Rosa Margarita Araúz et al v. Nicaragua, Case 11.630, Report No. 101/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 433 (2000).
ROSA MARGARITA ARAUZ AND OTHERS
October 16, 2000
1. On May 7, 1996,
the Inter-American Commission on Human Rights hereinafter the Commission)
received a petition filed against the Republic of Nicaragua (hereinafter the
State or the Nicaraguan State), alleging that the State
refused the benefit of impecunious litigation to 8,288 people who did not
have the wherewithal to deposit surety bonds in two civil suits for breach
of contract brought before the Sixth Court of the Managua Civil District against
the Coca Cola Company and others. The plaintiffs wanted the company to honor
the terms of its Coca Cola Crazy Number promotion, which offered
to reward specially marked soda-bottle caps with up to 50,000 cordobas
(equal to approximately USD $7,200). The complainants alleged that they held
winning numbers and demanded that the company pay the prizes it had offered.
2. In filing their
suits, the plaintiffs asked the judge to allow them the benefit of impecunious
litigation, arguing that most of them were out of work and their incomes did
not exceed five hundred cordobas a year (around USD $72), the amount
set by Nicaraguas Code of Civil Procedure for said benefit to be granted.
3. The petitioners
claim that the State is responsible for violations of the right to a fair
trial (Article 8), the right to equal protection of the law (Article 24),
the right to judicial protection (Article 25), all in conjunction with the
duty of respect and ensuring those rights (Article 1(1)) and the obligation
of adapting domestic legislation (Article 2), set forth in the American Convention
on Human Rights (hereinafter the Convention), by reason of the
judicial ruling handed down on December 17, 1993, by the Fourth Civil Court
of the Managua Civil District, which refused the plaintiffs the benefit of
impecunious litigation and ordered the deposit of a surety bond to cover costs
in the amount of 29,036,000 cordobas (equal to approximately USD $4,177,152).
4. During its processing
of this case, the Commission made itself available to the parties to offer
its services in friendly settlement proceedings; in addition, a working meeting
was held with the parties. However, the State refused to accept this procedure
and instead asked the Commission to declare that Nicaragua was not responsible
for the alleged incidents. In connection with this, the State pointed out
that the two trials, together with the remedies of annulment, repeal, and
appeal filed by the complainants, were pursued in accordance with Nicaraguan
civil procedure, with all applicable judicial guarantees, and pursuant to
the terms of domestic law and the American Convention.
5. At its 108th
special session, and after analyzing the legal and factual elements reported
by the parties during its processing of the petition, the Commission decided
to declare this case inadmissible.
PROCESSING BY THE COMMISSION
6. On May 28, 1996,
the Commission opened Case 11.630, transmitted the relevant parts of the complaint
to the State and gave it a period of 90 days to submit its reply.
On June 11, 1996, the petitioners sent the Commission additional information
on the domestic proceedings, which was sent to the State for comments.
7. On August 22,
1996, the State submitted its comments, in which it reported that most of
the plaintiffs were professionals, technical workers, and merchants, and that
the Nicaraguan magistrates had for that reason refused them the benefit of
impecunious litigation. The States reply was transmitted to the petitioners
on October 25, 1996.
8. On December 2,
1996, the Commission received the petitioners comments, claiming that
many of the plaintiffs, when they filed suit, were out of work or were variously
employed as bricklayers, housewives, schoolteachers, etc. On December 5, 1996,
the petitioners sent the Commission copies of additional documents related
to the case file. Both communications were transmitted to the Nicaraguan State
on December 23, 1996, and resent on February 20, 1997.
9. On April 23,
1997, the petitioners asked the Commission for information on the current
status of the case, pointing to the States delay in replying. On May
20, 1997, and January 23, 1998, the Commission once again asked the State
for its comments on the petitioners reply. On February 26, 1998, the
petitioners sent the Commission additional information, which was subsequently
sent to the State on February 6, 1998.
10. On January 26,
1998, the Commission decided to make itself available to the parties to offer
its services in friendly settlement proceedings, pursuant to the terms of
Articles 48(1)(f) of the Convention and 45(4) and 45(5) of the Commissions
11. In a note dated
March 17, 1998, the petitioners accepted the Commissions friendly settlement
proposal. On March 24, 1998, however, the State reported that it would not
accept a friendly settlement in this case because the Nicaraguan State had
in no way restricted or limited the plaintiffs access to justice.
12. On June 19, 1998,
the Commission received a further communication from the petitioners asking
for a report to be issued under Article 50 of the Convention. The Commission
sent this information to the Government on June 30, 1998. On September 4,
1998, the Commission received comments from the State confirming its position.
The Commission sent this information to the petitioners on September 21, 1998.
13. On October 21,
1998, the petitioners repeated their request for a report on the merits of
the case on account of its current status and the States refusal to
accept a friendly settlement. The petitioners communication was transmitted
to the State on December 2, 1998.
14. The State replied
on February 2, 1999, and repeated its position regarding this case. The Commission
forwarded that information to the petitioners on March 30, 1999. Subsequently,
on March 5, 1999, the petitioners repeated the request they had placed before
the Commission in their previous communication. On March 30, 1999, the Commission
sent the communication to the State for its comments.
15. The petitioners
submitted their comments on April 30, 1999, and asked the Commission to recommend
that the Nicaraguan State repeal Article 939 of the Code of Civil Procedure.
In accordance with procedure, this communication was sent to the State
on June 15, 1999, for its comments.
On August 17, 1999, the Commission received the States reply,
ratifying each and every one of its previous claims.
16. During their
working visit to Managua on December 3, 1999, the Rapporteur for Nicaragua
and the lawyer in charge of that countrys cases asked the States
representatives for this case to be processed by means of the friendly settlement
mechanism. The State rejected
that request, on the grounds that it had committed no human rights violations.
17. At the petitioners
request, on March 6, 2000, the Commission and the parties held a working meeting
with a view toward reaching a friendly settlement.
On that occasion the petitioners asked the State to publicly recognize
its responsibility, pay the costs of processing the case, give the victims
a symbolic compensatory payment, in the event that the case could not be reopened,
make full amends to the victims, and implement an education campaign for the
population as a whole regarding the meaning and scope of the right to justice.
The Commission granted the State a period of 30 days to reply to this
list of requests.
18. In a communication
dated April 10, 2000, the Nicaraguan State rejected the friendly settlement
proposal and repeated its position vis-à-vis
each of the points. In accordance with procedure, the communication was forwarded
to the petitioners on April 12, 2000.
POSITIONS OF THE PARTIES
Position of the Petitioners
19. The petitioners
claim that on June 18 and 20, 1993, a total of 8,288 individuals, divided
into two groups, filed two civil suits with the Fourth Court of the Managua
Civil District, alleging a breach of contract by the Coca Cola Company and
others. The plaintiffs wanted the company to honor the terms of its Coca
Cola Crazy Number promotional campaign, in which it had promised to
reward specially marked bottle tops with prizes of up to 50,000 cordobas.
The plaintiffs claimed they held winning numbers and demanded that the company
award them the promised prizes.
20. In the suit,
the plaintiffs asked the judge to grant them the benefit of impecunious litigation,
since most of them were out of work and had annual incomes of less than 500
cordobas, the amount beneath which, according to Nicaraguas Code
of Civil Procedure, that benefit should apply. As evidence of their inability
to pay the surety bond set by the judge, the plaintiffs submitted a study
by the Nicaraguan Institute of Social and Economic Research (INIES) describing
the countrys economic and social situation. The plaintiffs also submitted
the Central Bank of Nicaraguas 1994 report and the Inter-American Development
Banks 1995 report on Nicaragua.
21. The petitioners
claim that is was impossible for the plaintiffs to come up with the amount
of money required to guarantee the costs of the trial. Since the plaintiffs
did not provide the amount demanded by the judge, the suit brought before
the ordinary court was dismissed. According to the petitioners, as a result
of this refusal to grant them the benefit of impecunious litigation, the plaintiffs
were denied access to justice: this constituted, in their opinion, a serious
case of discrimination on economic grounds.
22. The petitioners
further state that on account of the large number of plaintiffs, the request
for impecunious litigation was presented on a collective basis, in the interests
of legal logic and procedural economy. They thus note that the INIES socioeconomic
study was a unified piece of evidence to give account of the plaintiffs
23. The petitioners
claim that refusing the benefit of impecunious litigation and requiring the
posting of the cost bond restricted the right of access to justice as enshrined
in Article 8 of the American Convention. Furthermore, the petitioners claim
that the plaintiffs were denied prompt and effective recourse because they
lacked the economic wherewithal; consequently, the State also violated the
terms of Articles 24 and 25 of the Convention.
24. The petitioners
also maintain that the surety system provided for in Article 939 of the Code
of Civil Procedure creates inequalities that prevent the poorer segments of
the population from having access to the courts;
consequently, the State is in breach of Articles 1(1) and 2 of the Convention.
Position of the State
25. The State maintains
that the benefit of impecunious litigation, which effectively grants an exemption
from the requirement of providing surety to cover any costs that may be incurred,
was disallowed by the judge presiding over the Fourth Civil Court of the Managua
Civil District. The judge held
that most of the plaintiffs were professionals, technical staff, and merchants,
and that decision was upheld by the Appeals Tribunal and the Supreme Court
The State maintains that the plaintiffs did not follow the correct
procedure for obtaining the benefit of impecunious litigation: according to
Article 874 of the Code of Civil Procedure, parties interested in securing
that benefit must apply individually and not collectively.
The purpose of Nicaraguan law in making this a personal right is to
enable the judge to assess and evaluate the evidence provided by the litigants
in an expedite fashion. The State further noted that some of the plaintiffs
from among the total number could have been granted the benefit if they had
applied individually, and their suits would not have been dismissed because
they would have been exempt from posting the surety bond.
27. In connection
with this, the State points out that no one can be obliged to initiate a lawsuit,
since doing so implies the acquisition of responsibilities, such as those
that arise from the need of the respondent to offer a defense; that need can
give rise to economic responsibilities, which justifies the existence of the
obligation of providing surety to cover any costs that the court may order.
The State maintains that the benefit of free justice cannot be extended
to individuals such as those represented by the petitioner; that benefit is
awarded to parties who demonstrate that they lack the economic wherewithal
required to litigate.
The State alleges that the suits filed in this case failed to prosper
because the plaintiffs did not post a cost bond. It therefore holds that it
has not denied anyone justice and that it has not violated the right to procedural
guarantees or the right of equality before the law.
In this regard the State believes that this case was conducted in accordance
with law since, under domestic law, pursuant to Article 939 of Code of Civil
Procedure, all plaintiffs can be required, at the respondents request,
to post surety in order to guarantee costs.
The State holds that both the first-instance and second-instance trials,
and the appeal and repeal proceedings, were conducted with the judicial guarantees
required by law. It further states that the rulings and sentences handed down
were reached in compliance with domestic law and with the judicial guarantees
of due process.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission
29. The Commission
is, at first glance, competent to examine the petitioners complaint,
in that the allegations refer to presumed violations of the rights enshrined
in Articles 8 (fair trial), 24 (equality before the law), and 25 (judicial
protection) of the American Convention, as stipulated in Article 44 thereof.
The alleged incidents took place under the jurisdiction of Nicaragua,
which has been a state party to the Convention since September 25, 1979.
30. The Commission
will now analyze whether this petition meets the requirements for admissibility
set forth in Articles 46 and 47 of the American Convention.
Exhaustion of Domestic Remedies
31. Article 46(1)(a)
of the American Convention stipulates that:
by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law.
32. The Commission
has on repeated occasions stressed the ancillary or complementary nature of
the inter-American human rights protection system.
This nature can be seen in Article 46(1)(a) of the Convention, which
enables States to first resolve issues within their own legal frameworks before
facing international proceedings.
In the case at hand, the petitioners claim to have exhausted the domestic
remedies provided by Nicaraguan law, but that filing those remedies was fruitless.
34. Similarly, in
response to the requests for information sent to it by the Commission, the
Nicaraguan State reported that its domestic remedies had been exhausted.
35. In this case,
the petitioners report they filed two civil suits before the Nicaraguan courts,
in two groups,
on June 18 and 20, 1993. In those
proceedings, the plaintiffs applied for the benefit of impecunious litigation.
On December 17, 1993, upon refusing to grant this benefit, the court ordered
the plaintiffs to provide a surety bond for the costs the proceedings could
incur in the amount of 29,036,000 cordobas which, if not deposited
within a period of 15 days, would cause the suit to be filed.
The plaintiffs filed for the annulment of that decision on January
19, 1994, since Nicaraguan law states that before a cost bond can be ordered,
the appointment of a common attorney must be ordered.
The presiding judge of the Fourth Court, in a ruling handed down on
March 4, 1994, declared the annulment proceedings inadmissible and dismissed
the combined ordinary suits because the cost bond had not been deposited within
the period set.
37. On March 10,
1994, an appeal against the decision of the Fourth Court was made to the Appeals
Tribunal, Region III, Civil and Labor Circuit of Managua.
In a decision handed down on May 26, 1994, the Appeals Tribunal upheld
the lower courts ruling.
38. The plaintiffs
filed an extraordinary repeal motion against the merits of the Appeals Tribunals
ruling on October 10, 1994; this was declared inadmissible on November 7,
1994. Finally, the plaintiffs
filed a de facto remedy before the
Supreme Court of Justice which, in a ruling given on November 7, 1995, decided
not to admit it, thus exhausting all the remedies offered by domestic law.
39. At the same time,
in response to the requests for information sent to it by the Commission,
the State noted that domestic remedies had been exhausted in that the case
in hand had been ruled on by the first-instance courts and upheld on appeal
and by the Supreme Court of Justice.
40. In light of the
evidence contained in the case file, the Commission believes it is a proven
fact, undisputed by the parties, that in the case at hand the remedies offered
by domestic law were exhausted, since the petitioners did have access to the
different courts and tribunals provided for in the Nicaraguan legal system.
Hence, the petition meets the admissibility requirement set forth in Article
46(1)(a) of the Convention.
41. Article 46(1)(b)
of the Convention states that petitions and communications must be lodged
within six months of the date on which the party alleging violation of his
rights is notified of the final judgment.
42. The Commission
notes that the petitioners brought their case before it within the stipulated
period, since the ruling of the Supreme Courtthe final instance in the
domestic proceedingswas dated November 7, 1995, and the petition was
submitted to the Commission on May 7, 1996.
The Commission therefore concludes that this petition meets the terms
of Article 46(1)(b) of the Convention.
Duplication of Proceedings and Res
43. Article 46(1)(c)
of the Convention states that for the Commission to admit a petition or communication,
its subject matter must not be pending in any other international proceeding.
Similarly, Article 47(d) of the Convention rules that the Commission
will declare inadmissible any petition or communication that is substantially
the same as one previously studied by the Commission or by another international
The parties allegations and the documents contained in the case
file do not indicate that the petition is pending in any other international
proceeding or arrangement, or that it is substantially the same as any other
petition previously studied by the Commission or other international agency.
The Commission therefore believes that in this case, the requirements
for admissibility set forth in Articles 46(1)(c) and 47(d) of the American
Convention on Human Rights have been met.
Nature of the Alleged Incident
45. Article 47(b)
of the Convention provides that the Commission shall declare inadmissible
any petition when the statements of the petitioner or of the state indicate
that the petition or communication is manifestly groundless or obviously out
46. In the initial
stages of the proceedings, the State claimed that the complaint was groundless
and denied that the Nicaraguan judicial authorities had perpetrated human
47. In contrast,
the petitioners held that since they were denied the benefit of impecunious
litigation, their access to justice was restricted: hence, their individual
guarantees under the Convention were violated.
48. In light of this,
the Commission must determine, through a preliminary examination of this petitions
merits, whether the allegations it contains are duly grounded and do constitute
violations under the terms of the American Convention.
In filing suit, the plaintiffs asked the domestic court to grant them
the benefit of impecunious litigation.
The first-instance judge, however, in decisions handed down on July
16 and August 18, 1993, denied them this benefit.
Subsequently, on August 27, 1993, he ordered the two suits to be combined
and instructed the plaintiffs to appoint a single legal representative.
Later, in a ruling dated December 17, 1993, the court admitted the
parties and ordered the plaintiffs to provide a bond to cover costs in the
amount of 29,036,000 cordobas, which, if not deposited within a period
of 15 days, would cause the suit to be filed.
In its comments, the State argued that the benefit of impecunious litigation
is an individual right, as stipulated in Article 874 of the Nicaraguan Code
of Civil Procedure. The purpose of Nicaraguan law in making this a personal
right is to enable judges to assess and evaluate the evidence provided by
litigants in an expedite fashion and in accordance with the terms set by procedural
51. The Nicaraguan
State denied that this case involved discrimination on economic grounds and,
together with its comments, submitted a list of the plaintiffs jobs
and professions, indicating that the surety set for all the plaintiffs was
reasonable. The State claimed
that the plaintiffs in this case were not destitute and, hence, the terms
set forth in Advisory Opinion OC-11/90 of the Inter-American Court of Human
Rights did not apply to them.
The State concluded that the petitioners were required to post the bond set
by the judge, since most of them had jobs and professions that provided them
with annual incomes in excess of 500 cordobas, the limit set by Nicaraguan
law for the benefit of impecunious litigation to apply.
52. Article 874 of
Nicaraguas Code of Civil Procedure provides that:
individual whose capital, together with the fees, wages, and incomes that
he receives, calculated on a yearly basis, does not reach the sum of five
hundred pesos, can apply for the benefit of impecunious litigation.
calculation shall not take into account his normal place of residence, judicial
actions, and loans that it is difficult to collect, or the tools, instruments,
or implements required by the applicant to exercise his profession or perform
Consequently, Article 939 of this Code stipulates that in trials involving
larger amounts, the plaintiff is required, at the respondents request
and as long as the first-instance proceedings remain unresolved, to provide
surety to cover such costs and damages as the judgment may require.
54. In the list submitted
by the State, containing the names of the 8,288 complainants and their jobs
and professions, it can be seen that the plaintiffs in this case were a heterogeneous
group: housewives, doctors, cardiologists, lawyers, mechanics, workmen, shopkeepers,
technicians, students, machine operators, musicians, apprentice carpenters,
etc. The judge did not therefore grant the benefit of impecunious litigation
to this group of individuals with different levels of income.
55. As evidence of
their economic situation, the petitioners merely submitted a number of documents,
such as the report of the Nicaraguan Institute of Social and Economic Research,
the Central Bank of Nicaraguas 1994 report, and the Inter-American Development
Banks 1995 report on Nicaragua. However, these studies provided no specific
evidence of the economic situation of each individual plaintiff; there is
insufficient evidence in the case file to show that the 8,288 plaintiffs were
destitute or unable to provide the surety required by the Nicaraguan courts.
56. The Commission
has stated that it is not competent to review judgments handed down by national
courts acting within their jurisdiction and observing due judicial guarantees,
or to rule on the merits of such sentences, except when the domestic proceedings
violate the guarantees of due process or any other right enshrined in the
57. In the case at
hand, the Commission notes that the plaintiffs had access to each of the instances
provided for by domestic legislation and that the State acted in accordance
with the law. Requiring the plaintiffs to guarantee costs in order for them
to be heard at trial and their material inability to post the required bond
should be proved on a case-by-case basis and not globally, as the petitioners
did with the aforesaid reports; this fact led to the dismissal of the suits
filed with the different courts. In this regard, it is important to note that
the failure of the domestic remedies to yield a result favorable to the plaintiffs
does not demonstrate per se that
rights and guarantees enshrined in the Convention were violated.
58. The Commission
believes that the allegations do not indicate that the domestic courts acted
in breach of rights protected by the Convention. Although the decisions of
the exhausted instances were not favorable to their interests, the violations
alleged by the petitioners arose from a provision of procedural law requiring
incontrovertible proof of poverty for the benefit of impecunious litigation
to be granted.
59. The Commission
believes that in the case at hand, the petitioners submissions do not
contain sufficient grounds or evidence to indicate the responsibility of the
Nicaraguan State in violations of rights enshrined in the American Convention.
60. The Commission
concludes that the terms of Article 47(b) of the American Convention on Human
Rights apply to this petition.
61. After analyzing
the documents submitted by the parties, the Commission concludes that they
do not describe duly grounded facts that tend to establish violations of the
rights set forth in Articles 1, 2, 8, 24, and 25 of the American Convention
on Human Rights.
62. In light of the
above factual and legal considerations,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare this case inadmissible.
To notify the parties of this decision.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
and signed by the Inter-American Commission on Human Rights, on the 16th day
of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First
Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners Marta Altolaguirre,
Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
The cost bond ordered by the judge in this ruling required the 8,288 plaintiffs
to pay a total of 29,036,000 cordobas which, divided among all the plaintiffs,
came out at 4,245 cordobas each (around USD $504).
Article 939 of the Code of Civil Procedure reads: In all trials
involving a greater amount the plaintiff, whether of domestic or foreign
nationality, shall be obliged, at the defendants request and as
long as the first-instance proceedings remain unresolved, to provide surety
to cover the payment of costs and damages should the judgment so require.
The first suit was filed on July 18, 1993, by Rosa Margarita Arauz Molina
and 1,447 other individuals. On July 20, 1993, Pedro Aguilera Aguilar
and 6,839 other people filed the second suit.
Inter-American Court of Human Rights, Advisory Opinion OC-11/90, August
See IACHR, Report No. 39/96, Case 11.673 (Argentina), October 15, 1996;
IACHR Annual Report 1996, paragraphs 50 and 51.