|
OEA/Ser.L/V/II.76 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION CHAPTER
V ACTIVITIES
OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS IN
CONNECTION WITH THE RELEASE FROM IMPRISONMENT OF PERSONS SENTENCED
BY THE SPECIAL TRIBUNALS OF JUSTICE IN NICARAGUA
Over the last ten years the Inter-American Commission on Human Rights has
maintained an important and close working relationship with the Government of
Nicaragua. One matter that drew the Commission's attention during that time was
that of prisoners and, among them, those sentenced by the Special Tribunals of
Justice for membership in or collaboration with the National Guard, and for
having served as civilian officials or employees of the regime that governed
Nicaragua until July 19, 1979, and for having been involved in acts defined in
the Nicaraguan Criminal Code.
The Commission followed two parallel lines of action to help rectify the
problems in the area of the rights to personal liberty and to due process that
arose out of the proceedings of the Special Tribunals of Justice: on the one
hand, the problem was presented exhaustively and comprehensively in the Report
on the Human Rights Situation in the Republic of Nicaragua published in 1981 in
the wake of the Commission's visit to that country at the Nicaraguan
Government's invitation. The second line of action was to open a considerable
number of cases, which have been statutorily processed.
On the basis of the material obtained from both of these sources, the
Commission made many representations to the Government of Nicaragua on the need
to find a satisfactory solution to the problem of the persons sentenced by the
Special Tribunals. Thus, during its on-site visit to Nicaragua in January 1988
the IACHR was informed by the highest Nicaraguan authorities—specifically by
the President of the Republic, Commander Daniel Ortega Saavedra, and the
Minister of the Interior, Commander Tomás Borge Martínez—that there was a
political will to solve the problem of the people deprived of liberty by
granting an amnesty to those sentenced by the Anti-Somoza People's Tribunals,
and a pardon to hose sentenced by the Special Tribunals of Justice. On that
occasion the Inter-American Commission on Human Rights offered to cooperate to
the extent possible in seeking a solution of the problem, and also insisted to
the Government of Nicaragua that it needed to interview some of the prisoners,
which it did at the Tipitapa Model Jail.
During the negotiations at Sapoá between the Government of Nicaragua and
the Nicaraguan Resistance in March 1988 agreements were reached on an amnesty
for those sentenced both by the Anti-Somoza People's Tribunals and by the
Special Tribunals of Justice. Persons in the latter group would be amnestied
“on the basis of a finding by the Inter-American Commission on Human
Rights.”
The assignment given to the Commission set it to work in a variety of
directions and resulted in the formulation of recommendations on the matter to
the Government of Nicaragua. Later the Commission worked to secure the
implementation of those recommendations with the result that 1,894 persons under
sentences of the Special Tribunals were pardoned while 39 of them were excluded
from this pardon. The purpose of the present document is to report on the work
done by the Inter-American Commission since receiving this assignment, and on
the current status of the matter.
These recommendations of the Inter-American Commission on Human Rights
are based on item 3, paragraph 3 of the Agreement between the Constitutional
Government of Nicaragua and the Nicaraguan Resistance—known as the Sapoá
Agreement—signed on March 23, 1988. They deal with the freedom to be granted
to the members of the Army of the regime deposed on July 19, 1979, for crimes
committed prior to that date, in application of the general amnesty granted and
contemplated in the Agreement of Sapoá.
It is useful to note as background that the aforementioned Agreement was
reached in the context of the Procedure for Establishing Firm and Lasting Peace,
known as Esquipulas II, dated August 7, 1987. Point 1.b of that document
addresses the amnesty to be decreed, and provides that:
In each Central American country … decrees for amnesty shall be issued
that will establish all of the provisions to ensure inviolability of life,
freedom in all its forms, material property and safety of the persons to whom
these decrees are applicable.
Within this general framework, the aforementioned item 3 of the Sapoá
Agreement establishes the following measures:
The Government of Nicaragua will decree a general amnesty for those tried
and convicted for violation 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 100 prisoners will be freed. Later, when it
is verified that Nicaraguan Resistance forces have entered the mutually accorded
zones, 50 percent 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, on the basis of a finding by the Inter-American Human
Rights Commission of the Organization of American States.
The Secretary General of the Organization of American States (OAS) shall
be guarantor and depository for the compliance of this amnesty.
The Sapoá Agreement was supplemented by Law Nº 36, approved by the
Nicaraguan General Assembly and promulgated by the President of the Republic on
March 26, 1988, known as the Law on General Amnesty, whose pertinent articles
provide for the following: Article
1 Amnesty shall be granted to those who
have been tried and convicted for violations of the Law on the Maintenance of
Order and Security and for members of the army of the former regime, for crimes
committed prior to July 19, 1979. … Article
3 The prisoners of the army of the former
regime shall be released when the definitive cease-fire is signed, on the basis
of a finding by the OAS Inter-American Commission on Human Rights, in accordance
with its rules and regulations.
In accordance with the Law on General Amnesty, the amnesty has already
been granted, but is implementation is subject to certain conditions: for
prisoners tried or convicted under the provisions of the Law on Maintenance of
Order and Public Security—for which situation no action by the IACHR was
involved—a group of 100 has been set free. Of the rest, 50% would be released
when the Verifying Committee confirmed the entry of the resistance forces into
the agreed areas. The other 50% would be released on a date after the signing of
the definitive cease-fire, which would be established by mutual agreement.
Under the Agreement and the Law on General Amnesty, the release of the
members of the Army of the Nicaraguan Regime deposed in 1979 will begin to take
place under two conditions: the signing of the definitive cease-fire and the
existence of a finding by the Inter-American Commission on Human Rights. The
first condition obviously is beyond the sphere of the IACHR. 2.
THE OPINION OF THE IACHR: ITS NATURE, TO WHOM IT IS
ADDRESSED, AND ITS SCOPE
It followed from the terms of the Sapoá Agreement that the commitment to
grant an amnesty involved only the Government of Nicaragua (“The Government of
Nicaragua will decree …”), because an amnesty is an act carried out by a
State in the exercise of its sovereign authority.
The institutional procedure for amnesties in Nicaragua requires the
Executive Branch to submit to the Legislative Branch—the National
Assembly—an amnesty bill, which is discussed and approved. This was the
procedure followed for the aforementioned Law on General Amnesty.
Since the request to the Commission derived from the Agreement of Sapoá
signed by the Government of Nicaragua and the Nicaraguan Resistance, and the
IACHR must comply with it, as the National Assembly said, “in accordance with
its rules and regulations,” it is important to determine the nature of the
IACHR's participation in framing its Recommendations.
The Commission felt that in intervening in this matter it was complying
with the mandates of the legal instruments by which it is governed. Article 111
of the Charter of the Organization of American States assigns to it the
principal function of serving as a consultative organ of the OAS in matters of
human rights. The American Convention, to which Nicaragua is a State Party,
establishes the specific juridical system applied by the IACHR on this occasion.
The Commission's Statute and Regulations supply the remaining rules applied by
the Commission in this instance. Furthermore, this is the body of rules that the
IACHR has been using to evaluate the general human rights situation in Nicaragua
and the problems stemming from the trials of former members of the National
Guard in particular. Thus the Sapoá Agreement provided a new opportunity for
the IACHR to exercise in a specific situation functions which it had been
performing in general terms and will continue to so perform in the future.
The Commission wishes to note that it was able to express its views on
the human rights situation in Nicaragua in its reports of 1978 and 1981 and in
successive annual reports. These were the documents in which the IACHR reported
on the human rights situation after July 19, 1979; and this is why the
Commission noted that the Sapoá Agreement did not request its opinion on the
matter.
In its 1981 report, the Commission found that the Special Tribunals set
up by the Government of Nicaragua to try the crimes committed by the military
and officials of the previous regime—now the subject of the request of the
Government of Nicaragua to the Commission had not granted the guarantees of due
process recognized both in the Declaration and in the American Convention on
Human Rights. The Commission wishes first of all to make it clear that it stands
by this opinion, and repeats the recommendations made at that time, which are
summarized in Section III of this document.
In this context, the Commission has on his occasion been mindful of the
provisions of paragraph e, Article 41 of the American Convention on Human
Rights, which requires the IACHR:
To respond, through the General Secretariat of the Organization of
American States, to inquiries made by the member states on matters related to
human rights and, within the limits of its possibilities, to provide those
states with the advisory services they request;
Application of this provision meant that, since it was to the Government
of Nicaragua that these Recommendations were addressed, they would be submitted
to it through the General Secretariat.
A point that should be clarified is the interpretation of the phrase
“members of the army of the previous regime,” used both in the Sapoá
Agreement and in the Law on General Amnesty. The problem has to do with the
status of individuals who—although not members of that body—cooperated with
the National Guard in various ways and were tried and convicted by the Special
Tribunals along with the Army members.
The Commission referred to this situation on page 77 of its 1981 Report
on the Situation of Human Rights in the Republic of Nicaragua, pointing out that
the people tried in the Special Tribunals were not only military personnel of
the deposed regime, but also—as indicated in Article 1 of the law establishing
such Special Tribunals:
… public officials, and civilian employees of the previous regime, and
any other individual, who, protected because of his/her association with them,
participated in the commission of crimes …
The fact that the case files delivered by the Office of the Attorney
General of the Republic to the Commission include not only former members of the
National Guard, but also informants, paramilitary personnel, civil servants,
etc., gives the Commission good reason to assume that its Recommendations must
have taken in all the persons now serving sentences imposed by the Special
Tribunals established in 1979.
Under the Sapoá Agreement—the source of the mandate discharged by the
IACHR with its Recommendations—the amnesty is granted to a category of people
convicted for deeds committed during a specific period: “the members of the
Army of the previous regime (or more precisely, the individuals convicted by the
Special Tribunals) for crimes committed before July 19, 1979.” The IACHR's
mandate required it to examine each case individually and issue a separate
recommendation on it. 3.
BACKGROUND ON THE SITUATION OF INDIVIDUALS TRIED AND
CONVICTED BY THE SPECIAL TRIBUNALS
a.
Acts committed by the National Guard
The 1978 Report of the IACHR
The very serious situation that arose in Nicaragua in 1978 prompted the
Commission to decide on an eye-witness visit to that country in order to acquire
as much information as possible for the preparation of a special report on the
matter. When this decision was taken and the Government of Nicaragua had already
invited the IACHR to visit the country, the XVII Meeting of Consultation of
Ministers of Foreign Affairs asked the Commission to consider the possibility of
moving up the date of its trip in view of the escalation of the conflict. Thus
the Commission conducted its on-site observation from 3 to 12 October 1978.
The product of that visit was the Report on the Situation of Human Rights
in Nicaragua, approved by the Commission on November 16, 1978, which ends with
the following conclusions concerning the right to life and humane treatment:
In the light of the foregoing, the Inter-American Commission on Human
Rights, in plenary, has arrived at the conclusion that the Government of
Nicaragua has incurred responsibility for the following serious, persistent, and
generalized violations:
a) The Government of Nicaragua is
responsible for serious attempts against the right to life, in violation of the
international humanitarian norms, in repressing, in an excessive and
disproportionate manner, the insurrections that occurred last September in the
main cities of the country. In fact, the bombing of towns by the National Guard
was done in an indiscriminate fashion and without prior evacuation of the
civilian population, which caused innumerable deaths of persons who were not
involved in the conflict, and, in general, a dramatic situation;
b) Likewise, the Government of
Nicaragua is responsible for a large number of deaths which occurred after the
combats, because of abuses perpetrated by the National Guard during the
so-called “Operation Mop-up” and other actions several days after the
cessation of hostilities, in which many persons were executed in a summary and
collective fashion for the mere reason of living in neighborhoods or districts
where there had been activity by the Frente Sandinista de Liberación Nacional (FSLN);
and young people and defenseless children were killed;
c) The Government of Nicaragua has
obstructed the work of the Red Cross by not allowing it to carry out its
responsibilities during the combat: caring for the wounded, picking up bodies,
and its humanitarian mission in general. Moreover, the Government is responsible
for the death of two Red Cross corpsmen and the improper use of local ambulances
and the emblem of the Red Cross;
d) The Government of Nicaragua is
also responsible for the deaths and serious abuses, arbitrary detentions and
other violations of the human rights of peasant groups;
e) In the events of last September
and even earlier, there were serious violations to the right to personal
security, by means of tortures and other physical abuses which were inflicted on
numerous detainees;
f) A special situation, which deeply
concerned the Commission, is the one dealing with minors. Aside from the many
youths who are being detained in jails, along with common delinquents, the
Commission was able to prove a general repression by the National Guard against
any male youth between 14 and 21 years of age.
The 1978 report concludes by pointing out that:
The violations of human rights to which this report has made reference
have affected al sectors of the Nicaraguan population. Its victims have been and
continue to be particularly persons of limited economic resources and young
people between 14 and 21 years of age.
The injuries and suffering caused by these violations have most patently
caused the emergence among the Nicaraguan population of an intense and
generalized feeling favoring the establishment of a system that will guarantee
the observance of human rights.
b. Dissolution of the National
Guard and
Imprisonment of its Members
The conflict that spread throughout Nicaragua in the first half of 1979
led to the establishment of a Government Junta for National Reconstruction,
which presented a “Plan to Achieve Peace” to the OAS General Secretariat on
July 12, 1979. This Plan called for several stages, beginning with General
Somoza's resignation as President, and two of which are germane to the
Recommendations framed on this occasion:
4. That the National Guard be
ordered to cease hostilities and return immediately to its barracks with
guarantees that their lives and other rights will be respected. The officers,
noncommissioned officers and soldiers of the National Guard that so desire may
join the new national army or return to civilian life.
5. That order be maintained by the
sectors of the National Guard that have honored the cease-fire and have been
appointed to this function by the Government of National Reconstruction, which
they will perform in coordination with the effectives of the Sandinista Army.
When General Somoza had resigned, the National Congress appointed
Francisco Urcuyo Malianos to replace him and to carry out the stages of a
peaceful transition to a new government. However, the new President took
decisions aimed at continuing the conflict. The Commission noted in its 1981
Report on the Situation of Human Rights in the Republic of Nicaragua that:
In view of the posture that Urcuyo had assumed, the negotiations were no
longer possible on the original cease-fire terms; as a consequence, the FSLN now
demanded the unconditional surrender of the National Guard (page 7).
Thus surrender took place on July 19, 1979; the National Guard troops
lied down their arms and took refuge in Red Cross posts, churches, and
embassies. In its 1981 report, the Commission described the situation in the
following terms:
When the revolution against the regime of General Anastasio Somoza
Debayle triumphed and the National Guard was declared to be dissolved, its
former members made different decisions. A significant number sought refuge in
neighboring countries such as Honduras, Costa Rica, El Salvador, and Guatemala,
or fled by plane to the United States and other countries. Another large group
decided to surrender, and, laying down its arms, sought refuge at local
Nicaraguan Red Cross centers; others sought and obtained asylum in various
foreign embassies in Managua, while others left or remained in their homes.
In a number of communiqués and through its most distinguished official
spokesmen, the Government of National Reconstruction announced that it was not
seeking revenge or taking reprisals against former National Guardsmen who had
not participated in serious crimes committed against the people and who were
willing to join the appeal for national unity.
However, in the days following consolidation of the new Government, the
Government of National Reconstruction began to detain those who sought refuge at
the Red Cross and at other places and to hold them under arrest in the various
prisons in the country; eventually, there were 6,500 individuals in confinement.
The Government explained its calls to those individuals to turn themselves in to
the new authorities and their subsequent detention by saying that imprisonment
was a way to avoid personal reprisals and vengeance, given the understandable
rage of the people against former National Guardsmen and collaborators with the
previous regime (page 60).
The Government cited Nicaragua's past and current unusual circumstances
to justify what had been done to the National Guardsmen who had turned
themselves in or been captured. The action taken, the Government said, was
intended to do justice in the framework the new order had made by itself, in
which the death penalty had been eliminated. Moreover, it was to protect the
persons and lives of the National Guardsmen in the midst of a veritable wave of
executions of Guardsmen by the people for abuses committed. All of these
circumstances led to the establishment of ad hoc tribunals, called
Special Tribunals, to try the individuals who had been deprived of their liberty
immediately after July 19, 1979.
c.
The Special Tribunals: The Opinion of the IACHR
The Commission studied the Special Tribunals in Section D, Chapter IV, on
the Right to Justice and Due Process, in its 1981 Report. These tribunals were
established by Decree Nº 185 of November 29, 1979 for the following purpose:
… to try crimes defined in the current Penal Code committed by military
personnel, officials, and civilian employees of the previous regime, and any
other person who, because of his relations with them, participated in the
commission of such crimes, either as perpetrators, accomplices or accessories,
who are imprisoned or were taken during the life of those Tribunals …
A Special Tribunal had three members, only one of them had to be an
attorney or law student in the last two years of study. The other two members
were laymen. Nine tribunals of first jurisdiction and three of appellate
jurisdiction were established. They began to sit in late 1979, and concluded the
task for which they had been established on February 19, 1981.
The legal basis for the charges against the individuals brought before
the Special Tribunals was four crimes covered by the current Penal Code:
association with intent to commit a crime, crimes against the international
order, murder, and aggravated murder. These crimes are defined in articles 493,
551, 134, and 135, respectively, of the Penal Code. These provisions are quoted
below:
Article 493: Any person who is part of an association or band of
three or more individuals organized for the permanent purpose of committing
crimes by mutual agreement, and in which the associates aid and abet each other,
shall be punished by 1 to 3 years of imprisonment, without prejudice to the
punishment accruing for the crimes committed by the person. This punishment
shall be increased by one third for the leaders or directors of the association.
Article 551: Any person who during an international or civil war
commits serious acts that violate international conventions on the use of
weapons, treatment of prisoners and other laws of war commits a crime against
the international order and shall be punished by 10 to 20 years of imprisonment.
Article 134: Any person who kills under any of the following
circumstances is a murderer:
1)
Through treachery.
2)
For a price or a promise of remuneration.
3)
By asphyxiation, arson or poisoning.
4)
With malice aforethought.
5)
With aggravated brutality, deliberately and inhumanely increasing the
victim's suffering, by immuration, lashing, or similar torment.
6)
When breaking and entering a home for purposes of robbery, and when the
assault is made with the same intent in a populated or unpopulated area or on
roadways.
The individual convicted of murder shall be punished by imprisonment for
15 to 30 years.
Article 135: Any person, who in committing the crime of murders as
described in the preceding article, aggravates that crime by any of the
following acts, shall be guilty of atrocious murder:
1) The crime of rape or indecent
abuse of the victim.
2) Mutilation or dismemberment of
the victim's body.
3) Multiple murder of two or more
persons at the same time, or in succession, if the murders follow the same
criminal plan.
The individual found guilty of atrocious murder shall be given a sentence
of 30 years in prison, and mo mitigating circumstance shall be taken into
account.
In its 1981 report (page 73) the Commission stated that, according to the
information provided by the Government of Nicaragua, the Special Tribunals tried
6,310 persons, of whom 1,760 were pardoned and dismissed; 229 were acquitted;
and 4,331 were sentenced to the following terms: five years or less, 1,648;
six-10 years, 283; 11-15 years, 898; 16-20 years, 277; 21-25 years, 394; and
26-30 years 831. Since at the at the time when the IACHR framed its
Recommendations some of the people in the 6-10 years category and all of those
in the subsequent categories were deprived of liberty, except for about 788 who
had been pardoned, the number of persons sentenced by the Special Tribunals and
deprived of their freedom was consistent with the figure of 1,824 given to the
Commission.
For purposes of the present Recommendations, it is important to quote the
opinion expressed by the IACHR in its 1981 report on the operations of the
Special Tribunals with regard to the exercise of the right to justice and to due
process. After recognizing the exceptional situation Nicaragua was going through
and the profound effect the experience had had on the society as a whole, the
Commission recognized the efforts the then National Reconstruction Government
was making. Having taken cognizance of this, the Commission then stated as
follows (page 89):
This does not mean, however, that abuses or irregularities were not
committed in the conduct of the Special Tribunals or in the application of the
guarantees for the administration of justice.
Ignoring the prudent counsel of the Supreme of the Supreme Court to
increase the number of regular courts, it was decided for reasons of
speed—which later proved false—to set up special tribunals to try the
accused Somocistas.
In the opinion of the Commission, the operations of such tribunals gave
rise to irregularities incompatible with Nicaragua's commitment under the
American Convention on Human Rights. Of particular concern to the Commission
have been the following: the defendant's lack of opportunity to exercise his
rights, the length of time during which the detainees were held before being
charged; the composition of the Special Tribunals; short periods the accused
were given to prepare their defense and to present evidence; the lack of
grounding of the judgments; the lack of competence of the Appeals Tribunals of
first jurisdiction; the campaigns organized by the Government or FSLN mass media
against some defendants, when they were arraigned before the Special Tribunals,
in violation of the principle of presumed innocence; and, in short, the
discrimination practiced against all the “Somocistas defendants” in denying
them certain minimum guarantees of such nature that they ought to be applicable
to all the inhabitants of the country, and which are expressly recognized in the
Statute of Rights and Guarantees of Nicaraguans and in the American Convention
on Human Rights.
The Commission trusts that now that the work of these Special Tribunals
is ended and some of the defendants have been pardoned, all the sentences handed
down by the Special Tribunals will be reviewed by a superior judicial authority,
perhaps the Supreme Court or the Appeals Courts, and that all due process
guarantees may be operative during such review.
The request made to the Commission in the Sapoá Agreements and the facts
set forth above placed it in a dilemma: on the one hand, it was aware of the
serious irregularities of these procedures, and its first reaction would hence
be to move that they be nullified. On the other hand, however, the IACHR knew
about the extremely grave human rights violations committed by the Nicaraguan
National Guard, which it was able to establish during its visit in October 1978. 4.
NICARAGUAN INSTITUTIONAL PROCEDURES FOR AMNESTIES
AND PARDONS. THE PROCESS AFTER 1981
Although the Nicaraguan Government did not carry out the IACHR's
recommendation to review the judgments, it did devise a legal system for the
granting of pardons in order to solve some of the problems already detected. It
accomplished this by promulgating, on November 2, 1981, Decree Nº 854, known as
the Grace Law, which gave the Council of State the authority to issue pardons
for penal actions and sentences, and commutations and reductions of sentences.
The Grace Law requires that petitions for these remedies be channeled through
the National Committee for the Promotion and Protection of Human Rights.
The regulations implementing the Grace Law establish a process to be
followed by petitions for pardon and for commutation or reduction of sentence.
In the current procedure the petition is studied by the National Committee for
Promotion and Protection of Human Rights (CNPPDH), which issues an opinion
supporting or rejecting the petition. If the opinion is favorable, it is sent to
the President of the Republic, who, if he accepts it, converts it into a bill
and sends it to the National Assembly for consideration. Here the Committee on
Human Rights and Peace reviews the bill and writes a new opinion, with which it
is presented for parliamentary debate. If the National Assembly approves it, it
becomes a Law and, once published, the order for release is issued by the prison
system.
The National Committee for Promotion and Protection of Human Rights (CNPPDH)
uses certain criteria in its evaluation of petitions for pardon or for
commutation or reduction of sentences. These criteria are of a juridical,
humanitarian, and social nature and are based on behavior while in prison.
The CNPPDH's juridical criterion is applied in cases of glaring injustice
in failure to apply the guarantees of due process recognized by Nicaraguan
legislation when excessive sentences have been imposed or when there is no
evidence of guilt. The CNPPDH also applies this standard when the crime is not
properly defined or when the court was incompetent.
The CNPPDH also applies a humanitarian criterion, which takes into
account state of health and age. With regard to the latter, the CNPPDH
recommends pardoning any convict who has reached sixty years of age. Health is
taken into account when the convict cannot be satisfactorily treated in prison.
The social criterion is invoked by the CNPPDH only in exceptional cases
in which the individual concerned is the sole support of a family that is
experiencing hardship. In evaluating the appropriateness of a pardon or a
commutation or reduction of sentence, the CNPPDH also takes into account the
convict's good behavior in prison and how well he has participated in productive
work there.
With regard to the latter point, it should be pointed out that the
Nicaraguan prison system is organized at four levels. The most austere is the
so-called adaptation regime, with visits permitted every 45 days, ten pounds of
food to be provided by relatives, and other very strict conditions. The second
is the work regime, in which the convict takes part in productive work, is
visited more frequently by members of his family—including conjugal
visits—and is allowed twenty pounds of food per visit. Next is the so-called
seal-open regime, in which the convict is allowed to leave the prison
frequently; and, finally, there is the open regime, in which the convict works
in production units and returns home in the evening.
As authorities of the CNPPDH told officials of the Commission, a
convict's place in a prison system other than in the adaptation regime attests
to a willingness to overcome the situation that resulted in his being sentenced,
which is taken into account when the pardon or the commutation or reduction of
his sentence is proposed.
It was on the basis of these criteria that the CNPPDH proposed the
pardons that have been granted to 788 former National Guardsmen, according to
information provided to the Commission before it framed its Recommendations. 5.
FULFILLMENT OF THE ASSIGNMENT
a.
Background on how the IACHR has been
carrying out its assignment
The 72nd Regular Meeting of the IACHR was in progress when the
Sapoá Agreement was being signed. Apprised of the terms of that Agreement, the
Commission expressed its readiness to make every possible effort to “carry out
this task as difficult as it is important.”
To act on that decision, when the Executive Secretary of the IACHR had
met with the Secretary General of the Organization, Ambassador João Clemente
Baena Soares, depository and guarantor of the Agreement of Sapoá, and IACHR
President, Dr. Marco Tulio Bruni Celli had been consulted, it was decided to
send a team of Executive Secretariat staff to Managua, where it worked in
several shifts from April 2 to April 30. This team enjoyed the valuable
assistance of a lawyer from the Secretariat for Legal Affairs.
b.
Method Followed
The examination of each case was confined exclusively to the information
contained in its file. It must be emphasized that this approach was taken
because that was the evidence on which the individuals concerned had been
convicted and, therefore, it should be the only material considered.
The examination of each case was divided into modules, one for each of
the criteria employed to evaluate it and make the recommendation for its
disposition. The process is as follows:
c.
Criteria Used to Evaluate Cases
The criteria used by the Commission to evaluate the cases were framed on
the basis of fundamental principles of law and the main facts as presented in
the files examined. This method made it possible to determine the key aspects of
the files and the situations they addressed.
As stated above, there were four basic crimes for which individuals
brought before the jurisdiction of the Special Tribunals were convicted:
association with intent to commit a crime, crimes against international order,
murder, and atrocious murder. Hence the criteria were designed to evaluate how
the conduct attributed to the convicts fit the legal characterization of these
crimes, for which purpose the matter of evidence was crucial.
Before discussing the different criteria, the Commission must note that
the main result of using them was the compilation of two lists: one of the
persons whom the Commission recommended be released, since their cases fitted
one or another of the first three criteria cited below. The other lists was of
individuals whose cases the Commission felt should be submitted to the regular
court system for review, pardon, or commutation or reduction of sentence.
With that explanatory note, the criteria employed in the examination of
the individual cases are described as follows:
i.
Criterion 1: vague and general accusation
As indicated in the 1981 Report on the Situation of Human Rights in the
Republic of Nicaragua, the accusations were as a rule general, imprecise, and
generalized. From the mere fact of having been in the National Guard it was
inferred that the defendant had necessarily committed the crime of association
with criminal intent and the crime against international order. Membership in
the National Guard was proved by placement in the file of photocopies from the
files of the armed force or, on many occasions, of no more than an Interior
Ministry transcript of information on the defendant's military career.
General accusations of this kind, without any mention of specific
charges, prompted the formulation of the first criterion, which was used to
recommend release of the individual concerned because the charges made were not
considered crimes. In fact, specification of a charge is a basic principle of
penal law, and the members of an institution may not under any circumstances be
made generally responsible for acts committed by some of its members. Either the
charge is specific or it must not be made. This criterion covers the great
majority of the files examined.
ii.
Criterion 2: specific charges without evidence
Another situation encountered in examining the files was a charge of
specific acts, but entirely unsupported by any evidence whatever. In certain
instances an individual is accused ov having patrolled districts in which
individuals disappeared or were captured, or regions in which campesinos were
persecuted. The basis for this accusation is an entry on the National Guard
record of the defendant's having been stationed in the city, district or region
in which the violations charged took place. However, no evidence of direct
participation by the defendant in the acts attributed to him is provided, and in
many instances the evidence provided by the defense indicates that, though he
had indeed been in the city, district or region, the defendant had not behaved
badly.
iii.
Criterion 3: specific charge with insufficient or
contradictory evidence
This criterion was established upon consideration of the cases in which
there is a charge of specific acts but in which the evidence provided is clearly
insufficient or is contradicted by the evidence presented by the defense. Thus,
these are cases in which there are indications that the defendant might have
committed the acts of which he stands accused. But these indications are
manifestly insufficient or are nullified by the evidence presented by the
defense. Hence these are cases in which the charges do not appear to be firmly
supported or in which, in any case, in dubio, pro reo may be applied and
release may be recommended.
iv.
Criterion 4: Specific charge with significant evidence
The second list contains cases in which the evidence would appear to
indicate that the convict did participate directly in the crimes charged or
presents a situation in which his position was such that he presumably had a
hand in the decisions that led to the commission of those crimes.
As can be seen from the definition of this criterion, it covers not only
direct commission of the acts charged, but also the issuing of orders or
instructions leading to that commission even when those issuing the orders were
not the material perpetrators, or in the absence of irrefutable evidence that
they were directly involved. Such is the case, for example, of the director of a
prison in which individuals disappeared and cremated bodies and common graves
containing mutilated persons were found—events that not only could not have
transpired unbeknownst to the prison director, but evidently took place with his
express authorization.
The Commission also included in this category persons who, in addition to
the crime of association with criminal intent, violations of international law,
or atrocious murder, were accused of other serious crimes punishable under
Nicaragua's ordinary criminal code, regarding which the file contains sufficient
evidence pointing to the possible responsibility of the accused.
This put the IACHR in a position where, although it could not recommend
the release of an individual accused of a serious crime when strong evidence
pointed to his possible guilt, it could still propose that the proceedings bee
reviewed to determine the penalties that would be commensurate with the part
actually played by the accused in the commission of the crimes charged. It could
also propose that these cases be reconsidered under Nicaraguan law to determine
whether they qualify for pardon or for commutation or reduction of sentence in
accordance with the criteria described in Section 4, above. 6.
CONCLUSIONS AND RECOMMENDATIONS
Having completed its examination of all the cases involving individuals
convicted by the Special Tribunals and serving their sentences in Nicaragua, the
Commission was able to reaffirm the conclusion it reached in 1981, when it noted
the irregularities in those trials.
Its analysis and application of the criteria described enabled the
Commission to recommend the release of the persons against whom there were no
specific charges; those against whom specific charges were brought but without
any supporting evidence, and those specifically charged but against whom the
evidence was manifestly insufficient or contradicted by other evidence presented
in the trial. The Commission was also constrained to recommend the release of
individuals whose file contained a release order that had not yet been carried
out; of those whose files could not be located, and of those who had already
served their sentences.
With reference to the persons whose files include evidence that they
participated directly in the crimes of which they were accused or that, due to
their positions, they must have participated directly in the decisions that led
to commission of those crimes, the Commission repeated the recommendations it
made in its 1981 report:
4. With respect to the crippled, the
handicapped, the gravely ill and the elderly, whatever their sentence, to
consider likewise the possibility of granting them pardons or, if that is not
possible, commuting their sentence to house arrest.
5. In regard to the other prisoners
sentenced to more than five years, that all these sentences imposed by the
Special Tribunals be reviewed by a judicial authority, which could be either the
Supreme Court or the Applate Courts; and accord to those prisoners all the
rights of due process for their defense.
The Commission also stated that the Government of Nicaragua should
continue the active review of the cases in the second category of its
Recommendations, with a view to granting pardons and commuting and reducing
sentences in accordance with the criteria of Nicaraguan legislation.
The Commission's Recommendations and related lists were sent to the
Government of Nicaragua on May 11, 1988, through the General Secretariat of the
Organization of American States pursuant to Article 41© of the American
Convention on Human Rights. 7.
SUBSEQUENT WORK OF THE COMMISSION
The failure to sign a permanent cease-fire in the negotiations initiated
at Sapoá prevented implementation of the Commission's recommendations. At the
same time the Commission, in framing them, confirmed its opinion that the prison
sentences imposed in trials before the Special Tribunals of Justice violated the
rules of the American Convention on Human Rights, which is binding on Nicaragua
as a State Party and is the legal basis for the activities of the Commission
itself.
This situation was considered by the Commission at its 74th
Session, in which it evaluated the various means available to it for the
accomplishment of its purposes and the discharge of the obligations imposed upon
it by the American Convention on Human Rights. As a result of this examination,
the Commission decided it would have to arrange with the Government of Nicaragua
for steps to be taken that would harmonize the interests of the Government with
those of the prisoners themselves and with the Inter-American Commission's
obligations, always bearing in mind the need not to hinder the progress of the
current peace process.
Because of the significance of the matter, the Commission felt that it
was necessary that its Chairman meet with the President of the Republic of
Nicaragua. One step that the Commission felt the Government could take was to
reactivate the procedure for pardons, which could be granted on the basis of the
case-by-case review already made by the Commission. Another available avenue was
the opening of cases in accordance with the procedures set forth by the American
Convention on Human Rights from the lists drawn up by the Commission, which
would provide a basis for progressively solving the worst problems detected.
These and other options that might arise would be the subjects of conversation
between the Chairman of the Commission and the President of Nicaragua.
These points were included in an Aide Memoire presented to the Chairwoman
of the National Commission for the Promotion and Protection of Human Rights in
Nicaragua, a copy of which was sent to the Mission of Nicaragua to the
Organization of American States on September 14, 1988. The meeting of the
Chairman of the Commission with the President of Nicaragua was then formally
arranged in a letter of September 30.
During the eighteenth regular session of the General Assembly of the
Organization in November 1988, the Chairman of the Inter-American Commission,
addressing the First Committee and referring to the prisoners covered by the
Commission's recommendations, said that, in the view of the IACHR,
… this situation must be resolved by the Government of Nicaragua to
fulfill its international obligations in the human rights area. Since 1981 the
IACHR has been pointing out that the persons deprived of their liberty in
Nicaragua, and the members of the erstwhile National Guard in particular, are in
detention in contravention of the rules of due process enshrined in the American
Convention on Human Rights. The Commission considers it imperative that the
Government of Nicaragua take concrete steps to put an end to this situation. If
for political reasons the Sapoá Agreements have not progressed far enough for
the envisaged amnesty to be promulgated, the Government has the parallel option
of pardoning those who qualify for such action, for which the case-by-case
examination made by the Commission is already available. With the virtual end of
hostilities in Nicaragua, the time has come to put an end by means of pardons to
grave violations of the right to personal liberty.
On February 4, 1989, the Chairman of the Commission met with the
President of Nicaragua in Caracas, Venezuela. Commander Ortega expressed his
intention of solving this problem in the second half of March. On February 14,
in the Declaration issued by the Five Central American Presidents in El
Salvador, the Government of Nicaragua said it had “decided to release
prisoners on the basis of the classification made by the Inter-American
Commission on Human Rights.”
On February 23, 1989, the President of Nicaragua sent to the National
Assembly a bill calling for the pardon of 1,933 persons, that is, all those
sentenced by the Special Tribunals of Justice. The National Assembly forwarded
the bill to its Commission on Human Rights and Peace for study and the issuance
of an opinion.
A further meeting between the Chairman of the Inter-American Commission
and the President of Nicaragua took place on March 1, 1989. In that meeting it
was agreed that the list of the Pardon Bill would be collated with the
Commission's lists in order to eliminate inconsistencies between their
figures—which was satisfactorily accomplished in a meeting for the purpose
held later with officials of the Nicaraguan Penitentiary System. In addition,
the Chairman of the Inter-American Commission issued the following press
release:
On March 1, 1989, I met in Managua, Nicaragua, with the President of the
Republic, Commander Daniel Ortega Saavedra. In the course of our conversation, I
expressed the satisfaction of the Inter-American Commission on Human Rights with
the bill of pardon for the former members of the National Guard, because at that
time I considered that the bill coincided with the recommendations made by the
Commission, which, after reviewing the cases as called for by the Sapoá
Agreements, concluded that a pardon would cover all the cases examined by the
Commission that were included in the pardon bill presented by President Ortega
to the National Assembly.
On that occasion I told President Ortega that I considered it necessary
that the pardon be as broad as possible in order to surmount the limitations
imposed by Article 114.4 of the Nicaraguan Criminal Code, for which the formula
provided by that very article could be used.
I must now add that I trust that the freeing soon of all the persons
included in the bill presented by President Ortega can be effected in the most
orderly and peaceful manner and thereby contribute to the peace and
reconciliation of the Nicaraguan people.
The National Assembly's Commission on Human Rights and Peace issued its
opinion recommending that the pardon be granted to 1,894 persons and withheld
from 39. The National Assembly adopted the opinion of the Commission on Human
Rights and Peace, and approved Decree Nº 44. The 1,894 recipients of pardons
were released on March 17.
At its 75th Session the Inter-American Commission on Human
Rights examined the various aspects of the situation at that juncture and sent
to the Minister of Foreign Affairs of Nicaragua a letter dated April 4, 1989, in
which it reiterated the satisfaction expressed by Dr. Marco Tulio Bruni Celli in
his meeting with the President of Nicaragua in connection with the bill of
pardon that subsequently resulted in the freeing of 1,894 persons who had been
tried by the Special Tribunals of Justice, since considered that this act had
partly resolved a problem whose urgent solution it had been requesting of the
Government of Nicaragua since 1981. It also expressed its pleasure at the
acceptance of Dr. Bruni Celli's suggestion of making the pardon comprehensive by
lifting the civil disabilities associated with the sentences.
In regard to its participation in the process that led to the pardon of
March 14, 1989, the Inter-American Commission recalled both its prompt discharge
of the mandate received and the many occasions on which it had expressed to the
Government is interest in resolving the situation of the persons covered by the
Report it had prepared. In this regard the Commission indicated that the lack of
progress in the negotiations begun at Sapoá had prevented implementation of the
recommendations contained in the Commission's Report, which put the
Inter-American Commission and the Government of Nicaragua itself in a delicate
situation.
The letter of April 4, 1989, to the Minister of Foreign Affairs of
Nicaragua stated that the Commission proposed concrete options for resolving the
situation, and requested an interview for the Chairman of the Commission with
the President of Nicaragua for the purpose of drawing up a mutually acceptable
plan. The Commission reiterated that its interest in this matter was to maintain
frank, ongoing and open communication with the highest authorities in the
Government of Nicaragua in order to resolve the situation of the prisoners
referred to in its Report.
The letter recalled that in the Declaration of the Central American
Presidents of February 14, 1989, Commander Ortega had undertaken a commitment to
“release prisoners on the basis of the classification made by the
Inter-American Commission on Human Rights,” which had prompted Dr. Bruni Celli
to reiterate the advisability of meeting with the President of Nicaragua, who
had already presented to the National Assembly a Bill of Pardon covering all the
persons sentenced by the Special Tribunals.
After recalling the alternatives discussed in the meeting, described
above, the Commission expressed its profound concern at the decision of the
National Assembly of Nicaragua to withhold the pardon from 39 persons under
sentence by the Special Tribunals, for, in light of the commitment undertaken in
the Declaration of the Presidents of February 14, the natural initial reaction
was to assume that it was prompted by the Commission's recommendations.
This is why in the Chairman's letter to the Minister of Foreign Affairs
the Inter-American Commission was constrained to point out that its Report
contained recommendations which constituted an indivisible whole with a specific
purpose: to serve as a basis for application of the amnesty provided in the Sapoá
Agreements and to offer options for the resolution of special situations. In
view of the later evolution of the process as conducted by the Government of
Nicaragua, the Commission felt itself relieved of any responsibility for the
decision of the National Assembly of Nicaragua to withhold the pardon from the
39 persons.
At that time the Commission also expressed concern over the procedure by
which the 39 persons were taken off the pardon list, recalling that, according
to the Report of the National Assembly's Commission for Human Rights and Peace,
these persons were removed on two grounds: for having committed atrocities, and
bad conduct in prison. The Inter-American Commission expressed its disagreement
with this proceeding, for the examination it had previously made of the files of
those persons had led it to conclude that the charge of atrocities was
inapplicable to those 39. It also felt that using behavior in prison as a
criterion was to allow the prison authorities to decide to keep some of the
people in prison. The Commission noted further that some of the 39 had been
under the prison work regime for several years and some had been allowed
numerous visits to their homes.
The Inter-American Commission also voiced concern at the procedure by
which the National Assembly excluded those persons from the pardon: they had
been given no opportunity to defend themselves, and so had been deprived of an
elemental right. It said that the news coverage by Nicaraguan television, and
the dailies Barricada and El Nuevo Diario in particular,
attributed the alleged atrocities to the 39, and in some cases showed
photographs of the individuals concerned. The Commission noted that in some
extreme cases the charges made in the press referred to deeds that had not even
been in the original indictment before the Special Tribunals. In its judgment
these actions constituted violations of elementary rights of the 39 individuals,
and it would be advisable to correct this situation immediately.
In its letter of April 14, 1989, the Commission stated that the National
Assembly's adoption of a resolution directing the National Commission for the
Promotion and Protection of Human Rights co continue its review of the cases of
the 39 gave it hope that they would be freed as soon as possible, for in its
recommendations—on which President Ortega based his Bill of Pardon—the
National Commission had already favored pardoning them. The Commission was of
the view that a decision to release them would not only meet the requirements of
the applicable human rights and its own recommendations, but humanitarian
criteria as well, for, according to information in the Commission's power,
several of the individuals concerned are of advanced age and most of them suffer
from physical ailments that were itemized in the annex to its letter.
The Commission said further that it had been concerned about the initial
situation of the 39 in jail, several of them having been confined in padlocked
isolation cells with no beds, in which photographers were allowed to take
pictures of them. The Commission asked the Government of Nicaragua for
information on how these matters had been resolved. It said it would consider it
constructive to carry out the sentences of the 39 by keeping them under house
arrest or in any other conditions that would alleviate their plight.
After expressing the hope of being able to develop in the future with the
Government of Nicaragua a more efficient working relationship through candid and
open communication for the mutually satisfactory resolution of a matter as
sensitive as was and remains the situation of the persons imprisoned under
sentences of the Special Tribunals of Justice, the Commission reiterated its
full readiness to continue collaborating with the Government of Nicaragua in
carrying on the activities assigned to it by the American Convention on Human
Rights and the other international legal instruments that govern its work so as
to continue resolving human rights situations as they arise.
In a letter sent subsequently to the Commission, the Government of
Nicaragua referred to the power to grant pardons vested by the Country's
Constitution in the National Assembly, and appended a communiqué of the Office
of the President of the Republic of Nicaragua reiterating that the National
Assembly would continue its review of the cases of the 39 individuals excluded
from the pardon, a decision taken by the Government “… as a contribution to
the creation of conditions for the demobilization, relocation or voluntary
repatriation” of the forces of the Nicaraguan Resistance.
The Inter-American Commission must point out that neither of the two
writings presents reasons grounded in the international law of human rights code
by which Nicaragua is internationally bound. It must also note that in its
letter of August 15, 1989, to the Commission, the Government maintains that the
National Assembly considered that the 39 “were not eligible for pardon because
the courts had found them 'guilty of atrocious crimes and crimes against
humanity, in violation not only of the country's criminal laws but also of
international conventions…' and, moreover, they persist at present in highly
dangerous conduct.”
In view of this, the Commission must reiterate that the trials before the
tribunals that sentenced them lack validity under the international law of human
rights that is binding upon Nicaragua; that there is no valid evidence that the
39 individuals committed any atrocious crimes, and in many cases the evidence in
the proceedings points in the opposite direction; nor is it true that the 39
individuals persist in highly dangerous conduct--.they have simply not accepted
the rehabilitation plans of the Nicaraguan penitentiary system. Hence the
Commission must reiterate its hope for the pardon of the 39 persons from whom
the pardon of March 14, 1989, was withheld. PERSONS
EXCLUDED FROM THE PARDON AND
THEIR ILLNESSES [ Table of Contents | Previous | Next ] |