procedure, the communication was
forwarded to the petitioners on April 12, 2000.
POSITIONS OF THE PARTIES
Position of the Petitioners
19. The petitioners
claim that on June 18 and 20, 1993, a total of 8,288 individuals, divided
into two groups, filed two civil suits with the Fourth Court of the
Managua Civil District, alleging a breach of contract by the Coca Cola
Company and others. The plaintiffs wanted the company to honor the terms
of its “Coca Cola Crazy Number” promotional campaign, in which it had
promised to reward specially marked bottle tops with prizes of up to
50,000 cordobas. The plaintiffs claimed they held winning numbers
and demanded that the company award them the promised prizes.
20. In the suit,
the plaintiffs asked the judge to grant them the benefit of impecunious
litigation, since most of them were out of work and had annual incomes of
less than 500 cordobas, the amount beneath which, according to
Nicaragua’s Code of Civil Procedure, that benefit should apply. As
evidence of their inability to pay the surety bond set by the judge, the
plaintiffs submitted a study by the Nicaraguan Institute of Social and
Economic Research (INIES) describing the country’s economic and social
situation. The plaintiffs also submitted the Central Bank of Nicaragua’s
1994 report and the Inter-American Development Bank’s 1995 report on
21. The petitioners
claim that is was impossible for the plaintiffs to come up with the amount
of money required to guarantee the costs of the trial. Since the
plaintiffs did not provide the amount demanded by the judge, the suit
brought before the ordinary court was dismissed. According to the
petitioners, as a result of this refusal to grant them the benefit of
impecunious litigation, the plaintiffs were denied access to justice: this
constituted, in their opinion, a serious case of discrimination on
22. The petitioners
further state that on account of the large number of plaintiffs, the
request for impecunious litigation was presented on a collective basis, in
the interests of legal logic and procedural economy. They thus note that
the INIES socioeconomic study was a unified piece of evidence to give
account of the plaintiffs’ economic situation.
23. The petitioners
claim that refusing the benefit of impecunious litigation and requiring
the posting of the cost bond restricted the right of access to justice as
enshrined in Article 8 of the American Convention. Furthermore, the
petitioners claim that the plaintiffs were denied prompt and effective
recourse because they lacked the economic wherewithal; consequently, the
State also violated the terms of Articles 24 and 25 of the Convention.
24. The petitioners
also maintain that the surety system provided for in Article 939 of the
Code of Civil Procedure creates inequalities that prevent the poorer
segments of the population from having access to the courts;
consequently, the State is in breach of Articles 1(1) and 2 of the
Position of the State
25. The State
maintains that the benefit of impecunious litigation, which effectively
grants an exemption from the requirement of providing surety to cover any
costs that may be incurred, was disallowed by the judge presiding over the
Fourth Civil Court of the Managua Civil District.
The judge held that most of the plaintiffs were professionals,
technical staff, and merchants, and that decision was upheld by the
Appeals Tribunal and the Supreme Court of Justice.
The State maintains that the plaintiffs did not follow the correct
procedure for obtaining the benefit of impecunious litigation: according
to Article 874 of the Code of Civil Procedure, parties interested in
securing that benefit must apply individually and not collectively.
The purpose of Nicaraguan law in making this a personal right is to
enable the judge to assess and evaluate the evidence provided by the
litigants in an expedite fashion. The State further noted that some of the
plaintiffs from among the total number could have been granted the benefit
if they had applied individually, and their suits would not have been
dismissed because they would have been exempt from posting the surety
27. In connection
with this, the State points out that no one can be obliged to initiate a
lawsuit, since doing so implies the acquisition of responsibilities, such
as those that arise from the need of the respondent to offer a defense;
that need can give rise to economic responsibilities, which justifies the
existence of the obligation of providing surety to cover any costs that
the court may order. The
State maintains that the benefit of free justice cannot be extended to
individuals such as those represented by the petitioner; that benefit is
awarded to parties who demonstrate that they lack the economic wherewithal
required to litigate.
The State alleges that the suits filed in this case failed to
prosper because the plaintiffs did not post a cost bond. It therefore
holds that it has not denied anyone justice and that it has not violated
the right to procedural guarantees or the right of equality before the
law. In this regard the State
believes that this case was conducted in accordance with law since, under
domestic law, pursuant to Article 939 of Code of Civil Procedure, all
plaintiffs can be required, at the respondent’s request, to post surety
in order to guarantee costs. The
State holds that both the first-instance and second-instance trials, and
the appeal and repeal proceedings, were conducted with the judicial
guarantees required by law. It further states that the rulings and
sentences handed down were reached in compliance with domestic law and
with the judicial guarantees of due process.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission
29. The Commission
is, at first glance, competent to examine the petitioners’ complaint, in
that the allegations refer to presumed violations of the rights enshrined
in Articles 8 (fair trial), 24 (equality before the law), and 25 (judicial
protection) of the American Convention, as stipulated in Article 44
thereof. The alleged
incidents took place under the jurisdiction of Nicaragua, which has been a
state party to the Convention since September 25, 1979.
30. The Commission
will now analyze whether this petition meets the requirements for
admissibility set forth in Articles 46 and 47 of the American Convention.
Exhaustion of Domestic Remedies
46(1)(a) of the American Convention stipulates that:
by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
32. The Commission
has on repeated occasions stressed the ancillary or complementary nature
of the inter-American human rights protection system.
This nature can be seen in Article 46(1)(a) of the Convention,
which enables States to first resolve issues within their own legal
frameworks before facing international proceedings.
In the case at hand, the petitioners claim to have exhausted the
domestic remedies provided by Nicaraguan law, but that filing those
remedies was fruitless.
34. Similarly, in
response to the requests for information sent to it by the Commission, the
Nicaraguan State reported that its domestic remedies had been exhausted.
35. In this case,
the petitioners report they filed two civil suits before the Nicaraguan
courts, in two groups,
on June 18 and 20, 1993. In
those proceedings, the plaintiffs applied for the benefit of impecunious
litigation. On December 17, 1993, upon refusing to grant this benefit, the
court ordered the plaintiffs to provide a surety bond for the costs the
proceedings could incur in the amount of 29,036,000 cordobas which,
if not deposited within a period of 15 days, would cause the suit to be
The plaintiffs filed for the annulment of that decision on January
19, 1994, since Nicaraguan law states that before a cost bond can be
ordered, the appointment of a common attorney must be ordered.
The presiding judge of the Fourth Court, in a ruling handed down on
March 4, 1994, declared the annulment proceedings inadmissible and
dismissed the combined ordinary suits because the cost bond had not been
deposited within the period set.
37. On March 10,
1994, an appeal against the decision of the Fourth Court was made to the
Appeals Tribunal, Region III, Civil and Labor Circuit of Managua.
In a decision handed down on May 26, 1994, the Appeals Tribunal
upheld the lower court’s ruling.
38. The plaintiffs
filed an extraordinary repeal motion against the merits of the Appeals
Tribunal’s ruling on October 10, 1994; this was declared inadmissible on
November 7, 1994. Finally,
the plaintiffs filed a de facto
remedy before the Supreme Court of Justice which, in a ruling given on
November 7, 1995, decided not to admit it, thus exhausting all the
remedies offered by domestic law.
39. At the same
time, in response to the requests for information sent to it by the
Commission, the State noted that domestic remedies had been exhausted in
that the case in hand had been ruled on by the first-instance courts and
upheld on appeal and by the Supreme Court of Justice.
40. In light of the
evidence contained in the case file, the Commission believes it is a
proven fact, undisputed by the parties, that in the case at hand the
remedies offered by domestic law were exhausted, since the petitioners did
have access to the different courts and tribunals provided for in the
Nicaraguan legal system. Hence, the petition meets the admissibility
requirement set forth in Article 46(1)(a) of the Convention.
46(1)(b) of the Convention states that petitions and communications must
be lodged within six months of the date on which the party alleging
violation of his rights is notified of the final judgment.
42. The Commission
notes that the petitioners brought their case before it within the
stipulated period, since the ruling of the Supreme Court—the final
instance in the domestic proceedings—was dated November 7, 1995, and the
petition was submitted to the Commission on May 7, 1996.
The Commission therefore concludes that this petition meets the
terms of Article 46(1)(b) of the Convention.
Duplication of Proceedings and Res
46(1)(c) of the Convention states that for the Commission to admit a
petition or communication, its subject matter must not be pending in any
other international proceeding. Similarly,
Article 47(d) of the Convention rules that the Commission will declare
inadmissible any petition or communication that is substantially the same
as one previously studied by the Commission or by another international
The parties’ allegations and the documents contained in the case
file do not indicate that the petition is pending in any other
international proceeding or arrangement, or that it is substantially the
same as any other petition previously studied by the Commission or other
international agency. The
Commission therefore believes that in this case, the requirements for
admissibility set forth in Articles 46(1)(c) and 47(d) of the American
Convention on Human Rights have been met.
Nature of the Alleged Incident
45. Article 47(b)
of the Convention provides that the Commission shall declare inadmissible
any petition when “the statements of the petitioner or of the state
indicate that the petition or communication is manifestly groundless or
obviously out of order.”
46. In the initial
stages of the proceedings, the State claimed that the complaint was
groundless and denied that the Nicaraguan judicial authorities had
perpetrated human rights violations.
47. In contrast,
the petitioners held that since they were denied the benefit of
impecunious litigation, their access to justice was restricted: hence,
their individual guarantees under the Convention were violated.
48. In light of
this, the Commission must determine, through a preliminary examination of
this petition’s merits, whether the allegations it contains are duly
grounded and do constitute violations under the terms of the American
In filing suit, the plaintiffs asked the domestic court to grant
them the benefit of impecunious litigation.
The first-instance judge, however, in decisions handed down on July
16 and August 18, 1993, denied them this benefit.
Subsequently, on August 27, 1993, he ordered the two suits to be
combined and instructed the plaintiffs to appoint a single legal
representative. Later, in a
ruling dated December 17, 1993, the court admitted the parties and ordered
the plaintiffs to provide a bond to cover costs in the amount of
29,036,000 cordobas, which, if not deposited within a period of 15
days, would cause the suit to be filed.
In its comments, the State argued that the benefit of impecunious
litigation is an individual right, as stipulated in Article 874 of the
Nicaraguan Code of Civil Procedure. The purpose of Nicaraguan law in
making this a personal right is to enable judges to assess and evaluate
the evidence provided by litigants in an expedite fashion and in
accordance with the terms set by procedural law.
51. The Nicaraguan
State denied that this case involved discrimination on economic grounds
and, together with its comments, submitted a list of the plaintiffs’
jobs and professions, indicating that the surety set for all the
plaintiffs was reasonable. The
State claimed that the plaintiffs in this case were not destitute and,
hence, the terms set forth in Advisory Opinion OC-11/90 of the
Inter-American Court of Human Rights did not apply to them.
The State concluded that the petitioners were required to post the bond
set by the judge, since most of them had jobs and professions that
provided them with annual incomes in excess of 500 cordobas, the
limit set by Nicaraguan law for the benefit of impecunious litigation to
52. Article 874 of
Nicaragua’s Code of Civil Procedure provides that:
individual whose capital, together with the fees, wages, and incomes that
he receives, calculated on a yearly basis, does not reach the sum of five
hundred pesos, can apply for the benefit of impecunious litigation.
calculation shall not take into account his normal place of residence,
judicial actions, and loans that it is difficult to collect, or the tools,
instruments, or implements required by the applicant to exercise his
profession or perform his job.
Consequently, Article 939 of this Code stipulates that in trials
involving larger amounts, the plaintiff is required, at the respondent’s
request and as long as the first-instance proceedings remain unresolved,
to provide surety to cover such costs and damages as the judgment may
54. In the list
submitted by the State, containing the names of the 8,288 complainants and
their jobs and professions, it can be seen that the plaintiffs in this
case were a heterogeneous group: housewives, doctors, cardiologists,
lawyers, mechanics, workmen, shopkeepers, technicians, students, machine
operators, musicians, apprentice carpenters, etc. The judge did not
therefore grant the benefit of impecunious litigation to this group of
individuals with different levels of income.
55. As evidence of
their economic situation, the petitioners merely submitted a number of
documents, such as the report of the Nicaraguan Institute of Social and
Economic Research, the Central Bank of Nicaragua’s 1994 report, and the
Inter-American Development Bank’s 1995 report on Nicaragua. However,
these studies provided no specific evidence of the economic situation of
each individual plaintiff; there is insufficient evidence in the case file
to show that the 8,288 plaintiffs were destitute or unable to provide the
surety required by the Nicaraguan courts.
56. The Commission
has stated that it is not competent to review judgments handed down by
national courts acting within their jurisdiction and observing due
judicial guarantees, or to rule on the merits of such sentences, except
when the domestic proceedings violate the guarantees of due process or any
other right enshrined in the Convention.
57. In the case at
hand, the Commission notes that the plaintiffs had access to each of the
instances provided for by domestic legislation and that the State acted in
accordance with the law. Requiring the plaintiffs to guarantee costs in
order for them to be heard at trial and their material inability to post
the required bond should be proved on a case-by-case basis and not
globally, as the petitioners did with the aforesaid reports; this fact led
to the dismissal of the suits filed with the different courts. In this
regard, it is important to note that the failure of the domestic remedies
to yield a result favorable to the plaintiffs does not demonstrate per
se that rights and guarantees enshrined in the Convention were
58. The Commission
believes that the allegations do not indicate that the domestic courts
acted in breach of rights protected by the Convention. Although the
decisions of the exhausted instances were not favorable to their
interests, the violations alleged by the petitioners arose from a
provision of procedural law requiring incontrovertible proof of poverty
for the benefit of impecunious litigation to be granted.
59. The Commission
believes that in the case at hand, the petitioners’ submissions do not
contain sufficient grounds or evidence to indicate the responsibility of
the Nicaraguan State in violations of rights enshrined in the American
60. The Commission
concludes that the terms of Article 47(b) of the American Convention on
Human Rights apply to this petition.
61. After analyzing
the documents submitted by the parties, the Commission concludes that they
do not describe duly grounded facts that tend to establish violations of
the rights set forth in Articles 1, 2, 8, 24, and 25 of the American
Convention on Human Rights.
62. In light of the
above factual and legal considerations,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare this case inadmissible.
To notify the parties of this decision.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
and signed by the Inter-American Commission on Human Rights, on the 16th
day of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman,
First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners
Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado
The cost bond ordered by the judge in this ruling required the 8,288
plaintiffs to pay a total of 29,036,000 cordobas which, divided among
all the plaintiffs, came out at 4,245 cordobas each (around USD $504).
Article 939 of the Code of Civil Procedure reads: “In all trials
involving a greater amount the plaintiff, whether of domestic or
foreign nationality, shall be obliged, at the defendant’s request
and as long as the first-instance proceedings remain unresolved, to
provide surety to cover the payment of costs and damages should the
judgment so require.”
The first suit was filed on July 18, 1993, by Rosa Margarita Arauz
Molina and 1,447 other individuals. On July 20, 1993, Pedro Aguilera
Aguilar and 6,839 other people filed the second suit.
Inter-American Court of Human Rights, Advisory Opinion OC-11/90,
August 10, 1990.
See IACHR, Report No. 39/96, Case 11.673 (Argentina), October 15,
1996; IACHR Annual Report 1996, paragraphs 50 and 51.