NICARAGUA

          The Inter-American Commission on Human Rights continued to monitor the development of the human rights situation in Nicaragua during 1991. This section updates the information processed by the Commission in its special reports on that country and the appropriate sections included in its annual reports.

          During the period covered in this Annual Report the trends that marked the period covered in the Commission's previous Annual Report have continued.  The Commission finds that the right to exercise political rights and related civil rights has been upheld without interference from the government.  According to information supplied to the Commission, during this period relations of cooperation have been maintained between the Government of Nicaragua and the organization for the defense of human rights, with which there have been positive and jointly promoted activities.  The State's institutional structure in regard to human rights has been strengthened with the creation of the Civil Inspectorate of the Ministry of Government.  Another positive development was the Attorney General's recent announcement of the creation of the Office of the Special Prosecutor for Human Rights, to oversee observance of the provisions of the Constitution and of international agreements on the matter of human rights.

          The Inter-American Commission on Human Rights has also been informed that human rights concepts have been introduced in primary and secondary education syllabuses, constituting an important step in the promotion of such rights in Nicaraguan society.

          The atmosphere of government respect for political rights which now exists is reflected in the fact that there are no political prisoners in Nicaragua.  The amnesties decreed on March 14, 1990, May 9, 1990, and December 28, 1991, effectively freed those who were deprived of their freedom, both for political offenses or common crimes connected with political ones, and for persons sentenced for or accused of serious violations of human rights or acts considered as war crimes.  The Commission was told by certain people that an amnesty of that kind could not cover war crimes, by virtue of United Nations resolution No. 2391 through which it adopted the Convention on the Imprescriptibility of War Crimes and Crimes against Humanity, to which the Republic of Nicaragua acceded through Decree No. 189 published in the Official Gazette of May 9, 1986.

          The Inter-American Commission also heard complaints claiming that the amnesties had not been fully applied, since those sentenced for the murder of Pedro Joaquín Chamorro, which occurred on January 10, 1978, were still being detained, despite the efforts deployed by the President of Nicaragua to obtain their release.  According to the denunciation, the fact that those persons had not been allowed to benefit from the amnesty constituted an act of discrimination, since Article 1 of Law No. 100 of May 9, 1990, stipulates that:

Full and unconditional amnesty be granted for all political offenses and related common offenses, committed by natives of Nicaragua prior to the date of publication of the present Law.  This amnesty applies to all those detained, prosecuted, sentenced, pending trial, still at large, and prisoners that have served out their sentence, as well as those who have been granted a simple pardon ...

The case in question is currently before the Commission, which will pronounce a decision on the matter in due course.

          The Commission has also been informed that the amnesty of December 22 is being enforced selectively, as demonstrated by the case of journalist Moisés Absalon Pastora, against whom an arrest warrant has been issued in connection with events that transpired on November 9, 1991, when a mob attacked and destroyed the facilities of Radio Corporacion, where Mr. Pastora works.  According to the information given to the Commission, when the attack occurred, Mr. Pastora allegedly fired shots at people carrying arms, wounding one of them.  That person later died.  Considering that all the individuals arrested in connection with the serious events that transpired in Nicaragua that day have been released, the arrest warrant issued against Mr. Pastora shows, according to the information provided, how the administration of justice has become politicized.

          Still on the subject of personal freedom, the Commission was also informed that constructive actions of cooperation have been taken by human rights organizations and government authorities to ensure that such an important right should be more effectively exercised.  In that connection, visits were made to detention centers to determine the legal status of detainees and to assess the conditions of their imprisonment.  Inquiries were also made into the rights of individuals deprived of their freedom and the manner in which the executing bodies have proceeded.  All this has led to the formulation of recommendations and the exchange of views which would make it possible to lay the groundwork for improvements in the exercise of the right to personal freedom, especially with regard to compliance with the legal formalities at the time of arrest; the absence of undue violence, during both the arrest and questioning of the suspect; prompt information of relatives, and respect for the detainees' right to defense.  In these recommendations, consideration has also been given to aspects relating to inadequate prison conditions, largely caused by the acute economic crisis that Nicaragua is currently undergoing.

          One constraint on the proper exercise of the right to personal freedom is the defective administration of justice.  As the judicial branch has repeatedly pointed out, the major limitation here is the acute shortage of resources.  All the same, the authorities have declared that they are firmly engaged in a campaign to enhance the structure and professional training of those responsible for meting out justice.  In that regard, they claim that since the change of government, 30 judges have left the Court and that a high proportion of judges have been dismissed following disciplinary measures against them.  This notwithstanding, the judicial authorities have declared that while they are aware of the existing shortcomings, they are faced with a dire lack of resources with which to overcome them.

          The Inter-American Commission on Human Rights has also received information to the effect that another serious problem besetting the exercise of the right to justice and the due process of law is the politicization of the judges appointed during the previous administration. According to that information, although changes in the composition of the Supreme Court constitute a positive step, they have not substantially reduced the preponderance of judges appointed during the previous administration.

          The Commission has also been informed that on July 12, 1991, the Criminal Procedural Reform Law was enacted.  The purpose of that law is to expedite proceedings in the criminal courts.  The law institute trial by jury and eliminates the method that weighed evidence on the bases of "sound criticism", which was the target of heavy criticism during the last Administration.

          It is claimed that the exercise of the right to justice is also jeopardized by the existence of the military code invoked in all cases in which members of the Armed Forces are involved, considerably hindering clarification of those situations affecting such personnel.

          The right to property is a subject that has continued to provoke many serious problems in Nicaragua.  The American Convention on Human Rights recognizes this right in its Article 21, and states that the law may subordinate the use and enjoyment of property to the interest of society, stipulating that no one shall be deprived of his property except upon payment of just compensation "for reasons of public utility or social interest, and in the cases and according to the forms established by law."  Article 46 of the Constitution of Nicaragua establishes that all citizens enjoy the rights recognized in the various international instruments to which Nicaragua is a State Party, with specific mention of the American Convention on Human Rights.  In the case of Mr. Carlos Martínez, the Inter-American Commission adopted a resolution in 1986, stating that the Government of Nicaragua had violated the right to property when it deprived him of his property without any legal grounds and without compensation.

          As of July 19, 1979, a number of legal instruments concerning the right to property were adopted in Nicaragua.  The first were Decrees 3 and 37, which were used as the basis for confiscation of property belonging to the Somoza family and its associates, as well as property belonging to members of the National Guard.  Subsequently, laws were passed providing for the transfer to the State of property of persons who had absented themselves from the country for more than six months (Absentees Law); later, the Agrarian Reform Law was adopted and, in one way or another, affected the system of agricultural land tenure.  Laws stipulating the confiscation of undercapitalized firms were also passed.

          The property situation became even more complex with the promulgation, during the transition period, of Laws 85 and 86, which affected large-scale urban and farm property--the so-called "Piñata"--allocated to small-, medium- and large-scale owners connected with the losing Party in the elections.  While there are many who feel that this measure benefited needy persons with scant resources or low-level officials, they also feel that it benefited important leaders of the Sandinista Front to whom valuable property was assigned, including State property or property belonging to individuals who had not renounced it.

          The Government adopted various measures aimed at tackling this situation, while further measures have been proposed in the National Assembly.  Mention should also be made of the serious disturbances provoked by consideration of the issue in the Assembly.

          Accordingly, the Government set up a National Review Commission through Decree 11-90, for the purpose of reviewing the confiscations made and adopting appropriate decisions, indicating that the review process would be conducted "upholding the rights acquired by the campesinos that had benefited from the agrarian reform, the rights of cooperatives carrying out their social and economic function, and the acquired rights of the underprivileged."  The Supreme Court of Justice later declared one of the functions entrusted to the Review Commission to be unconstitutional, on the grounds that it trespassed on the jurisdiction of the courts of justice.  The procedure applied by the Review Commission was then modified.  The Office of the Attorney General was entrusted with the task of processing the requests for review and issuing an appropriate verdict, and it handed down decisions in a great many cases.  Information supplied to the Inter-American Commission on Human Rights claims that the decisions of the Review Commission encountered various obstacles with regard to their implementation, some arising as a result of the judicial procedures that need to be followed in order to complete them, and others originating with the persons now in possession of the property.

          On July 3, 1991, the then Vice Minister in the Office of the President and the National Coordinator of the Nicaraguan Communal Movement signed an agreement concerning the actions to be undertaken in order to regularize the legal situation of sites and dwellings of those inhabitants of Managua who have no deeds of ownership.  Those agreements came after a number of demonstrations called by the beneficiaries of the allocations of property under the previous administration.

          For its part, the National Assembly set up a Special Property Commission to study the problem and find a legal solution.  The representatives of the Sandinista Front withdrew from the Commission, and last July, just as the Commission was preparing to issue a judgement that would serve as a basis for a draft law, the Sandinista Front provoked serious incidents in Managua and in the interior of the country, seizing radio stations, occupying mayors' offices and giving various shows of force.  Former President Daniel Ortega and former Vice President Ramírez Mercado declared that any retrograde step with regard to the right to property would lead the country into another civil war.  On Tuesday, 20 August, the National Assembly approved the Property Law, without the participation of the Sandinista Front.  In September, the President of Nicaragua vetoed the Property Law, and in December the National Assembly upheld the presidential veto, so that now negotiations were still under way with a view to adopting a legal instrument that would reconcile the different positions.

          Similar efforts were made by the "Concertación", a group comprising representatives of the productive sectors of Nicaraguan society, and chaired by the Minister of Finance, within which political accords to solve the problems relating to the right to property were being discussed.  The agreements reached in the second phase of the negotiation were instituted in decrees 35/91 and 36/91, which the Executive Branch enacted.

          The Episcopal Conference of Nicaragua, in its Pastoral Letter of November 8, 1991, stated that:

The conflict on private property in Nicaragua is particularly sensitive and the cause of serious disturbances.

The widespread invasion of property, illegal and arbitrary occupation of houses and other buildings and, in general, usurpation as a means of acquiring property are all scandalous, even when they can be carried out under the protection of extremely questionable laws.

A general clamor reclaiming land can be heard across the length and breadth of the country.  It is the clamor of those whose property was unjustly confiscated, of campesinos and ex-combatants who are waiting for electoral promises and other later commitments to be kept.

          The myriad legal systems and the modalities used in the award of property, as well as the beneficiaries' resistance to the pressures of the owners, partly explain the serious obstacles facing the regularization of this matter, wherein lies a serious potential source of social conflicts.

          In effect, on June 18, 1991, following the Assembly's approval of the establishment of the Commission to study the draft Property Law, there were serious incidents provoked, as the Commission was informed, by militants of the Sandinista Front.  Allegedly, various groups, including armed persons, seized the mayors' offices in Managua, Masaya, Granada and Matagalpa, while others occupied the premises of Radio Corporación in Managua and Radio Darío in León.  The Commission was also told that a series of attacks were carried out with explosives which damaged the homes of Mr. José Castillo Osejo, Director of Radio Corporación, President of the National Conservative Party and a member of the Board of the Permanent Human Rights Commission; of Dr. Wilfredo Navarro, President of the Independent Liberal Party; of Dr. Julio Ruiz Quesada, in Matagalpa, a leader of the National Conservative Party; the home of Dr. Sergio Torres Ogregario in the town of Jinotega; the home of the mayor of Matagalpa, Mr. Frank Lanzas, and the headquarters of the Democratic Party of National Trust.

          The Commission was informed that no one had been detained by the National Police following those grave incidents.  Mention should be made of the fact that during the occupation of premises, particularly the radio stations mentioned, expensive broadcasting equipment was either seized or destroyed, as well as cash.  The Commission was also told that armed persons took part in the occupation of Radio Corporación and that the National Police cordoned off the area, so that the absence of arrests suggests complicity between the police and the persons who occupied the premises.  The Chief of the National Police, Commander René Rivas, maintained that he had been ordered to ensure that Radio Corporación was cleared with a minimum of cost, and since there were armed persons both inside and outside the radio station, the first thing he had done was to ensure that the station was recovered by force, after which a way out had been cleared for the occupants in order to avoid bloodshed.

          The Inter-American Commission was also informed that on August 23, 1991, an explosive device had partially destroyed the premises of the new radio station La Voz del Pinar in the city of Ocotal.  The owner of the station allegedly had links with the owners of Radio Corporación.

          Further acts of violence occurred, starting on November 9, when a bomb exploded in the tomb of Carlos Fonseca Amador, founder of the Sandinista National Liberation Front, causing damage to the tomb.  In reaction to the attack, mobs occupied the office of the mayor of Managua and destroyed and burned part of the building, as well as municipal vehicles, while three ministries were occupied by other groups.  The offices of Radio Corporación were badly damaged, and those of Radio Minuto in Managua, Radio Darío in León, and Radio San Cristóbal in Chinandega were also occupied. All the radio stations mentioned were known to be opposed to the Sandinista Front.  Acts of violence also occurred in Managua opposite the headquarters of the Civil Association of Resistance, where shots were exchanged.  The violence spread to León, Estelí, Matagalpa, Jinotega and Chinandega.  The disturbances caused the death of two persons and considerable damage.  On that occasion, too, the National Police failed to act with the diligence required to put down the violence.

          The November 24, 1991, Pastoral Letter from the Episcopal Conference of Nicaragua, cited above, also stated that:

Particularly serious is the repeated use of violence in all its forms, as a normal course of action, applied outside the law and established institutions or procedures, in pursuit of a right or for the attainment of any benefit.

The problem is further exacerbated when all this is the result of irresponsible incitement to violence and insurrection on the part of those who hold outstanding political positions in the country and publicly announce the need for dialogue, reconciliation, peace and harmony.

There are constant occupations and break-ins, damage to property, blocking of the means of communication, protest demonstrations, causing serious damage to many Nicaraguans and to the general economy of the country.  Added to which, the irresponsible and criminal illegal possession of arms by individuals or groups fired by fanaticism escalate insecurity and anguish because of their risk of culminating in unpredictable and irreparable situations.

        The Episcopal Conference also stated:

          d.          Rule of Law

On a number of occasions and in various documents, we have expressed our view on this matter.

Once again we say that it is not enough to speak of the rule of law; it must be made of reality.

If the rule of law has not yet been achieved, then it is partly because there is no enforcement arm that supports and defends government decisions and enforces the laws of the Republic.

This is why one has a Government that seems incapable of doing justice and commanding respect.  This message is reinforced when one sees how many crimes and terrorist assaults go unpunished.

          The Inter-American Commission considers that the Government of Nicaragua has the obligation to guarantee the full exercise of the human rights of its citizens in the face of events such as those described, which affect the exercise of important rights such as the right to life, to personal safety and to freedom of expression.  According to information received by the Commission, another example of the absence of guarantees was the lack of proper investigation of the armed attacks on the residence of the Vice President of Nicaragua, Dr. Virgilio Godoy Reyes, on September 27 and October, 1991.

          Another factor to which the Inter-American Commission accords special importance is the human rights of persons who have been demobilized. The Commission was told that the Nicaraguan Resistance had been completely demobilized in 1990, with the help of the United Nations and the Organization of American States and through the good offices of Cardinal Miguel Obando y Bravo.  The demobilization culminated in the surrender of arms by the combatants of the Nicaraguan Resistance and with promises from the Government to institute a set of facilities for reinstating them into civilian life, including commitments to allocate them land and other resources so that they may engage in productive work.  Also organized were systems known as "poles of development" for establishing links between such productive work and the demobilized persons were provided with resources so that they would have a monthly income and means of subsistence.  The Government of Nicaragua entrusted the International Commission for Support and Verification (CIAV/OEA) with the task of administering those funds and supervising the different aspects of the demobilization, including monitoring the rights and guarantees of demobilized persons.

          It should also be noted, however, that the process of incorporating demobilized persons into Nicaraguan society has been a complex one.  As the Inter-American Commission pointed out in its Annual Report 1990-1991, during the months of October and November 1990 serious incidents occurred due to various actions carried out by demobilized members of the Resistance, in reaction to what they described as hostile actions against them by the Police and the Army, and the fact that the government's promises had not been kept.

          The Government has adopted a number of measures to deal with the problems that this new situation has created, one of which is that massive numbers of people who had been displaced to other countries are now returning.  Here it should be noted that according to information provided by the Government of Nicaragua, in 1991 there were 605,000 people in Nicaragua who had been directly affected by the armed conflict:  they were either displaced persons or people who had been physically impaired or had lost some member of the immediate family.  The Government created the National Commission for the Displaced, Demobilized, Refugees and Repatriated Persons, to devise and set in motion a national reconciliation and economic and social rehabilitation program.  That Commission is attached to the Office of the President of the Republic.

          The Government's reaction to some of the demands of the demobilized was to appoint some of their number to positions of importance in the State.  However, the problems have persisted, especially as regards the security of the demobilized.  In a document of April 1991 submitted to the General Assembly, the Secretary General of the Organization reported that the CIAV/OEA had processed complaints concerning the death of 35 demobilized persons, the disappearance of four, and 186 arbitrary arrests in connection with rights and guarantees.

          The problems became more acute in July 1991 with the seizure of the village of Quilalí by a group of "recontras", rearmed groups of the former Nicaraguan Resistance, leaving two policemen and two "recontras" dead, which caused tensions to escalate.  According to demobilized leaders, their rights were being violated by the Police and Army, and the "recontras'" decision to rearm themselves for their own protection was the result of the situation of insecurity.  Human rights groups have declared that one of the most serious problems is the continued presence, both in the Police and in the Army, of persons accused of serious violations of human rights during the previous administration.  In that connection, the Ministry of Government declared that investigations of those complaints were continuing and that some of the elements mentioned by the human rights groups had been dropped.

          Authorities of both the Army and the National Police pointed out that it was not only the demobilized who were in a situation of insecurity, but also the leaders of the Sandinista Front, over 60 of whom had been killed in acts of vengeance by the demobilized, and that it was the Police that had come under most pressure from the demobilized.  According to information supplied to the Commission, former members of the Army had obtained arms and had gone into operation, under the name of "recontras" and escalating the potential for conflict, especially in the north of Nicaragua.

          The Government has sought to tackle the problem of security through the establishment of regional security committees composed of representatives of the Ministry of Government, the Army, the Police and the demobilized forces, and with the participation of CIAV.  The purpose of these committees would be to respond expeditiously to any security problems that might arise.  The Government has also laid plans for disarming the civilian population, and setting up a special disarmament brigade to be composed of 356 demobilized members of the Nicaraguan Resistance and the Army.  That Brigade was installed on November 12, 1991, in Matagalpa.  According to the information that the Government provided to the Commission, thus far some 134,000 weapons of war have been retrieved, in the course of three operations conducted jointly by the Army and the Police.  Independent groups believe this figure is inflated.

          It should also be noted that the Government of Nicaragua has said that it is endeavoring to be responsive to the demands of the so-called "recontras" and the "recompas" by means of dialogue and negotiations. The purpose is to get them to demobilize and become part of mainstream society once again, with all the necessary guarantees for the safety and the protection of their rights.  Negotiations were held on June 11, October 17, and November 18.  Further negotiations are expected to take place in February 1992.   According to the Government this approach has managed to demobilize 532 of the "recontras" and "recompas".

          The present situation of instability has led to loss of life.  Information supplied to the Commission claimed that some 215 people had lost their lives--including 11 children--in Nicaragua as a result of incidents of political violence, during the period running from May 1 to September 15, 1991.

          The Inter-American Commission hopes that a halt will be called to the deterioration of the situation of the human rights of the demobilized and that the existing conflicts could be resolved through negotiation, with full respect for the human rights of all those involved.

          In September 1990, the Commission was informed of the discovery of common graves in Nicaragua, especially in areas where fighting had occurred.  The information was provided by the Nicaraguan Pro Human Rights Association, which had received its first complaint in June 1990.  By December 1991, that Association had received reports of 60 common graves and had investigated 15 of them.  While most of the graves seem to be the result of summary executions by members of the Sandinista People's Army or the State Security, some contain the bodies of individuals executed by the Nicaraguan Resistance.

          This raises a number of important problems.  The first is the matter of the victims' identification.  The second is to ascertain the circumstances of their deaths, the time and place of their deaths, and those responsible.  This issue of responsibility is directly linked to the amnesty that was decreed on March 14, 1990, when the National Assembly was controlled by the Sandinista Front.  The amnesty has protected the authors of acts that violate human rights.  Because of the circumstances under which the amnesty was granted, some human rights groups believe it was tantamount to a self-pardon.  This measure was used at the very outset, to prevent investigations.  Though those investigations are being carried out, members of human rights groups say that those investigations come up against numerous obstacles in the National Police or in the Office of the Inspector General of the Army, which is the institution to which investigations are referred when there is evidence that military personnel are involved.

          The human rights groups state that one of their chief concerns is that those responsible for the human rights violations that the graves reveal remain in positions of power in either the Police or the Army, or are members of grass roots organizations of the Sandinista Front.  Both the Nicaraguan Pro Human Rights Association and the Permanent Commission on Human Rights have proposed that a special committee be formed to investigate the circumstances surrounding the deaths of those whose bodies were found in the common graves.

          During the period covered in this Annual Report, serious cases evoked earlier are still unresolved.  A case in point is the murder of the youth Jean Paul Genie, and the crime committed against Colonel Enrique Bermúdez.  In the case of Jean Paul Genie, it should be mentioned that, according to information received by the Inter-American Commission, the results of the investigation conducted by the Venezuelan Technical Commission were published in August, and pointed to "citizens forming part of the escort of General Humberto Ortega Saavedra as the main suspects in the murder of the minor Jean Paul Genie Lacayo."  In September the declarations of the Chief of General Ortega's Escort were published, in which he declared that the log containing the movements of the General's escort had been burnt.

          With regard to the case of Colonel Enrique Bermudez, the corpse was exhumed during the period covered in this annual report and a further autopsy was carried out, contradicting the findings of the medical examinations conducted in Nicaragua.

          Both these cases have been extremely important and the Inter-American Commission are currently considering cases on which it will announce a decision on the basis of the investigation carried out.

          The Commission received information on what appears to be the deterioration of economic, social and cultural rights due to the serious consequences of the economic crisis besetting the country.  Alongside a marked improvement in important indicators of economic activity there are adverse living conditions that need to be improved so that the exercise of the above-mentioned economic, social and cultural rights may be ensured.

          The complex situation summarized in this section is a source of serious concern, due to the erosion of some institutions and the recourse to violence on the part of important actors on the Nicaraguan political scene.  This led the Episcopal Conference of Nicaragua, in the Pastoral Letter of November 1991 cited earlier, to call for the restoration of the State of Law as an urgent need of Nicaraguan society.

          The Inter-American Commission on Human Rights is prepared to collaborate with the Government of Nicaragua in order to ensure the full exercise of human rights in that country to achieve full observance of human rights in that country; accordingly, it will soon be making an on-site visit to that country to observe, firsthand, the human rights situation in Nicaragua.

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