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OEA/Ser.L/V/II.74 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION NICARAGUA The Commission has taken special care to observe developments in the human rights situation in Nicaragua during the period covered by this report. This section updates and expands on information provided by the IACHR in the Special Report that it prepared on Nicaragua in 1981, in its report on the friendly settlement procedure in reference to the human rights situation pertaining to Miskito Indians, and in the corresponding sections of the successive annual reports from 1982 to date. During the period covered by this Annual Report, the Commission engaged in specific activities in Nicaragua. Thus, a visit conducted by Dr. Marco Tullio Bruni-Celli, at that time First Vice Chairman, accompanied by the Executive Secretary, Dr. Edmundo Vargas Carreño, Mr. Luis F. Jimenez, attorney in charge of Nicaraguan affairs, and Mrs. Nora Anderson. The visit took place from January 19 until January 24, 1988 and its purpose was to analyze 50 individual cases being processed, and to obtain a first hand impression about the complex situation of human rights in Nicaragua. During that time, two working meetings were held with officials in charge of the cases being processed, on Tuesday the 19th, and on Sunday the 24th, at which time the specifics of the status of the cases were discussed. With regard to official meetings, the IACHR delegation was able to meet with the President, Comdr. Daniel Ortega, the Vice President, Dr. Sergio Ramírez Mercado, the Foreign Minister, Rev. Miguel D’Escoto, the National Assembly, Cmdr. Carlos Núñez, the President of the Supreme Court, Dr. Alejandro Serrano, the Minister of Justice, dr. Rodrigo Reyes, the President of the National Commission for the Protection and Promotion of Human Rights (government agency), Dr. Vilma Núñez de Escorcia, and the Deputy Chief of the National Penitentiary System, Deputy Commander Alvaro Guzmán. With regard to private groups, the Commission met with representatives of the Permanent Human Rights Commission, members of the January 22 Movement of Mothers and Relatives of Political Prisoners, and also with leaders of political opposition parties represented in the National Assembly: Antonio Jarquín Rodriguez and Mauricio Díaz Dávila of the Partido Popular Social Cristiano, Luis Sánchez, Sancho and Domingo Sánchez Delgado, of the Nicaraguan Socialist Party, Carlos Cuadra Cuadra of the Marxist-Leninist Party of Nicaragua, and Frank Duarte Tapia of the Conservative Democratic Party of Nicaragua. The Subcommission also met with the Democratic Coordinator, a political opposition organization that withdrew from the 1984 electoral process and which is therefore not represented in the National Assembly. Fourteen members of that organization, headed by its Chairman, Carlos Huembes Trejos, met with the subcommission on the premises of the newspaper “La Prensa.” The members of the subcommission also met with persons living in areas of conflict and who came to talk about various types of situations, in particular, the abductions of relatives by the irregular forces that kept them in their power. In the course of its visit, the delegation of the IACHR visited the Tipitapa “Carcel Modelo,” (Model Prison) the “Esperanza” Women’s Detention Center and the State Security Prison known as El Chipote. During its visits to the Tipitapa Prison, it held lengthy meetings with prisoners, who discussed the circumstances of their trial. During the first part of the period covered by this Report, the state of emergency continued in effect in Nicaragua. As the Commission noted in the previous Annual Report, the Government of that country had expressed its willingness to life the state of emergency once the reasons that had given rise to it ceased to exist. These reasons were the external aid received by armed combatant groups. Notwithstanding, and although the circumstances have not changed, the state of emergency was lifted on January 19, 1988 following the meeting of five Central American presidents in San José, Costa Rica. The authorities have stressed that they took that action to comply with the Peace Process, despite the fact that a state of armed conflict, which gave rise to the state of emergency, still persists. The reactions that the IACHR has received have varied. Some sectors of the opposition maintain that the lifting of the state of emergency has not implied a concrete improvement in the human rights situation. In other measures, such as amendments in media legislation and in the law on keeping the public peace (Ley de Mantenimiento del Orden y Seguridad Pública). The Nicaraguan authorities have said, in this regard, that those laws are a matter for consideration by the National Assembly. The Commission considers the lifting of the state of emergency to be a positive step. In addition to restoring the validity of rights the exercise of which had been suspended, this move helps to consolidate the peace process, and thereby, bring about conditions more conducive to furthering the effective observance of human rights in Nicaragua. The specific effect that the lifting of the state of emergency has had is to restore the full validity of the remedy of habeas corpus, an area to which the Commission has made reference in its previous annual reports. In point of fact, Nicaraguan emergency legislation has permitted suspension of the remedy of habeas corpus in cases involving deprivation of freedom under the provisions of the law on keeping the public peace. These provisions have been maintained under the Constitution of Nicaragua, which led the Commission to conclude, in its 1986-1987 Annual Report, that those provisions were incompatible with the legal system deriving from the American Convention on Human Rights to which Nicaragua is a party, a view that coincided with that of the Inter-American Court of Human Rights. It should be noted, in relation to this topic, that the National Commission for the Protection and Promotion of Human Rights had held the view that the remedy of habeas corpus was applicable even under the state of emergency, and to persons deprived of their freedom, under the provisions of the Law on keeping the public peace, when the purpose was to ascertain the reasons for the arrest, determine the whereabouts of the person arrested, and protect his or her life and personal safety, including the possibility of ascertaining that person’s state of health. With the lifting of the state of emergency and the exercise of the remedy of habeas corpus fully restored, discussion of the subject has been resolved. The Commission hopes, nonetheless, that any doubt that persists will be dispelled with incorporation of the constitutional, clear provisions relative to the permanent validity of the remedy of habeas corpus, even when the state of emergency is decreed. The Commission, for its part, will continue to observe the practice of the Nicaraguan courts and the authorities in the matter of the practical observance of the petitions presented. In relation to the right to justice and a fair trial it would be appropriate to note that during the period covered by this Report, the Tribunales Populares Antisomocistas (People’s Anti-Somoza Courts) were dissolved through Decree No. 296 of January 19, 1988. As a result, cases handled by those Courts were referred to the regular courts. Ever since they were established, the IACHR has expressed reservations regarding the composition of those Courts as well as the procedures they applied. Subsequent experience confirmed the serious irregularities that arose as a result of the manner in which those people’s courts functioned, in the matter of due process. The Commission should note, however, that it has received various indications that would tend to abate the importance of the abolition of those Courts. It has in fact been noted that the regular courts continue to apply the Law on Keeping the Public Peace to try persons arrested for motives considered to be political and to use summary procedures that are very similar to those used by the TPAs. Added to this, as reported, is the subordination of the Judicial Power to the Executive Power, which helps to attenuate the importance of the measure under discussion in relation to the validity of the right to due process. The resignation of three members of the Supreme Court of Justice–magistrates Hernaldo Zuñiga, Santiago Rivas and Rodolfo Robelo–for failure on the part of Nicaraguan authorities to comply with court and judgments is given as an indication of that subordination. Also, in this regard, it is said that political activities, in reference to the right of assembly, are increasingly subject to judges of police courts, who have the power to hand down sentences, which can be anywhere up to six months of imprisonment, based on the Police Regulations that govern with the amendments that were introduced by the 1964 Decree No. 1030. An example that is cited here are the arrests of 35 persons in Nandaime on July 10, several of whom were purported to belong to the opposition, and whose situation is described under the heading, political rights. The respective judge of the police court sentenced these persons to six months in prison. The Commission is of the view that resort to police judges in cases such as these is not an adequate guarantee of due process. The Nicaraguan authorities have, in turn, said that they are willing to work toward surmounting the many limitations that the administration of justice experiences. To do so, despite the serious constraints as regards financial resources, they have appointed nine new judges to take over the processing of cases being brought before the People’s Anti-Somoza Courts. In addition, the judicial authorities have said that a new salary classification has been worked out for judges and attorneys, courts of second instance have been expanded, and a partial amendment has been made in the law on criminal proceedings. In the Commission’s opinion, the abolition of the People’s Anti-Somoza Courts is a positive, albeit burgeoning, measure aimed at remedying the distortions that exist in due process in the Nicaraguan administration of justice. The case of Mrs. Nora Aldana, arrested last May in Nicaragua, is one which, in the judgment of the Commission raises serious questions about the rights to due process in that country, and the Commission hopes that the irregularities in this case will be corrected in subsequent proceedings currently underway. The independence of the Judiciary is an essential element in any political system where the rule of law is a true priority, and accordingly, the Commission will continue to observe closely compliance on the part of the administrative authorities with judicial decisions. During the period covered by this report, numerous events had varying effects on the right to personal freedom. In Nicaragua, persons who have been deprived of their freedom for reasons rooted in political circumstances may be divided into two categories: the former National Guards and other persons sentenced by the Special Courts between 1979 and 1981, and those sentenced by the People’s Anti-Somoza Courts, under the provisions of the Law on Keeping the Public Peace, for activities deemed to be at variance with state security. It should be noted, first of all, that on November 29, 1987, the Government of Nicaragua proceeded to pardon 985 persons. Of these, 779 had been arrested and convicted for violating the law on keeping the public peace, and 206 had been sentenced by the Special Courts. This measure was taken as a result of the Esuipulas II Agreement signed on August 7, 1987, which states the following: In each Central American country, except where the International Committee for Verification and Follow-up determines that it is not necessary, decrees for amnesty shall be issued that will establish all of the provisions to ensure inviolability of life, freedom in all of its forms, material property and safety of the persons to whom those decrees are applicable. Simultaneously with the issuance of the amnesty decrees, the irregular forces of the country concerned shall release all persons in their power. On November 19, 1987, the National Assembly passed a law on amnesty. Under the provisions of this law, all persons serving sentences handed down the by the People’s Anti-Somoza Courts could benefit. There are two conditions under which the provisions of this law will enter into effect: an end should be put to the use of the territories of the Central American countries to attack others and there should be an effective end to US aid to the Nicaraguan Resistance. During the IACHR subcommittee’s visit to Nicaragua during January of 1988, mentioned earlier, the Nicaraguan authorities said that the various problems raised in connection with persons deprived of their freedom for political reasons should be solved gradually, by two means: on the one hand, an amnesty that would apply to those sentenced by the People’s Anti-Somoza Courts, an amnesty that was linked to a cease-fire to be worked out in the conversations with the Nicaraguan Resistance, since according to those authorities, peace should first be secured, and then amnesty, so as to avoid persons released joining in armed activities against them. Moreover, the Government said it was willing to expedite the process for granting pardons to those sentenced by the Special Courts. Insofar as the subject of amnesty was concerned, the government authorities consistently endorsed their position, which is that, within the framework of the Esquipulas II Agreement, that amnesty should be subordinated to the principle of simultaneity. According to that principle, such a commitment would become valid at the same time as other commitments, and in particular, those in reference to the discontinuance of external aid to armed groups and nonuse of the territories of certain states to impinge upon the security of others. Regardless of whether or not the cease-fire is achieved, on January 18, 1988, President Ortega publicly offered to release those persons who would be taken in by any country other than a Central American country. He later repeated this offer personally to the subcommittee. He further said that those persons could return to Nicaragua once the war was over. The President specifically said that his offer did not extend to a small nucleus of former National Guards who have convicted for according to what he described as atrocious crimes. On March 23, 1988, the Constitutional Government of Nicaragua and the Nicaraguan Resistance agreed to the following in point 3 of the Sapoa Accords: The Government of Nicaragua will decree a general amnesty for those tried and convicted for violations of the public security law, and for members of the army of the previous regime for crimes committed before July 19, 1979. In the case of the first group, the amnesty will be gradual. Taking into account the religious sentiments of the Nicaraguan people on the occasion of Holy Week, on Palm Sunday the first Nicaraguan Resistance forces have entered the mutually accorded zones, 50% of the remaining prisoners will be freed. The other 50 percent will be freed at a date following the signing of a definitive cease-fire, which will be agreed at the meeting in Managua on April 6. In the case of the prisoners mentioned in the final part of the first paragraph of this numeral, their release will begin at the moment of signing a definitive cease-fire, following judgment by the Inter-American Human Rights Commission of the Organization of American States. As a result of the commitment assumed, the Government of Nicaragua released 100 prisoners on March 27, 1988. The Commission, for its part, carried out a number of actions based on the Amnesty provided for in Point 3 of the Sapoá Agreement. Thus, personnel of the Executive Secretariat traveled to Managua during April of this year for the purpose of examining the case files of trials conducted by the Special Courts of Justice. When the study was completed, the Commission met from May 9-11, 1988 at its headquarters in a special session for the purpose of preparing its report. This was approved and sent to the Secretary General on the basis of Article 41.e of the American Convention on Human Rights on May 11. With respect to the number of persons imprisoned for political reasons, it should be mentioned that information provided by the International Committee of the Red Cross, based on a census it conducted at the various detention centers of the National Penitentiary System from February 25-27 of 1988, indicates that at that time there were 1,822 prisoners sentenced by the Special Courts and 1,532 others condemned for various activities considered to be contrary to state security. The National Commission for the Protection and Promotion of Human Rights–agency of the Government of Nicaragua–reports that as of April 15, 1988, 1,823 persons had been sentenced by the Special Courts. According to the same source, there were approximately 1,005 who had been sentenced by the People’s Anti-Somoza Courts, and 367 persons were being tried. The Permanent Commission of Human Rights in turn considers that as of June 17, 1988, there were “not less than 6,200 prisoners accused of being counterrevolutionaries, and approximately 2,000 prisoners accused of having belonged to the National Guard.” This agency explains the marked differences with the figures provided by the CICR and the CNPPDH, maintaining that there are several detention centers in Nicaragua to which those institutions had been denied entry. The National Penitentiary System provided the IACHR with the provisional list of prisoners sentenced by the Special Courts, who were serving sentences as of April 9, 1988 so that it might review the files in the Attorney General’s Office, by virtue of the consultation made by the Government of Nicaragua within the framework of the Sapoá Accords. The list provided on that occasion included 1,833 persons. That list was finally readjusted on April 14, and included 1,824 persons. The Commission should note that it has found the Nicaraguan authorities to have a positive attitude as regards solving the problems of persons deprived of their freedom for political motives. The Commission hopes that any progress achieved in the peace process now under way would have a beneficial impact on personal freedoms. With regard to exercise of the right of freedom of expression, significant events have also been registered during the period covered by this report. Section 3.2 of the Esquipulas II Agreement on the democratization and process establishes that “there shall be freedom of the press, radio, and television. This complete freedom shall include opening and keeping in operation mass media for al ideological groups and operating those media without subjecting them to prior censorship.” It should be noted that that commitment was reaffirmed in the Sapoa Accords on March 23, 1988. As explained in the previous Annual Report, on September 20, 1987, the newspaper La Prensa was given authorization to circulate. That newspaper started publishing on October 1. On September 22, 1987, the Catholic radio station also received authorization, and started broadcasting on October 3. On November 25, it started to broadcast news, when it received authorization to that effect. The Government further announced the lifting of the prior censorship, even though, as it stated, the state of emergency continued in effect due to the continuation of the armed conflict that had given rise to it. It was noted that at that time, however, that the authorizations granted also implied that the media legislation (Ley de Medios de Comunicación) continued in effect. According to that Law, the authorities of the Ministry of the Interior can apply administrative sanctions without the affected parties having the opportunity to respond to the charge, which is not provided for in the procedure established in that law. Once the state of emergency was lifted, decrees 511, 512, 515 of 1981, which lay down restrictions on reporting on military confrontations or on the economy of the country, if such information has not been confirmed by the respective ministry, were again put into effect. The newspaper La Prensa, was published without interruption until April when publication was suspended because of lack of paper. Government officials had indicated that the shortage is the result of the trade embargo endured by the country because of the United States, and that the system of distribution of paper quotas among Nicaraguan newspapers has been the subject of negotiation and agreement between the management of those newspapers and the government. The management of the newspaper said that at issue was discriminatory treatment toward La Prensa by the government authorities, which favored newspapers portraying official positions. The Permanent Human Rights Commission agreed with these arguments. On July 11, 1988 the Ministry of Interior suspended the publication of the daily newspaper La Prensa for a period of 15 days following the events of Nandaime. The Government of Nicaragua considered that La Prensa had repeatedly violated the Media and Communication Law, conducting a systematic campaign which threatened the security of the Nicaraguan State. On July 27, 1988 the daily La Prensa, began to publish anew. With regard to radio broadcasting, it should be noted that on May 4, 1988, the church program on the catholic radio station and “The People” on “News Radio,” “The Nicaraguan” on “World Radio” and news on “Radio Corporación” were suspended for eight days. Those news media had reported that a worker on a hunger strike, Rafael Blandón Ubeda, had died as a result of torture inflicted by the Sandinista Police. The worker was presented to the press alive, without any trace of torture and the news media were penalized for not previously confirming the contents of the information. “Radio Noticias” and Radio Corporación” appealed the decision of the Ministry of the Interior and the sanctions were lifted and reduced to 24 hours, respectively. The Government reported that the other news media should appeal the measure to benefit from similar decisions. On May 20, 1988, air space on the radio for the program “Iglesia” (Church) was suspended for four days on the basis of the provisions of Decree 708, which demands that the contents of certain types of news be verified before being published. In the specific case, the authorities felt that the statements of a commander of the irregular forces fighting against the Government should have been confirmed with the Ministry of Defense and with the Ministry of the Interior before being reported on the air. The Managing Director of “Radio Católica” denied that there had been any type of violation, although he announced that he would not appeal the measure, since the decisions of the Ministry of the Interior responded to political reasons and not to the law. On June 1, 1988, a new suspension was applied to the program “Iglesia,” and this time, it was for eight days. The suspension was based on the provisions of the media legislation–Articles 1.c and 3, paragraph 4 (Ley de Medios de Comunicación)–and the reason was for broadcasting the version of the representative of the Nicaraguan Resistance in Miami on the appearance of commander Alfa Lima at the “Las Mercedes” Hotel in Managua before 200 reporters. On June 16, 1988, the Director of the Media of the Ministry of the Interior stated that because of the excesses perceived by the Government in news reporting, the media legislation and supplementary decrees would be applied strictly. She noted that this was basically a response to the need to verify the contents of sensitive information and not a means of promoting voluntary censureship. Rather, the idea was to apply a law that was necessary, given the times being experienced by Nicaragua. A meeting with the management of the media had been confirmed to advise them that the Government would begin to act as she had indicated. On July 11, 1988, following the demonstration at Nandaime, Radio Católica was closed down for an indefinite period. The reasons given by the government were that the station had continually provided information which constituted pro-war “propaganda” and incited violence. Raido Católica was authorized to return to the air on August 18, 1988 but was not allowed to broadcast news programs. It should be noted in regard to exercise of the right to freedom of expression that since August of 1987, the “Consejo Superior de la Empresa Privada (COSEP)” has requested the corresponding authorization to install a television channel, but that to date, that authorization has not been granted. The numerous events linked to the exercise of political rights in Nicaragua during the period covered by this Annual Report have special relevance. There have been two major categories of events: on the one hand, those linked to dialogue with the internal civilian opposition; on the other hand, negotiations held with the armed opposition. Both have a decisive impact, and in turn, are part of a democratization process in which political rights are the basic components, recognized under Article 23 of the American Convention and that will lead to free elections. It is to this that the following paragraphs are addressed. The set of agreements that constitute Esquipulas II contemplates the various facets that it was felt could effectively lead to a democratization process: internal dialogue with the civilian opposition, amnesty for the rebels as a means of integrating in the political process, cessation of a deepening of the democratization process, which includes freedom of expression and the existence of full partisan political pluralism, which should lead to the calling of free elections. These internal agreements should complement other international conditional conditions, such as the discontinuance of aid to the insurgent forces and refusal to grant the territory of some states to attack others. In order to verify commitments in the matter of amnesty, cease-fire, democratization and free elections, the Esquipulas II Agreements contemplates the establishment of national reconciliation commissions. In the case of Nicaragua, on August 25, the National Reconciliation Commission was formed, with Cardinal Miguel Ovando Bravo as chairman. Monseigneur Bosco Vivas is the alternate representative of the Catholic Church. Participating for the government is Vice President Sergio Ramirez Mercado–who is also vice chairman of the Commission–and as alternate, the minister of the Presidency, René Nuñez. The political opposition parties are represented by Mauricio Díaz of the Partido Popular Social Cristiano, and Erick Ramirez, of the Partido Social Cristiano, as alternate. Prominent citizens in the community are represented on the Commission by Gustavo Parajón of CEPAD and Gonzalo Ramírez of the Nicaraguan Red Cross, as alternate. Regional reconciliation commissions have also been instituted. They are chaired by the bishops of the respective region and are located in government representatives, representatives of the Red Cross and of the political opposition parties. The purpose is to facilitate members of the irregular forces who wish to benefit from amnesty and who do not wish to join the Government of the Armed Forces. On October 8, 1987, the dialogue with the political opposition parties started. They key problem in the beginning was the request by the Democratic Coordinator to obtain both representatives and groupings. The government accepted to grant four, which led the Coordinator to abandon the dialogue. The Partido Social Cristiano did not do so, however, and this is the most important political force in that grouping. At the beginning of November, the three representatives of the Democratic Coordinator in the Dialogue were brought in. The National Dialogue is presided by Commander Carlos Nuñez who is also President of the National Assembly. On December 1 all of the opposition political parties delivered a proposal to Nuñez for the modification of various aspects of the Constitution approved in January. These included: the abolition of presidential reelection, limitation on the powers of the President of the Republic, elimination of voting by military personnel, the independence of armed forces from the Sandinist Front, reform of the electoral authority, reform of the judiciary in order to give it true independence, creation of an attorney general for human rights, creation of a court of constitutional guarantees, elimination of the Preamble to the Constitution, the granting of university and municipal autonomy, recognition of conscientious objectors and the effective separation between the State, political parties and the armed forces. The also requested modification of the electoral laws, an issue which acquires importance in light of the municipal elections of 1988 and the forthcoming elections for the Central American Parliament. The position of the Government is that there are certain demands that can be considered by way of specific laws and others that require constitutional amendments. The development of the National Dialogue has been frequently interrupted by disagreement between the parties and at this time serve more as an open option to achieve advances at some future time than as a source of important changes in the short term. With respect to the conversations held with armed groups of the Nicaraguan Resistance, it should be noticed that during the period covered by this Annual Report various initiatives were taken which have allowed for partial achievements that have as yet not culminated in definitive results. Thus, for example, the initial indirect contacts between the government and the Nicaraguan Resistance were effected through the mediation of Cardinal Obando, who subsequently was designated as a witness along with the Secretary General of the OAS, Joao Clemente Baena Soares, when the government agreed to hold direct talks with the representatives of the Resistance. The encounter at Sapoa led to the agreements signed on March 23, 1988, which aimed at important goals established in the Esquipulas Agreement. Such aspects, including a provisional cease fire, a definitive cease fire, the granting of amnesty, the supplying of the irregular forces and their concentration in agreed upon areas, freedom of expression and the incorporation of the Resistance into the democratization process underway, were included in the Agreement of Sapoa, which also established a verification commission under the charge of the witnesses. At the time this Annual Report was approved, the various meetings held between the Government of Nicaragua and the Nicaraguan Resistance under the Agreements of Sapoa have led to an important achievement: the extension of the provisional cease fire and a significant reduction of hostilities, consisting of a few isolated clashes. Other partial achievements include those in specific areas such as the studies conducted by the Inter-American Commission on Human Rights in relation to the cases of persons sentenced by the Special Courts of Justice. There remains much to be done in the process of the internal democratization and the achievement of unrestricted freedom of the internal democratization and the achievement of unrestricted freedom of expression necessary to put an end to the armed conflict which still plagues Nicaragua. The IACHR hopes that this conflict can be brought to a rapid conclusion in order to take advantage of those advances that have been achieved so that they might culminate in a greater respect for human rights in Nicaragua. In summary, the human rights situation has registered some significant buy precarious advances during the period covered by this Annual Report, owing in good measure to the positive development of the agreements that have led to a reduction in the level of armed conflict. The Commission trusts that the consolidation of the peace process will contribute to overcoming the serious problems which still exist particularly with respect to freedom of expression, and the other civil and political rights and expect to continue to receive the valuable cooperation of the government in this task. In that sense, the solution to the problem of the prisoners sentenced by the Special Court and by the Anti-Somoza Popular Tribunals is one of the most important concerns the Commission hopes to see resolved in the near term, in light of the international obligations which Nicaragua has assumed in the field of human rights and which regulate the activities of the Inter-American Commission.
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