YATAMA v. Nicaragua, Case 12.388, Report No. 125/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 239 (2001).
REPORT No. 125/01
December 3, 2001
On April 26, 2001, the organization Yabti Tasba Masraka Nanih Asia
Takanka, YATAMA, the Centro Nicaragüense de Derechos Humanos (CENIDH),
and the Center for Justice and International Law (CEJIL) (hereinafter the
petitioners) submitted to the Inter-American Commission on Human Rights
(hereinafter the Commission or the IACHR) a petition
against the Republic of Nicaragua (hereinafter the Nicaraguan State,
Nicaragua, or the State) for the alleged violation
of rights enshrined in Articles XX (right to vote and participate in government)
and XXI (right to assemble) of the American Declaration of the Rights and
Duties of Man (hereinafter the American Declaration) and in
Articles 8 (right to a fair trial), 23 (political rights), 24 (equality
before the law), and 25 (judicial protection), in conjunction with Article
1(1) (obligation to respect the rights) of the American Convention on Human
Rights (hereinafter the Convention or the American Convention).
The complaint is related to alleged irregularities committed by the
Supreme Electoral Council and the courts of justice of Nicaragua, to the
detriment of the victims political rights.
With respect to admissibility, the petitioners allege that their
petition is admissible because it meets the requirements set forth at Article
46 of the Convention. The Nicaraguan
State failed to avail itself of the procedural opportunity afforded by the
Convention to make arguments related to admissibility.
The Commission, after analyzing the petition, the parties positions,
and the requirements set out at Articles 46 and 47 of the Convention, concluded
that it is competent to hear the claim, and declared the petition admissible.
PROCESSING BEFORE THE COMMISSION
On April 26, 2001, the Commission received the complaint by the petitioners
against the Nicaraguan State, and by note of May 15, 2001, proceeded to
send the State the pertinent parts of the petition, and to request that,
as provided in Article 30 of the Commissions Rules of Procedure (hereinafter
the Rules of Procedure), it make its observations within two
months so as to determine how to proceed with the complaint.
On August 9, 2001, the Commission reiterated to the State that it
should make observations on the petition, and gave it an additional 15 days
to do so. The Nicaraguan State
did not exercise the option to make observations on the petition within
the procedural opportunity and time frame afforded by Article 48 of the
Convention and Article 30 of the Rules of Procedure.
Nor did the State request an extension of the time period.
THE PARTIES POSITIONS
In the complaint, the petitioners state that YATAMA
is an indigenous regional political party in the autonomous regions of the Atlantic region
of Nicaragua, and that it decided to run candidates in the two electoral
regions of that larger region, for the elections for mayor and deputy mayor
(of the municipal governments), and members of the municipal councils, to
be held November 5, 2000 . YATAMA
ran candidates in the North Atlantic Autonomous Region (hereinafter the
RAAN) within the legal time limit set in the call for
municipal elections; these were not challenged, and the list was published
in the written media, as ordered by the Electoral Law of Nicaragua.
In the South Atlantic Autonomous Region (hereinafter RAAS),
YATAMA decided to participate
in an alliance with two other regional political parties, the Partido
Indígena Multiétnico (PIM) and the Partido de Pueblos Costeños
(PPC). The PIM decided to withdraw
from the agreement before the alliance was formally established, and the
PPC, when registering candidates, did not get the number of signatures established
by the Electoral Law of Nicaragua to participate in the elections.
As the alliance did not materialize, YATAMA, with full powers to
participate in the November 2000 elections, on July 20 sent the Supreme
Electoral Council (hereinafter the CSE) an urgent communication
requesting that it be authorized to participate in the RAAS individually,
using only its name, emblem, and list of candidates.
The CSE did not answer the request; accordingly, it was repeated
on July 31, August 8, and August 9, 2000.
On August 15, 2000, the CSE handed down a resolution in which it
resolved: First, not to approve
YATAMAs request to register as YATAMA candidates those presented by
the YATAMA/PPC Alliance in the South Atlantic Autonomous Region, and second,
not to register the candidates submitted by YATAMA in the North Atlantic
Autonomous Region. The CSE
based its resolution on the failure of the Partido de los Pueblos Costeños
to obtain the number of signatures required of political parties for participating
in elections, under Nicaraguas Electoral Law, and that the candidates
presented by YATAMA did not cover the percentage of municipalities and candidacies
required by the Electoral Law.
On August 18, 2000, the petitioners filed a motion for review (recurso
de revisión) before the Supreme Electoral Council against the above-mentioned
resolution, yet it did not obtain a response within the period provided
for in Nicaraguan legislation. On
August 30, 2000, YATAMA brought an amparo
action against the CSE before the Court of Appeals, North Atlantic District,
Civil and Labor Chamber, for its above-noted resolution of August 15.
On October 11, the appellate court decided to process the appeal,
and suspended the effects of the resolution challenged.
The Supreme Court, on October 25, 2000, declared that the amparo
action pursued by YATAMA was unfounded; it based its decision on the final
paragraph of Article 173 of the Constitution of Nicaragua, which notes:
No appeal shall be taken, regular or special, of the rulings
of the Supreme Council on electoral matters.
YATAMA was notified of that decision on October 26, 2000.
The petitioners allege that their petition is admissible because
domestic remedies have been exhausted as per Article 46(1)(a) of the Convention.
The State did not present observations or arguments on the petition
within the two months granted by the Commission, nor did it seek an extension
of that term.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
The Commission regrets that the Nicaraguan State has not availed
itself of the procedural opportunity provided for at Article 48 of the Convention
and Article 30 of the Rules of Procedure, its right to send information,
make observations, controvert or challenge the admissibility of the complaint
submitted by the petitioners, failing to avail itself of the procedural
rights afforded by the inter-American system of human rights.
The Commission considers that the State has tacitly waived its right
to controvert or call into question the admissibility requirements of the
Competence ratione loci, ratione
personae, ratione temporis and
ratione materiae of
The petitioners are authorized by Article 44 of the American Convention
to present complaints to the Commission. The complaint indicates as alleged
victims individuals with respect to whom the Nicaraguan State undertook
to respect and guarantee the rights enshrined in the Convention.
As regards the State, the Commission observes that Nicaragua is a
state party to the American Convention, having ratified it September 25,
1979. Accordingly, the Commission is competent ratione
personae to examine the petition.
The Commission is competent ratione
loci to hear this petition insofar as it alleges violations of rights
protected in the American Convention in the territory of Nicaragua, which
is a state party.
The Commission is competent ratione
temporis insofar as the facts alleged in the petition took place when
the obligation to respect and ensure the rights established in the Convention
was already in force for the Nicaraguan State.
With respect to competence ratione
materiae, the petitioners ask the Commission to declare that the State
violated the rights to a fair trial (Article 8), political rights (Article
23), equality before the law (Article 24), and judicial protection (Article
25), and the obligation to respect the rights (Article 1(1)), established
in the Convention, as well as the right to vote and to participation in
government (Article XX) and the right of assembly (Article XXI) of the Declaration.
The Commission considers that once the Convention entered into force
for the State, the Convention, and not the Declaration, became the primary
source of law applicable by the Commission,
so long as the petition refers to an alleged violation of rights that are
identical in both instruments,
and not a continuing violation. In the instant case, there is similarity
in the subject matter as between the provisions of the Declaration and the
Convention invoked by the petitioners. Accordingly, the right to vote and
participate in government (Article XX) and the right of assembly (Article
XXI), enshrined in the Declaration, are subsumed in the provisions that
provide for the rights protected at Articles 23 and 15 of the Convention.
Therefore, as regards those violations of the Declaration, the Commission
shall refer only to the provisions of the Convention.
In view of the foregoing, the Commission is competent ratione
materiae because the petition alleges violations of human rights contained
in Articles 8, 15, 23, 24, and 25 of the American Convention.
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention establishes that one of the requirements
for admitting a petition is that the remedies under domestic law have
been pursued and exhausted in accordance with generally recognized principles
of international law.
The petitioners allege that they have exhausted domestic remedies.
The Commission observes that the State has not raised any objection
arguing that this requirement has not been met, which is tantamount to a
tacit waiver of the right to call into question or challenge the admissibility
of the complaint. In view of
the foregoing, the Commission determines that the petition analyzed satisfies
the requirements set forth at Article 46(1)(a) of the Convention. Further,
the Commission verifies that the remedies provided for by Nicaraguan legislation
for such cases have been exhausted.
Time period for submission
Article 46(1)(b) of the American Convention provides that one of
the requirements for the admissibility of a petition is that it must be
lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment.
In the petition under study, the IACHR has established that there
has been a tacit waiver on the part of the Nicaraguan State of its right
to invoke the objection of failure to exhaust domestic remedies; accordingly,
the requirement of Article 46(1)(b) of the American Convention does not
Nonetheless, the Convention requirements for exhaustion of domestic
remedies and submission within six months of notification of the judgment
exhausting domestic remedies are independent.
Therefore, the Inter-American Commission must determine whether the
petition under study was submitted within a reasonable time. In this regard,
the IACHR observes that the original communication from the petitioner was
received April 26, 2001. Considering
the particular circumstances of the petition under analysis, especially
considering that the Supreme Court, on October 26, 2000, gave notice of
the resolution that declared the amparo
action filed by YATAMA to be unfounded, the IACHR considers that it was
submitted within a reasonable time.
In view of the foregoing, the Commission determines that the petition
analyzed meets the requirement set out at Article 46(1)(b) of the Convention.
Duplication of procedures and res
Articles 46(1)(c) and 47(d) of the Convention establish as admissibility
requirements that the subject matter of the petition or communication must
not be pending before another international body for settlement, and that
it not be substantially the same as a prior petition already examined by
the Commission or by another international organization.
It does not appear from the record that the subject matter of this
petition is pending before another international procedure for settlement,
or that it reproduces a petition already examined by the Commission or by
any other international organization.
As the State has failed to answer, no challenge has been raised alleging
failure to satisfy this requirement.
Accordingly, the Commission concludes that the requirements established
in Articles 46(1)(c) and 47(d) of the Convention have been met.
Characterization of the facts alleged
Article 47(b) of the Convention establishes that any petition will
be inadmissible that does not state facts that tend to establish a
violation of the rights guaranteed by this Convention.
The Commission considers that the petitioners allegations,
if proven, could tend to establish a violation of the rights guaranteed
in Articles 8, 15, 23, 24, and 25 of the Convention, in conjunction with
Article 1(1) of the Convention.
Based on the foregoing, the Commission considers that the requirements
established at Article 47(b) and (c) of the American Convention have been
The Commission concludes that it is competent to take cognizance
of the complaint submitted by the petitioners, and that the petition is
admissible under Articles 46 and 47 of the Convention.
Based on the foregoing arguments of fact and law, and without prejudging
on the merits,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare admissible the petitioners complaint regarding the
alleged violation of Articles 8, 15, 23, 24, 25, and 1(1) of the Convention,
to the detriment of the candidates to mayor, deputy mayor, and municipal
council presented by YATAMA for the municipal elections of November 5, 2000,
in the North Atlantic Autonomous Region and the South Atlantic Autonomous
To give notice of this decision to the Nicaraguan State and to the
To continue with the analysis of the merits of this case.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Adopted by the Inter-American Commission on Human Rights, December
3, 2001. (Signed):
Claudio Grossman, President; Juan E. Méndez, First Vice-President;
Marta Altolaguirre, Second Vice-President; Commissioners Robert Goldman,
Peter Laurie, and Julio Prado Vallejo.
The petitioners note that the Nicaraguan State also violated the rights
enshrined in Articles 21, 25, 26, and 27 of the International Covenant
on Civil and Political Rights, of the United Nations, and Convention
Nº 169, concerning Indigenous and Tribal Peoples in Independent Countries,
of the International Labor Organization.
Nonetheless, in the final section of this application setting
forth the relief sought, they ask the IACHR to declare that the Nicaraguan
State has violated the above-noted articles of the Convention and the
The acronym YATAMA is the abbreviation, in Miskito, of Yabti
Tasba Masraka Nanih Asia Takanka, which mean organization of the
children of mother earth.
On May 4, 2000, the Supreme Electoral Council of Nicaragua gave legal
recognition to the indigenous organization YATAMA as a regional political
YATAMA candidates to the RAAN:
Municipality of Puerto Cabezas:
Rodolfo Spear Smith, for mayor; Anicia Matamoros Bushey, for
deputy-mayor; Ovencio Maikell Barwell, Elmer Emsly Blanco, Winston Joel
Livy, Roberto Labonte Centeno, Minario Emsly Wilson, for the municipal
Municipality of San Juan del Río Coco Waspan: Calistro
Osorio Bans M., for deputy mayor; Diego Guzmán Vanegas Allington, Gilberto
Williams Jirón, Lucio Alfred Lacayo Kitler, Armando Thomas, Bernaldo
García Pantin, Remigio Narciso Zepeda, Antonio Reyes Waldan, Antonio
Avila Gutiérrez, for the municipal council.
Municipality of Bonanza:
Mario Peralta Bands, for mayor; Jorge Chacón Wilson, candidate
for deputy mayor; Ceferino Wilson Bell, Patricio López Dixon, Icasio
Dixon Reyes, for municipal council.
Municipality of Rosita:
Cristina Poveda Montiel, for mayor; Edison Johnny Anderson, Andrés
López Martínez, for deputy mayor.
The deadline for submission of candidates was July 15, 2000.
YATAMAs candidates to the RAAS were:
Municipality of Bluefields: Manuel Salvador Paguagua García,
for mayor, Yahaira Yvonne Amador Gadea, for deputy mayor; Eustacio Flores
Wilson, Ashmet Alexander Ally, Julio Cesar Delagado Pacheco, Israel
Díaz Amador, Angela Gibson Morales, Reynaldo Lagos Amador, Eduardo Alexander
Siu Estrada, Isabel Reyna Estrada Colindres, Lillian Elizabeth Francis
Wilson, Carlos John Omeir, Nelly Sánchez Castillo, Flor Deliz Bravo
Carr, William Wong López, Genny Mitchell Omeir, Sergio Warren León Corea,
Olga Orelia Shepperd Hodgson, for municipal council.
Municipality of El Tortuguero: Gorge Antonio Gutiérrez
Robledo, for mayor, Pastora Carmen García Guillén, for deputy mayor,
Jacinta Pérez González, Juana María Jirón Rodríguez, Alejandro Miranda
Reyes, Sandra Esther Reyes López, Emelina Valle Solano, Andrea Lira
Gaitán, Guillermina López García, and Hilda María Miranda Reyes, for
municipal council. Municipality of Sandy Bay Sirpi Desembocadura:
Roberto Chow Molina, for mayor; Edward Nixon Ellis Brooks, for deputy
mayor; Kramwel Frank James, Donald Wilson Martínez Roland, Cristina
Josefina Hills Thompson, Carolina Socorro Hurtado Rocha, Carlos Julian
Prudo, Norman Marcelina Inglish, Belarmino Young Richard, and Hipólito
García López, for municipal council.
Municipality of Laguna de Perlas:
Rodolfo Chang Bennett, for mayor; Alonso Florencio Willis Tucker,
for deputy mayor; Liston Hooker Allen, Constantino Franklin Humpheys
Hodgson, Jason Kenred Gutiérrez Peralta, Arlen Joan Peralta Davis, Wiliam
Martín, Catalina Hamphys, Ilva Bernard, and Wilma Taylor, for municipal
Municipality of Kukra Hill: Juan Casterio Reyes Craford,
for mayor; José Mateo López Rigby, for deputy mayor; Dionicio Márquez
Méndez, Ruth Vargas Smith, Leonor Hayde Maesk Thompson, Miguel Amador
Huete, Alicia Reyes, Roberto Ramos Renis, Hilda Estela Méndez, and Samuel
Walter Lemos Fedrick, for municipal council.
Municipality of Com Island: Dayne Wiston Cash Cassanova,
for mayor; Cristina Morris Anisal, for deputy mayor; Lorenzo Fidencio
Britton Calderon, Keston Orville López Lewis, Lowell Alvin Rigby Downs,
Marlene del Socorro Hebert Escorcia, Vaden Davis Downs White, Erick
Alvaro Archobol Lavonte, and Olga María Leyman Francis, for municipal
Municipality of La Cruz de Río Grande: Exibia Alarcón
Herrera, for mayor; Gloria Maritza Colindres Romero, for deputy mayo;,
Angela Barbarina Hurtado, Juan Francisco Díaz Matamoro, Marcelino Lanzas
Amador, Juan Carlos Loaisiga, Digno Díaz González, Gloria Isabel Lira
Díaz, Maritza Colado Plazaola, and Teodora Duarte Sequeira, for municipal
The I/A Court H.R. has indicated: For the States Parties to the
Convention, the specific source of their obligations with respect to
the protection of human rights is, in principle, the Convention itself.
Advisory Opinion OC-10/89 (Interpretation of the American Declaration
of the Rights and Duties of Man Within the Framework of Article 64 of
the American Convention on Human Rights), of July 14, 1989, para. 46.
The I/A Court H.R. has stated that these States cannot escape
the obligations they have as members of the OAS under the Declaration,
notwithstanding the fact that the Convention is the governing instrument
for the States Parties thereto. Advisory Opinion OC-10/89, of
July 14, 1989, para. 46.