PHYSICAL FREEDOM AND THE ADMINISTRATION OF JUSTICE1
A. General Considerations
Given the close connection in Nicaragua between the right to physical freedom and the administration of justice—one of whose fundamental objectives is, precisely, to guarantee that freedom—this chapter will deal with both subjects jointly. In order to understand the present situation in Nicaragua of the right to physical freedom it is necessary to be aware of two stages in the administration of justice: prior to and subsequent to September 13, 1978. On this latter date all constitutional guarantees throughout the country were suspended by the imposing of a State of Siege and the application of Martial Law.
B. Personal Freedom prior to the present State of Siege
Before the State of Siege was declared a considerable number of persons were deprived of their freedom for alleged political crimes or for no charge whatsoever, under any number of pretexts. In this situation the most elemental constitutional principles were ignored, such as the one stating that no one can be arrested without a previous written order from the appropriate authority;2 that every person arrested must be released or turned over to the appropriate judge within 24 hours after arrest;3 that every person has the right to file a writ of habeas corpus;4 that the trial must be public;5 that, in the case of arrests for the purpose of investigation, the detainees must be set free or sent to prison within ten days from the time that he has been placed under the jurisdiction of the appropriate judicial authority;6 that a decree for imprisonment cannot be issued without first fully examining the corpus delicti;7 that no one can be removed from the jurisdiction of the appropriate judge nor submitted to a special jurisdiction;8 that every person has the right to a defense.9
As a general rule, in ordinary times the prisoners are at the disposition of the chiefs of police who act as judges and may order arrests, through summary procedures, for periods ranging from thirty to 180 days, without even, in many cases, hearing the accused as is established in the anachronistic Police Regulations which go back to 1880.10 Since the National Guard Commandants carry out functions of police judges, the judicial function is merged into the authority of military bodies. Although the right to appeal exists, the political chief (Jefe Político) of the locale either confirms the sentence handed down by the police judge or the sentence has already been served by the time the appeal (recurso de Amparo) has been decided upon by the Supreme Court. Thus, these Regulations imply an open violation of the right to due process and a proper defense, because even though theoretically there is the right to a defense with counsel, the Commission ascertained that numerous prisoners had not been allowed to contact a lawyer. Furthermore, there is no introduction of evidence and the sentence is imposed without any objective criteria, by the unilateral decision of the police judge, i.e., in many cases, the local commandant.
According to Article 195 of the Nicaraguan Constitution, the President of the Republic may order the arrest of those presumed to have threatened public order, interrogate them, and hold the up to ten days, after which they must be set free or presented to the appropriate judge. Nevertheless, the Commission could attest to the fact that there have been, and that there still are, numerous cases of persons arrested by order of the President and held beyond ten days without having been set free, without having been allowed the right to habeas corpus, and without having been placed before any court whatsoever. It can be said that there exists a dichotomy between the Constitution and the interpretation of it by the National Guard and other governmental authorities. Its application depends upon the interpretation which the government deems most accommodating in each case presented, and the judicial authorities do not adopt the necessary corrective measures.
Among the claims received by the IACHR, the following persons, all holding important national positions, were arrested without any specific charges being placed against them: Adolfo Calero Portocarrero, Coordinator of the National Board of the Authentic Conservative Party (Partido Conservador Auténtico); Pedro J. Quintanilla, Member of the National Board of Liberal Constitutionalist Movement (MLC) (Movimiento Liberal Constitucionalista); Adolfo Everstz Vélez, Member of the National Board of the Nicaraguan Socialist Party (Partido Socialista Nicaragüense); Santiago Rivas Haslam, President of the National Board of the Conservative National Action (Acción Nacional Conservadora), Hernaldo Zúñiga Montenegro, Member of the National Board of the Conservative National Action (Acción Nacional Conservadora); and Pedro Turcios, Member of the National Board of the General Confederation of Labor (Confederación General del Trabajo).
Furthermore, the Commission spoke with prisoners and authorities in detention centers in different parts of the country—Managua, Chinangea, Jinotepe, Masaya, etc., and verified that various persons sentenced to six months of prison had not had their statements taken, nor had been before a judge and had not even been informed of their sentences.
In the city of Chinandega, in response to a question by the Special Commission referring to the sentences of six months in prison without trial or possibility of defense, the Deputy Commander of the National Guard Barracks stated that those arrested and sentenced to six months in fact had not yet been tried and sentenced, and that when they were tried by military courts they would be given the opportunity for legal defense.
Thus, even before the recent suspension of the constitutional guarantees, personal freedom in Nicaragua was not adequately protected. This contributed to the precarious situation of the administration of justice.
C. Personal Freedom under the Emergency Measures
In the second stage, which began on September 13, 1978 with the total suspension of constitutional guarantees throughout Nicaragua, it is necessary to distinguish among those who had been sentenced by police judges in the manner described in the previous stage, those prisoners who had not been before any judge, and those who were captured after this date. This diversity in the type of prisoners has led to a series of illegalities arising from arbitrariness and ignorance, and in the irregular administration of justice, which directly prejudices personal freedom.
An example of this was given by the Deputy Commandant of the Prison in Chinandega to the Special Commission on October 9, 1978, stating that a case of a six-month sentence handed down by a police judge which had been revoked “because Martial Law is in effect”.
Although Article 49 of the Constitution establishes that no court shall handle cases outside its jurisdiction (fuero atractivo) and that no case shall be removed from the appropriate judge, nor brought before a special court except under a prior law, when the constitutional guarantees were suspended and the state of siege decreed, Martial Law came into effect thereby activating Article 7, which provides that “the Military Courts shall consider cases of offenses against the internal and external security of the State and against public order”.11
The Military Courts, established on December 28, 1974, during an earlier suspension of Constitutional guarantees took two forms: the Military Court of Permanent Investigation, which directs the investigations in order to bring charges, and the Special War Council, which hands down sentences, although in reality what it does is prepare proposals for the Autoridad Convocatora so that the latter can sentence. However, this Autoridad is no more than a high-ranking officer of the National Guard, named by the President of the Republic. When the military appeals are exhausted, it is possible to go to the Supreme Court of Justice, which, to date, has not been able to correct situations of this nature.
The Special Commission was also told by the commandants of police precinct stations that they arrest persons according to orders from the Office of National Security, which is the Intelligence Office of the National Guard, and that the commandant simply holds these persons, who often spend many days detained. At any moment they can be removed by the Office of Security and transferred to unknown locales, as there is no control in the above-mentioned police station with respect to the legal situation or the subsequent place of detention of these prisoners.
D. Situation of Minors
In relation to personal freedom the Special Commission noted a serious situation with regard to minors. The Nicaraguan Constitution states that minors must be kept in special institutions of rehabilitation.12 Nevertheless, the Commission verified in the detention centers visited that there were many youths 14, 15, 16 and 17 years old in the same cells with adults.
In addition, the indiscriminate repression that the general public attributes to the National Guard against all males between 14 and 21 years of age has resulted in a constant threat not only against the personal freedom of these persons but even, in some cases, threats against their lives. This has forced their relatives to hide them on farms or send them out of the country. This has created a state of anguish according to the denunciations received by the Commission. Many heads of families—especially the mothers—are coerced by the National Guard to hand over their sons that have not yet been arrested, under the threat of death to those sons or husbands already arrested.
1 Article I of the American Declaration of the Rights and Duties of Man points out: “Every human being has the right to life, liberty and the security of his person”; Article XVIII states: “Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights”. Article XXV contain the following principles: “No person may be deprived of his liberty except in the cases and according to the procedures established by preexisting law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character. Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.”
2 Article 40 of the Constitution.
3 Article 41 of the Constitution.
4 Article 42 of the Constitution.
5 Article 44 of the Constitution.
6 Article 46 of the Constitution.
7 Article 47 of the Constitution.
8 Article 49 of the Constitution.
9 Article 50 of the Constitution.
10 The Police regulations were decreed by the Executive Branch on October 25, 1880 and, being the Police Law, have as one of their objectives (Article 1) the preservation of public order, the security and welfare of the inhabitants and the control of its customs, by laws which punish vagrancy, drunkenness, gambling and the bearing of prohibited arms. Article 26 confers on the police the power “to discover plots against the internal and external security of the State, informing the respective superior when they are discovered, capturing, in the case, the delinquents”.
11 Article 9 of the Martial Law established that the Military Courts shall proceed in the processing of hearings referred to in Article 7, in accordance with the current military laws; but in the matter of sentencing, it shall be subjected to the Penal Code; Article 12 establishes that the sentences handed down by the military tribunals are not to be carried out without the prior confirmation or modification by the President of the Republic, unless the abnormality of the situation makes it impossible to fulfill this requirement and, on the other hand, if the carrying out of this sentence is considered urgent, the sentence may be confirmed by the Chief of Staff, Division General, or the Head of Operations of the area closest to the place where the trial has been held; Article 13 establishes that trials pending before the regular authorities, when Martial Law is declared, shall continue under their jurisdiction, but if those trials concern crimes which have caused the restriction or suspension of normal guarantees they shall be removed without delay to the Military Courts.
12 Article 46, paragraph 2, of the Constitution.