REPORT Nº 1/07

CASE 11.878

ADMISSIBILITY

AZUCENA FERRY ECHAVERRY, ROMMEL ANTONIO MARTÍNEZ CABEZAS,

CARLOS ALBERTO JIRÓN BOLAÑOS, CONSTANTINO RAÚL VELÁSQUEZ,

JULIO CÉSAR ROCA LÓPEZ, BAYARDO RAMÓN ALTAMIRANO LÓPEZ, JORGE ULISES GONZÁLEZ HERNÁNDEZ AND MANUAL MARTÍNEZ JOSÉ

NICARAGUA

February 27, 2007

                    I.          SUMMARY

1.              On January 9, 1997, Dr. Vilma Núñez, Director of the Nicaraguan Center of Human Rights (CENIDH) (hereinafter “the petitioners”) lodged a petition with the Inter-American Commission on Human Rights (hereinafter “the Commission”) alleging a series of irregularities in regard to the elections that were held in Nicaragua on October 20, 1996.   The petitioners charge that the State of Nicaragua is responsible for a number of inconsistencies that occurred during the electoral process, a situation that affected the judicial guarantees required to guarantee the “principle of authenticity” of the elections.  The alleged violations correspond to Articles 8 (due process), 23 (right to participate in government), 24 (right to equal protection before the law) and 25 (right to judicial protection) set forth in the American Convention on Human rights (hereinafter “the American Convention”).

2.        In particular, the petitioners denounced the “Resolution regarding the assignment of seats and declaration of persons elected in the 1996 elections.”  The petitioners allege that the voting system negatively affected a number of candidates who had obtained a greater number of votes than the candidates who were declared elected in these departments.[1]  The eight candidates negatively affected by the voting system were Azucena Ferry Echaverry (UNO 96), Rommel Antonio Martínez Cabezas (MRS), Carlos Alberto Jirón Bolaños (Alianza Liberal), Constantino Raúl Velásquez (Alianza Liberal), Julio César Roca López (FSLN), Bayardo Ramón Altamirano López (FSLN), Jorge Ulises González Hernández (FSLN) and Manual Martínez José.  Collectively they filed a writ of amparo alleging violation of their constitutionally protected rights but the Nicaraguan courts dismissed the amparo as inapplicable to decisions of the electoral body.

3.        The State replied that the petitioners failed to exhaust domestic remedies and for that reason the petition should be declared inadmissible pursuant to Article 46(1)(a) of the American Convention. The State attached to its submission a copy of the Nicaraguan Constitution and the Electoral Law, which, it alleged, set forth the different remedies available to the petitioners. The State argues that the Nicaragua guarantees “appropriate remedies within the legal system” but that they are within a fourth branch of power, i.e. the electoral system and not the judicial system.  In the opinion of the State, there is an increasing tendency in the world to render electoral systems independent from the other branches of government.  In addition, the State expressed the view that the petition did not set forth the violation of any right protected by the American Convention “since it did not set forth with precision the details of the actions or omissions that caused prejudice to any citizen or group of citizens and consequently, the petition must be declared inadmissible on the basis of Article 41(b) and (c) of the Commission’s Rules of Procedure.”

            4.     Having examined the positions of the parties, the Commission has concluded that it was competent to decide the petition and that the case is admissible in accordance with Article 46 of the American Convention.  Consequently, the Commission decides to inform the parties of its decision, to make the instant report on admissibility public, and to include it in its Annual Report to the OAS General Assembly.

            II.      PROCESSING BY THE COMMISSION

5.        On January 9, 1997, CENIDH presented a petition to the Commission.  On February 4, 1997, the Commission sent a communication to the petitioners informing them that the petition was under study and that it would bring the information to the Commission’s attention.  On February 11, 1997, the petitioners reiterated to the Commission the necessity of requesting the State to adopt precautionary measures in order to preserve the electoral material, which represented the evidence of the denounced irregularities.

6.        By means of a letter dated November 20, 1997, the Commission requested information from the petitioners regarding the result of the exhaustion of domestic remedies pending before the Court of Appeals in Managua.  On November 27, 1997, the petitioners responded, noting that according to the Court of Appeals in Managua, the writ of amparo is not applicable to resolutions issued with regard to electoral matters.  Further, they pointed out that they presented another cause of action (recurso de hecho) before the Supreme Court to challenge this decision of the Court of Appeals, which did not succeed for the same reasons, i.e. that “a writ of amparo is inadmissible to challenge electoral decisions.”

7.        On March 10, 1998, the Commission transmitted the pertinent parts of the petition to the State.  On June 8, 1998, the State replied to the petition and its response was transmitted to the petitioners on June 12, 1998.

8.        The petitioners presented additional information (two press clippings) on June 18, 1998.  The petitioners presented their observations to the State’s response on July 10, 1998 in which they reiterated the arguments presented in the initial petition and insisted on the competence of the Commission, requesting it to pronounce itself regarding the compatibility of the laws (in this case the Electoral Law) with the American Convention.  The observations of the petitioners were transmitted to the State on July 24, 1998, with a period of thirty days for the submission of the State’s observations.

            9.      By Notes dated August 18 and 24, 1998, the State requested an extension of time to submit the information requested by the Commission.  On August 27, 1998, the Commission granted the State a 60-day extension.

            10.     On October 23, 1998, the State presented its observations.  On February 9, 2000, the petitioners presented additional information, which was transmitted, to the State on March 28, 2000.  On June 8, 200, the State presented its observations on the information presented.  On July 5, 2000, the Commission transmitted the observations of the State to the petitioners with a 30-day period to present any further observations.

            11.     On August 26, 2000, the Commission received the observations of the petitioners and transmitted them to the State on September 7, 2000.  On September 28, 2000, the State requested an extension of time to respond and on October 10, 2000, the Commission granted a 30 day extension.  No further information was received from the parties.  In all these observations the parties reiterated the arguments that they had made earlier.

            12.      During Hearing No. 19 on the Situation on the Administration of Justice en Nicaragua, held during the 124º ordinary period of sessions, the Nicaraguan Center for Human Rights (CENIDH) requested the Inter-American Commission to issue a report on petition No. 11.878 regarding the 1996 elections.  The petitioners are of the view that the eventual admissibility of this case could offer important elements for the public discussion of the crisis of the administration of justice and the crisis of electoral justice in said country.  Furthermore, the petitioners stated that it would be a way to promote compliance with some recommendations made by the Inter-American Court of Human Rights in the Yatama Case, regarding the adjustments that ought to be made in the Nicaraguan electoral system, recommendations that have not yet been complied with.

III.        POSITIONS OF THE PARTIES

A.         Position of the petitioner

13.       The petitioners allege a number of irregularities related to the October 20, 1996 elections, which according to them affected tens of thousands of Nicaraguan citizens, and in particular, 67,158 registered voters in 204 Polling Stations (Juntas Receptoras de Votos- “JVR”).

14.       The electoral process, according to the petitioners, followed the adoption of an Electoral Law (Law 211 of December 5, 1995) that neither guaranteed the impartiality of the electoral workers nor access to an effective recourse in order to remedy the possible errors of the electoral bodies.

15.       Pursuant to the analysis conducted by the petitioners of the current Electoral Law, they accuse the Nicaraguan National Assembly of failing to promote an authentic electoral process by refusing to reform 15 fundamental Articles of the Law as proposed by the Supreme Electoral Council at an earlier time.  It is argued that the new Electoral Law, drafted rapidly by the National Assembly, facilitated the hiring of employees for the electoral bodies who lacked the required impartiality and independence that ought to characterize these bodies.   Within these bodies there is a Supreme Electoral Council, the Departmental Electoral Councils and Electoral Polling Stations.[2]  Some parties denounced that the controllers (fiscales) who were located at the Polling Stations, were neither permitted to enter the offices of the Nicaraguan Telecommunications firm (ENITEL) nor to accompany the President of the Polling Station to deposit the telegram, communicating the vote tallied, as is set forth in Article 29.3 of the Electoral Law.

16.       In addition, it is pointed out that the biased composition of the electoral bodies prevented the challenges, presented by the political organizations, from being heard in accordance with the provisions of Article 25 of the American Convention.  They added that Nicaraguan law does not permit the constitutional remedy of amparo in electoral matters, pursuant to Article 2 of Law No. 205 of 1995, which provides that “The remedy of amparo is not permitted against resolutions issued in electoral matters (“El Amparo no procede contra las resoluciones dictadas en materia electoral.”).  In addition, Article 173(5) of the Constitution establishes as one of the attributes of the Supreme Electoral Council, the power to examine and resolve, in final instance, resolutions issued by subordinate electoral bodies and the claims and challenges presented by political parties; and the resolutions of the Supreme Electoral Council admit no appeal, neither ordinary nor extraordinary (“De las resoluciones del Consejo Supremo en material electoral no habrá recurso alguno, ordinario ni extraordinario.”).  The petitioners point out that on November 22, 1996, the Supreme Electoral Council proclaimed the candidates elected and ignored the claims by political parties demanding the nullification of the elections in the Departments of Managua and Matagalpa.

17.       Another irregularity presented by the petitioners was the fact that Article 173(3) and (9) of the Constitution and Article 10 of the Electoral Law empower the Supreme Electoral Council to adopt the Regulations for the Electoral Law, and also to prepare the Electoral Calendar and to provide measures that will guarantee that the electoral processes are carried out in conditions of complete equality.  It is asserted that there were omissions in providing the Regulations of the Electoral Law, the reason for which the judges of the Supreme Electoral Council acted with a broad margin of discretion and issued arbitrary resolutions, such as the changes to the Electoral Calendar and the resolution on the allocation of residual electoral seats at the departmental level, made with no consideration for the proportional results of each party in these circumscriptions.  The petitioners also insist that the Regulations regarding Electoral Ethics were not complied with and that the Electoral Council was unable to control the political propaganda.

            18.       The petitioners allege that the citizenry was intimidated from voting for certain political options, and the persons responsible for this were, from members of the North American Senate to personalities from the religious sphere.  In order to deal with these issues an Electoral Prosecutor (“Procuraduría Electoral”) was created, who, according to the petitioners, was not granted clear and precise powers, which resulted in the fact that the complaints presented remained uninvestigated.  According to the petitioners, the Electoral Prosecutor had knowledge of innumerable electoral crimes that could not be investigated due to the small amount of support he enjoyed. 

19.       Another irregularity denounced by the petitioners was the resolution of the Electoral Council regarding the awarding of seats for deputies to the National Assembly at the departmental level on a residual basis.  It is said that this favored the election of the first candidate for Congress for the department of Managua from the Movement for the Renovation of the Sandinista Party (MRS), Jorge Samper, who obtained 7,951 votes and was the husband of the President of the Electoral Council, Rosa Marina Zelaya.  This, according to the petitioners, configured a violation of the right to be elected of Rodolfo Gutiérrez and of the right to elect, on the part of the citizens of the department of Carazo, since Mr. Gutiérrez was the first candidate for departmental deputy for the same party and obtained 1,511 votes, which, by percentage, is equivalent to 2.2%.  On the other hand, Mr. Samper’s share was only equivalent to 1.7 %.  Further, the third seat of the Department of Carazo was awarded to the first candidate for deputy of the National Conservative Action Party, who obtained only 0.99 % of the valid votes.[3]

20.       Other absurd cases, according to the petitioners, for example, occurred in the Autonomous region of the North Atlantic, RAAN, where the Alianza UNIDAD party won a deputy seat in spite of having obtained only 557 votes in this region.  The same thing happened with the Nicaraguan Resistance Party, which won a deputy seat in the department of Matagalpa where it barely obtained 5,035 votes.  Also the Liberal Independent Party (PLI) won a deputy seat in the department of Esteli with only 1,368 votes. 

            21.       According to the petitioners, these facts violate the principle of legality and pursuant to the law, some candidates were elected in an arbitrary manner by means of a resolution that deprived them of their posts and others were proclaimed the winners.

22.       According to the petitioners, these irregularities affected various candidates from other parties who had obtained a larger number of votes in these Departments.   On December 2, 1996, eight candidates for Congressional Deputy (Diputado) posts, members of different parties, together filed a writ of amparo before the Court of Appeals of Managua against a resolution of the Supreme Court that established the procedure for the election of departmental deputies by discretion.   It was alleged that by substantially changing the established procedure for the allocation of seats that the electoral body had violated the Electoral Law.  The eight candidates were: Azucena Ferrey Echaverry (UNO 96), Rommel Antonio Martínez Cabezas (MRS), Carlos Alberto Jirón Bolaños (Alianza Liberal), Constantino Raúl Velásquez (Alianza Liberal), Julio César Roca López (FSLN), Bayardo Ramón Altamirano López (FSLN), Jorge Ulises González Hernández (FSLN) and Manual Martínez José.

23.       On December 6, 1996 the Court of Appeals of Managua rejected the requested amparo of the eight candidates, underlining the fact that the decisions of the Supreme Electoral Council were unappealable.  The petitioners and others whose rights had allegedly been violated presented a cause of action (recurso de hecho) before the Supreme Court on December 12, 1996, in which they requested the suspension of the effects of the proclamation of the winning candidates and, in consequence, the assumption of office of the 14 candidates questioned.  On January 7, 1997, The Supreme Court dismissed the request for the remedy, pointing out the following:

Our Constitution, in establishing the attributions of the Supreme Electoral Council, in Article 173 states that there will be no recourse, neither ordinary nor extraordinary, as regards resolutions of the Supreme Council regarding electoral matters.  In accord with the foregoing, the Supreme Court reasoned that:  “…All electoral matters in Nicaragua are to be adjudicated by an independent Branch of the State, which is the Electoral Branch and which constitutes an autonomous body, or administrative-jurisdictional dual nature with exclusive competence as regards electoral matters, and the decisions of which shall be final and do not admit any appeals whatsoever . . .

24.       Another of the irregularities presented during the election day was the substitution of workers who were selected and trained ahead of time, the delayed turning in of the electoral material, the lack of copies of the minutes of the polling stations, the alteration of telegrams, ballots found in the garbage bins, arithmetical mistakes as regards vote compilations in Managua y Matagalpa, etc.

25.       The petitioners complain that in the development of the entire electoral process a series of irregularities occurred that violated their judicial guarantees, political rights, equal protection before the law and judicial protection, set forth in Articles 8, 23, 24 y 25 of the American Convention.  Furthermore, they request that the Commission examine the petition given the exhaustion of domestic remedies and the inexistence of legal due process for the protection of the political rights allegedly violated.  They request that the Commission be entrusted with establishing that the denounced irregularities, defects and modifications did in fact take place.  The petitioners request that the Commission recommend that the State draft an electoral law and establish a body that responds to the criteria set forth in the Constitution and in international human rights norms, that will guarantee the free exercise of the right to vote and the realization of free and genuine elections which guarantee the development of a democratic system.

B.         Position of the State

26.       In its communication dated June 8, 1998, the State pointed out that the petitioners had not exhausted their domestic remedies, in particular, the possibility of appealing the decisions to the electoral bodies.  In addition, the State notes that the petition is a political-legal analysis and not a description of facts that characterize a violation of the rights guaranteed by the American Convention.  “It is impossible,“ argues the State, “to refute the claims of CENIDH, in particular, because they have not been set forth in the complaint presented.”  On the other hand, the State provided a detailed explanation of the Nicaraguan electoral system, defending different aspects of the Electoral Law of 1996. 

27.       The State notes that modifications were made to the Law, which were implemented in the 1998 elections, alleging that the law has strengthened the constitutional guarantees.  On the other hand, the State informs that the only party which repeatedly insisted on the non-recognition of the elections and its results was the Sandinista Front for National Liberation (“FSLN”) but it points out that at the end, even the FSLN accepted the election results.  In conclusion, the State insists that the elections of 1996 were seen as both constitutional and legal, accepted by the political parties and civil society, by the Nicaraguan citizenry and by the international community.  Consequently, the State requests the Commission to declare the petition inadmissible.  In conclusion, the State notes the press communiqué issued by Dr. César Gaviria, OAS Secretary General, regarding the 1996 Nicaraguan elections which said: ”It is important to point out that the political parties which were in disagreement with the electoral results, have had the opportunity to exercise their rights which the law grants them to present their respective requests for remedies before the Supreme Electoral Council, which has issued its final resolution in this matter, which is unappealable and puts an end to this final step in the electoral process.”

IV.            ANÁLISIS

A.              Considerations of admissibility

1.           Characterization of a possible violation of the American Convention

28.       The petitioners are entitled under Article 44 of the American Convention to lodge petitions with the Commission.  The petition names as alleged victims Azucena Ferrey Echaverry (UNO 96), Rommel Antonio Martínez Cabezas (MRS), Carlos Alberto Jirón Bolaños (Alianza Liberal), Constantino Raúl Velásquez (Alianza Liberal), Julio César Roca López (FSLN), Bayardo Ramón Altamirano López (FSLN), Jorge Ulises González Hernández (FSLN) and Manual Martínez José, individually identified persons, for whom Nicaragua undertook to respect and ensure the rights enshrined in the American Convention.  Insofar as the State is concerned, the Commission notes that Nicaragua has been a State party to the American Convention since September 25, 1979, when it deposited the respective instrument of ratification.  Therefore, the Commission has competence, ratione personae, to examine the petition with regard to the eight candidates mentioned in this paragraph, since these presumptive victims are individual persons with regard to whom the State of Nicaragua committed itself to respecting and guaranteeing the rights set forth in the Convention.

29.       The Commission notes that the petitioners are also acting in representation, in abstracto, inter alia, on the collective behalf of the tens of thousands of Nicaraguan voters, such as for example, the 67,158 registered voters belonging to the 204 polling stations, who according to the Supreme Electoral Council, were not found. 

30.       It is worth recalling that the jurisprudence of this Commission until the present has interpreted Article 44 of the American Convention to require that for a petition to be admissible that there must be concrete victims, who have been individualized and identified, or a group of specific and identified victims which is comprised of identifiable individuals.

31.       The Commission finds that, pursuant to Article 44 and related provisions of the American Convention and the jurisprudence of the inter-American system, the petition warrants admissibility in respect of the victims who have been duly individually identified and distinguished, in order to initiate proceedings pursuant to Articles 46 et seq. of the American Convention.  However, with regard to the tens of thousands of other voters, the Commission finds that these alleged victims are inadmissible since they have not been individually identified, and the claim on their behalf is in the form of an actio popularis, which the Commission, in conformity with its constant jurisprudence on this issue, cannot admit.[4]

32.       The Commission has competence, ratione materiae, because the petitioners alleged violations of rights protected by the American Convention in Articles 8, 23, 24, and 25 of said Convention in connection with Article 1(1) and 2 thereof.

33.       The Commission has competence, ratione temporis, because the obligation to respect and ensure the rights protected in the American Convention was in force for the State at the time the events alleged in the petition are said to have occurred.  Nicaragua ratified the American Convention on Human Rights on September 25, 1979.

34.       The Commission has competence, ratione loci, because the petition alleges violations of rights that occurred in the territory of a State Party to the American Convention.

            B.         Other admissibility requirements

               1.         Exhaustion of domestic remedies

35.       Article 46(1)(a) of the American Convention specifies that in order for a case to be admitted remedies of the domestic legal system must have been pursued and exhausted in accordance with the generally accepted principles of international law.  The jurisprudence of the inter-American system makes clear, however, that the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, because the rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had an opportunity to remedy them by internal means.  The State has a constitutional or statutory requirement to provide an accessible, effective and possible remedy whereby alleged victims can seek recognition and restoration of their rights before resorting to the inter-American system for protection.  Such procedures should not be mere formalities that, rather than enable the realization of such rights dilute with time any possibility of success with their assertion, recognition or exercise.

36.       In the instant case, the Commission notes that the available domestic remedies as regards the purported victims Azucena Ferrey Echaverry (UNO 96), Rommel Antonio Martínez Cabezas (MRS), Carlos Alberto Jirón Bolaños (Alianza Liberal), Constantino Raúl Velásquez (Alianza Liberal), Julio César Roca López (FSLN), Bayardo Ramón Altamirano López (FSLN), Jorge Ulises González Hernández (FSLN) and Manual Martínez José were invoked by filing for the remedy of amparo.  The Supreme Court decision of January 7, 1997 put an end to the proceedings by deciding the cause of action (recurso de hecho) and thereby reiterating that the use of the remedy of amparo was not applicable to resolutions of the Electoral Council.  The State argues that the purported victims should have sought to have the decisions of the Supreme Electoral Council reversed by appealing directly to the Electoral Council. The Commission considers that this might have been an effective remedy if it were demonstrated that the Supreme Electoral Council provided an internal review mechanism by which resolutions taken could be subject to review by an appropriate independent and impartial body of experts.  In the absence of such a possible remedy, the Commission considers that the appropriate remedy for an alleged violation of a human right is, in general, the constitutional guarantee of amparo.  In the instant case it is clear that there was no effective domestic judicial remedy under Nicaraguan law that the petitioners could have invoked to challenge decisions of the Supreme Electoral Council.  The State, rather than pointing out what effective remedies were available, emphasized that the Nicaraguan Constitution in Article 173 specifically provides that the decisions of the Supreme Electoral Council shall be final and that there shall be no recourse against such decisions, not even by the Electoral Council. 

37.       Consequently, the Commission considers that the purported victims exhausted the available domestic remedies pursuant to Article 46(1) (a) of the American Convention, in light of the fact that the Nicaraguan law did not provide the eight candidates with a simple and effective recourse.  Therefore, in spite of the fact that the petitioners, in good faith, attempted to exhaust domestic remedies, due to the characteristics of the present case, they were not obliged to do so.

            2.         Time limit for the presentation of the petition

            38.       In this case, an exception to the requirement of prior exhaustion of domestic remedies has been applied.  Therefore, in conformity with Article 32(2) of the Commission’s Rules of Procedure, The Commission is required to analyze whether the petition was presented within a reasonable time.   The decision of the Supreme Court was issued on January 7, 1997, and the petition was filed by CENIDH on January 9, 1997, within a reasonable time, within the criteria of the Commission.

3.         Duplication of proceedings and res judicata at the international level

39.       There is nothing in the record to suggest that the subject matter of the petition is pending in another international proceeding for settlement, or is substantially the same as one previously studied by the Commission or by another international body.  The Commission, therefore, concludes that the requirements established in Article 46.1.c are met.

4.         Characterization of the alleged facts

40.       The Commission concludes that the lack of Nicaraguan legislation to provide for a procedure to review resolutions issued by the electoral organ, could constitute violations of rights protected by Articles 8(1), 23 and 25 of the American Convention, in relation to the obligations contained in Articles 1(1) and 2, for which reason, the requisites set forth in Article 47(b) for the purposes of admissibility, have been met.  The Commission concludes that there is sufficient evidence that the allegations tend to establish violations of human rights and that the petition is not manifestly groundless or obviously out of order.

            V.         CONCLUSION

41.       The Commission has determined in the present report that it is competent to take up the complaint lodged by the petitioners alleging violation of the rights to political participation (Article 23) and the rights to a fair trial and judicial protection (Articles 8 and 25), in conjunction with Articles 1(1) and 2 of the American Convention, in accordance with the requirements set forth in Article 46 of that treaty.

42.              Based on the factual and legal arguments given above and without prejudging the merits of the case,
 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

            1.         To declare the instant petition admissible in relation to Articles 8(1), 23 and 25 of the American Convention, in conjunction with Articles 1(1) and 2 of the same instrument.

            2.         To notify the parties of this decision.

            3.         To proceed with its analysis on merits.

            4.        To publish this decision and include it in its Annual Report to the OAS General Assembly.

Approved by the Inter-American Commission on Human Rights on February 28, 2007. (Signed) Florentín Meléndez, President; Paolo G. Carozza, First Vice-president; Víctor E. Abramovich, Second Vice-president; Evelio Fernández Arévalos, Clare K. Roberts, Paulo Sérgio Pinheiro, and Freddy Gutiérrez, members of the Commission.