RESOLUTION Nº 20/83

CASE "LA POLVORA"

NICARAGUA

July 1, 1983

BACKGROUND:

1.          On July 1, 1983 the Inter-American Commission on Human Rights adopted Resolution 12/83 which resolved that the Government of Nicaragua had violated Articles 4 (Right to Life), 7 (Right to Personal Liberty), and 8 (Judicial Guarantees) of the American Convention on Human Rights in that it was responsible for the illegal executions of detained persons in the prison known as "La Pólvora" in the City of Granada. The pertinent parts of the background of the Resolution indicate that:

a. Before and during its visit to Nicaragua in October of 1980, the Inter-American Commission on Human Rights received complaints on alleged illegal and secret executions of persons in detention in the "Heroes and Martyrs of New Guinea" Jail, known as "La Pólvora"; a Granada garrison during the last days of July 1979. The information received alleged that an undetermined number of prisoners were taken out of the Jail at night to an outside location, executed and buried in common graves. Commander Marvin González Ruiz, who went by the alias "Wilmer", was in charge of the Jail and allegedly gave the order to carry out the executions. These places were inspected by the inmate's relatives, representatives of the Nicaraguan Permanent Commission on Human Rights and legal authorities from the city of Granada.

For example, some of the communications received by the Inter-American Commission on Human Rights include the following:

Case 4566: Dr. César Rivas Guillén

The Commission received the following complaint with respect to the disappearance of the Granadian gynecologist, Dr. César Rivas. This, the first of several communications relating to the events taking place in "La Pólvora", was received in October 1979:

That on July 22, 1979, César Rivas Guillén, adult, married, a doctor residing in Granada, was captured in that city by a group of militiamen serving at the Granada Command "La Pólvora."

He was accused of belonging to the organization called "Mano Blanca"; he remained in the jails of Granada for approximately seven days, where he was visited and taken food; however, on the 29th we realized that he was staying there because he sent us a piece of paper; since that date we have had no knowledge of his whereabouts although a "Comrade" said that he had been moved to Managua at midnight. We learned that on that morning several guards in those jails had been executed. After these events, the heads of the Granada Command were replaced and are now imprisoned and under investigation.

However, in light of the events, I fear for his physical safety since I know nothing of his whereabouts. Because of this uncertainty I have taken the case to Commanders Hugo Torres and Walter Ferreti, who have full knowledge of the case and have not given an answer even though they have known of this matter for a month. I have also informed the Ambassador from Spain of this case, since Guillén's wife is of Spanish nationality.

I must add that I have reason to believe that his arrest was due to ill-intentioned accusations by unscrupulous persons who because of personal quarrels or out of jealousy have always tried to cause him harm. This is obvious because, upon his arrest, his work colleagues proceeded to seize his medical equipment and personally urged him (when he was at "La Pólvora") to confess that he belonged to "Mano Blanca", a false accusation since he was not found guilty of anything. Still, they do not say where he is.

The second complaint received by the Inter-American Commission on Human Rights relating to the events at "La Pólvora" referred to the case of Dr. Francisco Mayorga Ramírez, a lawyer. In a communication dated October 17, 1979, the following account was furnished to the Commission:

Case 7057: Dr. Francisco Mayorga Ramírez

On Sunday July 22, 1979, Francisco Mayorga Ramírez, 42 years of age, a lawyer residing in Granada, was notified that he would report to the Granada Military Police. At approximately 1:00 p.m. he reported to the Granada Military Police office where he as detained. Afterwards, he was transferred to the Command called "La Polvora", where he remained in detention until the 26th of the same month when he was set free and given a safe-conduct.

When Francisco returned to his house after being held, he said that the charges made were that he had been a judge in criminal and civil matters; that was approximately ten years ago.

On July 28, 1979, he was at a house located thirty yards from Granada's Criminal District Court on Real Street, attending a lawyers meeting to organize a visit to Granada's Military Staff and to the local Government Junta to request a determination on the limits within which they could practice their profession.

Two members of the Sandinista People's Army showed up at the meeting and proceeded to arrest Francisco again, ignoring the safe-conduct he was carrying and taking him to the "La Pólvora" Jail.

The next day, Sunday July 29, when a relative went to the "La Pólvora" Command to take Francisco his breakfast, the person in charge of distributing the food on that day said that he had been transferred to Managua.

Sensing a tragic outcome I met with some friends who told me not to worry, that they would to go "La Plvora" to find out the whereabouts of Francisco. At that Command they were met by the military head of the same, Marvin González Ruíz, known as "Wilmer", who informed them that Francisco "has been transferred to the International Red Cross and that if they wanted to see him they should hurry because on that same Sunday he was being transferred to Guatemala."

Upon learning that, I immediately went to Managua where I realized that I had been deceived, because the International Red Cross was closed and a member of that institution informed me that no prisoner had been taken there for that purpose.

On that same day, July 29, at approximately 5:00 p.m., several persons who looked like peasants and whom I did not know came to the house and stated that they knew Francisco and that they had seen his body in the fields of the Santa Ana Ranch, located on Los Malacos Road. These persons also stated that there were some fifty (50) more bodies at that place and that they had their hands tied behind their backs.

Efforts have been made through different individuals and institutions in order to exhume Francisco's body and give it a Christian burial, but until now, it has been impossible for me to do so.

It is for all these reasons that the death of Dr. Francisco Mayorga Ramírez is denounced. To this date, no motive for his death is known since none of the authorities have claimed responsibility for his death; although it is true that by family tradition he belonged to the Liberal Party, he never harmed anyone and, on the contrary, he was very much liked by all those who knew him. Besides, there is no knowledge that the death penalty exists in Nicaragua.

We request that Francisco's body be exhumed in order that, in keeping with our religious beliefs, it be given a Christian burial in a place appropriate for that purpose.

Some time later, the Commission received the following information from the Permanent Commission on Human Rights of Nicaragua:

On Tuesday, October 3, 1979, at the request of Mrs. Marlene Taleno de Mayorga, we conducted the first inspection of the site called la Montañita de San Ana. It is a mountainous terrain located on the road to Los Malacos, some four kilometers northeast of the city of Granada.

Some thirty meters after crossing the barbed wire we noticed tracks made by a heavy vehicle. They were tracks made by a bulldozer which had been operating at the site digging a ditch of considerable size.

A little further on we found a depression approximately six meters long an three meters wide. At ground level, there was a skull, bones and shoes. The ground was soft in the whole surrounding area.

At Mrs. Marlene's insistence, who claimed that the body of her husband, Dr. Francisco Mayorga Ramírez, had been seen on top of a pile of bodies, we dug up the ground a bit.

It was enough to go in two or three centimeters; immediately, worms and decomposed human remains appeared. Mrs. Marlene recognized her husband's trousers.

We proceeded to cover the human remains and we went to the city of Granada where we talked with relatives of the other victims who had gone to the site of the massacre alerted by the peasants of the area and who had even seen when some of the piled up bodies were consumed by flames since diesel had been poured over them. Witnesses claim that some of the bodies had their hands tied behind their backs.

Mrs. Mayorga tried to obtain the exhumation of her husband's body in order to give it a Christian burial. In search of a legal solution the case, she brought the matter to the attention of Judge Agustín Cruz.

On October 9, Mrs. Marlene Taleno de Mayorga presented a brief to Dr. Agustín Cruz Pérez, Judge of Granada's Criminal Court, denouncing the death of her husband and requesting that his body be exhumed.

On Saturday, October 13, Judge Cruz Pérez accompanied by his secretary, conducted the visual inspection requested, drawing up the appropriate document. The judge, in addition to verifying what the officials from the Permanent Commission on Human Rights had seen in their first inspection, made a tour of the whole site identifying at least two other places where there were human bones scattered at ground level, shoes and pieces of clothing. Several deep holes were also found which would seem to indicate that relatives of the victims had been digging up the bodies of their kin under the cover of darkness.

In a petition presented to the same Judge of Granada's Criminal Court, Dr. Agustín Cruz Pérez, Mrs. Marlene Taleno de Mayorga insisted on her request to exhume her husband's remains and, in addition, charged that some of the persons responsible for the denounced acts were trying to flee the country to evade justice.

The Court issued the following decision with respect to Mrs. Mayorga's petition:

Criminal Court

Granda, November 2, 1979, at 10:05 A.M.

THERE ARE NO GROUNDS FOR THE EXHUMATION REQUESTED BY MRS. MARLENE TALENO DE MAYORGA IN VIEW OF THE FACT THAT THE REQUIREMENTS ESTABLISHED IN ARTICLE 68 HAVE NOT BEEN SATISFIED. LET NOTIFICATION BE MADE.

In a communication dated October 17, 1979, the execution of Roger Alfonso González Ibarra, 29 years old, a chauffer with the rank of sergeant in the National Guard, was denounced. The complainant described the following events:

Case 7056: Roger Alfonso González Ibarra

Roger Alfonso González Ibarra, adult, former member of the military, was captured in Malacatoya, jurisdiction of Granada, on July 19, 1979. He remained in detention at the Jail for Women of that city for another four days.

On July 23, he was transferred to "La Poólvora" where the Commander was "Wilmer", whose name is Marvin González, who allowed me to talk to Roger on July 26, at six p.m. Roger said that if I did not find him there the next day, to stop looking for him.

I was totally surprised to learn that he had been taken out of the "La Pólvora" Jail at midnight on the 27th, together with 50 other people, that they were executed without orders, without and investigation and with no respect for human life. Enclosed is a photocopy of the death certificate and you can be assured that the Staff of the City of Granada is aware of such facts.

It is requested that an exhumation order be granted with the purpose of giving a Christian burial since his body is located on the road to Los Malacos, in the outskirts of Granada and I can point out the exact location where he can be found.

Some time later, the complainant submitted the following additional information:

...on July 26, I was able to meet with him at the jail, where I went after reading a message that he had sent me that morning, and which read as follows: "...that I immediately speak with the Criminal Judge of Granada, Agustín Cruz Pérez, because on the previous night some twenty persons had been taken out tied up and that he was told that they were going to send him to Panama and in parentheses he added...or is it a disguise to kill me? ...and rush to speak with the above mentioned official to intercede on his behalf." When I went with the Criminal Judge from that locality in the afternoon they only let me in (...); we talked with him and he told us that if we did not find him the next day, to stop looking for him. The next day I went to the jail to take him his breakfast and clothes and the guerrillas, Commander "Wilmer" among them, returned them to me and told me that they had transferred him to Managua without mentioning the place where they had taken him.

...I therefore resort to this Commission in order that, through it, his whereabouts be determined in some way...

On the other hand, the September 13, 1979, issue of "La Prensa" reports that Commander "Wilmer" is under arrest at "La Pólvora" Granada, but it does not give any other information as to the reason for his arrest.

Another communication dated October 17, 1979, denounced the execution of Exequiel Zavala Jiménez:

Case 7064: Exequiel Zavala Jiménez

Exequiel Zavala Jiménez, married, a businessman from Granada, was arrested for the third time on July 22, 1979. He was arrested by a group of militiamen accompanied by Comrade "Marcel" and was taken to "La Pólvora." When I asked these gentlemen to show me some identification, they told me that they belonged to the Sandinista Military Police whose officer in charge was Commander "Marcos."

I should point out that he had been arrested on two previous occasions, supposedly because he was a friend of the guard called "Gato Colindres." However, he had been set free after being found innocent of the charges against him.

But with this last arrest, he remained at the "La Pólvora" Jail for five days where he was personally questioned by Commander "Wilmer." On Thursday July 26, we were told that he was going to be set free and that they had not already done so because there was no one to write the memorandum.

And so it was that the next day I went to the Command and they told me that he was no longer there, that he had been taken to the Bunker, in Managua. From that date on, we have looked for him without rest in all the jails; we entered a complaint with the Complaints Office of the Ministry of the Interior with the purpose of enlisting their assistance in locating Exequiel.

However, on Thursday, October 11, 1979, an official at the Interior Ministry told me that he had heard that Exequiel had been shot and that, since several inmates had been executed, the Commanders of Granada had been arrested and discharged from the army; that there were only two or three innocent persons among those executed and that he could not lie to the relatives because he did not want them to go into any expenses; that several arbitrary acts had been committed in Granada in those days and that he could not do anything about it.

Due to complaints received by the Commission before conducting its on-site observation in Nicaragua, the Commission also opened the following cases relating to executions in "La Pólvora":

Case 7063: Gabino Velásquez Meza

On July 23, 1979, Gabino Velásquez Meza, adult, former private in the defunct National Guard, surrendered to the "La Pólvora" Command in the city of Granada, due to the fact that he had been told that "the boys" were looking for him. Believing that his physical safety would be guaranteed he surrendered to the new authorities accompanied by his wife and children.

And so, during the next two days we were able to send him food and he sent us pieces of paper; thus, we were able to verify that he was there. However, on the third day of his stay at "La Pólvora" a militiaman stationed there told us that he had been transferred to the "Modelo" Jail. This information was confirmed by a Commander by the name of Lang who was one of the officers in charge of that jail.

Ever since that date, we have looked for Gabino without rest, not only in the "Modelo" Jail but in other penitentiaries as well, but until now, that search has been fruitless.

It is for the reasons described here that I resort to you so that you may assist me in determining his whereabouts and whether he is dead or alive since there are rumors that there were executions in that Command.

Case 7237: Jorge Villalobos Toruño

Jorge Villalobos Toruño, 45 years of age, married, a chauffeur, was arrested on July 26, 1979, in the city of Granada and taken to the "La Pólvora" from where he disappeared on July 29. According to relatives of the prisoner, they were told that Commander "Wilmer" supposedly gave the order that he be executed. However, some time later, other persons claim to have seen him in the Model Jail and that he was incomunicado.

Case 7315: Gustavo Adolfo Marin Guzmán

On July 24, 1979, Gustovo Adolfo Marin Guzmán, an army private, adult, and residing in Granada, surrendered to FSLN authorities and was confined in the "La Pólvora" Jail under the charge of Commander Marvin González Ruiz, known by the alias "Wilmer", who later gave the order for his execution. Neighbors of the Santa Ana Ranch area, on the road to Los Malacos, Department of Granada claim to have seen the body of this gentlemen together with the remains of Dr. Francisco Mayorga Ramírez.

Case 7318: Luis Martínez Mercado

On July 25, 1979, Mr. Luis Martínez Mercado, adult, former member of the National Guard, was confined in the "La Polvora" jail. He was later taken to an unknown destination by order of Commander Marvin González Ruiz, known by the alias "Wilmer", and we were informed that mass executions were carried out. Nothing is known of his whereabouts. It is presumed that he has been executed.

Case 7308: Cristóbal Vargas Rocha

Cristóbal Vargas Rocha, 24 years of age, single a former member of the National Guard residing in Granada, was arrested on Sunday July 24, 1979. The reasons for his arrest are not known. Through a militiaman who was on duty at "La Polvora" (Granada jail), it was learned that at 11:00 a.m. on July 26, 1979, some prisoners were taken to a place near the Lake Granada shore where they dug their own graves.

The person in charge of the Command was called "Wilmer", whose name is Marving González Ruiz, and is directly responsible for these mass executions.

The Commission has received the following information with respect to this case of Cristóbal Vargas Rocha:

However, in my desperation, I have investigated and questioned a militiaman, whose name I cannot reveal, who told me one day as he was on duty at "La Pólvora," to stop looking for Cristóbal, it was in vain because on Thursday, July 26, at approximately 11:00 p.m., a truck-load of prisoners, approximately 50, were taken out of "La Pólvora" to the Diamonte, a rice field located near the Lake Granada shore, also known as Asese. They were made to dig gigantic ditches which took almost two hours and then, at one o'clock in the morning, they proceeded to execute them and bury them there. This young man told me that he was able to identify Cristóbal among those executed.

b. In a written communications of April 24, 1980, May 27, 1980, June 5, 1980, and June 10, 1980, the Commission transmitted the pertinent parts of the complaints of the "La Pólvora" cases cited.

c. On May 5, 1980, the Commission received the following response in reference to the whereabouts of Dr. Rivas Guillén:

There are unconfirmed reports that Dr. César Rivas Guillén died on one of the last days of the war to liberate our homeland, or during the days immediately after the victory of the Sandinista Revolution, but it has not been possible to determine the circumstances surrounding his death.

It is know, however, that he was held prisoner at "La Polvora" for seven days, where his brother visited him and took him od. On July 29, 1979, he informed his brother that he was incomunicado. He has not been seen again since that day.

d.            Information available to the Commission on this case indicate that:

The Criminal Court of Granada, by an order issued at 12:00 a.m. on October 9, 1979, instituted proceedings to investigate the events which took place at "La Pólvora" by virtue of a complaint registered by Mrs. Marlene Taleno de Mayorga, wife of Francisco Mayorga Ramíez (Case 7057), one of the persons allegedly executed. These proceedings include testimony of witnesses, inspection of the places where the bodies were supposedly buried and the testimony of Marvin González Ruiz, singled out by the complainant as the person responsible for "La Pólvora." Later on, on March 18, 1980, the same Court, by virtue of complaints registered by Mrs. Elia Vargas de Urbina and Mrs. Miriam Cruz Cajina, instituted proceedings to investigate the deaths of their sons Julio César Urbina Luis, Amadeo and Hernaldo Cajina.

In accordance with the Criminal Code, these two proceedings, which concern the same events, must be combined and the same Judge has the power to investigate and punish those responsible for the deaths and any other connected crimes which the proceedings may reveal, even if they were not the subject of specific complaint registered with the Court.

e. In all of the other cases, the Commission has received no response from the Government of Nicaragua regarding the alleged complaints.[1]

f. In all of these cases the Commission has repeatedly requested information from the Government of Nicaragua.

2.          The IACHR agreed in its Resolution 12/83, to include this Resolution in the Annual Report to the General Assembly of the Organization of American States, in accordance with Article 50 (4) of its Regulations, without prejudice to the possibility that it reconsider the Resolution upon further study depending on the measures adopted by the Government of Nicaragua.

3.          This Resolution was communicated to the Government of Nicaragua by way of a note of July 8, 1983.

4.          The Government of Nicaragua, by note Nº 171 of September 2, 1983 asked that the Resolution in question Nº 12/83 be reconsidered stating in its communication the following:

I address you with reference to Resolution number 12/83, the case of "La Pólvora", approved by the Honorable Inter-American Commission on Human Rights a its 791st Session celebrated on July 1, 1983, regarding the alleged illegal executions.

From a simple reading of the complaint it is apparent that the supposedly responsible official for the alleged mass execution was Mr. Marvin Gonzalez Ruiz.

Regarding the complaint in Case Nº 4566 (Dr. Cesar Rivas Guillén) the Inter-American Commission on Human Rights itself received a response from the Government of Nicaragua, in the sense that according to unconfirmed information, "he had not perished in the final days of the war of liberation in Nicaragua nor during the first days following the triumph of the Sandinista Revolution, but rather that it has not been possible to clarify the exact circumstances in which his death occurred."

In case Nº 7057 (Dr. Francisco Mayorga Ramírez) and Julio César Urbina, Luis Amadeo and Hernaldo Cadina, the Judge of the Criminal Court of Granada, in accordance with the Penal Code, joined these two cases which arose from the same fact situation.

One of the problems in the trial dealing with "La Pólvora" is the lack of cooperation with the authorities by the persons concerned. For example, in several cases the trial court did not receive any complaints.

However, the Government of National Reconstruction, in its observations and comments to the report to the Inter-American Commission on Human Rights on the situation of human rights in Nicaragua (OEA/Ser.P/AG/CP/doc 296.81, p.53) of October 14, 1981, stated that "such cases are under judicial investigation and for that reason internal judicial remedies have yet to be exhausted.

Likewise, on May 18, 1981 the Supreme Court of Justice instructed the District Judge of Granada to continue the investigation of the case.

On March 7, 1983, Dr. Augustin Cruz Pérez, Judge of the Criminal District after taken the testimony from the witnesses:

Monsignor Leovigildo Lopez Fitoria, Bishop of the Catholic Grey of Granada, Guillermo Alejandro Ibarra Salgado, Victor Manuel Ordoñez, Manuel Salvador, Joaquín and Norman Guerrero Mena, concluded: "that it is not possible to determine, based on the evidence, that Marvin Gonzalez Ruiz, "Wilmer" was legally responsible for the events under investigation. He added that "there is no evidence that he was committed the crime, was an accomplice thereto or participated in a cover up of the same". In his written verdict he found that the crimes had been committed but that the accused was not responsible for them.

The Inter-American Commission on Human Rights, in its Report (OEA/Ser. L/V/II.53, doc. 25, June 30, 1981, page 38) points out that "almost all of the cases refer to events that occurred in the month of July, 1979 within a few days of the change of Government, when fighting was still taking place in different parts of the country and when various armed groups existed and acted in the name of the Sandinist Front for National Liberation but refused to accept any central authority."

The Judge of the Criminal District of Granada, in the same judicial finding, indicated "that it is not possible to exactly identify the persons, who according to the witness, detained Dr. Mayorga, nor to which Military Unit they belonged, where they were posted, if they were truly Sandinist soldiers or not, nor if they belonged to the militia or were simply armed civilians. And he adds that "when the Revolution was only a few days old, a large number of persons had arms constituting what technically could be called irregular rebel forces opposed to the Somoza regime."

The Honorable Inter-American Commission on Human Rights recognized this situation in its June 30, 1981 Report (page 67, paragraph 1) when at stated: "Nicaragua, in those first days, experienced anarchy and non-government, the inevitable consequence of the change that took place. During that period the country had no public administration, police force or functioning courts."

It is clear that in conformance with Article 39 of the Regulations of the Honorable Inter-American Commission on Human Rights, that the certified judgment I have attached hereto is an element of proof that contradicts the testimony of the complainants in the "La Pólvora" case, and which continue to be investigated by the judicial authorities of Nicaragua since the judge's holding has been sent to the Court of Appeals, Criminal Branch of the City of Granada which is carefully reviewing the matter. Therefore, the judicial investigation is continuing and the internal remedies have yet to be exhausted.

Article 34 of the Regulations requires the exhaustion of internal remedies before a petition may be admitted by the Honorable Commission which explains why the Government of Nicaragua deplores the decision taken by the Commission particularly since the Commission knows full well the situation through which Nicaragua passed in the first few days after the triumph of the Revolution, the fact that there were no police, nor an army nor a functioning judiciary.

As a result the Government of Nicaragua has the firm hope that the Commission will reconsider Resolution 12/83, the case of "La Pólvora", in light of this explanation which demonstrates the contradiction between the conclusions arrived at by the Inter-American Commission on Human Rights itself in its 1981 Report that there was "non-government and anarchy" and subsequently the imposition of this extremely serious resolution.

What is more, the case has not been closed and the judicial investigation is continuing at the appellate level as has been explained.

WHEREAS:

1.          That the Government of Nicaragua, within the time frame established by the Commission, has requested reconsideration of Resolution 12/83 of July 1, 1983, for which reason it is proper to reexamine the case.

2.          That the Government of Nicaragua alleges that internal remedies available under national law have not yet been exhausted and that the case continues to be investigated. The Commission believes that this allegation is without merit in accordance with Article 46.2 c) of the American Convention which establishes that the defense of failure to exhaust internal remedies can not be employed when there has been unjustified delay of the case, since to date, despite the period of time which has transpired, there has not been a firm willingness on the part of the Nicaraguan authorities to conclude their investigation and punish those responsible for the crimes in question.

3.          That the members of the Commission have a moral conviction regarding the veracity of the complaints, a belief arrived at as a result of their own observations and the information and testimony taken during their on-site visit to Nicaragua.

4.          That the Commission, as it indicated in its Special Report on that country, is not unaware of the lack of government and anarchy which prevailed during the first days of the revolution, the inevitable result of such a charge, a period during which there was no public administration, police force or functioning judiciary, but this fact does not imply that the events under consideration in this case, and about which the Commission is convinced, do not constitute violations of rights contained in the American Convention on Human Rights, to which Nicaragua is a party.

RESOLVES:

1.          To reconsider and set aside Resolution 12/83 of July 1, 1983.

2.          To deplore the delay in conducting the judicial investigation, which has meant that to date those responsible for the crimes in question have gone unpunished.

3.          To declare that cause of action in this case constitutes an extremely serious violation of Articles 4 (Right to Life), 7 (Right to Personal Liberty) and 8 (Judicial Guarantees), of the American Convention on Human Rights.

4.          To recommend that the Government of Nicaragua conclude its investigation of this case as soon as possible to fix the responsibility of those persons guilty of the illegal executions which took place at the "La Pólvora" Prison, so that they might be appropriately punished under law and that the Government so inform the Commission as to the measures it has taken.

5.          To communicate this Resolution to both the Government and the complainants.

6.          To include this Resolution in its Annual Report to the General Assembly of the Organization of American States.