REPORT OF THE INTER-AMERICAN COMMISSION
Various reports presented about the situation of Reynaldo Tadeo Aguado
Montealegre, in Nicaragua, and the transmission of the pertinent portions to
the Government of Nicaragua, dated June 27, 1988, as follows:
REYNALDO TADEO AGUADO MONTEALEGRE, age 27, a former soldier in the Ministry of the Interior, was arrested at his home on March 4, 1986, taken to El Chipote, tried by the Military Court of First Instance in summary proceedings, and sentenced to 30 years’ imprisonment on a charge of espionage. At present he is in the Tipitapa Model Prison.
Aguado was held in El Chipote for 30 days on orders from the State Security
forces. During that time, he was
compelled to make self-incriminating statements under duress, which constitutes
a violation of the judicial guarantees recognized by Article 8 of the American
Convention on Human Rights. It is
believed that sections d and g of item 1 of that Article were
violated in particular, since he did not have the assistance of a defense lawyer
during his stay in El Chipote, the result was the self-incriminating statements.
Article 8.3 is also considered to have been violated.
It should be emphasized that the confession extracted in the manner
indicated constituted the only evidence against Mr. Aguado.
State Security agents had unlimited time for their interrogation, in contrast
with the brief periods of the summary trial.
This resulted in rejection of the appeal that was submitted owing to its
presentation, according to the Court Secretariat, one hour after expiry
of the deadline. This
interpretation is erroneous, since the period run from midnight to midnight, as
stipulated in the Procedural Code and in Article 4 of the Law of June 5, 1970.
sentence imposed is moreover completely inconsistent with the legal
interpretation of Articles 528, 530, and 537 in Chapter XIII of the Penal Code
currently in force for crimes against the State External Security forces.
Reynaldo Aguado suffers from neuritis, polyneuritis, intra-costal neuritis,
tachycardia, and severe visual disorders, all of which require treatment outside
the prison. The proper steps to
this end have been instituted with the National Committee for Promotion and
Protection of Human Rights.
Reynaldo Aguado has been deprived of the benefits of the amnesty granted in
November 1987. This constitutes
discriminatory treatment, contrary to the spirit of the Esquipulas Accords and
the subsequent Sapoa Agreement. Reynaldo
Aguado was unjustly sentenced for reasons stemming from the current situation of
Nicaragua. He should therefore be
eligible for amnesty, since this represents a way to surmount the problems
2. The additional information provided by the claimant and transmitted to the Government on October 4, 1988, according to which:
You have duly processed the Complaint Document, together with its annexes, which I submitted to you on my behalf on March 18 of this year against Nicaragua’s Sandinista Government and/or its members cited in the complaint for their flagrant, repeated, and continuous violations of the “human rights” of Montealegre, age 26, single, and a former soldier in the Sandinista People’s Army, who is serving an unlawful sentence imposed by a military court in political-military proceedings. The court refused to recognize and violated his rights to personal liberty; his right to due process, recognized by the international agreements on human rights; and all other human rights relative to his life and personal and moral integrity, which were specifically mentioned in the complaint as supported by the American Convention on Human Rights signed in San José, Costa Rica, on November 22, 1962.
members of the Commission, you deemed the aforesaid Complaint Document and its
annexes admissible for processing and you asked the Sandinista Government,
accused of violating the victim’s human rights, for information which it was
to furnish within a period of 90 days. The
deadline which you set expired last September 27 (Article 48 of the Convention
and Article 34, section 5 of the IACHR Regulations).
in the event that the Sandinista Government had requested the Commission for a
30-day extension, based on just cause, of the 90-day period granted to if for
presentation of its report on the Complaint Document and annexes could that
deadline be extended. Otherwise it
is precluded and the presumption established in Article 42 of the Regulations
applies pursuant to international standards of procedural law, which recognize
the violations described in the Complaint Document and its annexes.
the period granted to the Sandinista Government to provide the information is
precluded, and the deeds and acts of the responsible members of that Government
violating the victim’s human rights continue to occur repeatedly, endangering
his life or physical integrity, the only step that remains to be taken if you
deem it advisable and necessary, is to call for an investigation of the
victim’s status in Nicaraguan territory, so that you may impose precautionary
measures to protect his person.
the case warrants no compromise whatsoever, inasmuch as this is not a claim for
damages caused by infringement of human rights in connection with property or
business, but the protection of the very life and physical and moral integrity
of the victim, Mr. Reynaldo Tadeo Aguado Montealegre, I request that you proceed
in accordance with the provisions of Article 50 of the Convention, establishing
the report of the facts, the basis of the Sandinista Government’s violations,
and the pertinent juridical and equity-based conclusions, which should be
applied and imposed in order to safeguard and preserve the victim’s human
rights, notifying the interested parties of your factual and juridical
3. The November 17, 1988, letter from the Inter-American Commission on Human Rights to the Government of Nicaragua transmitting the additional information submitted by the plaintiff and noting that “the communication that remains unanswered, to which the claimant refers when he asks that the Commission apply Article 42 of its Regulations, is the accusation lodged on June 27, 1988, a copy of which is attached herewith.”
That the new additional information transmitted to the Government of
Nicaragua on November 17, consists of the following:
Yamilet Montealegre de Aguado hereby subscribes to the complaint in the capacity
of a mother grievously affected by the misfortune of her son Tadeo, whose
physical and moral integrity has been attacked and whose life is constantly
threatened and/or his physical or moral person in danger of permanent damage as
a result of the acts of officials and agencies of the Government of Nicaragua
that have unlawfully sentenced him to serve thirty (30) years in prison
following a military-type trial violating the rules of procedure recognized as
the procedural rights in defense of the physical person by the Pact of San José.
the Pact of San Jose (Article 48.1 a) and our current Regulations
(Article 34 – Initial Proceedings – 1 a, b, and c)
state that when the complaint has been declared to be admissible, as is the
situation with Case 10.198 (Nicaragua), the pertinent information shall be
requested from “the Government of the State which the authority indicated as
the party responsible for the alleged violation belongs.”
That information thus requested shall be remitted by that government
within a reasonable period, to be established by the Commission after
considering the circumstances in each case (Article 4, a of the Pact of
to the foregoing, the Regulations indicate 90 days as a reasonable period for
the Government of the State to issue and deliver the pertinent report to the
Commission, counted from the date of the official request calling for that
report (Article 34.5 of the Regulations). More
importantly still, however, the provisions of the aforesaid Article 34.2
urgently order the Commission, in cases when it is believed that the life,
personal integrity, or health of the person (the victim) is in imminent danger, to
demand an immediate and prompt response from the accused Government, to be
submitted as quickly as possible.
6 of the aforementioned Article 32 of the Regulations is pertinent in that it
states that only at the request (understood to mean in writing) of the
Government of the offending State, and for justified cause, may be the original
deadline for presentation of the report be extended for another 30 days.
This is tantamount to saying that you, the Honorable Commission, cannot
grant automatic extensions.
42 of the oft-cited Regulations establishes that juris tantum presumption that
if the Government of the offending State has not referred to the events
transmitted to it by the Commission in requesting the report, they must be presumed
to be true and, consequently, that the factual basis of the violation of the
victim’s human rights set forth in the list of Grievances is proven.
have in my possession, as does Mrs. Yamilet Montealegre de Aguado, the official
note dated June 27, 1988, in which the IACHR Executive Secretary , Dr. Edmundo
Vargas Carreño, informed her that processing of her claim had started, pursuant
to the Commission’s Regulations (Ref: Case No 10.198 – Nicaragua).
It goes on to say that “In a note dated June 27, 1988, the Commission
has transmitted the portions of your communication to the Government of
Nicaragua, requesting that it furnish the corresponding information.
As soon as we receive the reply from that Government, we shall advise you
of its contents so that you may submit your comments thereon.”
the reasonable period of ninety days, which the Commission granted to the
Government of Nicaragua for presentation of the report, began on June 27, 1988.
The deadline expired on September 26, 1988.
The Government of Nicaragua never asked for an extension:
we have repeatedly asked for word as to whether the Government of
Nicaragua has compiled with the Commission’s request or not.
Commission was asked to apply the provisions of Articles 42; 44 1, 2,
and 3; 46; and 47 of the Regulations.
In other words, that it conduct an on-site investigation, given the
urgency of the case, that would confirm the violations of the victim’s human
rights, so that it could issue its opinion of the facts and its pertinent
recommendations without further delay, restoring the victim’s breached rights
and ordering his immediate release.
on the foregoing, I respectfully ask the Honorable Commission to declare that
the time limit for presentation of the report from the Government of the State
of Nicaragua has passed; and that the IACHR proceed to apply Article 42 and the
other pertinent provisions of the Regulations immediately, thereby resolving the
case of the victim, Mr. Raynaldo Aguado Montealegre.
5. The various communications of the claimant denouncing the mistreatment, penalties, and substandard prison conditions to which Reynaldo Aguado Montealegre has been subjected, stating that all these factors are producing a sharp deterioration in the state of his health.
The responses from the Government, containing an account of various
medical check-ups performed on the person in question as well as interviews with
government officials, and stating that the problems confronting Mr. Aguado stem
from breaches of discipline; that he has not been discriminated against, much
less subjected to treatment contrary to the standards of human rights.
Resolution No. 11/89 adopted by the Inter-American Commission on April
14, 1989, in its considerations points out:
That the various accusations received, a summary of which was sent to the
Government of Nicaragua on June 27, 1988, meet the formal requirements for
That despite repeated requests, the Government of Nicaragua has failed to
provide the information concerning the facts underlying this case, although it
has cooperated in timely fashion by supplying information on the status of
Reynaldo Aguado Montealegre’s imprisonment and health.
That Article 42 of the Inter-American Commission on Human Rights
Regulations, which claimant has repeatedly requested be applied, stipulates:
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.
That the deadline cited in Article 34.5 of the Regulations has long since
expired, while no further criteria expressly contrary to the presumption
referred to in Article 42 of the Regulations has been added to the case record.
Inter-American Commission therefore resolved:
To consider the accusations to be true and to declare that the Government
of Nicaragua has violated the right to due process enshrined in Article 8 of the
American Convention on Human Rights in the prosecution of Reynaldo Tadeo Aguado
Montealegre, on which his current detention is based.
To transmit Resolution No. 11/89 to the Government of Nicaragua so that
it might submit its observations within sixty days of the date of transmittal,
April 19, 1989.
8. The observations of the Government of Nicaragua, transmitted by note of June 14, 1989, and received by the Executive Secretariat on June 26 of the same year, according to which:
The Government of Nicaragua sees fit to transmit to the Inter-American Commission on Human Rights its observations on Resolution No. 11/89 concerning REYNALDO TADEO AGUADO MONTEALEGRE, which presumes the accusations to be true and declares that the Government of Nicaragua has violated the right to due process.
is necessary to evaluate the accuracy of the statements that the IACHR says it
presumes to be true.
That Mr. Aguado Montealegre was prosecuted under summary proceedings.
statement is totally inaccurate. Former
Second Lieutenant Reynaldo Aguado Montealegre, as a member of the Armed Forces,
was under military jurisdiction, and was tried in accordance with the procedure
set forth in Decree No. 591 of December 2, 1980, the Organic Law of the Military
Auditor’s Office and Provisional Military Criminal Procedure, which has
neither the characteristics nor the structure of what in our legal systems would
be known as summary proceedings. A
plain copy of that law is attached.
That he was jailed for 30 days at El Chipote and that there,
self-incriminating statements were extracted from him under pressure.
fact that Mr. Aguado Montealegre had been at El Chipote for 30 days (he was
there for less than 30 days) would not be in violation of any right, because
during the period in question a state of emergency was in effect in Nicaragua,
involving the suspension of several individual rights, including the time limit
is no indication or evidence that the statement given by Mr. Aguado to the
General State Security Bureau (DGSE) was made under actual pressure; the only
sort of pressure admissible in this case is the logical effect of being
imprisoned and under investigation. It
should be noted in the text of the statement that the investigating officer gave
Aguado the option of making a statement or not and the he chose to do so, and
that statement is signed.
It should be taken into account that the confession extracted in that
manner was the only evidence against Mr. Aguado.
is absolutely false. While it is
true that the investigations conducted by the General State Security Bureau were
added to the case record an dare legally valid according to the aforementioned
Decree Law No. 591, they were not the only evidence gathered during the trial to
determine the criminal liability of Mr. Aguado.
wit: At 2:25 p.m. on April 2, 1986,
Reynaldo Aguado makes his statement to the investigating military attorney.
The statement if amplified at 6:00 p.m., on April 10, 1986.
On both occasions, the prisoner confesses to committing the crimes and
states that he did so because the safety of his mother and siblings living in
Miami was endangered by threats from the CIA.
At a later stage in the proceedings, at 3:30 p.m. on April 12, 1986, in
his confession to the charges, he does not deny committing the crimes of which
he is accused, but say that he does not take responsibility for them because he
acted under the CIA’s threat against his family living in Miami.
Another piece of evidence is the record of the search and seizure of
objects found at the home of Mr. Aguado Montealegre by agents of the General
State Security Bureau, as follows:
search was made of the place mentioned above and the following objects were
confiscated: four sheets of carbon
paper for secret messages; a wicker ashtray with a secret compartment for
espionage materials; a cushion with a secret compartment for espionage
materials, two cameras disguised as cigarette lighters for espionage activities;
a transparent plastic tape with step-by-step instructions on the use of cameras
(lighters); a transparent plastic tape with step-by step directions for using
the carbon paper and bringing messages to light; two black Cricket brand
lighters; a half-burnt paper with a number of questions concerning the work of
the Ministry of the Interior; a Magnum 44 revolver; a Browning 9 mm pistol No.
31160; a rifle No. 60654; an M-16 Al-1505457; a T.T. 349; a 22-calbier revolver
No 259297, and a Ceska No. 673204.
seizure of these objects was performed in the presence of Mrs. Fátima Ortega
Roa, who confirmed that when the authorities searched the house, they took the
ashtray that was in the living room and the Cricket lighters.
She also explained that her daughter brought the lighters from Miami, and
said they were being sent to her uncle Reynaldo, but the she, Aurora, decided to
keep them and gave only one to Reynaldo, giving another to her husband, and
keeping the others in her closet, and that she recognized them when they were
shown on television. In other words, there is not doubt that the objects employed
by the CIA were in her possession.
the investigators describe the confiscated objects. Naturally, there are no eyewitnesses to the conversations
between Mr. Aguado and CIA agents in Miami or in Managua, but one consideration
should also bear in mind the statement of Petronio Martín Morice Montealegre,
cousin of Mr. Aguado, who relates how a visa was issued to Reynaldo at the
United States Embassy in Managua. This
is in complete agreement with the defendant’s statement: When he received the exit permit, he went to the embassy and
they would not let him in. He
immediately called his mother, who said that a brother-in-law would get it right
away and she would call him in half and hour.
Half an hour later, his mother called and directed him to go the embassy,
and they immediately gave him a one-year visa; but Petronio Martin Morice, who
also was requesting a visa, did not receive one.
Mr. Aguado’s defense attorney, Dr. Bendaña, in protest against the conviction
of Mr. Aguado Montealegre, filed after the statutory time limit had passed,
stated that the defendant had been coerced into committing those crimes and that
it was true that the objects with which he would commit the crime had been
confiscated from him but he had not used them.
That is, the defense attorney himself only alleges extenuating
circumstances but never denies the defendant’s involvement in the events under
other words, there is sufficient proof of the facts and of the criminal
liability of Reynaldo Aguado Montealegre; therefore it is totally untrue that
the only evidence against him is his statement to the General State Security
should also be emphasized that Reynaldo Aguado Montealegre from the very start
of the proceeding before the military prosecutor, was assisted by one of the
best criminal lawyers in the country, Dr. Orlando Bendaña Darbelles.
The record reflects Dr. Bendaña’s participation in the proceedings,
and shows that he had the opportunity to request the measures he deemed
appropriate for the defense of Mr. Aguado and cross-examined all of the
witnesses. At that time he could
have refuted any piece of evidence gathered by the General State Security
That the appeal filed was rejected because it was presented one hour late
and that this is improper because the time periods run from midnight to
statement is incorrect because:
The Court pronounced sentence against Mr. Aguado Montealegre at 2:00 p.m.
on April 23, 1986.
The defense attorney is notified of the sentence at 10:30 a.m. on May 7,
The defense attorney files a written appeal, which is presented at 9:30
a.m. on May 9, 1986.
The appeal is allowed by writ and the defense is summoned to prepare and
present its plea within five days. The writ is served at 4:20 p.m. on September 25, 1986.
AT 10:30 a.m. on October 1, 1986, the Court declares the appeal void
because the five-day period beginning at midnight on September 25 expired at
midnight on September 30.
The defense attorney presents a plea after the statutory time limit has
passed, at 10:48 a.m. on October 1, 1986.
It should also be noted that at no point did the defense attorney object to the voiding of the appeal; he could have requested reinstatement, but took no action.
That the sentence imposed is in total disaccord with the legal
interpretation of Articles 528, 530, and 537 of the current Penal Code.
That statement, presented without any substantiating arguments, lacks validity. The acts of having twelve conversations in Miami with CIA agents, agreeing to collaborate with them; submitting to a polygraph or lie detector test twelve times; providing verbal information on the organization of the Ministry of the Interior (MINT); supplying information on the defense plans against the FDN (Nicaraguan Democratic Front) and the names of the senior officials of the General State Security Bureau; receiving instruments for spy activities and an initial payment of US$25,000 from them, and carrying out in Managua the series of contacts and meetings requested of him clearly prove or constitute the crimes of treason and espionage attributed to the defendant and codified in the aforementioned Articles 530 and 537 PC. He also committed the crime of divulging military codified secrets in Article 66 of the provisional law covering the crimes committed.
the basis of the preceding information, we feel that at no time has there been a
violation of the right to due process enshrined in Article 8 of the American
Convention on Human Rights in the prosecution of Reynaldo Tadeo Aguado
attach the following:
9. The observations of the petitioner on the Government’s response, according to which:
For the sake of brevity, in referring to the observations of the Government of Nicaragua on Case No. 10.198, my responses will follow the sequence of those observations:
The Government of Nicaragua says that the prisoner “was under military jurisdiction and was tried in accordance with the procedure set forth in Decree No. 591 of December 2, 1980, the “Organic Law of the Auditor’s Office” and states that that procedure has neither the characteristics nor the structure of summary proceedings.
The complaint filed in defense of the human rights of the aforementioned prisoner shows that he spent more time in the “El Chipote” jail under investigation by the Secret Police of the General State Security Bureau) March 4 to June 4, 1986). Before the proceedings were initiated, during the proceedings, and even after the guilty verdict was issued, young Aguado was held incommunicado at El Chipote prison at the mercy of officials of the General State Security Bureau (DGSE). (I attach the sworn statements of two prisoners who can substantiate this).
The “American Convention on Human Rights” in Article 7 (Right to Personal Liberty), paragraph 3, establishes that “No one shall be subject to arbitrary arrest or imprisonment” and paragraph 4 of that article says that “Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.”
The prisoner spent 90 consecutive days from March 4 to June 4, 1986) in the custody of the General State Security Bureau.
The Government of Nicaragua and its Military Tribunal, which issued the verdict, bases both the corpus delicti, or the supposedly incriminating facts, and the defendant’s responsibility for them EXCLUSIVELY ON HIS CONFESSION, which was obtained in the “El Chipote” prison, in violation of his human rights, and therefore has no legal validity.
The Government of Nicaragua states that: the fact that Mr. Aguado spent 30 days in the “El Chipote” prison does not violate any right, because at the time there was in effect a STATE OF EMERGENCY UNDER WHICH SEVERAL INDIVIDUAL RIGHTS WERE SUSPENDED, INCLUDING TIME LIMITS ON DETENTION.
“There is no indication or evidence that the statement given by Mr. Aguado to the General State Security Bureau (DGSE) was made under actual pressure; the only sort of pressure admissible in this case is the logical effect of being imprisoned and under investigation …”
Disrespect for the exercise of human rights and for the international treaties on the matter is clearly demonstrated by the fact that the Government of Nicaragua itself claims not to have violated any human right of the prisoner in DETAINING HIM with no legal counsel for 30 days under investigation by the Security Office.
Reynaldo Aguado spent 90 days in the “El Chipote” prison, not 29 days as stated by the Government of Nicaragua. In Article 5 (Right to humane treatment), paragraphs 1 and 2, the “Convention establishes that:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
The Inter-American Court of Human Rights, in its July 29, 1988, finding on the VELASQUEZ RODRIGUEZ case, decided the following:
156. Furthermore, the prolonged isolation and coercive incommunication to which the victim is subjected in themselves constitute forms of cruel and inhumane treatment which are harmful to the mental and moral integrity of the individual and the right of every detainee to due respect for the inherent dignity of the human person and are therefore a violation of the provisions of Article 5 of the Convention that recognize the right to humane treatment.
The fact that for the preliminary investigation, during the military trial, and after the nonappealable verdict, the investigating officials held Reynaldo Aguado in “El Chipote” prison in Managua for over 90 days, subjecting the victim to every sort of physical and moral torture, indicates to us that the prisoner’s confession was extracted under torture.
The human rights recognized in the “Convention” have a twofold purpose. On the one hand, they represent the minimum legal elements that are essential for guaranteeing respect for and the existence of the human individual: liberty, the right to equal protection under law, the right of defense, the right to humane treatment, by virtue of the abolition of torture and degrading methods of interrogation, etc.
On the other hand, such guarantees in defense of human rights, to the extent they are respected, ensure the important state function of imparting justice. They surround the accused with the necessary guarantees to ensure that human rights will never be sacrificed to a misguided interpretation of state interests.
The Government of Nicaragua states that the confession extracted from the defendant was not only evidence against him submitted by the Government.
“While it is true that the investigations conducted by the General State Security Bureau were added to the case record and, under Article 111 of the aforementioned Decree Law No. 591, they are legally valid, they were not the only evidence gathered during the trial to determine the criminal liability of Mr. Aguado.”
This third statement contains erroneous ideas about the essential prerequisites for a criminal military trial, which it is well to clarify prior to refuting the government’s statements.
Military Jurisdiction: The aforementioned Decree Law No. 591, established in Nicaragua a system of military justice that not only has jurisdiction over military personnel in times of war, peace, or internal revolutionary conflict, for crimes strictly connected with the military, but also extends to any other crime and goes even so far as to bring under its jurisdiction civilians who have participated in any crime as perpetrators, accomplices, or accessories after fact to the crime of a military person or in association with him.
When the military judge feels it is appropriate, he can disqualify himself from trying the case in the military court and transfer the jurisdiction over the case to the ordinary common courts (Article 19 of Decree Law No. 591).
From that it can be inferred that when a member of the military, whether of the Sandinista People’s Army or of the Ministry of the Interior, is connected with a case involving civilians, it is left to the discretion of the military judge whether he thinks it is appropriate to disqualify himself from trying the case. That procedure is a clear violation of the Pact of San José.
Any criminal trial, regardless of the court in which it is tried, requires compliance with the necessary rules of procedure in order for the verdict to be valid, because the defendant is presumed innocent until proven guilty of the criminal offense through public proceedings at which he has been accorded all of the guarantees necessary for his defense (Article 8, Right to a Fair Trial, Pact of San José).
In order to issue a valid conviction, the judge or court, regardless of the jurisdiction in which the case is tried, must duly comply with the following rules of procedure, which must be legally tested in court:
a. Full proof of specific facts which, subsumed under criminal and substantive laws, demonstrate the existence of specific legally defined offenses (corpus delicti).
b. The definition of a punishment for those acts under the penal code or under special legislation prior to their perpetration (nullum crimen sine lege).
c. That there be half proof or serious concordant presumptions concerning the participation of the defendant or accused and his level of participation in perpetrating the crime, either attempted, frustrated, or consummated.
The first element, under letter a, is simply the application of the principle “nulla pena sine crimen,” which requires that the act under investigation must be proven, specifically defined, and subsumed under substantive penal law; that is, it must not be an imagined, presumed, or simply alleged act. This element is intended to “prevent, thinking based merely on subjective intentions and any more or less well-grounded prejudgment,” because although such reasoning is valid for the secret police of the Ministry of the Interior, it is in no way admissible to a judge or court of justice in any jurisdiction trying a criminal case.
There should be clear recognition of what the Government of Nicaragua has been able to recognize, i.e., the “body of the crime,” which is called instruments of the crime or material evidence for the prosecution which help to demonstrate the existence of the criminal act.
Thus, in the crime of robbery, the body of the crime is the item stolen; its EXISTENCE IS PROVEN THROUGH A PURCHASE RECEIPT, if available, and STATEMENTS OF WITNESSES who were familiar with the object. Its value is proven through expert testimony.
The crimes of which Reynaldo Tadeo Aguado Montealegre was accused leave behind physical evidence, traces, and signs, documents, plans, written studies, photographs, etc. However, there is no evidence of facts connecting the prisoner to the crime of “treason.”
In the documents submitted by the Government of Nicaragua, there is no proof of criminal acts committed by the prisoner, Aguado Montealegre, in connection with consummated crimes of “treason.” Therefore, the prisoner should have been absolved of those charges in accordance with the aphorism “nulla penae sine crimen.”
Concerning the charge of espionage (Article 537 of the Penal Code), the prisoner did not commit that crime and there is no proof that he obtained, transmitted, trafficked in, or illicitly used secret materials or political, military, or diplomatic information concerning state security, defense activities, or the foreign affairs of Nicaragua, with the intention of delivering them to a foreign nation, person, group, association, or organization that is an enemy of Nicaragua.
The same should be said of the crime of “Disclosing Secrets,” which must involve the transmittal of documents, photographs, drawings, plans, and any other sort of data on military personnel, fortifications, or military operations, or of information on classified matters essential to the interests of the country.
This latter crime must involve transmitting “secrets” in the form of plans, drawings, documents, photographs, etc., or leaving such items, if in the possession, custody, or knowledge of the employee, vulnerable to ready access by unauthorized individuals (Article 538 of the Penal Code). Where was there proof in the trial of a disclosure of secrets by the accused?
Article 49 of the aforementioned Decree No. 591 indicates what is relevant to the “body of the crime” as well as to the participation, and degree of participation, of the accused in perpetrating the criminal acts. It defines not only a confession (which almost always refers to the participation of the accused), but also statements by witnesses, expert reports, MATERIAL EVIDENCE FOR THE PROSECUTION, DOCUMENTS, and, lastly, OTHER SIMILAR ELEMENTS INTENDED TO PROVE OR DISPROVE THE EXISTENCE OF A CRIMINAL ACT, THE GUILT OR INNOCENCE OF THE ACCUSED, and the circumstances which, if applicable, gave rise to the perpetration of the crime.
In the remarks made by the government of Nicaragua under the subtitle “THIRD STATEMENT,” it is clear that that government, through its administrative and judicial officials (the DGSE secret police of the Ministry of the Interior, the military prosecutor, and the military court) violated the human rights of Reynaldo Aguado, who is serving an illegal sentence of 30 years in jail for crimes that were not proven in the military trial.
I have already said that the trial did not demonstrate the “corpus delicti” of the acts of which the prisoner was accused by military prosecutor in his “criminative findings” (see the accusation filed by the aforementioned prosecutor).
First, it is very serious that the military prosecutor added to the case proceedings (first phase) the “inquest file” issued by the DGSE secret police of the Ministry of the Interior, who used on the prisoner, Aguado, for crimes that were not proven in the military trial, methods of interrogation that we know all too well. A period of more than thirty days was taken for the inquest (during the inquest, during the trial, and after the sentencing, a total of 90 days), in which the prisoner, WITHOUT THE ASSISTANCE OF ANY DEFENSE COUNSEL, was subjected to interrogation by the DGSE in “El Chipote” prison.
If the prosecutor accepted the inquest file of the DGSE (secret police) as legal, the accused should have been accorded a full defense by an attorney of his choice.
The Government of Nicaragua, which committed itself to preserving, adhering to, and enforcing the American on Human Rights, violated it by admitting in the MILITARY TRIAL against the defendant the record of the inquest performed by the DGSE secret police, in which the prisoner had no defense whatsoever, and by according it legal validity, THAT DOCUMENT IS INVALID.
The military prosecutor bases his “criminative findings,” as does the military court during the trial, on the statement which the prisoner made to the military prosecutor during investigations and subsequently amplified, as well as on the defendants’ statements to the DGSE secret police (I would like to repeat that before, during, and after the trial, the prisoner was held incommunicado at “El Chipote” prison).
The military prosecutor and the military court also admit as valid–and they are not–the evidence or instruments confiscated by the DGSE secret police, who presumed that they would be used for espionage, and who interrogated the defendant with no attorney present.
The official entry and search of the defendant’s home for the seizure of the aforementioned instruments was not carried out by the military prosecutor but “manu militari” by the DGSE secret police, with not witnesses to corroborate the fact that it was actually done that way. Those objects could have been “planted” by the DGSE.
should be pointed out that it is the accused’s constitutional guarantee and
human right to the presumed INNOCENT until proven guilty of specific acts
(corpus delicti) that are recognized under criminal law as punishable acts or
omissions. The defendant is also
guaranteed that in case of doubt, when the facts are vague and doubtful, he will
receive the least severe punishment for attempted acts, possibly the least
severe punishment for attempted acts, possibly criminal, that do not constitute
high reason and espionage. As I
explained, the military prosecutor’s office did not produce any secret
documents, plans, operations, or secret agreements whatsoever. The military attorney has the burden of proof and the
defendant is presumed innocent as long as the existence of criminal acts and his
liability for them have not been fully established.
Commission, there are no specific and defined facts which demonstrate for the
Government of Nicaragua that the prisoner has committed acts of TREASON and of
ESPIONAGE. Nor is there proof that
the crime of DISCLOSING SECRETS was committed.
Commission, when doubts arise as in the case of this defendant, the time-honored
principle IN DUBIO PRO REO, respected and applied in civilized countries, should
its allegations, the Government of Nicaragua says that there are no “eyewitnesses
to the conversations between Mr. Aguado and CIA agents in Miami or in Managua,
but one should also bear in mind that statement of Petronio Martin Morice
Montealegre, cousin of Mr. Aguado, who relates how a visa was issued to Reynaldo
at the United States Embassy … but Petronio Martin Morice, who also was
requesting a visa, did not receive one.”
Commission, as I have already said, there are no specific facts to demonstrate
that Reynaldo Aguado committed crimes of treason, and the officials of the
Government of Nicaragua admit that by indicating that there are not witnesses.
The Government of Nicaragua bases its accusation on trivial facts such as
the granting or denial of a visa by the United States.
It is well known that embassies in-country have the right to grant or
deny visas. It is very common for
embassies if the United states to grant a visa on the basis of the socioeconomic
status of the applicant.
Government of Nicaragua says that Reynaldo Aguado Montealegre, “from the very
start of proceedings before the military prosecutor, was assisted by tone of the
best criminal lawyers in the country, Dr. Orlando Bendaña Darbelles.”
prisoner, Mr. Aguado Montealegre, had the opportunity to see his lawyer, Dr
Orlando Bendaña Darbelles, for no more than twenty minutes and in the presence
of the secret police, in violation of article 8 (right to a fair trial),
paragraphs c and d, of the Pact of San José:
time and means for the preparation of his defense.
The right of the accused to defend himself personally or to be assisted
by legal counsel of his own choosing, and to communicate freely and privately
with his counsel.
Commission, the prisoner was subjected to interrogation by the Secret Police (DGSE)
for more than 30 days until they obtained a confession.
The accused had no defense counsel whatsoever.
The prisoner, Mr. Aguado Montealegre, was given 20 minutes to prepare his
defense with his lawyer, and always in the presence of the DGSE. This is in violation of Article 8 (right to a fair trial),
The right not to be compelled to be a witness against himself or to plead
its allegations, the Government of Nicaragua says that “Mr. Aguado
Montealegre’s defense attorney Dr. Bendaña, in a protest against the
conviction of Mr. Aguado, filed after the statutory time limit had passed,
stated that the defendant had been coerced into committing “those crimes and
that …” It is very
irresponsible of the Government of Nicaragua to avail itself of a writ that its
own officials declared lapsed. I
ask the Honorable Commission not to take into account the allegations of the
Government of Nicaragua, which are frivolous and irresponsible.
Government of Nicaragua comments on the expiration of the accused’s writ of
appeal, declared by the judge of the military court ad-quem, alleging that the
expiration is legal. This is in
violation of Article 25 (right to judicial protection) of the Pact of San José:
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against acts
that violate his fundamental rights recognized by the Constitution or laws of
the state concerned or by this Convention, even though such violation may have
been committed by persons acting the course of their official duties.
political and military case brought against Reynaldo Aguado Montealegre by the
Government of Nicaragua is full of flaws that give rise to violations of human
rights and of international agreements that recognize those rights, especially
the pact of San José, which Nicaragua promised on its “national honor” to
implement and obey.
its Fifth statement, the Government of Nicaragua indicates that the accused
Reynaldo Tadeo Aguado, had “twelve conversations in Miami with CIA agents,
agreeing to collaborate with them.” In
its “Third Statement,” the Government of Nicaragua says THAT THERE ARE NOT
WITNESSES TO MEETINGS BETWEEN MR. AGUADO
AND CIA AGENTS.
military court of first instance accepts as valid the argument of the military
prosecutor that the confession of the victim demonstrates both his guilt and
existence of the criminal acts, which the court classifies as crimes of treason,
espionage, and disclosure of military secrets.
Any criminal lawyer knows that the crime of treason, and other alleged
crimes, are proven through evidence of the acts which the law specifies in
defining them and the existence of those acts cannot be proven solely for the
confession of the accused, because further evidence is required by law.
This means that the material prerequisites to proving the facts that
would constitute these crimes are not present in the case the victim, Reynaldo
Tadeo Aguado Montealegre.
Commission, the following conclusions can be drawn from the response of the
Government of Nicaragua:
It was the State Security Bureau (DGSE) of the Ministry of the Interior
that arrested Reynaldo Tadeo Aguado Montealegre and held him incommunicado for
at least 30 days (there is oral evidence that the period was longer.
The victim’s human rights have been violated, first during the
investigation, and then during the illegal military trial that found guilty of
the supposed criminal charges and that, without proving the facts specified in
the corresponding criminal provisions, condemned that victim to the maximum
sentence of 30 years in prison.
The State Security Bureau (DGSE) of the Minister of the Interior obtained
the self-incriminating statements from Reynaldo Tadeo Aguado-Montealegre without
his having the advice of counsel.
The DGSE of the Ministry of the Interior and the investigating officially
from that department kept the victim incommunicado for the preliminary
investigation proceedings in “El Chipote” prison in Managua for more than 30
days, subjecting the victim to all sorts of physical and moral torture.
The defendant’s confession was extracted under torture.
The State Security Bureau proceeded to perform a search of the victim’s
home and obtained items which are considered incriminating.
The military prosecutor and the court admit as valid the instruments
“confiscated” by the DGSE Secret Police.
The official entry and search of the prisoner’s home was not performed
by the military attorney’s office but by the Secret Police (which interrogated
the accused and secured his confession without the advice of counsel).
Those items could have been “planted” by the DGSE.
The accusation by the prosecutor and the conviction by the Military Court
of First Instance of Managua Regional Circuit are based entirely on
“evidence” supplied by the Secret Police.
prosecutor and the court have based both the body of the crime, or the alleged
incriminating facts, and the guilt of the accused in connection with the acts
EXCLUSIVELY on the DEFENDANT’S CONFESSION, obtained in “El Chipote” prison
in violation of his human rights and therefore totally devoid of legal validity.
Government of Nicaragua is directly responsible fore the continual violations of
the human rights of the accused, Nicaraguan citizen Reynaldo Tadeo Aguado
Montealegre, which are recognized by the “American Convention on Human
Rights,” concluded at the Inter-American Specialized Conference on Human
Rights in San José, Costa Rica, on November 22, 1969.
Government of Nicaragua deposited the Instrument of Ratification of the
Convention with the OAS Secretariat on September 25, 1979, which made the
Convention on internal law of Nicaragua, committing its government to strict
would like to make clear that when I specify the human rights violations that
the Government of Nicaragua perpetrated against the victim, I refer exclusively
to those recognized and spelled out in the Convention, which, by virtue of its
ratification by the Government violating it, is Nicaraguan Law, and the
Government is obligated, urbi et orbi, to adhere to it.
(Right to Humane Treatment)
(Right to Personal Liberty)
(Right to a Fair Trial)
(Freedom from Es Post Facto Law)
(Right to Judicial Protection)
to preceding analysis, it should be understood that the acts of which the
military prosecutor accuses the victim, Reynaldo Aguado, cannot be proven solely
through a self-incriminating confession by the accused, obtained under torture
and cruel and inhuman treatment, to which he has been subjected, and continues
to be subjected without regard for his physical well-being.
Rather, the body of the crime and its existence must be demonstrated
through full proof of the actions constituting treason, as well as proof that
secrets were disclosed, proof of their strategic importance, and proof of the
damage caused to the security of the Nicaraguan State.
None of these exists in the suit filed, and all of it, including the
confession extracted from the accused under torture, is absolutely invalid by
virtue of the violation of the aforementioned principles of the CONVENTION.
Commission, I would point out that the Government of Nicaragua did not submit
its observations on time during the processing of the complaint I lodged in
defense of the human rights of the victim, Reynaldo Tadeo Aguado Montealegre,
and that the Government sent no COMPLETE RECORD OF THE POLITICAL MILITARY TRIAL
it brought against the victim.
Commission, I ask you to reject the observations of the Government of Nicaragua
because they were presented after the established deadline.
Commission, I respectfully request that you confirm your finding in Case No.
10.198 (Nicaragua) and that you recommend that the Government of Nicaragua
immediately release REYNALDO TADEO AGUADO MONTEALEGRE.
1. That from the response of the Government it can be deduced that the statements of Reynaldo Tadeo Aguado Montealegre were obtained during the period in which he was detained incommunicado under the custody of the General State Security Bureau and are therefore invalid in light of the provisions of articles 8.2.g and 8.3 of the American Convention on Human Rights;
2. That from the response of the Government it can also be deduced that Reynaldo Tadeo Aguado Montealegre was tried and sentenced to 30 years in prison by a military court in a period of six weeks, which warrants the conclusion that he was not accorded adequate time and means for the preparation of his defense as stipulated in Article 8.2.c of the American Convention on Human Rights;
3. That from the response of the Government it can be deduced that the writ of appeal was rejected because it was submitted one hour after the time limit had lapsed and it would therefore not be appropriate to consider the content of a document that was not made part of the judicial records.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare that the Government of Nicaragua has violated the right to due process enshrined in Article 8 of the American Convention on Human Rights in the case brought against Reynaldo Tadeo Aguado Montealegre, on which his current imprisonment is based.1
2. To transmit this resolution to the Government of Nicaragua and to the petitioner.
3. To publish this resolution in its next annual Report.
1. Released on March 14, 1990, after this resolution was adopted
by the Inter-American Commission on Human Rights, in accordance with a
general pardon issued by the Government of Nicaragua.