164. With these antecedents, and given the way the Sandinista People's Army was structured, the Nicaraguan state should have prevented the events of November 23, 1992. Moreover, after Arges Sequeira Mangas gave important testimony to the Commission in April 1992, and bearing in mind that Article 58 of the Commission's Regulations establish clearly that the state "shall bind itself [during an on-site observation visit] not to take any reprisals of any kind against any persons or entities cooperating with the Special Commission or providing information or testimony." Nicaragua as a state party to the American Convention on Human Rights should have prevented the events that are the subject of the instant case. The Inter-American Court of Human Rights has noted:
This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.34
165. Another fact that shows the tolerance of the Nicaraguan state in the instant case is that the Ministry of Government, by Certificate No. 001381, sought to amnesty the person responsible for the crime. In effect, as appears in the judgment by the judge of first instance, "the Ministry of Government, as confirmed in the process, is in charge of giving out Amnesty letters, and as appears in the certificate extended to Frank Ibarra Silva, born December 5, 1958, who belongs to the F.P.I. [Punitive Forces of the Left] under the command of Pedrón, he was given said Certificate No. 001381, in which convict Frank Ibarra Silva is granted the Amnesty promulgated in the Official Gazette, mentioned above...." In this respect, the Supreme Court of Justice, in its judgment of March 7, 1997, declared the granting of said amnesty contrary to law and affirmed the 20-year prison sentence imposed by the Court of Appeals.
b. The impunity in this case and the absence of reparation for the relatives of the victim
166. Article 25 of the American Convention on Human Rights establishes that all states parties are under an obligation to provide citizens under their jurisdiction with due judicial protection. This protection also includes the state parties undertaking "to ensure that the competent authorities shall enforce such remedies when granted." (Article 25(2)(c)) For its part, the Inter-American Court of Human Rights has indicated: "If the State apparatus acts in such a way that the violation goes unpunished ... the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons with its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention." 35
167. The Inter-American Commission on Human Rights has stated on repeated occasions that the person presumably responsible for the murder of Arges Sequeira Mangas is free, despite the numerous arrest orders issued against him by the Judiciary. Moreover, after the final decision of the Supreme Court of Justice affirming the guilty verdict of the Court of Appeals, the Nicaraguan state has not made any serious effort to detain the person responsible for the criminal act, thereby leaving the crime in total impunity. The report from the Asociación Nicaragüense Pro-Derechos Humanos of February 1997 is quite eloquent in stating:
It should be mentioned that throughout the process, and to date, at no time have the persons incriminated been detained, and even Frank Ibarra Silva freely attends the RUFCA educational student, like any other student, according to an article published in the daily newspaper La Prensa on November 23, 1996. 36
168. Consequently, the Inter-American Commission on Human Rights should reiterate, based on the arguments set forth above, that the Nicaraguan state has become internationally liable for the violation of Article 4 in connection with Article 1(1) of the American Convention on Human Rights. This is because the persons responsible for the crime murdered Arges Sequeira Mangas with the tolerance of the Nicaraguan state.
c. The violation of Article 8(1) of the American Convention on Human Rights in relation to a reasonable time for determining the rights violated
169. The Inter-American Commission on Human Rights must reiterate, once again, that the violation of Article 8(1) of the American Convention on Human Rights does not have to do with the judicial activity regarding this case in Nicaragua, but with the unreasonable delay in the administration of justice in producing a decision that restores the legal rights violated. In effect, the defense counsel for the person responsible for the crime filed a special motion for cassation with the Supreme Court of Justice on March 22, 1994. That court recently handed down a judgment, on March 7, 1997, i.e. almost three years after the motion was filed. In the case of Jean Paul Genie Lacayo v. Nicaragua, the Inter-American Court of Human Rights determined that the Nicaraguan state was liable internationally for the violation of Article 8(1) of the Convention, based on the following criterion:
... considering the complexity of the matter, as well as the excuses, impediments, and replacement of justices of the Supreme Court of Justice, the period of more than two years that has transpired from the admission of said motion for cassation [August 31, 1994] is not reasonable, and consequently this Court should consider it violative of Article 8(1) of the Convention. It shall do so in the operative part, with respect to Article 1(1) of the Convention, which contains the general obligation to respect the Convention.37
170. Following this doctrine established by the Court, and mindful of the complexity of this case, the Inter-American Commission on Human Rights considers that the duration of three years is not a reasonable time for considering and ruling on a motion for cassation; consequently, it considers that the Nicaraguan state has violated Article 8(1) of the American Convention on Human Rights.
VIII. CONCLUSIONS
171. The Nicaraguan state is liable for the violation of the right to life, the right to a fair trial, and the right to judicial protection of Mr. Arges Sequeira Mangas--Articles 4, 8(1), and 25(1) and (2)(c) of the American Convention on Human Rights--for the events that occurred in the city of El Sauce, department of León, Nicaragua, on November 23, 1992.
172. The Nicaraguan state is liable for the violation of the right to humane treatment, right to a fair trial, and right to judicial protection of Julián Alejandro Espinoza Martínez--Articles 5, 8(1), and 25(1) and (2)(c) of the American Convention on Human Rights--for the events that occurred in the city of El Sauce, department of León, Nicaragua, on November 23, 1992.
173. The Nicaraguan state has not met its obligations to respect human rights and guarantees imposed by Article 1(1) of the American Convention on Human Rights, to which Nicaragua has been a state party since September 25, 1979.
IX. RECOMMENDATIONS
174. It is recommended that the Nicaraguan state punish the amnesty granted to the persons responsible for the death of Mr. Arges Sequeira Mangas, so as to punish them for the events that occurred in the city of El Sauce, department of León, Nicaragua, on November 23, 1992.
175. It is recommended that the Nicaraguan state punish the persons responsible for the injuries inflicted on Julián Alejandro Espinoza Martínez, who survived the events that occurred in the city of El Sauce, department of León, Nicaragua, on November 23, 1992.
176. It is recommended that the Nicaraguan state undertake an exhaustive investigation so as to bring to trial and impose disciplinary sanctions on the police authorities who failed to carry out the arrest orders issued by the Judiciary for the persons responsible for the criminal act.
177. It is recommended that the Nicaraguan state pay fair compensation to the victim's relatives for physical and non-physical damages, including pain and suffering.
X. PUBLICATION
178. To publish this report, pursuant to Article 48 of the Commission's Regulations and Article 51(3) of the American Convention on Human Rights, and to include it in the next Annual Report of the Commission, since the Nicaraguan state did not adopt the measures to restore the legal rights violated within the time periods granted--as it did not follow through on the recommendations--nor did it respond to Report Nº 52/97, which was sent to it on October 17, 1997.
1. It should be noted that the newspaper (Barricada) published this article on February 23, 1993.
2. This issue of the newspaper is part of the documentary evidence in the Inter-American Commission on Human Rights files.
3. Cited by the Inter-American Court of Human Rights, Jean Paul Genie Lacayo Case, Preliminary Objections, Judgment of January 27, 1995, p. 9, paragraph 30.
4. Article 54, Regulations of the Inter-American Commission on Human Rights.
5. Article 37(3) of the IACHR Regulations, Exhaustion of Domestic Remedies.
6. Inter-American Court of Human Rights, Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987 (paragraph 88).
7. Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988 (paragraph 177).
8. Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987 (paragraph 91).
9. Velásquez Rodríguez Case, Preliminary Objections, supra 4, paragraph 91.
10. Inter-American Court of Human Rights. Judicial Guarantees in States of Emergency (Articles 27(2), 25, and 8, American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A, No. 9, paragraph 27.
11. See European Court of Human Rights, Golder Case, Judgment of February 21, 1975, Series A, No. 18, paragraph 28, in relation to Article 6 of the European Convention on Human Rights, which covers substantially the same rights and guarantees as Article 8 of the American Convention.
12. The right to a fair trial is regulated in several articles of the Convention, namely Articles 7, 8, 9, and 25.
13. Inter-American Court of Human Rights, Advisory Opinion OC-9/87, supra note 1, paragraph 30.
14. Inter-American Court of Human Rights, Advisory Opinion OC-8/87, January 30, 1987, Habeas Corpus in Emergency Situations (Articles 27(2), 25(1), and 7(6)), paragraph 25.
15. Inter-American Court of Human Rights, Advisory Opinion OC-9/87, supra 1, paragraph 24.
16. Id., paragraph 24.
17. See the jurisprudence of the European Court of Human Rights: Barberá, Messegue and Jabardo Case, Judgment of December 6, 1988, Series A, No. 146, paragraph 83; Asch Case, supra note 9, paragraph 26; Delta Case, supra note 9, paragraph 35.
18. Inter-American Court of Human Rights, Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, paragraph 93.
19. European Court of Human Rights, Eckle judgment of 15 July 1982, Series A. No. 51; Zimmerman and Steiner judgment of 13 July 1983, Series A. No. 66; European Commission of Human Rights, Decisions & Reports, No. 41, Strasbourg, April 1985. Inter-American Commission on Human Rights, Annual Report 1988-1989, Case No. 10,037, "Firmenich."
20. IACHR, Case No. 10,037, op. cit., p. 67.
21. Inter-American Court of Human Rights, Case of Jean Paul Genie Lacayo, Judgment of January 29, 1997, paras. 80 and 81.
22. European Commission of Human Rights, Decisions & Reports, No. 41, Strasbourg, April 1985, p. 29, paragraphs 104-105.
23. European Commission of Human Rights, op. cit., p. 30, paragraph 107.
24. The motion for cassation was brought before the Supreme Court of Justice, by the attorney for the liable party, on March 22, 1994.
25. Héctor Faúndez Ledesma, Administración de Justicia y Derecho Internacional de los Derechos Humanos, Universidad Central de Venezuela, School of Law and Political Science, Graduate Studies Committee, Instituto de Derecho Público, Caracas, Venezuela, 1992, p. 270.
26. Manual de Derecho Internacional Público, Max Sorenson, Fondo de Cultura Económica, Mexico City, 1985, p. 508. These elements of international liability are also set forth by Eduardo Jiménez de Aréchaga, in his treatise Derecho Internacional Público, Vol. IV, p. 34, Fundación de Cultura Universitaria, 1991.
27. Asdrúbal Aguiar, La Responsabilidad Internacional del Estado por Violación de Derechos Humanos, in: Estudios Básicos de Derechos Humanos, IIDH, Vol. I, p. 127, paragraph 25, San José, Costa Rica, 1994.
28. See Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, Manchester University Press, 1973, p. 208. The concept of jus cogens is set forth in Article 53 of the Vienna Convention on the Law of Treaties, which provides that: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."
29. Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988 (paragraph 175).
30. IACHR, Annual Report 1992-1993, Chapter IV, p. 205.
31. Arges Sequeira Mangas was murdered in the morning hours of November 23, 1992.
32. The Nicaraguan daily Barricada, of February 23, 1993, published the entirety of the interview of Ibarra by the French newspaper Le Monde under the following headline: "Former military officer, at large, reappears in Santa Carlota," "Ibarra: I am the Chief of the FPI [Punitive Forces of the Left]," "He alleges they wanted to kidnap Arges Sequeira, not kill him."
33. IACHR, Annual Report 1990-1991, pp. 477 and 479, OEA/Ser.L/V/ii.79.rev.1, Doc. 12, February 22, 1991.
34. Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, para. 166.
35. Id., para. 176.
36. Asociación Nicaragüense Pro-Derechos Humanos, Retos del Nuevo Gobierno Frente a la Situación de los Derechos Humanos, page 6, Managua, Nicaragua, February 1997.
37 Inter-American Court of Human Rights, Case of Jean Paul Genie Lacayo, January 29, 1997, para. 80.