University of Minnesota




Report on the Situation of Human Rights in The Republic of Nicaragua, Inter-Am. C.H.R., OEA/Ser.L/V/II.53, Doc. 25 (1981).


 

 

CHAPTER I

THE CURRENT POLITICAL AND LEGAL SYSTEM IN EFFECT

A. General Considerations

1. The current political and legal system in Nicaragua is the result of the changes effected in the institutional order as a result of the victory of the revolutionary movement, which brought down the Government of General Anastasio Somoza Debayle.

2. As a result of the bloody Civil War, when the revolutionary movement headed by the Sandinista National Liberation Front triumphed, the new government adopted various measures to establish a new political and legal system, in the transition brought on by the triumph of the revolution.

3. As a result of the foregoing, the Constitution of Nicaragua promulgated on April 3, 1974 and in effect since April 24 of that year. Thereof, on July 20, 1979, the Government of national Reconstruction enacted a Fundamental Statute establishes the basic structure of the political and legal system now in effect. In addition, the new government dissolved the Chambers of Deputies and of Senators, the Supreme Court, the Courts of Appeal, the Superior Labor Court “and other structures of Somocists power;” all provisions pertaining to the opposition party were declared inapplicable. [1]/

4. The Fundamental Statute was decreed on the basis of two premises which, dictate the conduct of the Government of National Reconstruction:

I. That its conduct must conform to standards that guarantee the rights of citizens and govern the exercise of public responsibilities:

II. That the primary function of the Government of national reconstruction will be to restore peace, to lay the foundation for establishing a broad-based, democratic system of government. And to undertake the great task of national reconstruction in the political, social and economic spheres, for which purpose a suitable juridical structure is needed. [2]/

5. In the General Provisions, the Fundamental Statute sets forth the immediate objectives of the Government; under Rights and Guarantees, it sets forth the Fundamental Principles governing its conduct.

The immediate and primary task is the Government Program issued on July 9, 1979, in other words, the program adopted when this government was constituted in Costa Rica. It adds that to carry out and execute the Government Program, the Government of National Reconstruction will establish the proper priorities, and has the power to make such adjustments as may be called for by the prevailing circumstances in the political, social and economic areas. [3]/

As fundamental principles, the Statute in question provides that the full legal enforcement, of the human rights contained in the United Nations Universal declaration, the International Covenant of economic, Social and Cultural Rights, International Covenant of Civil and Political Rights; and in the American Declaration on the Rights and Duties of Man of the Organization of American States is guaranteed, as established in the Statute on the Rights and Guarantees of Nicaraguans enacted at the same time as the Fundamental Statute. Other principles upheld as fundamental are the unconditional equality, of all Nicaraguans, recognition of freedom of conscience and of worship. Bases on absolute tolerance, and unrestricted freedom of spoken and written expression and tolerance, and unrestricted freedom of spoken an written expression and of political and union organization, the only limitations being those contained in the Statute of the Rights and Guarantees of Nicaraguans. [4]/

B. The Political Structure of the State

1. The political structure of the State in Nicaragua is set forth in Article 9 of the Fundamental Statute, which establishes the Government Junta, the Council of State and the Court as the three powers of Government. The Statute also contains other essential provisions, which govern other State Organs.

The Fundamental Statute establishes the following powers for the aforementioned three branches:

a) Government Junta

2. The Government Junta has the powers of the executive branch of government and shares with the Council of State the powers that pertain to the Legislative Branch. This provision is to be in force until such time as the new Constitution is enacted.

3. By the terms of the Fundamental Statute, the Government Junta is composed of the five persons who laid down the aforementioned juridical structure and who were appointed by the revolutionary movement from among the various political and socioeconomic sectors in Nicaragua. [5]/

Articles 1 and 2 of the Statute empower the Junta to make such changes in the Government Program as the prevailing circumstances in the political, social and economic spheres may dictate.

The Government Junta may assign its members certain responsibilities in the area of public administration; it exercises executive and administrative functions through decrees, orders or official letters, and has a Secretary with the rank of Minister of State.

4. The Junta’s legislative powers are exercised through laws enacted in the manner provided for in each case, or in the generally agreed-upon manner. Bills are generally submitted by the Junta to the Council of State, which, within a five-day period, can exercise the power to veto them by a vote of two-thirds of its members. Failure of the Council to veto bills within this time period is understood as tacit approval. Quorum for meetings and resolutions of the Government Junta requires the presence of the majority of its members. Further, in exercising their functions, the members of the Junta and the Council of State are to act with full freedom of conscience and complete loyalty to the national interests. [6]/

b) Council of State

5. Initially, by the terms of the Fundamental Statute, the Council of State was made up of 33 members appointed by the political, socioeconomic and union organizations. [7]/ However, the original composition of the Council of State has been modified on two occasions. First, through Decree No. 374 of April 16, 1980, the Junta decided to increase the number of members on the Council of State to 47, appointed by the following political, grassroots, union and social organizations: I. Political Organizations: Frente Patriótico: 1. Sandinista National Liberation Front (FSLN), 6 members; 2. Partido Liberal Independiente (PLI), 1 member; 3. Partido Socialista de Nicaragua (PSN), 1 member; 4. Partido Popular Social Cristiano (PPSC), 1 member; 5. Partido Movimiento Democrático Nicaraguense (MDN), 1 member; other organizations: 6. Partido Conservador (CPD), 1 member; 7. Partido Social Cristiano (PSC), 1 member; II. Grassroots Organizations: 8. Sandinista Defense Committees (CDS), 9 members for each one of the following regions of the country: Managua, 2 members; León and Chinandega, 1 member; Matagalpa and Jinotega, 1 member; Estelí, Nueva Segovia and Madriz, 1 member; Chontales, Boaco, and Río San Juan, 1 member Zelaya, 1 member; Masaya and Carazo, 1 member; Granada and Rivas, 1 member; 9. Juventud Sandinista “9 de Julio”, 1 member; III. Union Organizations: 11. Central Sandinista de Trabajadores (CST), 3 members; 12. Asociación de Trabajadores del campo (ATC) 3 members; 13. Confederación General de Trabajo (CGT), 2 members; 14. Central de Trabajadores de Nicaragua (CTN), 1 member; 15. Confederación de Unificación Sindical (CUS), 1 member; 16. Central de Acción de Unificación Sindical (CAUS), 1 member IV. Guilds and Social Organizations: 18. Armed Forces, 1 member; 19. Asociación Nacional del Clero, 1 member; 20. Consejo Nacional de la Educación Superior, 1 member; 21. Asociación Nacional de Educadores de Nicaragua (ANDEN), 1 member; 22. Unión de Periodistas de Nicaragua (UPN), 1 member; Asociación de Miskitos, Sumos y Ramas (MISURASATA), 1 member; 24. Confederación Nacional de Asociaciones Profesionales (CONAPRO), 1 member; V Private Enterprise Organizations: 25. Nicaraguan Development Institute (INDE), 1 member; 26. Industrial Boards of Nicaragua (CADIN), 1 member; 27. Association of Chambers of Commerce, 1 member; 28. Construction Board, 1 member; 29. Agricultural and Livestock Producers Association (UPANIC), 1 member.

6. Later, through Decree No. 718, of May 2, 1981, Article 16 of the Fundamental Statute was gain amended by adding four more members to the Council of State, which brought the total number to 51.

Of these four new members, one (1) is from the Movimiento Liberal Contitutionalista, under “Other Organizations,” whose representation had been withdrawn under the previous amendment; two (2) members are from the “National Union of Farmers and Livestock Producers” (UNAG), and one (1) from the MEC-CELA-DEC ecumenical alliance; these organizations, which fall under the heading of “Guilds and Social Organizations”, were not included in the original membership or in the membership as expanded under Decree No. 374.

Further, Decree No. 718 introduces other changes in the membership of the Council of State, such as the following: it reduces the number of representatives of the Asociación de Trabajadores del Campo (ATC) from three to two; it increases the representation of the Central de Acción de Unificación Sindical (CAUS) by one member and changes the classification of the Partido Movimiento Democrático Nicaraguense, which now appears among the “Other Organizations.”

7. The Council of State can, by a majority of votes, introduce bill to the Junta on its own initiative; such bills do not proceed in the manner provided for under Article 14 of the Fundamental Statute. That article, mentioned earlier, makes reference to the veto power of the Council of State. However, should the Junta amend a bill submitted by the Council of State, such amendments proceed in accordance with Article 14, for purpose of their immediate veto or approval.

8. One special function of the Council of State is to draw up a Draft Electoral Law and a Draft Constitution. The Council of State is governed by its own Regulations. [8]/

c) The Courts

9. Under the current legal system, judicial power in Nicaragua is with the Supreme Court, the Courts of Appeal, and the Superior Labor Court, whose judge’s are named by the Government Junta. And with the district and local judges and other officials appointed by the Supreme Court.

10. By the terms of the Fundamental Statute, the organization and functions of the Courts and Judges are governed by the laws, provided such laws do not contravene, or are not expressly or tacitly amended by, that Statute or by other laws or decrees of the Government of National Reconstruction. [9]/

C. Armed Forces

11. One of the major objectives, of the Government of National Reconstruction since even before it assumed power was the reorganization of the Armed Forces of Nicaragua. The Fundamental Statute elaborates on that objective.

12. In the Fundamental Statute, the National Guard, the Office of National Security and the Military Intelligence Service are dissolved; further, all laws, regulations and ordinances that govern these bodies are repealed.

Instead the National Guard is replaced by “a new, patriotic National Army dedicated to defending the Democratic Process and the Sovereignty and independence of the Nation, as well as the integrity of its territory. The National Arm shall be composed of the combatants of the Sandinista national Liberation Front; soldiers and officers of the National Guard of Nicaragua who have demonstrated their honesty and patriotism in the face of the corruption, repression and intrigue of the dictatorship and by those who joined the battle to bring down the Somocists Regime; by those who have fought for liberation and who wish to enlist, by citizens who qualify for and are scheduled to serve their obligatory military service. The new National Army shall have no place for military personnel who are corrupt or are guilty of crimes against the people.”

13. Other provisions of the Fundamental Statute provide that the members of this national Army may not engage in election campaign activities but may exercise their political rights as citizens; that provisionally the commanders of the National Army shall be made up of the “military chiefs and leaders of the armed movement that brought an end to the dictatorship, and of such officers of the national Guard as may have joined the struggle.” It Further provides that the organization and structure of the Nicaraguan army shall be regulated by the Government of National Reconstruction through laws and regulations and that the National Police shall be under a special system that takes into account the nature of their civic functions and their duty to protect the citizenry. It adds that until such time as the corresponding law is enacted, the National Army shall serve as the provisional police throughout the country.

14. On August 22, 1979, the Junta of the Government of National Reconstruction created the Sandinista People’s Army, as the only armed force in the Republic; the structure, commands and functions are set forth in the Organic Law and other regulations.

In accordance with the respective Decree, all armed bodies, be they police or security forces, are under the sole military command of the Sandinista People’s Army, under the Office of the General Command, without prejudice to their administrative position in other agencies of the Government. [10]/

D. The Statute on the Rights and Guarantees of Nicaraguans

1. The Statute on the Rights and Guarantees of Nicaraguans, Decree No. 52, was published in “La Gaceta”, Diario Oficial No. 11, of September 17, 1979.

This Statute, and the fundamental Statute, which it complements, forms the provisional constitution of the new legal system in Nicaragua.

2. This Statute is divided into two preambular paragraphs and five titles which contain 52 articles.

In one of the articles of the preamble, the Statue declares that freedom, justice and peace are based on, and are an affirmation of, the recognition of the fundamental rights of the individual and of society.

In Title I, respecting the rights of the people as a nation, Articles 1 and 2 establish the Nicaraguan people’s right to free and full political self-determination, and its right to take measures conductive to its economic, social and cultural development, for which purpose it is sovereign over all its riches and natural resources, only limited by international obligations.

In Title II respecting individual, civil and political rights, Article 3, in keeping with Article 7 of the Fundamental Statute, sets forth the principle of the establishes the State’s obligation to remove any obstacles that stand in the way of that equality. It also sets forth the principle of the right of citizen participation in the political, economic and social life of the country.

3. The Nicaraguan State guarantees full enjoyment and the exercise of the rights and guarantees listed below to all persons within Nicaraguan territory, and subject to its jurisdiction, in the manner and in accordance with the regulations and limitations that Title II of the Statute sets forth:

a) The right to life, which the Statue declares to be inviolable and inherent to the human person; [11]/

b) The right to physical, psychological and moral integrity; [12]/

c) The right to individual freedom and personal security; [13]/

d) The right to the principle of the non retroactivity of the law;

e) The right to movement, free transit and residence.

In this regard, it is important to point out that the Statute especially guarantees (the last part of Article 15) the right of Nicaraguan citizens to enter and leave the country freely;

f) The right of asylum (Article 16)

The Statute guarantees the right of asylum in Nicaragua to those individuals persecuted for having fought for the cause of peace and justice, and for securing recognition of, and broadening human, civil, political, social, economic and cultural rights.

However, the State implicitly reserves the right to grant or not to grant asylum, and to withdraw it at any time, by providing in the final part of this Article that “if for some circumstance it is decided to expel the individual in asylum, that individual may not be returned to the country where he or she is being sought,”

g) The right o recognition of the juridical personality and capacity of the individual;

h) The right to personal and family privacy, the inviolability of correspondence and of domicile and of any other private quarters, which may only be invaded with a written judicial search warrant, or in order to prevent the commission of, or failure to punish, crimes or to avoid injury to individuals or property, all subject to the prescriptions of the law.

i) The right to freedom of conscience, of thought and religion; [14]/

j) The right of association and organization.

Article 24 and 25, in keeping with Article 18 of the Fundamental Statute, establish freedom of association and political organization, and grant citizens the right to associate freely, provided that such association is for legal purposes; it also guarantees the right to organize political parties or organizations. It grants citizens the right to meet peacefully and to demonstrate publicly, subject to the regulations established by law;

k) The right to nationality and the right to change nationality when the citizen so desires (Article 26), neither of which one can be deprived of arbitrarily;

l) The right to individual and collectively owned property.

In upholding the right to property, Article 27 of the Statute provides that, whether individual or collective, property fulfills a social function and as a consequence, may be changed with respect to title, enjoyment, use and availability, in accordance with the law;

m) he right to work.

Article 29 of Title III, which concerns social, cultural and economic rights, defines work as a right and a social responsibility of the individual, and establishes that it is an obligation of the State to seek full employment of Nicaraguans under conditions that guarantee the fundamental rights of the human person.

Equal pay for equal work is guaranteed, as are safety and hygiene at the work place, equality of opportunity in terms of promotions, compulsory rest, paid vacations in the form of actual time off, and duly remunerated holidays.

The Statute does not establish maximum hours in a workday, and confines itself to providing that the worker has the right to “a reasonable limitation on the number of hours of work.” [15]/

The Statute recognizes the right to strike and the right to participate in unions, as well as the right of unions to form national federations or confederations and the right of these to found international union organizations or to affiliate themselves with those already established (Article 31).

In that same article, the Statute guarantees the right to found and promote grassroots, communal, neighborhood and rural organizations, as well as guilds or professional associations, and the right to found and promote labor and productions cooperatives;

n) Right to social security, health and well being, both physical and mental.

Article 33 of the statute states that every individual has the right to social security; to obtain satisfaction of the rights essential to one’s dignity and to full development of one’s personality; to an adequate standard of living that ensures to the individual and his or her family, health and well being, and especially the necessary food, clothing, housing, medical care and social care insurance in the event of unemployment, illness, maternity, disability, widowhood, old age, death, orphanage, professional hazards or other cases of loss of one’s livelihood.

In Article 34 the Statute recognizes that the family is the natural unit of society and provides that marriage is based on the voluntary consent of the man and the woman between whom absolute equality exists in terms of rights and responsibilities in family relations.

Any individual qualification as to the nature of the filiation is prohibited and investigation to establish paternity is authorized.

Parents have the same obligations with respect to children born in wedlock as they do to those born outside of wedlock (Article 35) and Children, without discrimination of any kind, have the right to the protection to which they are entitled as minors and as members of the family, society and the State.

The Statute provides for indirect protective measures for the child, even before birth, by establishing in Article 37 that “The state shall grant special protection to mothers for an adequate period of time before and after giving birth. During that period, working mothers must be given leave with pay and adequate social security compensation.”

Further, once the child is born, in addition to the rights cited above, the final part of Article 32 provides that the State is obligated to care for minor while the working mother is at her place of work; and

o) The right to education. [16]/

4. The final provision of the statute, contained in four articles of Title IV, concerns suspension of the rights and guarantees upheld therein; by the terms of Article 50, these rights and guarantees may be suspended only during exceptional or emergency situations which place the life or stability of the nation in jeopardy or for reasons of public order or the security of the State.

It is the Executive Power (Government Junta) that must adopt the pertinent measures, suspending throughout the country or in a part thereof all or some of the rights and guarantees listed for a limited time period, which may be extended as circumstances dictate; it is understood that since such action is not authorized under the law, the following rights and guarantees may not be suspended: a) the right to life; b) the right to physical, psychological and moral integrity; c) the right not to be subjected to servitude; d) the guarantee of the non retroactivity of the law; e) the guarantee that no one will be imprisoned for debt; f) the right to juridical personality and capacity; g) the right to freedom of through, of conscience and religion; and h) the right to nationality (Article 49).

5. Article 50 of Title IV also establishes in accordance with the law, he right of all individuals to file, a writ of amparo against acts that violate the rights and freedoms recognized in the Statute on the Rights and Guarantees of Nicaraguans and in the Fundamental Statute.

6. Finally, Title V of the Statute contains the transitory provisions whereby the statute is to take effect as of its publication in any comminations medium, without prejudice to subsequent publication thereof in the “Diario Official, La Gaceta;” it also suspends for a sixty day period, the rights and guarantees set forth in the Statute with respect to persons being investigated for crimes listed in the Penal Code and in international agreements, and committed during the regime previous to the government of National Reconstruction.

E. The International Juridical Order in the Area of Human Rights

1. Nicaragua is a founding member of the United Nations and of the OAS, whose Charters contain provisions bearing upon the fundamental rights of man. It is also a party to the following international agreements and conventions concerning human rights: a) the American Convention on Human Rights; b) the International Covenant on Civil and Political Rights and its Optional Protocol; c) the international Covenant of the Suppression and Punishment of the Crime of Apartheid; e) the Convention relating the Status of Refugees; f) the Convention on the Civil Rights of Women; g) the Convention on the Political Rights of Women, and h) the international American Charter of Social Guarantees.

2. As stated earlier, ratification of the American Convection on Human Rights was one of the first acts of the revolutionary Government; the same can be said of the International Covenants and the optional Protocol, the instruments of ratification having been deposited on March 12, 1980.

3. It is important to note here that, under the Nicaraguan legal system, international treaties, once approved and ratified by the competent organs, become part of the international legal system.

F. Laws referring to Somoza and Somocismo

1. Because of their special incidence in the Nicaraguan legal system, in concluding this chapter it is important to make reference to certain legal provisions that refer to General Anastasio Somoza Debayle or to those persons who wee closely associated with his government. These laws concern the following; the extradition of the Somoza family; the prohibition against maintaining statues, effigies or portraits of the Somoza family; the confiscation of the Somoza property and property belonging to the military and officials who had abandoned the country. Among these laws, particular mention should be made of the non-applicability of certain provisions of the Statute on the Rights and Guaranties of Nicaraguans to those Somocists facing prosecution.

a) Extradition of the Somoza Family

2. Through Decree No. 1 of July 20, 1979, the Junta of the Government of National Reconstruction. Empowered the Attorney General to proceed to request the extradition of the members of the Somoza family and entourage, as well as all those public or military officials who had left the country since December 1977, and those who upon sent4ncing, were found guilty of illegal enrichment.

The Decree specifically mentioned the names of the former head of government, Anastasio Somoza Debayle, and that of Anastasio Somoza Portacarrero, a Lieutenant Colonel in the Nicaraguan army and Director of the National Guard Basic Infantry Training School. And that of José Somoza, Inspector General of the army and Director-in Chief of the National Guard.

b) Prohibition on monuments, names, photographs, poster, etc.

3. Through Decree No. 2, of July 20, 1979, the Government Junta of Nicaragua made it illegal to display photographs of public servants in public places and to affix their names to works that serve people.

The Decree also strictly forbids: a) Statues, effigies, plaques, posters, friezes, paintings, portraits and others that “represent the personage or painful memory of the members of the Somoza family or of their past administration;” b) Somoza family names on the following: bridges, townships, neighborhoods, streets, avenues, public works, recreational or sports facilities, production centers, transport units of any kind, and other movable or immovable property. The names referred to in subparagraph a) and b) above shall be replaced for the most part with names of the martyrs, heroes and combatants who fell during the struggle against the regime of Anastasio Somoza.

c) Confiscation of property

4. Moreover, through Decree No. 3 of July 20, 1979, the Nicaraguan Government empowered the Attorney General to take steps to seize, requisition and confiscate all property of the Somoza family and of the military and officials who had abandoned the country since December 1977.

5. This Decree was clarified and supplemented through Decree No. 38 of August 8, 1979, to the effect that a) the powers conferred upon the Attorney General would also include the power to freeze or seize, as a precautionary measure, any transaction, property or business of persons associated with Somocismo, about whom a denunciation had been received; or property, that, because of information, in the hands of the Attorney General, should be liable to preventive seizure. To these ends, the Attorney General could take such measures as it deemed appropriate, so that, without impairing productivity, the businesses, which were frozen or seized were guaranteed as a precautionary measure, and that b) the rights of individuals who were not included, and who have been injured through application of Decrees No. 3 and Decree No. 38 had a recourse; such individuals could appear before the Attorney General to present whatever arguments they considered appropriate.

Application of Decree No. 38 was suspended by Decree No. 172 of November 21, 1979.

6. As a result, as of that date, in accordance with the provisions of Article 2, no further seizure, attachment, requisition or confiscation of movable property, immovable property, vehicles or livestock, not the freezing of checking accounts and certificates of deposits is allowed, regardless of the reason.

That same Decree provides that cases of requisitioning, occupancy or seizure of property, whose final confiscation has not been ordered as of the aforesaid date of this Decree, will be heard only by the Attorney General; all cases under consideration, either in fact or in law, by any civil or military authority in any part of the national territory, are to be referred to the Attorney General. It shall make the final decision on these cases.

Where farm property is concerned, the Attorney General shall make its decision in agreement with the Nicaraguan Agrarian Reform Institute.

Finally, the decree establishes the proviso that the provisions contained therein shall not affect civil or criminal proceedings or proceedings for fiscal fraud or those indicated in the laws of the country.

d) The legal status of individuals whose property has been seized or is under investigation

7. Through Decree No. 282 of February 7, 1979, the Government of Nicaragua established regulations to govern the legal status of natural persons outside of Nicaragua as well as the legal status of the juridical persons, regardless of their domicile, should any of the following circumstances apply to them.

a) Their property is being investigated by the Attorney General; b) their property has been seized or is in some other way affected by the Attorney General, by virtue of Decree No. 38 of September 3. 1979; c) their property has been seized or occupied by any national or municipal authority; d) their bank accounts have been attached or frozen by the Attorney General.

8. The Decree set up a special procedure to challenge the acts that led to any of the situations mentioned in the preceding paragraph, a procedure that must be initiated by the interested parties appearing in person at the Attorney General’s office, within a period of thirty days counted as of the date of legal effect of the Decree itself, with the warning that should they fail to do so, they forfeit any claims they might have to the affected property, which shall then become the property of the State, without indemnification.

As stated, the interested party must appear in person and not through an attorney and must present documents establishing his identity, the originals of which, or copies thereof, will be added to the records (Art. 3)

In the case of corporations, the appearance shall be through the physical presence of the natural persons who, before July 19, 1979, were the legal representatives of the corporation, in accordance with paragraph 4 of Article 124 of the Business Code. As for the other types of commercial companies, the appearance shall be through the physical presence of those members who accounted for the majority of the capital stock prior to the aforementioned date (Art. 2).

The probatory term is 30 days, which cannot be extended and is counted as of the date of the appearance; no special resolution to that effect is needed. Within the first 15 days of the probatory term, the interested party must establish that he does not owe any taxes to the Treasury by presenting a certificate of fiscal solvency.

9. The Law accords the Attorney General a great amount of discretion in assessing proof and in adopting decisions. Such decisions can range from ordering the release and subsequent return of the property, to ordering definitive confiscation; in special cases, he may make special arrangements with the affected parties for example, to include the following: payment of partial or total indemnification and exchanges or dating in payment. If goods seized or otherwise affected by INRA are involved the Attorney General, if his decision is in favor of the affected party, shall confine himself to stating that the interested party presented himself on time, met the requirements and provided the evidence requested by the Attorney General, and that the property is not liable to confiscation under the pertinent laws. [17]/

e) The non-applicability of certain provisions of the Statute of the Rights and Guarantees of Nicaraguans to the prosecuted Somocistas

10. Article 51, in keeping with Article 49 of the Statute on the Rights and Guarantees of Nicaraguans, denies “persons being investigated for crimes listed under the Penal Code and in International Conventions and committed during the Somocista Regime,” of the enjoyment of certain rights and guarantees established in that Statute.

11. Those same Articles 51 and 49, however, provide that this exception shall not apply to the rights and guarantees contained in the following articles: Article 5, on the right to life and the prohibition of the death penalty, Article 6, on torture and maximum imprisonment of 30 years; Article 7, on servitude; Article 12, on the non-application of laws established subsequent to the events and on mercy in sentencing; Article 14, on the prohibition against imprisonment for debts; Article 17, on recognition of juridical personality and capacity; Article 17, on recognition of juridical personality and capacity; Article 19 on freedom of thought, conscience and creed; and Article 26 on the right to nationality.

12. On the other hand, those being prosecuted who are labeled Somocistas are deprived of all rights and guarantees listed in the following articles: Article 3, equality before the law and nondiscrimination; Article 7, the prohibition against forced labor; Article 8, the right to individual freedom and personal security, the prohibition against arbitrary detention, the right to be informed of the reason for the arrest and of the charges and accusations that led to it, the right to be brought before a competent authority within 24 hours of being detained, the right to file a writ of habeas corpus, the right to due respect for the dignity inherent in the human person, and the right to reparation in the event of being illegally detained; Article 9, the right to be held separately from those already condemned and the right of children to be brought before a juvenile court and under no circumstances to be taken to common jails; article 11, the right of the individual not to be presumed guilty until a ruling of formal imprisonment has been handed down against him, the right to be judged without delay by competent court, the right to be guaranteed intervention form the start of the proceedings, the right to be given genuine and effective intervention in the proceedings, to have adequate time and means for defense, the right to have defense counsel, not to be forced to testify against oneself or to confess to being guilty, the right that no ruling of imprisonment be handed down without the crime being fully proven and without there being a serious presumption of guilt, the right that the arrest warrant be issued within ten days of the detention, the right to appeal a guilty verdict and the punishment under the conditions that that arrest warrant e issued within ten days of the detention, the right to appeal a guilty verdict and the punishment under the conditions that that law provides, the right not to be tried for the same crime twice; (double jeopardy) and the right not to be misappropriated of one’s competent judge; Article 15, the right to freedom of movement, the right to choose one’s residence and to enter and leave the country freely; Article 16, the right to asylum; Article 17, second paragraph, the guarantee that no person shall be forced to do what the law does not dictate or prevented from doing what the law does prohibit; Article 18, not to be subject to arbitrary or illegal interference in one’s private life, in one’s family or in one’s domicile, in one’s correspondence, nor to have one’s honor and reputation slandered, ant the right to take legal redress against interference of that type; Article 20, freedom of information; Article 21, freedom of expression; Article 23, the right to assemble, Article24, freedom of association; Article 25, political rights; Article 27, the right to individual or collective property.

 

 

Notes__________________

[1] Article 3, and 5 Chapter II, of the Fundamental Statute.

[2] Expository part of the Fundamental Statute.

[3] Article 1 and 2, Chapter I, of the Fundamental Statute.

[4] Article 6, 7 and 8, Single Chapter, of the Fundamental Statute.

[5] Article 9, 10 and 11 of the Fundamental Statute. The Junta of the Government of National Reconstruction was originally composed of Mrs. Violeta Barrios Vda. De Chamorro and of Commander Daniel Ortega Saavedra, Dr. Moisés Hassán Morales, Dr. Sergio Ramírez Mercado and Ing. Alfonso Robelo Callejas. Later, when Mrs. Barrios Vda. De Chamorro and Ing. Robelo resigned from the Junta, hey were replaced by Drs. Arturo Cruz and Rafael Córdova Rivas. (Decree Number 409 of May 19, 1980). At present, the Junta of the government of National Reconstruction is made up of three members: Commander Daniel Ortega Saavedra, who serves as coordinator, Dr. Sergio Ramírez and Dr. Rafael Córdova Rivas. (Decree Number 663 of March 4, 1981).

[6] Articles 12, 13, 14, 15 and 20 of the Fundamental statute. On August 22, 1979, decrees Numbers 6 and 7 were issued concerning the creation of the Ministries of State and the appointment of the Ministers of State, respectively.

[7] Article 16 of the Fundamental Statute.

[8] Articles 17, 18 and 19 of the Fundamental Statute. Decree No. 388, issued by the Junta of the Government of National Reconstruction on May 2, 1980, adopted the General Statutes of the Council of State, which governs the sessions, requirements for membership, powers of the Council of State, the functions of the President of the Council of State and the procedure it is to follow with respect to its own bills and the bills of the Government Junta.

[9] Articles 21 and 22 of the Fundamental statute. Under Decree No. 9 of August 23, 1979, the Magistrates of the Supreme Court of Justice were appointed; in other decrees, the Government of national Reconstruction appointed the magistrates for other jurisdictions. Further, Decree No. 148 of November 9, 1979, established the competence of the Common Courts; Decree No. 149, of that same date, amended the Organic Law of the Office of the Attorney General.

[10] Article 1 and 2 of Decree No. 53 of August 22, 1979. Under the terms of Decree No. 54, of that same date, the new Nicaraguan Government appointed the Commanders of the Sandinista People’s Army. Decree No. 485, of August 9, 1980, Gaceta 188 of that month established the Organic Law of the ministry of the Interior; Article 8 establishes the Offices of the Directors General of State Security, of the Sandinista Police and of Investigation; these offices direct the methods and operations of the Ministry at the national level in their receptive areas of specialization.

[11] The right to life will be examined in greater detail in Chapter II.

[12] The right to personal integrity will be examined more closely in Chapter V.

[13] The right to individual freedom will be examined in Chapter III.

[14] The right to freedom of expression and of dissemination of thought will be examined at greater length in Chapter VI.

[15] However, by the terms of Article 47 of the Labor Code, the actual number of hours of work may not be in excess of eight hours per day, or forty-eight hours per week. In unhealthy places, the workday may not exceed six hours.

[16] The right to education will be studied at greater length in Chapter IX.

[17] Application of the legislation described herein has given rise to a number of denunciations presented to the IACHR, in which violations of Article 21 of the American Convention on Human Rights, on the right to private property, is alleged. Those denunciations are currently being studied by the Commission, in accordance with its Regulations. In most cases in which the Commission has requested information of the Government, the latter’s reply has usually been to provide background information on the claimant with respect to his or her association with the previous Government; that information indicates that “with respect to confiscation of his property, it was confiscated in accordance with Decree 38, issued by the Junta of the Government of National Reconstruction, and the definitive decision has been made, based on concrete evidence that concerned the individual whose property was confiscated.”

 



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