SUMMARY OF THE ALLEGED INCIDENTS
On October 27, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a petition
sent by Ms. Zoilamérica Narváez Murillo, the alleged victim, and Vilma Núñez
de Escorcia, her legal representative and the president of the Nicaraguan
Human Rights Center (hereinafter “the petitioners”), against the State
of Nicaragua (hereinafter “the State” or “Nicaragua”), alleging
that the State had violated Zoilamérica Narváez’s right to be heard by
a competent court or judge. Ms. Narváez filed suit with the First
District Criminal Court in Managua on June 5, 1998, in connection with the
alleged physical and psychological violence she suffered at the hands of
her adoptive father, Mr. Daniel Ortega Saavedra, currently a deputy
serving in Nicaragua’s National Assembly.
2. According to
the petitioners, the State of Nicaragua violated Articles 1 (obligation to
respect rights), 2 (obligation to adopt domestic legal provisions), 8
(right to a fair trial), 24 (equality before the law), and 25 (judicial
protection) of the American Convention on Human Rights, together with
Article 7, sections b, d, e, f, and g, of the Inter-American Convention on
the Prevention, Punishment and Eradication of Violence Against Women, in
that the National Assembly still has not issued a decision regarding the
request for annulment of congressional immunity filed by Ms. Narváez
against Deputy Ortega, which has prevented the alleged victim from
enjoying access to justice for the restitution of her violated rights.
The Nicaraguan State maintains that it has not denied Ms. Zoilamérica
Narváez Murillo access to justice and holds that in the case at hand, the
authorities acted in accordance with domestic law and the American
Convention. The State also holds that the remedies provided by domestic
jurisdiction were not exhausted in this case, in that there was a Special
Commission charged with studying and ruling on Deputy Ortega’s annulment
of congressional immunity, in accordance with the procedure set forth in
the Immunity Law. It therefore requests that Commission declare the
petitioners’ claim inadmissible on the grounds of noncompliance with the
requirement of first exhausting domestic remedies contained in Article
46(1)(a) of the American Convention. In reply, the petitioners maintain
that the complaint they lodged with the IACHR is covered by the exceptions
to the prior exhaustion requirement described in Article 46(2)(b) and (c)
of the American Convention.
At its 113th regular session, held on October 9-19, 2001, the
Commission analyzed the legal considerations and factual evidence
submitted by the parties during the processing of this complaint and
decided to declare the case admissible in accordance with the provisions
of Articles 46 and 47 of the American Convention.
PROCESSING BEFORE THE COMMISSION
On October 27, 1999, the Commission received the petition filed by
Ms. Zoilamérica Narváez Murillo and Ms. Vilma Núñez de Escorcia
against the State of Nicaragua. On
November 8, 1999, in accordance with Article 34 of its Regulations in
force before April 30, 2001, the Commission began its processing of Case
12.230 and asked the State to submit the relevant information, granting it
a period of 90 days to comply. On
that same date, it informed the petitioners that the case had been opened.
6. On January 13,
2000, the State submitted its comments, indicating that the remedies
provided by domestic law had not been exhausted in this case.
This information was sent to the petitioners on February 15, 2000,
along with a request for their comments on it.
On January 14, 2000, the petitioners sent the Commission additional
information, which was forwarded to the State on February 16, 2000.
On March 27, 2000, the petitioners sent the Commission their reply
to the State’s comments. This information was sent to the State of Nicaragua on March
31, 2000, with a period of 30 days in which it could submit its comments.
On August 22, 2000, the Commission received a communication from
the petitioners in which they sought to appear at a hearing before the
IACHR. In a note dated
September 11, 2000, the Commission indicated that it was unable to receive
them at a hearing because the request was lodged extemporaneously.
On September 27, 2000, the State submitted its comments, in which
it reiterated that the domestic remedies available had not been exhausted
in the case at hand. In
accordance with procedure, that information was sent to the petitioners on
October 6, 2000.
On December 13, 2000, the petitioners sent their comments on the
Nicaraguan State’s reply. The
Commission forwarded those comments to the State of Nicaragua on December
19, 2000, with a 30-day period for it to reply.
On April 25, 2001, the State replied to the petitioners’
comments, repeating the same position as in its previous submissions.
On June 26, 2001, the petitioners submitted their comments on the
POSITIONS OF THE PARTIES
The petitioners claim that the State of Nicaragua violated Ms.
Zoilamérica Narváez’s right to a fair trial in that it did allow the
crimes of sexual abuse reported to the First District Criminal Court of
Managua to go unpunished by failing to suspend Dep. Daniel Ortega’s
congressional immunity. The
petitioners claim that the legislature hindered her access to justice by
failing to process the request for the deputy’s immunity to be lifted in
accordance with the procedure described in the Immunity Law; and, in spite
of the procedural formalities followed by Ms. Narváez, this situation
could not be overcome because of a lack of political will on the part of
the legislature and because there was no further remedy through which that
state body could have been required to initiate proceedings toward the
suspension of his immunity. They
consequently believe that the exceptions set forth in Article 46(2)(b) and
(c) of the American Convention apply in this case.
The petitioners claim that the National Assembly, as a state body,
did not abide by the terms of the Immunity Law (Nº 83) and, in spite of
their repeated requests for the deputy’s immunity to be suspended, no
decision was given until this case was brought before the Inter-American
Commission on Human Rights. After
the case had been brought to the Commission’s attention, in a document
dated December 7, 1999, the State sent the petitioner notification of the
decision by the National Assembly’s Steering Committee, adopted at its
meeting Nº 033-99 on November 25, 1999, regarding her request for
suspension of immunity.
The petitioners maintain that in that decision, the National
Assembly distorted and manipulated Ms. Zoilamérica Narváez’s claims,
in that it ruled on the suspension or loss of deputy status, which is
governed by the Assembly’s internal regulations, and not on the
procedure for the suspension of immunity sought by the petitioner, which
is governed by the Immunity Law. The
petitioners also claim that the State acted deceitfully, in that it sent
the Commission a different resolution from the one it sent Ms. Narváez on
December 7, 1999.
14. The State
maintains that at no time did the legislature obstruct the petitioner’s
access to justice. In this
regard it points out that the First District Criminal Judge in Managua
remitted the documents she was given to the National Assembly, in
accordance with the Immunity Law, since her court was not competent to
hear the suit filed by Ms. Zoilamérica Narváez without first pursuing
the suspension of immunity in accordance with Nicaraguan law.
The State also claims that the petitioner enjoyed full access to
domestic remedies, in that she sought the suspension of Dep. Ortega’s
immunity and also requested, by means of an incidental motion, a prior
ruling on whether he was in full enjoyment of his congressional position
or had abandoned his functions.
15. The State holds
that domestic jurisdiction has not been exhausted, in that the National
Assembly’s Steering Committee, at a meeting on November 25, 1999,
unanimously resolved to analyze the incidents reported by Ms. Narváez and
agreed to set up a Special Commission to study and issue a ruling on the
lifting of Dep. Ortega’s immunity in accordance with the procedure set
forth in the Immunity Law. The
State adds that Ms. Narváez did not file for amparo relief against the resolutions of the National Assembly’s
Steering Committee, as allowed by Article 51 of the Amparo Law.
The State therefore requests that the Commission declare the
petitioners’ claims inadmissible, pursuant to the terms of Article
46(1)(a) of the American Convention.
COMPETENCE AND ADMISSIBILITY
Competence of the Commission
Having seen the background of the complaint and the way in which it
has been processed per the descriptions in the above paragraphs, the
Commission sees the admissibility of the case in the following terms:
The Commission may hear a case brought before it provided that, prima
facie, it meets the formal admissibility requirements set forth in
Articles 46 and 47 of the American Convention.
Under Article 44 of the Convention, the petitioners are entitled to
lodge complaints with the IACHR. The petition names, as its alleged
victims, individual persons with respect to whom the State of Nicaragua
had assumed the commitment of respecting and ensuring the rights enshrined
in the American Convention. With respect to the State, the Commission
notes that Nicaragua has been a party to the Convention since September
25, 1979, when it deposited the corresponding instrument of ratification.
The Commission therefore has competence ratione
personae to examine Ms. Zoilamérica Narváez Murillo’s complaint.
The Commission has competence ratione
loci to deal with this petition, since it alleges violations of rights
protected by the American Convention occurring within the territory of a
state party there to.
The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights
protected by the American Convention was already in force for the State,
on the date on which the incidents described in the petition allegedly
Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights
protected by the American Convention.
Admissibility requirements of the petition
The Commission will now examine whether this petition meets the
admissibility requirements set forth in Articles 46 and 47 of the American
Exhaustion of domestic remedies and timeliness of the petition
The Commission has, on repeated occasions, stressed the
“reinforcing or complementary” nature of the inter-American human
rights protection system. This rule allows states to resolve matters
within their own legal frameworks before facing international proceedings.
The State holds that the petitioners’ complaint should be
declared inadmissible because a decision on the case is still pending. The
petitioners, in turn, claim that they did consult the competent
authorities; however, the domestic remedies they pursued were fruitless,
and the failure of the National Assembly to resolve their request for the
lifting of congressional immunity has denied them the access to justice
that would remedy the violated rights.
Article 46(1)(a) of the Convention stipulates that: “Admission by
the Commission of a petition or communication... 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 international law.” However, Article 46(2) provides that this
requirement shall not apply when:
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
In this connection, the Inter-American Court of Human Rights has
maintained that petitioners must only exhaust those remedies that are
“adequate” for redressing the alleged violation. It should be noted
that the function of those remedies within the domestic legal system must
be suitable for addressing an infringement of a legal right.
In the case at hand, the petitioners claim to have exhausted the
remedies provided by domestic jurisdiction, in that the petitioner filed
suit against Mr. Daniel Ortega with the First District Criminal Court in
Managua on June 5, 1998, for the crimes of sexual abuse, rape, and sexual
harassment. In that same suit, Ms. Narváez asked for the National
Assembly to be requested to begin proceedings to suspend Mr. Ortega’s
congressional immunity, pursuant to the provisions of the Immunity Law (Nº
83). Her suit was admitted by the judicial decision of June 9, 1998.
On June 15, 1998, Dep. Daniel Ortega submitted a document to the
First District Criminal Court, asking the judge to dismiss the suit
because, as a member of the Assembly and in accordance with Article 139 of
Nicaragua’s Constitution, he enjoyed congressional immunity. He also
denied the allegations made against him and further stated that statutory
limitations were applicable to some of them.
In a ruling dated June 17, 1998, the judge in charge of proceedings
revoked the admission of the suit and forwarded the case documents to the
National Assembly to enable its secretariat to report to the Steering
Committee and for the steps set forth in the Immunity Law to be taken.
On June 22, 1998, Ms. Zoilamérica Narváez filed a request for the
suspension of Dep. Daniel Ortega’s immunity with the secretariat of the
National Assembly and, on June 24, asked the secretariat to check that he
was attending the Assembly’s sessions. On August 21, September 9 and 11,
and October 8, 1998, the petitioner reiterated her request to the National
On October 28, 1998, the National Assembly presented Ms. Zoilamérica
Narváez with a certified copy of the Steering Committee’s resolution
ordering the case to be forwarded to the Legislative Advisory Directorate
for it to provide the Steering Committee with its considerations on the
On December 7, 1999, the National Assembly notified Ms. Narváez of
Resolution Nº 033-99 of November 25, 1999, in which the National
Assembly’s Steering Committee considered her request for the Assembly to
issue a statement on “whether Deputy Daniel Ortega Saavedra did or did
not enjoy special congressional immunity because, as she [Ms. Narváez]
stated, Art. 130 of the Constitution provides that immunity shall not
apply in cases involving family rights, and she holds that the crimes for
which she has filed suit against Deputy Daniel Ortega must be considered crimes
against the family and, as such, would be covered by family rights.”
In that regard, the Steering Committee pointed out that: “Article
130 of the Constitution textually sets out the exception of immunity for Family
Rights, which refers solely and exclusively to civil matters related
to family law—for example: marriage, divorce, children, family
relationships, child custody, alimony, etc.—and does not refer at all to
matters of a criminal nature; were that so, it would have expressly
specified crimes against the family,
a turn of phrase that the framers of the Constitution chose not to use.
Nicaraguan law has established it in those terms. Originally, family law
was conceived of as belonging entirely to civil law, and it has fallen to
the civil courts to resolve issues arising in this regard and to
distinguish them from criminal matters. The new Organic Law of the
Judicial Branch clearly indicates the distinction that exists, with
different courts and tribunals responsible for dealing with these
The National Assembly’s Steering Committee added: “Furthermore,
the current Criminal Code does not contain this kind of crimes
against the family; on the contrary, our Code solely covers crimes
against people and crimes that affect people’s civil status. We
should remember the PRINCIPLE OF CRIMINAL LEGALITY enshrined in Article
34(11) of the Constitution, which guarantees that a person shall not stand
trial or be convicted for an action or failure to act that, at the time it
took place, was not expressly and unequivocally defined by law as a
punishable offense…” Similarly, Article 13 of the Criminal Code
provides that: “Broad interpretations are prohibited in criminal
proceedings. Judges shall abide strictly by the letter of the law. When
doubts arise, the law shall be interpreted in the fashion most favorable
to the accused.”
Finally, the Steering Committee of the National Assembly said that:
“The case submitted by Ms. Narváez Murillo clearly involves a suit and
an accusation that is not a civil matter, and civil matters are the arena
of the family law that enjoys constitutional exemption from immunity; in
contrast, this is clearly a criminal matter, one that is not covered by
the exemption of immunity established in Article 130 of the Constitution,
and one that is instead governed by current criminal law.”
Consequently, the National Assembly’s Steering Committee
resolved, on the one hand, “to declare groundless the objection filed
and to reaffirm that in this case, Deputy Daniel Ortega Saavedra enjoys
immunity,” and, on the other, “to create a Special Commission to hear
and resolve the proceedings referred to the First Secretariat by the First
District Criminal Court of Managua in the suit brought by Ms. Zoilamérica
Narváez Murillo against Deputy Daniel Ortega Saavedra.”
37. The State
recognizes that Ms. Narváez’s requests and arguments forced the
National Assembly to render a decision on the incidental and special
proceedings, which was published in Deed Nº 033/99, “which led it to
delay its main decision regarding the request for Deputy Ortega
Saavedra’s immunity to be lifted, so that a ruling on the incidental
matters could be given.”
The State claims that the creation of this Special Commission demonstrates
that domestic jurisdiction has not been exhausted, since this is the
procedure set by the Immunity Law and, consequently, represents the
instance responsible for deciding on the suspension of Dep. Daniel
Ortega’s immunity. However, the State notes that: “Although it is true
that the Commission has been created… the appointment of its five
members has still to be made.” 
Finally, in its claims the State adds that domestic remedies have
not been exhausted, in that Ms. Narváez did not file for amparo
relief against the resolutions of the National Assembly’s Steering
In this regard, the petitioner has said that under Article 51 of the
Amparo Law, this remedy is not admissible against legislative resolutions
or actions of the National Assembly; the petitioner is therefore
defenseless, since there is no remedy that can oblige the legislative
branch to resolve her complaint in the terms established by the Immunity
The Inter-American Commission notes that the Immunity Law requires
that the National Assembly’s Steering Committee immediately appoint a
Commission to study and issue a ruling on complaints brought before it. In
addition, the procedure set forth in the Immunity Law stipulates that
after the evidentiary phase—which may not last more 30 days—the
Special Commission must hand down a ruling within a period of 10 days,
either upholding or dismissing the complaint.
Moreover, as regards the exhaustion of domestic remedies, the
Inter-American Commission notes that since Ms. Narváez presented the
National Assembly with her request for suspension of the deputy’s
immunity on June 22, 1998, three years and three months have gone by in
which she has not received a final response regarding that application. In
particular, the National Assembly’s failure to appoint the members who
would serve on the Special Commission has kept a decision on Ms. Narváez’s
request from being issued.
This has kept the petitioner on indefinite standby and has prevented her
from asserting her rights before the regular courts.
For the purposes of the admissibility of this complaint, the
Inter-American Commission holds that the petitioner has been denied access
to an appropriate judicial remedy for investigating the suit she filed
with the courts in Managua, in the terms of the exception set forth in
Article 46(2)(b) of the American Convention. The requirements set forth in
Article 46(1)(a) and (b) are therefore not applicable in the instant case.
Article 46(2) of the Convention is, by reason of its nature and
purpose, an autonomous provision with respect to the instrument’s
substantive provisions. So, the decision as to whether the exceptions to
the exhaustion of domestic remedies rule are applicable in the case at
hand must be taken before the merits of the case are examined and in
isolation from that examination, in that it depends on a different
criterion from the one used to determine whether Articles 8 and 25 of the
Convention were indeed violated.
In the case at hand, the Commission holds that the exhaustion of
domestic remedies bears a close relation to the merits of the case, in
light of the State’s obligation of guaranteeing access to justice and of
providing effective judicial remedies as enshrined in the American
Convention. Consequently, all issues relating to the effectiveness of
domestic remedies will be analyzed in the IACHR’s subsequent report on
the merits of the allegations.
Duplication of proceedings and Res
Article 46(1)(c) of the Convention stipulates that for the
Commission to admit a petition or communication, the subject thereof must
not be pending in any other international proceeding. In addition, Article
47(d) of the Convention requires the Commission to declare inadmissible
any petition or communication that is substantially the same as any other
one previously studied by the Commission or by another international
The parties’ claims and the case documents do not indicate that
this petition is pending in any other international proceeding for
settlement, nor is it substantially the same as any earlier petition
previously examined by the Commission or other international body. The
Commission therefore holds that in the case at hand, the admissibility
requirements set forth in Articles 46(1)(c) and 47(d) of the American
Convention have been met.
Characterization of the alleged facts
The Commission believes that the petitioners’ claims regarding
the alleged violation of the right to a fair trial, to equality before the
law, and to judicial protection could tend to establish a violation of
rights enshrined in Articles 8, 24, and 25 of the American Convention, in
conjunction with Article 1 thereof.
The petitioners have shown that the alleged violations can be
associated with an agency or agents of the state, as required by Article
47(b) of the Convention. The paragraphs containing the analysis of the
exhaustion of domestic remedies state that the alleged violations appear
to be the result of actions or omissions by agents or officials of the
Republic of Nicaragua.
In accordance with the above considerations, the Commission
concludes that this petition meets the admissibility requirements set
forth in Articles 46 and 47 of the American Convention on Human Rights.
Consequently, the Commission is competent to hear Case Nº 12.230.
Based on the foregoing considerations of fact and law, and without
prejudging the substance of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged
violation of Articles 8, 24, and 25 of the American Convention on Human
Rights, in connection with Article 1 there to.
With respect to the other rights referred to by the petitioners, to
postpone analysis thereof until the merits phase, provided that the
allegations are proven.
To give notice of this decision to the parties.
To continue with the analysis of the merits of this case.
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 in the city of
Washington, D.C., on the fifteenth day of October, 2001. (Signed): Claudio
Grossman, President; Juan Méndez, First Vice-President; Marta
Altolaguirre, Second Vice-President; Commissioners Hélio Bicudo, Robert
K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, paragraph 63.
Jointly transmitted with decision Nº 033-99 by the National
Assembly’s Steering Committee was a note, dated January 3, 2000,
that the Assembly’s First Secretary sent to Nicaragua’s
Vice-Minister for Foreign Affairs. In that note, the First Secretary
explained that the Special Commission responsible for studying and
ruling on the lifting of Mr. Ortega’s congressional immunity had
already been created, but its members had not yet been appointed.
Comments by the State of Nicaragua, April 25, 2001, p. 2.
Ibid., p. 3.
Comments by the State of Nicaragua, April 25, 2001, p. 3.
The Immunity Law provides as follows:
8: Following receipt at the National Assembly secretariat of a
complaint sent by the President of the Republic or of a complaint
lodged with this branch of government, notice shall immediately be
given to the Steering Committee and it shall be processed in
accordance with the following articles.
9: The National Assembly Steering Committee shall immediately appoint
a Commission, constituted in accordance with the guidelines set in the
General Statute of the National Assembly, to study the lodged
complaint and to issue a ruling on it. The official against whom the
complaint is made shall be informed of the terms of the complaint
within 24 hours following the constitution of the Commission, and he
shall appear before that Commission no later than six days after his
notification thereof for him to make the relevant statements.
11: The Commission shall remain open to receive evidence for twenty
days following the hearing, and this period may be extended for an
additional ten days if a request to that effect is made by the
Commission or the interested party to the National Assembly’s
Steering Committee. At the end of that period, the Commission shall
issue its ruling within the following ten days. The ruling shall
either uphold the admissibility of the complaint or dismiss it.
13: If 60 percent of the members of the National Assembly vote to
uphold the complaint against the official(s), their congressional
immunity shall be suspended.
The IACHR has not been informed about the appointment of the members
of the Special Commission set up by Resolution 033/99 of November 25,
1999, to rule on the immunity of Dep. Daniel Ortega.