Zoilamérica Narváez Murillo v. Nicaragua, Case 12.388, Report No. 118/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 229 (2001).
SUMMARY OF THE ALLEGED INCIDENTS
On October 27, 1999, the Inter-American Commission on Human Rights
(hereinafter the Commission or the IACHR) received
a petition sent by Ms. Zoilamérica Narváez Murillo, the alleged victim,
and Vilma Núñez de Escorcia, her legal representative and the president
of the Nicaraguan Human Rights Center (hereinafter the petitioners),
against the State of Nicaragua (hereinafter the State or Nicaragua),
alleging that the State had violated Zoilamérica Narváezs right to
be heard by a competent court or judge. Ms. Narváez filed suit with the
First District Criminal Court in Managua on June 5, 1998, in connection
with the alleged physical and psychological violence she suffered at the
hands of her adoptive father, Mr. Daniel Ortega Saavedra, currently a deputy
serving in Nicaraguas National Assembly.
2. According to
the petitioners, the State of Nicaragua violated Articles 1 (obligation
to respect rights), 2 (obligation to adopt domestic legal provisions), 8
(right to a fair trial), 24 (equality before the law), and 25 (judicial
protection) of the American Convention on Human Rights, together with Article
7, sections b, d, e, f, and g, of the Inter-American Convention on the Prevention,
Punishment and Eradication of Violence Against Women, in that the National
Assembly still has not issued a decision regarding the request for annulment
of congressional immunity filed by Ms. Narváez against Deputy Ortega, which
has prevented the alleged victim from enjoying access to justice for the
restitution of her violated rights.
The Nicaraguan State maintains that it has not denied Ms. Zoilamérica
Narváez Murillo access to justice and holds that in the case at hand, the
authorities acted in accordance with domestic law and the American Convention.
The State also holds that the remedies provided by domestic jurisdiction
were not exhausted in this case, in that there was a Special Commission
charged with studying and ruling on Deputy Ortegas annulment of congressional
immunity, in accordance with the procedure set forth in the Immunity Law.
It therefore requests that Commission declare the petitioners claim
inadmissible on the grounds of noncompliance with the requirement of first
exhausting domestic remedies contained in Article 46(1)(a) of the American
Convention. In reply, the petitioners maintain that the complaint they lodged
with the IACHR is covered by the exceptions to the prior exhaustion requirement
described in Article 46(2)(b) and (c) of the American Convention.
At its 113th regular session, held on October 9-19, 2001, the Commission
analyzed the legal considerations and factual evidence submitted by the
parties during the processing of this complaint and decided to declare the
case admissible in accordance with the provisions of Articles 46 and 47
of the American Convention.
PROCESSING BEFORE THE COMMISSION
On October 27, 1999, the Commission received the petition filed by
Ms. Zoilamérica Narváez Murillo and Ms. Vilma Núñez de Escorcia against
the State of Nicaragua. On
November 8, 1999, in accordance with Article 34 of its Regulations in force
before April 30, 2001, the Commission began its processing of Case 12.230
and asked the State to submit the relevant information, granting it a period
of 90 days to comply. On that
same date, it informed the petitioners that the case had been opened.
6. On January 13,
2000, the State submitted its comments, indicating that the remedies provided
by domestic law had not been exhausted in this case.
This information was sent to the petitioners on February 15, 2000,
along with a request for their comments on it.
On January 14, 2000, the petitioners sent the Commission additional
information, which was forwarded to the State on February 16, 2000.
On March 27, 2000, the petitioners sent the Commission their reply
to the States comments. This information was sent to the State of Nicaragua on March
31, 2000, with a period of 30 days in which it could submit its comments.
On August 22, 2000, the Commission received a communication from
the petitioners in which they sought to appear at a hearing before the IACHR.
In a note dated September 11, 2000, the Commission indicated that
it was unable to receive them at a hearing because the request was lodged
On September 27, 2000, the State submitted its comments, in which
it reiterated that the domestic remedies available had not been exhausted
in the case at hand. In accordance
with procedure, that information was sent to the petitioners on October
On December 13, 2000, the petitioners sent their comments on the
Nicaraguan States reply. The
Commission forwarded those comments to the State of Nicaragua on December
19, 2000, with a 30-day period for it to reply.
On April 25, 2001, the State replied to the petitioners comments,
repeating the same position as in its previous submissions.
On June 26, 2001, the petitioners submitted their comments on the
POSITIONS OF THE PARTIES
The petitioners claim that the State of Nicaragua violated Ms. Zoilamérica
Narváezs right to a fair trial in that it did allow the crimes of
sexual abuse reported to the First District Criminal Court of Managua to
go unpunished by failing to suspend Dep. Daniel Ortegas congressional
immunity. The petitioners claim
that the legislature hindered her access to justice by failing to process
the request for the deputys immunity to be lifted in accordance with
the procedure described in the Immunity Law; and, in spite of the procedural
formalities followed by Ms. Narváez, this situation could not be overcome
because of a lack of political will on the part of the legislature and because
there was no further remedy through which that state body could have been
required to initiate proceedings toward the suspension of his immunity.
They consequently believe that the exceptions set forth in Article
46(2)(b) and (c) of the American Convention apply in this case.
The petitioners claim that the National Assembly, as a state body,
did not abide by the terms of the Immunity Law (Nº 83) and, in spite of
their repeated requests for the deputys immunity to be suspended,
no decision was given until this case was brought before the Inter-American
Commission on Human Rights. After
the case had been brought to the Commissions attention, in a document
dated December 7, 1999, the State sent the petitioner notification of the
decision by the National Assemblys Steering Committee, adopted at
its meeting Nº 033-99 on November 25, 1999, regarding her request for suspension
The petitioners maintain that in that decision, the National Assembly
distorted and manipulated Ms. Zoilamérica Narváezs claims, in that
it ruled on the suspension or loss of deputy status, which is governed by
the Assemblys internal regulations, and not on the procedure for the
suspension of immunity sought by the petitioner, which is governed by the
Immunity Law. The petitioners
also claim that the State acted deceitfully, in that it sent the Commission
a different resolution from the one it sent Ms. Narváez on December 7, 1999.
14. The State maintains
that at no time did the legislature obstruct the petitioners access
to justice. In this regard
it points out that the First District Criminal Judge in Managua remitted
the documents she was given to the National Assembly, in accordance with
the Immunity Law, since her court was not competent to hear the suit filed
by Ms. Zoilamérica Narváez without first pursuing the suspension of immunity
in accordance with Nicaraguan law.
The State also claims that the petitioner enjoyed full access to
domestic remedies, in that she sought the suspension of Dep. Ortegas
immunity and also requested, by means of an incidental motion, a prior ruling
on whether he was in full enjoyment of his congressional position or had
abandoned his functions.
15. The State holds
that domestic jurisdiction has not been exhausted, in that the National
Assemblys Steering Committee, at a meeting on November 25, 1999, unanimously
resolved to analyze the incidents reported by Ms. Narváez and agreed to
set up a Special Commission to study and issue a ruling on the lifting of
Dep. Ortegas immunity in accordance with the procedure set forth in
the Immunity Law. The State
adds that Ms. Narváez did not file for amparo relief against the resolutions of the National Assemblys
Steering Committee, as allowed by Article 51 of the Amparo Law.
The State therefore requests that the Commission declare the petitioners
claims inadmissible, pursuant to the terms of Article 46(1)(a) of the American
COMPETENCE AND ADMISSIBILITY
Competence of the Commission
Having seen the background of the complaint and the way in which
it has been processed per the descriptions in the above paragraphs, the
Commission sees the admissibility of the case in the following terms:
The Commission may hear a case brought before it provided that, prima
facie, it meets the formal admissibility requirements set forth in Articles
46 and 47 of the American Convention.
Under Article 44 of the Convention, the petitioners are entitled
to lodge complaints with the IACHR. The petition names, as its alleged victims,
individual persons with respect to whom the State of Nicaragua had assumed
the commitment of respecting and ensuring the rights enshrined in the American
Convention. With respect to the State, the Commission notes that Nicaragua
has been a party to the Convention since September 25, 1979, when it deposited
the corresponding instrument of ratification. The Commission therefore has
competence ratione personae to
examine Ms. Zoilamérica Narváez Murillos complaint.
The Commission has competence ratione
loci to deal with this petition, since it alleges violations of rights
protected by the American Convention occurring within the territory of a
state party there to.
The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights
protected by the American Convention was already in force for the State,
on the date on which the incidents described in the petition allegedly occurred.
Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights protected
by the American Convention.
Admissibility requirements of the petition
The Commission will now examine whether this petition meets the admissibility
requirements set forth in Articles 46 and 47 of the American Convention.
Exhaustion of domestic remedies and timeliness of the petition
The Commission has, on repeated occasions, stressed the reinforcing
or complementary nature of the inter-American human rights protection
system. This rule allows states to resolve matters within their own legal
frameworks before facing international proceedings.
The State holds that the petitioners complaint should be declared
inadmissible because a decision on the case is still pending. The petitioners,
in turn, claim that they did consult the competent authorities; however,
the domestic remedies they pursued were fruitless, and the failure of the
National Assembly to resolve their request for the lifting of congressional
immunity has denied them the access to justice that would remedy the violated
Article 46(1)(a) of the Convention stipulates that: Admission
by the Commission of a petition or communication... 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. However, Article 46(2) provides that this requirement
shall not apply when:
the domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly been
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
In this connection, the Inter-American Court of Human Rights has
maintained that petitioners must only exhaust those remedies that are adequate
for redressing the alleged violation. It should be noted that the function
of those remedies within the domestic legal system must be suitable for
addressing an infringement of a legal right.
In the case at hand, the petitioners claim to have exhausted the
remedies provided by domestic jurisdiction, in that the petitioner filed
suit against Mr. Daniel Ortega with the First District Criminal Court in
Managua on June 5, 1998, for the crimes of sexual abuse, rape, and sexual
harassment. In that same suit, Ms. Narváez asked for the National Assembly
to be requested to begin proceedings to suspend Mr. Ortegas congressional
immunity, pursuant to the provisions of the Immunity Law (Nº 83). Her suit
was admitted by the judicial decision of June 9, 1998.
On June 15, 1998, Dep. Daniel Ortega submitted a document to the
First District Criminal Court, asking the judge to dismiss the suit because,
as a member of the Assembly and in accordance with Article 139 of Nicaraguas
Constitution, he enjoyed congressional immunity. He also denied the allegations
made against him and further stated that statutory limitations were applicable
to some of them.
In a ruling dated June 17, 1998, the judge in charge of proceedings
revoked the admission of the suit and forwarded the case documents to the
National Assembly to enable its secretariat to report to the Steering Committee
and for the steps set forth in the Immunity Law to be taken.
On June 22, 1998, Ms. Zoilamérica Narváez filed a request for the
suspension of Dep. Daniel Ortegas immunity with the secretariat of
the National Assembly and, on June 24, asked the secretariat to check that
he was attending the Assemblys sessions. On August 21, September 9
and 11, and October 8, 1998, the petitioner reiterated her request to the
On October 28, 1998, the National Assembly presented Ms. Zoilamérica
Narváez with a certified copy of the Steering Committees resolution
ordering the case to be forwarded to the Legislative Advisory Directorate
for it to provide the Steering Committee with its considerations on the
On December 7, 1999, the National Assembly notified Ms. Narváez of
Resolution Nº 033-99 of November 25, 1999, in which the National Assemblys
Steering Committee considered her request for the Assembly to issue a statement
on whether Deputy Daniel Ortega Saavedra did or did not enjoy special
congressional immunity because, as she [Ms. Narváez] stated, Art. 130 of
the Constitution provides that immunity shall not apply in cases involving
family rights, and she holds that the crimes for which she has filed suit
against Deputy Daniel Ortega must be considered crimes
against the family and, as such, would be covered by family rights.
In that regard, the Steering Committee pointed out that: Article
130 of the Constitution textually sets out the exception of immunity for
Family Rights, which refers solely
and exclusively to civil matters related to family lawfor example:
marriage, divorce, children, family relationships, child custody, alimony,
etc.and does not refer at all to matters of a criminal nature; were
that so, it would have expressly specified crimes
against the family, a turn of phrase that the framers of the Constitution
chose not to use. Nicaraguan law has established it in those terms. Originally,
family law was conceived of as belonging entirely to civil law, and it has
fallen to the civil courts to resolve issues arising in this regard and
to distinguish them from criminal matters. The new Organic Law of the Judicial
Branch clearly indicates the distinction that exists, with different courts
and tribunals responsible for dealing with these matters.
The National Assemblys Steering Committee added: Furthermore,
the current Criminal Code does not contain this kind of crimes
against the family; on the contrary, our Code solely covers crimes
against people and crimes that affect peoples civil status. We
should remember the PRINCIPLE OF CRIMINAL LEGALITY enshrined in Article
34(11) of the Constitution, which guarantees that a person shall not stand
trial or be convicted for an action or failure to act that, at the time
it took place, was not expressly and unequivocally defined by law as a punishable
Similarly, Article 13 of the Criminal Code provides
that: Broad interpretations are prohibited in criminal proceedings.
Judges shall abide strictly by the letter of the law. When doubts arise,
the law shall be interpreted in the fashion most favorable to the accused.
Finally, the Steering Committee of the National Assembly said that:
The case submitted by Ms. Narváez Murillo clearly involves a suit
and an accusation that is not a civil matter, and civil matters are the
arena of the family law that enjoys constitutional exemption from immunity;
in contrast, this is clearly a criminal matter, one that is not covered
by the exemption of immunity established in Article 130 of the Constitution,
and one that is instead governed by current criminal law.
Consequently, the National Assemblys Steering Committee resolved,
on the one hand, to declare groundless the objection filed and to
reaffirm that in this case, Deputy Daniel Ortega Saavedra enjoys immunity,
and, on the other, to create a Special Commission to hear and resolve
the proceedings referred to the First Secretariat by the First District
Criminal Court of Managua in the suit brought by Ms. Zoilamérica Narváez
Murillo against Deputy Daniel Ortega Saavedra.
37. The State recognizes
that Ms. Narváezs requests and arguments forced the National Assembly
to render a decision on the incidental and special proceedings, which was
published in Deed Nº 033/99, which led it to delay its main decision
regarding the request for Deputy Ortega Saavedras immunity to be lifted,
so that a ruling on the incidental matters could be given.
The State claims that the creation of this Special Commission demonstrates
that domestic jurisdiction has not been exhausted, since this is the procedure
set by the Immunity Law and, consequently, represents the instance responsible
for deciding on the suspension of Dep. Daniel Ortegas immunity. However,
the State notes that: Although it is true that the Commission has
the appointment of its five members has still to be made.
Finally, in its claims the State adds that domestic remedies have
not been exhausted, in that Ms. Narváez did not file for amparo
relief against the resolutions of the National Assemblys Steering
In this regard, the petitioner has said that under Article 51 of the Amparo
Law, this remedy is not admissible against legislative resolutions or actions
of the National Assembly; the petitioner is therefore defenseless, since
there is no remedy that can oblige the legislative branch to resolve her
complaint in the terms established by the Immunity Law.
The Inter-American Commission notes that the Immunity Law requires
that the National Assemblys Steering Committee immediately appoint
a Commission to study and issue a ruling on complaints brought before it.
In addition, the procedure set forth in the Immunity Law stipulates that
after the evidentiary phasewhich may not last more 30 daysthe
Special Commission must hand down a ruling within a period of 10 days, either
upholding or dismissing the complaint.
Moreover, as regards the exhaustion of domestic remedies, the Inter-American
Commission notes that since Ms. Narváez presented the National Assembly
with her request for suspension of the deputys immunity on June 22,
1998, three years and three months have gone by in which she has not received
a final response regarding that application. In particular, the National
Assemblys failure to appoint the members who would serve on the Special
Commission has kept a decision on Ms. Narváezs request from being
This has kept the petitioner on indefinite standby and has prevented her
from asserting her rights before the regular courts.
For the purposes of the admissibility of this complaint, the Inter-American
Commission holds that the petitioner has been denied access to an appropriate
judicial remedy for investigating the suit she filed with the courts in
Managua, in the terms of the exception set forth in Article 46(2)(b) of
the American Convention. The requirements set forth in Article 46(1)(a)
and (b) are therefore not applicable in the instant case.
Article 46(2) of the Convention is, by reason of its nature and purpose,
an autonomous provision with respect to the instruments substantive
provisions. So, the decision as to whether the exceptions to the exhaustion
of domestic remedies rule are applicable in the case at hand must be taken
before the merits of the case are examined and in isolation from that examination,
in that it depends on a different criterion from the one used to determine
whether Articles 8 and 25 of the Convention were indeed violated.
In the case at hand, the Commission holds that the exhaustion of
domestic remedies bears a close relation to the merits of the case, in light
of the States obligation of guaranteeing access to justice and of
providing effective judicial remedies as enshrined in the American Convention.
Consequently, all issues relating to the effectiveness of domestic remedies
will be analyzed in the IACHRs subsequent report on the merits of
Duplication of proceedings and Res
Article 46(1)(c) of the Convention stipulates that for the Commission
to admit a petition or communication, the subject thereof must not be pending
in any other international proceeding. In addition, Article 47(d) of the
Convention requires the Commission to declare inadmissible any petition
or communication that is substantially the same as any other one previously
studied by the Commission or by another international organization.
The parties claims and the case documents do not indicate that
this petition is pending in any other international proceeding for settlement,
nor is it substantially the same as any earlier petition previously examined
by the Commission or other international body. The Commission therefore
holds that in the case at hand, the admissibility requirements set forth
in Articles 46(1)(c) and 47(d) of the American Convention have been met.
Characterization of the alleged facts
The Commission believes that the petitioners claims regarding
the alleged violation of the right to a fair trial, to equality before the
law, and to judicial protection could tend to establish a violation of rights
enshrined in Articles 8, 24, and 25 of the American Convention, in conjunction
with Article 1 thereof.
The petitioners have shown that the alleged violations can be associated
with an agency or agents of the state, as required by Article 47(b) of the
Convention. The paragraphs containing the analysis of the exhaustion of
domestic remedies state that the alleged violations appear to be the result
of actions or omissions by agents or officials of the Republic of Nicaragua.
In accordance with the above considerations, the Commission concludes
that this petition meets the admissibility requirements set forth in Articles
46 and 47 of the American Convention on Human Rights. Consequently, the
Commission is competent to hear Case Nº 12.230.
Based on the foregoing considerations of fact and law, and without
prejudging the substance of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged violation
of Articles 8, 24, and 25 of the American Convention on Human Rights, in
connection with Article 1 there to.
With respect to the other rights referred to by the petitioners,
to postpone analysis thereof until the merits phase, provided that the allegations
To give notice of this decision to the parties.
To continue with the analysis of the merits of this case.
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 in the city
of Washington, D.C., on the fifteenth day of October, 2001. (Signed): Claudio
Grossman, President; Juan Méndez, First Vice-President; Marta Altolaguirre,
Second Vice-President; Commissioners Hélio Bicudo, Robert K. Goldman, Peter
Laurie, and Julio Prado Vallejo.
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment
of July 29, 1988, paragraph 63.
Jointly transmitted with decision Nº 033-99 by the National Assemblys
Steering Committee was a note, dated January 3, 2000, that the Assemblys
First Secretary sent to Nicaraguas Vice-Minister for Foreign Affairs.
In that note, the First Secretary explained that the Special Commission
responsible for studying and ruling on the lifting of Mr. Ortegas
congressional immunity had already been created, but its members had
not yet been appointed.
Comments by the State of Nicaragua, April 25, 2001, p. 2.
Ibid., p. 3.
Comments by the State of Nicaragua, April 25, 2001, p. 3.
The Immunity Law provides as follows:
8: Following receipt at the National Assembly secretariat of a complaint
sent by the President of the Republic or of a complaint lodged with
this branch of government, notice shall immediately be given to the
Steering Committee and it shall be processed in accordance with the
9: The National Assembly Steering Committee shall immediately appoint
a Commission, constituted in accordance with the guidelines set in the
General Statute of the National Assembly, to study the lodged complaint
and to issue a ruling on it. The official against whom the complaint
is made shall be informed of the terms of the complaint within 24 hours
following the constitution of the Commission, and he shall appear before
that Commission no later than six days after his notification thereof
for him to make the relevant statements.
11: The Commission shall remain open to receive evidence for twenty
days following the hearing, and this period may be extended for an additional
ten days if a request to that effect is made by the Commission or the
interested party to the National Assemblys Steering Committee.
At the end of that period, the Commission shall issue its ruling within
the following ten days. The ruling shall either uphold the admissibility
of the complaint or dismiss it.
13: If 60 percent of the members of the National Assembly vote to uphold
the complaint against the official(s), their congressional immunity
shall be suspended.
The IACHR has not been informed about the appointment of the members
of the Special Commission set up by Resolution 033/99 of November 25,
1999, to rule on the immunity of Dep. Daniel Ortega.