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RESOLUTION Nº 2/86 CASE
9144 NICARAGUA April
16, 1986 HAVING
SEEN: 1. The petition
received on July 6, 1983 by the Inter-American Commission on Human
Rights reporting the disappearance of: JOSE
GIOVANNI ULLOA PERALTA, aged 22 years, a bachelor, electrical fitter,
and resident of Corinto, Department of Chinandega. He was arrested on
January 2, 1983 by border guards at a place known as Las Manos, and
was subsequently taken to La Soledad Ranch. Since then the members of
his family do not know where he is detained. LUIS
ALONSO DIAZ RIVERA, aged 22 years, bachelor, farmer and a resident of
the Breyera Area, Pantasma District, Department of Jinotega. He was
arrested on January 15, 1983 in Wiwili, Jinotega Sector. Members of
his family have been looking for him in Jinotega and Matagalpa but
have been unable to locate him. 2. The pertinent
parts of this petition were transmitted to the Government of Nicaragua
under the note of August 18, 1983, which requested it to provide such
information as it deemed pertinent as well as any information that
would make it possible to ascertain whether in the case that is the
subject matter of this petition, the remedies of domestic law had been
exhausted. 3. The
communication of January 28, 1985, transmitting additional information
concerning Mr. JOSE GIOVANNI ULLOA PERALTA provided by the petitioner,
who stated that: ...for
the purpose of locating the above-mentioned prisoner, contacts were
made with the person in charge of the State Security Directorate, the
Representative of the Ministry of the Interior in the Department of
Estelí and the Officer in Charger of the Border Guards located in Las
Manos, but no reply was received to our request for information. However,
on June 24, 1983, the family members of the above-mentioned prisoner
reported that Mr. JOSE GIOVANNI ULLOA PERALTA had been found dead in
the city of Ocotal and his remains had been delivered to them by a
soldier who identified himself to them as Capt. Agurcia, and
officially informed them that a member of the Border Guards named
Israel Pince had been responsible for the death and that he had been
arrested and would be tried for that crime. Despite
what was stated on that occasion by the above-mentioned Capt. Agurcia,
the family members reported that they had reliable information that
the person responsible for the death of the deceased JOSE GIOVANNI
ULLOA PERALTA was at present free and that the competent authorities
had not made any investigations on the death of the prisoner nor
sanctioned the guilty party who had been positively identified. 4. The
communication of January 17, 1985 which repeated the request for
information transmitted by the notes of August 18 and November 28,
1983. 5. The repetition
of the request for information made by means of the communication of
February 19, 1986 which informed the Government of Nicaragua that,
should the information requested not be provided within a period of
thirty days, the facts reported would presume to be true. 6. The approval of
Resolution 2/86 by the IACHR and the transmittal of the same to the
Government of Nicaragua in order for it to present whatever
observations it deemed relevant within 60 days. 7. The
observations presented by the Government of Nicaragua concerning the
situation of Jose Giovanni Ulloa Peralta and Luis Diaz Rivera. CONSIDERING:
1. That the
Government of Nicaragua had not replied to the request for information
made by the Commission concerning this case and that, in addition, the
requirements of domestic law have been exhausted. 2. That because of
their nature, the facts that are the subject matter of the petition do
not permit the application of the friendly settlement procedure in
this case. 3. That Article 42
of the Regulations of the Commission stipulates the following: The
facts reported in the petition whose pertinent parts have been
transmitted to the government of the State in reference shall be
presumed to be true if, during the maximum period set by the
Commission under the provisions of Article 34, paragraph 5, the
Government has not provided the pertinent information, as long as
other evidence does not lead to a different conclusion. 4. That, in
addition to not replying to the repeated requests for information, the
Government of Nicaragua has not so far permitted a member of the
Commission and an official of the Secretariat to go to that country in
order to clarify certain aspects relating to this case, pursuant to
the provisions of Article 48.1, d of the American Convention on
Human Rights to which Nicaragua is a State Party. 5. That the
petitioner has provided convincing information of the events
surrounding the arrest and subsequent death of José Giovanni Ulloa
Peralta. 6. That having
transmitted Resolution 2/86 to the Government of Nicaragua, it
presented the following observations: That
Mr. Jose Ulloa was killed by a member of the Border Patrol of the
Popular Sandinista Army, Mr. Israel Ponce, who was judged and whose
case was dismissed by the Military Tribunal of Esteli, in a judgment
issued November 20, 1983, at 12 noon, having found that he acted in
legitimate self-defense. The
facts occurred as follows: On December 31, 1982, the soldier Israel
Ponce was in charge of an operative of the Popular Sandinista Army's
Border Patrol, in a place known as La Laguna, in the Dipilto
jurisdiction, when at 10:00 a.m. a man appeared, attempting to flee
the country illegally. Israel Ponce decided to approach him, unarmed,
leaving his men behind and hidden. The individual, who was Ulloa
Peralta, upon seeing him took him for a counterrevolutionary and told
him that he was looking for a way to leave the country since he was
against the Government, and had participated in some actions such as
blowing up the bridge over the Rio Negro. Having determined that Ulloa
Peralta was a counterrevolutionary, Israel Ponce--who was
unarmed--called one of his men to arrest him. Realizing that he was
about to be arrested, Ulloa hurled himself at the soldier Carlos
Cristino, taking his weapon, which was the reason for which Israel
Ponce, in assistance to his subordinate entered into physical combat
with Ulloa Peralta, a struggle which culminated in the death of the
latter. 7. That the
response of the Government reveals serious inconsistencies, regarding
not only the differences of date and place of the arrest and death of
Ulloa Peralta, but also the fact that it is difficult to understand
why a notorious event, such as the death of a person in combat, was
not immediately communicated to his parents, but was only communicated
months after the event and when his detention was already acknowledged
by the Nicaraguan authorities, facts which determine that the
Government's version of the events does not contain elements which
permit the IACHR to modify its conclusion adopted in the Resolution
concerning Ulloa Peralta. 8. That the
Government of Nicaragua in its observations to Resolution 2/86 affirms
that "with respect to Mr. Luis Díaz Rivera, the relevant
authorities inform us that he had not been detained and that his
present whereabouts are unknown," a response which does not
constitute evidence sufficient to modify the Commission's conclusion
in this Resolution. In
view whereof: THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES: 1. To consider
true the facts reported in the communication of July 6, 1983
concerning the arrest and subsequent death of Mr. José Giovanni Ulloa
Peralta and the arrest and subsequent disappearance of Mr. Luis Alonso
Díaz Rivera. 2. To declare that
the Government of Nicaragua has violated the right to personal liberty
(Article 7) and the right to life (Article 4) embodied in the American
Convention on Human Rights to which Nicaragua is a State Party. 3. To recommend to
the Government of Nicaragua that it order a thorough investigation of
the facts reported in order to identify the persons responsible,
prosecute and punish them in accordance with the law and adopt all
necessary measures for preventing the repetition of such serious
events. 4. To confirm
Resolution Nº 2/86, to publish it in the Annual Report pursuant to
Article 63, g of the Commission's Regulations, and to
communicate it to the complainant.
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