In
the Genie Lacayo Case,
The
Inter-American Court of Human Rights, composed of the following judges:
Héctor
Fix-Zamudio, President
Hernán
Salgado-Pesantes, Vice President
Rafael
Nieto-Navia, Judge
Alejandro
Montiel-Argüello, Judge
Máximo
Pacheco-Gómez, Judge;
also
present:
Manuel
E. Ventura-Robles, Secretary, and
Víctor
M. Rodríguez-Rescia, Interim Deputy Secretary,
Delivers
the following Judgment in the instant Case, pursuant to Articles 29 and 55
of the Rules of Procedure of the Inter-American Court of Human Rights (hereinafter
"the Inter-American Court", "the Court" or "the Tribunal").
I
1. On January 6, 1994, the Inter-Commission on Human Rights (hereinafter
"the Commission" or "the Inter-American Commission")
submitted to this Court a case against the Republic of Nicaragua (hereinafter
"the State", "the Government" or "Nicaragua")
which originated in petition Nº 10.792.
2. The Court is competent to hear the instant Case. Nicaragua has been a State Party to the Convention
since September 25, 1979, and accepted the compulsory jurisdiction of the
Court on February 12, 1991, in the following terms:
I. The Government of Nicaragua recognizes as compulsory
ipso facto and not requiring special
agreement, the jurisdiction of the Inter-American Court of Human Rights, on
all matters relating to the interpretation or application of the American
Convention on Human Rights, "Pact of San Jose, Costa Rica", pursuant
to Article 62(1) of the Convention.
II. The Government of Nicaragua, in stating the above,
establishes that recognition of the jurisdiction of the Inter-American Court
of Human Rights is indefinite and general on the condition of reciprocity,
subject to the reservation that this recognition of competence applies only
to cases arising out of events subsequent to, and out of acts which began
to be committed after, the date of deposit of this declaration with the Secretary
General of the Organization of American States.
3. On March 21, 1994, the Government submitted another acceptance of specific
jurisdiction in this Case, "only and exclusively under the precise terms of the application submitted
by the Inter-American Commission on Human Rights that appear in the subtitle
Purpose of the Application."
4. In connection with these two declarations of acceptance of jurisdiction,
this Court, in its Judgment on preliminary objections of January 27, 1995,
established the following:
[t]he
Court does not feel it necessary to state its position at this time concerning
the effect of the existence of two acts of acceptance of jurisdiction. In principle, in the Commission's "Purpose of the Application" there
appear no demands relative to the violation of the victim's right to life or to humane treatment, events which occurred
prior to Nicaragua's acceptance of jurisdiction. Consequently, the Court shall limit itself to
decide, in due time, on these matters --and in any event it could not exceed
the scope of this matter without the risk of adopting an ultra petita decision--. In adopting this position, the Court shall
not be found to lack jurisdiction, since Nicaragua has expressly accepted
that the Court has jurisdiction over such a matter." (Genie Lacayo Case, Preliminary Objections, Judgment of January 27,
1995. Series C No. 21, para. 25).
II
5. On February 15, 1991, the Commission received a petition from the Permanent
Human Rights Commission of Nicaragua, transmitted it to the Government on
February 27 of the same year, and requested the appropriate information for
determining whether the domestic legal measures had been exhausted.
6. On March 13, 1991, the Government informed the Inter-American Commission
that with respect to petition No. 10.792, a Special Commission of Inquiry
of the National Assembly for the Genie Lacayo Case had sought technical advice
from the Government of Venezuela. On August 27, 1991, the Venezuelan investigators
delivered their conclusions, in which they stated that "we
point to members of the Escort of General Humberto Ortega-Saavedra, on guard
on October 28, 1990 ... as the main suspects in the crime of homicide against
the person of the minor Jean-Paul Genie-Lacayo."
The Army High Command maintained that the report "was the result of politically biased investigations; it is impossible
in two weeks to determine the perpetrators of such a complex crime which even
the Nicaraguan police had been unable to solve."
7. On May 29, 1991, the Government transmitted to the Commission a document
which included a copy of a note signed on May 23 of the same year by the Vice
Minister of the Interior, Dr. José Bernard Pallais-Arana.
The note was accompanied by a report "containing
fundamental aspects of the case under consideration, describing the action
taken by the police, the legal framework and the submission of the proceedings
to the Office of the Attorney General."
The note further states "that
it must be recalled that the remedy of appearing before that Honorable jurisdiction
[the Commission] may be invoked
only after domestic remedies have been exhausted."
The proceeding before the Commission continued and both the Government
and the petitioner kept the Commission informed of the status of the domestic
investigation.
8. On March 10, 1993, the Commission issued Report No. 2/93, the final
section reads as follows:
VII RECOMMENDATIONS
7.1 It recommend that the Government of Nicaragua
punish the material authors, as well as their accomplices and accessories,
for the crime of homicide to the detriment of Jean-Paul Genie-Lacayo.
7.2 It recommend that the Government of Nicaragua
pay fair compensatory damages to the direct relatives of the victim.
7.3 It recommend that the Government of Nicaragua
accept the jurisdiction of the Inter-American Court of Human Rights in the
specific case on which this report is based.
7.4 It request that the Government of Nicaragua inform
the Inter-American Commission of Human Rights within three months of the measures
it adopts, in accordance with the recommendations in paragraphs 7.1, 7.2,
and 7.3 concerning the instant case.
7.5 If after three months the case has not been resolved
by the Government of Nicaragua, the Commission shall state its opinion and
conclusions on the matter submitted for its consideration and it shall make
a decision regarding the publication of this report, pursuant to Article 51(1)
of the American Convention on Human Rights.
Also, the present report shall be transmitted to the Government of
Nicaragua and to the petitioners, who are not at liberty to publish it.
9. On May 21, 1993, the Government requested that the Commission review
Report Nº 2/93. In its request the
Government pointed out, inter alia,
that "in the case under consideration,
the domestic remedies have not been exhausted." In the same document it reiterated this view,
stating "that precisely because
of the fact that the domestic remedies have not been exhausted and a decision
on an appeal is pending ... we also do not know ... to which judicial procedure
this matter must be submitted." This petition was dismissed by the Commission during its 84th Session.
It is stated in the pertinent section of the Commission's Minutes No.
5 of October 7, 1993, that "[t]he Inter-American Commission decided
to confirm Report No. 2/93 relating to the Case of Jean-Paul Genie-Lacayo
and to submit it to the Inter-American Court of Human Rights."
III
10. The petition was submitted to the Court on January 6, 1994, and was
notified to the Government by the Secretariat of the Court (hereinafter "the
Secretariat"), together with its attachments, on January 21, 1994, after
the President of the Court (hereinafter "the President") had made
the preliminary review. The Commission designated Michael Reisman as its Delegate before
this Tribunal; Edith Márquez-Rodríguez and Milton Castillo as its Attorneys,
and Oscar Herdocia, Daniel Oliva and José Miguel Vivanco as their Assistants.
Subsequently, on March 20, 1996, the Inter-American Commission submitted
a note in which it informed the Court that as of that date Mr. Carlos Ayala-Corao
and Mr. Alvaro Tirado-Mejía would serve as its Delegates in the instant Case.
11. In its petition the Commission invoked Articles 50 and 51 of the American
Convention on Human Rights (hereinafter "the Convention" or "the
American Convention") and Article 26 et seq. of the Rules of Procedure of the
Court (hereinafter "the Rules of Procedure"). The Commission submitted this Case for a ruling
by the Court as to whether Nicaragua had violated Articles 8 (Right to a Fair
Trial), 25 (Right to Judicial Protection) and 24 (Right to Equal Treatment),
all read in conjunction with Article 1(1) (Obligation to Respect Rights) of
the Convention "as a result of
the Judiciary's reluctance to prosecute and punish those responsible and to
order the payment of reparations for the damages caused." The Commission also requested the Court to find
that Nicaragua has violated Article 2 of the Convention by failing to adopt
domestic legal provisions designed to give effect to those rights and that
it has violated, on the basis of the principle of pacta sunt servanda, Article 51(2) of the Convention by failing to
comply with the Commission's recommendations.
It asked the Court to determine, pursuant to Article 63(1) of the Convention,
the reparations and indemnities due to the victim's direct relatives and to
instruct the Government to identify and punish those responsible, on the basis
of the investigations conducted. The Commission further requested the Court
to declare that "Decrees 591 and 600 entitled 'Law on the Organization of the Military
Judge Advocate and Military Criminal Procedure' and 'Provisional Law on Military
Crimes' are incompatible with the purpose and aim of the American Convention
on Human Rights [and that] the Government
of Nicaragua be sentenced to pay the costs of this proceeding."
12. The application states that the petition lodged with the Secretariat
of the Commission by the Permanent Human Rights Commission of Nicaragua, on
February 15, 1991, at approximately 8:35 p.m. on October 28, 1990, the youth
Jean-Paul Genie-Lacayo, aged 16, resident of the city of Managua, was traveling
by car to his home in the Las Colinas subdivision. After stopping at a restaurant, he took the
road to Masaya and between kilometers 7 and 8 he came upon a convoy of vehicles
transporting military personnel who, in response to his attempts to pass them,
fired on him. The victim did not die
immediately but was left on the highway and died from hypovolemic shock induced
by hemorrhage. According to the investigations,
this young man's automobile was machine-gunned by weapons from two or more
vehicles and 51 cartridge shells of AK-47 ammunition were found at the site.
According to ballistic reports, nineteen bullet impacts were found on the
car, all made while the car was in motion, and three shots were fired at short
range once it had stopped.
13. According to the application, National Nicaraguan Police Subcommander
Mauricio Aguilar-Somarriba, who, according to his parents, was in charge of
the investigation of Genie-Lacayo's death, was killed by his fellow officer
Lieutenant Harold Meza. The Government
denied that that officer had been in charge of the investigation and dispatched
to the Court a case file stating that the author of this deed, Lieutenant
Meza, had been sentenced to three years in prison.
14. The application further states that the judicial action was initiated
on July 23, 1991 (267 days after the events), by the Office of the Attorney
General of Justice, then the only criminal action authority; on July 2, 1992
(approximately one year after submission of the petition), the Seventh Court
of the Criminal District of Managua delivered a judgment in which it decided:
to recognize that "the crime of
homicide had been committed against Jean-Paul Genie-Lacayo," to identify
the alleged perpetrators and accessories and to refrain from proceeding with
the case, on the ground that it belonged in the military jurisdiction, and
submitted the case file to the Military Advocate; the victim's father appealed
the decision on July 6, 1992; on October 27, 1992, the Court of Appeal, Region
III, Criminal Chamber, delivered a judgment denying the appeal concerning
the jurisdiction of the Court and upheld the ruling of lack of jurisdiction
to hear the case, it being a matter for the military courts; on November 6
and 9, 1992, the victim's father and the Assistant Attorney-General each filed
special applications for judicial review; on December 20, 1993, the Supreme
Court of Justice handed down a ruling in which it dismissed those measures
and referred the case to the Military Advocate; both the Assistant Attorney-General
and the victim's father repeatedly submitted briefs claiming that the deadline
for delivering a judgment had been exceeded by far.
15. The Commission maintains in its application that Government agents,
acting under the cover of a public function, committed acts that resulted
in a denial of justice. These acts
include the disappearance of evidence, the contempt displayed by military
witnesses in refusing to appear in order to testify in the Seventh Court of
the Criminal District of Managua, the failure to institute internal proceedings
within a reasonable time, and the application of norms incompatible with the
object and purpose of the American Convention, such as Decrees 591 and 600
relating to the Law on the Organization of the Military Judge Advocate and
Military Criminal Procedure and the Provisional Military Criminal Law. These acts precluded any impartial investigation
that would lead to the punishment of those responsible and compensation of
the victim's next of kin. The petition
further states that the events on which the complaint is based began on July
23, 1991, the date on which the Office of the Attorney General of Justice,
then the only public criminal action authority, submitted the petition to
the Judiciary. The specific acts referred to in the application are as follows:
a. Colonel Sidney Lacayo-Guerra of the Sandinista Popular Army, chief of General Humberto Ortega-Saavedra's
Escort, testified on September 3, 1991, before the Seventh Court of the Criminal
District of Managua that the weapons' registration log, reports of movements
of the convoy and their arrivals at Military Unit 003 were burned on January
1991. He explained that the records
were burned, in compliance with Order 034 of December 1, 1981, because they
were not required by the police for the investigation of the case, a regulation
that could only be countermanded by order of the Army Chief of Staff.
b. On October 7, 1991, the Assistant Attorney-General complained that
the Police Chief of Criminal Investigations had arbitrarily and exceeding
his authority ordered the T-shirt worn by the deceased on the day of the events
to be burned.
c. On June 2, 1992, the Seventh Court of the Criminal District of Managua
conducted an inspection of Military Unit 003 which showed that General Ortega
had six black and olive green Renegade CJ-7 Jeep units and two Sahara Jeeps
at his disposal until October 28, 1990. In December 1991, five of those Renegade Jeeps
were sold in perfect condition and below their market value.
d. Twelve military witnesses who were at Military Unit 003 refused to
testify before the court of first instance. In view of their refusal, Judge Boanerges Ojeda-Baca
sent a letter on February 25, 1992, to Commander Javier López-Lowery, Chief
Police Prosecutor, together with the respective summonses for them to appear.
e. The Assistant Attorney-General Alicia Duarte-Bojorge, declared that
she had had great difficulty in making the following witnesses appear in court:
Plutarco Fletes, Alberto Torres, Santiago Gámez, Orlando Bolaños and
First Lieutenant Mendoza-Mayrena, serving at Military Unit 003; Lieutenant
José Francisco Valenzuela, Lieutenant Colonel Bosco Centeno and First Lieutenant
Noel Prado-Gutiérrez stationed at other military units, and Freddy Rafael
Maltez and Lieutenant Emilio Rodríguez, Captain Marín-Arias, Yader Urbina,
Efraín García and Lorenzo Martín-Romero from the Defense Information Department. Accordingly, she requested the Seventh Court
of the Criminal District to appeal to General Joaquín Cuadra, Chief of Staff
of the Sandinista People's Army,
to order them to appear. On March 3,
1992, the judge informed General Cuadra of the order, informing him of it
again on April 10, 1992. The Assistant
Attorney-General requested the Seventh Court of the Criminal District to dispatch
an explanatory brief to the Supreme Court of Justice informing it of the refusal
of the witnesses, "who were protected
by the military arbitrament."
The
following considerations were also mentioned in the request:
a. That the denial of justice was linked to the lack of access to domestic
remedies, inasmuch as any State Party to the Convention is obliged to facilitate
access to recourse against acts that violate a person's fundamental rights
and that failure to do so would constitute an exception to the rule of exhaustion
of remedies. That it is clear that
the injured party has not enjoyed that right and that the State was therefore
responsible.
b. That the Genie-Lacayo family had not been afforded effective remedies,
that is, remedies capable of producing the results for which they were created;
since the right to life was violated, the appropriate judicial remedy was
the prosecution and punishment of the perpetrators and reparations to the
relatives.
c. That in this case the courts of first instance and appeal declared
themselves without competence to hear the case, considering it to belong to
the military jurisdiction. The arguments
of both the Office of the Attorney-General and the victim's father showed
that the Political Constitution of Nicaragua establishes that all persons
are equal in the eyes of the law, so that application of the Law on the Organization
of the Military Judge Advocate violated this precept, since a special court
would be set up for any crime in which there was evidence of involvement of
a member of the military.
d. That the denial of justice or access to the courts is not the only
judicial act for which the State may incur responsibility; other such acts
are unwarranted delay in the administration of justice, grave irregularities
in the process, and manifestly unjust or unlawful judgments.
e. That the conclusions issued by the team of Venezuelan investigators
invited by the Special Commission of Inquiry of the National Assembly to investigate
the facts of the Genie Lacayo Case were considered by the Committee to "conform
entirely with its opinions, assessments and conclusions."
f. That Decrees 591 and 600 created conditions conducive to the violation
of the right to a fair trial, to due process and to equal treatment by granting
broad margins of discretion and leaving it to the Army's High Commanders to
sanction those "involved" or to let them go unpunished, and by placing
"the soldiers of the Sandinista
Popular Army on a different level to the rest of Nicaraguan society, with
adverse effects on the rights enshrined in the American Convention."
16. The Government gave notification of its appointment of José Antonio
Tijerino-Medrano as its Agent; it then designated Marco Gerardo Monroy-Cabra
as its Adviser and Víctor Manuel Ordóñez and Carlos José Hernández-López as
their Assistants. Mr. Hernández-López
was appointed Alternate Agent by note of May 30, 1995.
By note of January 23, 1997, it gave notification of the appointment
of Julio Centeno-Gómez and Alvaro J. Sevilla-Siero as Agent and Alternate
Agent.
17. By note of February 7, 1994, the President, at the request of the State,
granted the Government a 90-day extension of the term prescribed in Article
29(1) of the Rules of Procedure for answering the complaint, and a 30-day
extension for filing preliminary objections.
18. According to the answer to the application of May 23, 1994, the Government
did not accept the Commission's statements with regard to the Government agents'
alleged obstruction of the judicial process, nor did it accept that there
had been undue delay in the administration of justice, nor that rules incompatible
with the object and purpose of the American Convention had been applied.
It further claimed that neither had legal due process been ignored
nor had the principle of equality been breached.
It did not accept that the acts that were the subject of the petition
had begun on July 23, 1991, the date on which the Office of the Attorney-General
of Justice filed the complaint with the Judiciary.
It also maintained that the ordinary criminal process showed continuous
and ongoing procedural activity and that justice had been promptly and fully
administered.
19. On all the facts indicated by the Commission, the Government responded:
a. That the T-shirt worn by the youth Genie-Lacayo on the day of his death
was burned because it had been severely contaminated by the effects of the
hematic remains with which it was impregnated and that it had already been
subjected to a forensic examination the results of which appeared in the report
from the Central Forensic Laboratory on October 31, 1990. Consequently, its destruction did not constitute
a disappearance of evidence, inasmuch as it had already been examined.
The Government further stated that the T-shirt was burned prior to
July 23, 1991, the first day of the judicial inquiry which is the subject
of the petition.
b. That the sale of the military vehicles was not unlawful; they were
not in perfect running order and there was no proof that they were used in
the commission of the homicide. In
that regard, "the witnesses did
not agree on the make of the vehicles, none of the witnesses saw the crime
committed, and General Humberto Ortega's entire escort declared that the only
vehicle they used was silver-colored and had not been sold." It added
that there was no evidence that the sale had been made in order to cover up
any crime, and that the vehicles were sold prior to July 23, 1991.
c. That the members of General Ortega's escort had testified on a number
of occasions before the police court of inquiry and, subsequently, before
the Seventh Court of the Criminal District of Managua; if any of them did
not do so it was because they had not been duly summoned. Examination of the docket showed that virtually
all the members of the escort had twice testified, and later a third time,
before the Military Judge Advocate; it was therefore inaccurate "to state that there was disobedience on the
part of military witnesses." The reasons for the witnesses' delay
in appearing was explained by the General Cuadra when on April 24, 1992, he
sent a note to the judge in the case declaring that some of the soldiers summoned
did not appear on the personnel and officers' files, others because they were
not active soldiers or because they had been removed, for which reason he
requested more detailed information so as to be able to locate them. In that letter he reiterated what the Public
Relations Department of the Sandinista
Popular Army had said "concerning
the scope of the powers for summoning soldiers who have not the slightest
connection with the case being investigated and which rather confirms our
impression that this is a case of harassment designed to keep the case on
a single line of investigation which is, coincidentally, the same as that
pursued by a part of the media."
The Government also pointed out that the deadline for evidence-gathering
had been extended at the request of the Attorney-General on August 16, 1991,
so that justice had not been obstructed; indeed, all the time needed for collecting
evidence had been available in the case.
d. That the inquiry had been exhaustive and the procedural activity in
the Seventh Court of the Criminal District of Managua, the Court of Appeal,
and the Supreme Court of Justice conformed to the rules in force in Nicaragua.
The duration of the police inquiry and the judicial proceeding was
in keeping with the complexity of the case, the large number of investigative
measures, the plethora of witnesses that gave statements, and the petitions
of the parties to the case.
e. That owing to the thousands of petitions heard by the Nicaraguan courts
of justice, the time spent on this Case was normal for criminal cases in the
country, as shown by the certification accompanying the brief on preliminary
objections. That the fact that the
case was heard in courts of first and second instances, had been appealed,
had been the subject of a request by the Assistant Attorney-General for an
extension of the legal term for inquiry proceedings to procure certain evidence,
and had been the subject of debate on jurisdiction and the continuous petitions
by the victim's father show that there had been neither unwarranted delay
in the administration of justice nor any denial of justice.
f. That the report issued by the Venezuelan experts lacked probative value
and could not have legal effects inasmuch as it had not been produced during
the judicial process nor did it meet the requirement of contradiction or bilaterality,
and had usurped the role of the Nicaraguan courts in indicating those possibly
responsible for the death of the youth Genie-Lacayo.
The State therefore did not accept that the experts (who are auxiliaries
of justice) should replace the Nicaraguan courts and indicate the possible
perpetrators without possessing the competence to do so.
g. That Decrees 591 and 600 were in force at the time the case was tried
and Nicaragua's judicial authorities "were
obliged to apply them under pain of committing abuse of power for the denial
of justice." The decrees stipulated "military courts for military personnel" and no civilians had been accused in the instant Case. Those decrees did not ignore rights or judicial guarantees; the accused
had their attorneys and were able to participate in all stages of the judicial
proceedings. Equal treatment had not been withheld and due legal process had
been observed. The case had been processed
in the Office of the Military Judge Advocate from January 18, 1994, when the
Secretary of the Supreme Court of Justice submitted the file. The military
investigating prosecutor had been appointed on January 28 and on January 31
the case was called and both parties appeared.
20. On November 11, 1994, the Commission submitted to the Court the following
documentation concerning the processing of the Genie Lacayo Case before the
Military Judge Advocate of Nicaragua: Judgment of June 27, 1994, delivered
by the Military Tribunal of First Instance of the Office of the General Advocate
of the Sandinista Armed Forces;
conclusions of the Military Prosecutor of Instruction; appeal filed by the
accuser; a file from the Officer of the General Command of the Sandinista Popular Army separating Army
General Humberto Ortega-Saavedra from jurisdictional duties; and an order
of July 6, 1994, from the Army General Commander rejecting the appeal on the
ground of inadmissibility.
21. On January 12, 1995, the Government presented a brief in which, inter
alia, it makes a juridical analysis of the task performed by the Tripartite
Commission, composed of representatives of the Government, Cardinal Miguel
Obando y Bravo, and the International Support and Verification Commission
(CIAV). It added that the purpose of the Tripartite
Commission was not germane to the case of Jean-Paul Genie-Lacayo; it had not
investigated it because it did not fall within its purview; it had, however,
studied the provisions contained in Decree 591, Law on the Organization of
the Military Judge Advocate and Military Criminal Procedure, and Decree 600,
Provisional Military Criminal Law, and recommended the reform of the legislation.
22. The Court, in its Judgment of January 27, 1995, unanimously disposed
of the preliminary objections lodged by Nicaragua in the following terms:
1. Declares that it is competent to hear the instant
Case, except regarding the abstract compatibility of Decrees 591 and 600 of
Nicaragua with the Inter-American Convention on Human Rights.
2. Rejects the preliminary objections interposed
by the Government of Nicaragua, except for the objection relative to the non-exhaustion
of internal jurisdictional remedies, which shall be resolved together with
the merits of the Case.
3. Considers that the objections of the Government
of Nicaragua posed in opposition to the statements in the Inter-American Commission
on Human Rights' complaint concerning the mandatory nature of its recommendations
are not preliminary objections but rather essential questions on the merits
that shall be resolved in due time.
4. Does not consider it appropriate to award court
costs and attorneys' fees.
5. Resolves to continue hearing the present Case
(Genie Lacayo Case, Preliminary Objections,
supra 4, para. 53).
23. By note of March 15, 1995, the Commission presented the list of the
following witnesses who should be summoned by the Court to appear at the public
hearings on the merits: Raymond Genie-Peñalba,
Alicia Duarte-Bojorge, Hernaldo Zúñiga-Montenegro, Humberto Ortega-Saavedra,
Joaquín Cuadra-Lacayo, Boanerges Ojeda-Baca, Sidney Lacayo-Guerra, Omar Hallesleven-Acevedo,
and Carlos Hurtado-Cabrera. On March
17, 1995, the Government submitted to the Court a brief in which it objected
to the appearance of witnesses Sidney Lacayo-Guerra, Omar Hallesleven-Acevedo
and Carlos Hurtado-Cabrera on the ground that they did not appear on the list
of witnesses submitted in the Commission's petition. On that same day it presented a further brief in which it challenged
the following witnesses: Humberto Ortega-Saavedra,
because of his role as accused in the investigation into the death of Jean-Paul
Genie-Lacayo, and Joaquín Cuadra-Lacayo and Boanerges Ojeda-Baca, in their
capacity as members of the tribunals that had heard the Case and because neither
was a third party.
24. By Order of May 18, 1995, the Court decided to continue to hear the
merits of the Case with the composition of the Court that had delivered the
Judgment on preliminary objections.
25. By Order of June 30, 1995, the President of the Court convened public
hearings on November 27 and 28 of that year to hear the comments of the parties
on the objection to the witnesses and their appearance in the proceedings,
and to take the statements of witnesses Raymond Genie-Peñalba, Alicia Duarte-Bojorge
and Hernaldo Zuñiga-Montenegro.
26. On November 27, 1995, Nicaragua presented, as part of the last judicial
proceedings as of that date in the Genie Lacayo Case, a brief from Mr. Raymond
Genie-Peñalba in which he maintained the admissibility of the appeal in process,
together with briefs from two judges of the Supreme Court of Justice of Nicaragua
disqualifying themselves from hearing the Case on the ground that they had
participated in it at an earlier stage.
27. On November 27, 1995, the Commission presented two notes accrediting
Mr. Ariel Dulitzky as its Assistant for the hearings to be held on that day
and the next. The Government's Agent
objected to the accreditation as time-barred. On that same day the Court decided to reject the accreditation because
"it is important [for a party] to be informed of the names of the persons
who would represent the adversary and the capacity in which they do so, if
it is to adequately prepare its defense."
28. On November 27, 1995, the Court held a public hearing to listen to
the pleadings of the Government and the Commission on the objection to the
appearance, and the impugnment of witnesses. On November 28, the Court decided "to dismiss the objection
filed by the Government of Nicaragua [supra 23] to the aforesaid witnesses
and their appearance, reserving the right to assess the value of their statements
at a later date" and authorized the President to convene a public
hearing to take their evidence.
29. The Court heard the statements of the witnesses at a public hearing
on November 28, 1995.
There
appeared before the Court,
for
the Government of Nicaragua:
José
Antonio Tijerino-Medrano, Agent
Marco
Monroy-Cabra, Adviser, and
Víctor
Manuel Ordóñez, Assistant;
for
the Inter-American Commission on Human Rights:
Leo
Valladares, Delegate,
Milton
Castillo, Attorney,
Oscar
Herdocia, Assistant,
Daniel
Oliva, Assistant, and
José
Miguel Vivanco, Assistant;
witnesses
called by the Inter-American Commission on Human Rights:
Raymond
Genie-Peñalba,
Alicia
Duarte-Bojorge, and
Hernaldo
Zúñiga-Montenegro.
30. On December 9, 1995, the President decided to convene the representatives
of the Government and the Commission to a public hearing to be held from September
5, 1996, to take the statements of the following witnesses:
Sidney Lacayo-Guerra, Omar Hallesleven-Acevedo, Carlos Hurtado-Cabrera,
Humberto Ortega-Saavedra, Joaquín Cuadra-Lacayo and Boanerges Ojeda-Baca.
31. On December 20, 1995, the Government transmitted to the Court certification
of the proceedings in the military courts on the Genie Lacayo Case between
March 9, 1994, and November 28, 1995.
32. On January 20, 1996, the President decided that the Government and
the Commission, after receiving the witnesses' statements, should present
their closing arguments on the merits of the Case (infra 35).
33. On July 8, 1996, the Inter-American Court issued an Order in which
it entrusted the judges present at the XX Special Session of the Court with
hearing the oral evidence.
34. On August 27, 1996, the Government submitted, at the Court's request,
copies of the following original texts of the Official Registry "La Gaceta":
Law 181 of August 23, 1994, Code of Military Organization, Jurisdiction and
Social Welfare; Law 37 of April 13, 1988, Law of Criminal Procedural Reform;
Law 124 of March 8, 1991, Law of Criminal Procedural Reform; Law 164 of December
1, 1993; Law of Reforms of Criminal Instruction; Decree 521 of April 7, 1990,
Establishment and Organization of the Institute of Social Welfare of the Sandinista
People's Army, and Decree 1130 of October 5, 1982, Law of Criminal Procedural
Reform.
35. At the public hearing which began on September 5, 1996, Judges Héctor
Fix-Zamudio, Hernán Salgado-Pesantes, Rafael Nieto-Navia and Alejandro Montiel-Argüello
received the depositions of the witnesses who appeared in compliance with
the Order of the President of the Court of December 9, 1995, and heard the
conclusions of the parties on the evidence taken.
There
appeared before the Court,
for
the Government of Nicaragua:
José
Antonio Tijerino-Medrano, Agent,
Carlos
José Hernández-López, Alternate Agent,
Marco
Monroy-Cabra, Adviser, and
Víctor
Manuel Ordóñez, Assistant;
for
the Inter-American Commission on Human Rights:
Alvaro
Tirado-Mejía, Delegate,
Domingo
Acevedo, Deputy Executive Secretary,
Milton
Castillo, Attorney,
Bertha
Santoscoy-Noro, Attorney,
Oscar
Herdocia, Assistant,
Héctor
Faúndez-Ledezna, Assistant,
José
Miguel Vivanco, Assistant, and
Ariel
E. Dulitzky, Assistant;
witnesses
called by the Inter-American Commission on Human Rights:
Sidney
Lacayo-Guerra,
Omar
Hallesleven-Acevedo,
Carlos
Hurtado-Cabrera, and
Boanerges
Ojeda-Baca.
The
following witnesses called by the Commission did not appear at this hearing,
despite the summons delivered by the Court:
Humberto
Ortega-Saavedra, and
Joaquín
Cuadra-Lacayo.
36. On September 5, 1996, the Inter-American Commission presented a brief
in which it reiterated its request made at the public hearing that the Court
again summon Mr. Humberto Ortega-Saavedra and Mr. Joaquín Cuadra-Lacayo.
On September 6, 1996, the Government once more filed a written objection
to the request. On that same day the President of the Court
decided that the oral pleadings of the parties based on the evidence already
collected should be heard, reserving the Commission's request to be decided
on by the full Court.
37. On September 6, October 7 and November 18, 1996, the Government dispatched
copies of the latest documents presented to the Supreme Court of Justice of
Nicaragua in the Genie Lacayo Case, concerning the processing of the as yet
unsettled appeal pending decision and its effects.
38. On October 3, 1996, the Commission presented the Court with the pleading
on the evidence collected up to that time, in which it stated:
a. That there was abundant evidence that the purpose of the actions of
the Nicaraguan authorities was precisely to thwart the investigation and guarantee
the impunity of the authors of the crime.
b. That had there been a serious and impartial investigation, Nicaragua
would have helped to dissipate any doubt as to those State agents' participation
in the acts that motivated the instant Case. Nicaragua, as a State Party to the Convention,
was called upon to organize its legal system to ensure its tribunals provide
proper administration of justice, a goal that cannot be attained if cases
are not handled with all due guarantees and within a reasonable time. It is
evident that as of February 1992, when so permitted by the law, the petitioner
not only cooperated in the case but also promoted it, and that it was the
authorities' conduct that had prevented the case from being concluded.
c. That although Article 243 of Decree 591 governing the Army High Command's
intervention in the administration of justice was not enforced, there is reasonable
doubt as to the impartiality of the system; and that the military prosecutor
and the military courts of first and second instances assessed the value of
the evidence in accordance with the "Sandinista juridical conscience" established
in Article 52 of the aforementioned decree.
d. That the domestic judicial process far exceeded the average time for
judicial proceedings in Nicaragua in the light of the information supplied
by the country's Attorney-General, and that the many cases left unresolved
owing to the Judiciary's workload does not exonerate the State from its obligation
to try cases expeditiously.
e. That Decree 591 did not afford the guarantees of an independent and
impartial tribunal in compliance with Article 8 of the Convention and that
with the application of that decree and of Decree 600 to the instant Case,
the threat of violation of guaranteed rights ceased to be hypothetical and
became a reality to the detriment of the rights of the Genie-Lacayo family.
39. On October 7, 1996, the Government submitted its summation to the Court,
the main points of which were as follows:
a. That it had been demonstrated that domestic remedies were not exhausted,
inasmuch as the criminal case was still before the Supreme Court of Justice
of Nicaragua and that none of the exceptions provided for in Article 46(2)
of the Convention on Human Rights were applicable.
b. That it has been demonstrated that criminal due process before the
Nicaraguan judicial authorities had been respected and the father of the youth
Jean-Paul Genie-Lacayo had been afforded access to all the remedies established
in the criminal procedural legislation and that there had been no unwarranted
delay in rendering a judgment in the case.
c. That it has been demonstrated that the duration of the case had been
reasonable if the police inquiry and the action of the Attorney-General's
prior to July 23, 1991, were excluded, and recalling that the dispute over
jurisdiction had lasted "from July 2, 1992, to December 20, 1993."
That it was necessary to study the many pieces of evidence provided,
the remedies and incidents proposed, the difficulty encountered in convening
the members of the Supreme Court of Justice for it to rule on the appeal lodged
by the father of the youth Jean-Paul Genie-Lacayo, the congestion of the criminal
courts in Nicaragua, and their dearth of staff.
d. That there was no evidence to show that by taking the case to the military
court it was appealing to the "Sandinista juridical conscience," since the text of the judgments
delivered in the first and second instances shows that the evidence had been
subject to a valuative analysis in accordance with the rules of healthy criticism
and the law.
e. That the full Supreme Court of Justice had been fully constituted as
of September 19, 1996.
f. That both the ordinary and military courts had acted independently
and impartially. There was no proof
of any interference or intervention on the part of the Executive Branch or
the Army.
40. On January 22, 1997, the Court decided not to call on the witnesses
General Humberto Ortega-Saavedra and General Joaquín Cuadra-Lacayo again to
testify and declared the evidentiary phase to be at an end in order to begin
to hear the merits of the Case, with a view to delivering a judgment.
41. On November 17, 1994, the International Legal Advisors Esq. and the
Foundation for the Development of International Law presented an Amicus Curiae, alleging the non-exhaustion
of domestic remedies during the phase of preliminary objections.
IV
42. The first question to be examined in this Case is that concerning the
non-exhaustion of domestic remedies, which the Government has raised as a
preliminary objection and which this Court decided in its Judgment of January
27, 1995, would be resolved at the same time as the merits of the Case "inasmuch
as it relates to the judicial remedies existing in Nicaragua, and their applicability
and effectiveness" (supra 22).
43. The Government held that the Commission should not have admitted the
petition when it was submitted on February 15, 1991, since the requirement
to exhaust domestic remedies established in Article 46(1) of the Convention
had not been fulfilled, the criminal case initiated as a result of the youth
Genie-Lacayo's death having been in progress at that time. In support of its objection, the Government
cited the proceedings in the State's criminal courts, both civil and military,
and their abundant incident. It further
averred that none of the circumstances provided for in Article 46(2), which
would have prevented exhaustion of the remedies, had occurred, nor had there
been any unwarranted delay in the administration of justice.
44. The Commission, for its part, asked for this objection be dismissed
on the ground that the party invoking the exhaustion of domestic remedies
is obliged to specifically identify them to the Commission, and Nicaragua
had not done so; in its view, the domestic remedies had indeed been fully
exhausted.
45. This Tribunal, in its Judgment on preliminary objections, considered
that:
[in]
the instant Case, the Commission's petition refers to Nicaragua's violation
of Articles 8 (Right to a Fair Trial), 25 (Right to Judicial Protection),
and 24 (Right to Equal Treatment) of the Convention, "as a result of the Judicial Branch's reluctance to prosecute and punish
those responsible and to order the payment of reparations for the damages
caused" by the death of Genie-Lacayo.
The Court feels that the articles invoked by the Commission refer to
the administration of justice and are closely related, as is logical, to the
"internal remedies" whose non-exhaustion
Nicaragua alleges (Genie Lacayo Case,
Preliminary Objections, supra 4, para. 29).
46. At the same time, account should be taken of the fact that the Commission
excluded from its petition the violation of young Genie-Lacayo's right to
life and right to humane treatment, inasmuch as his death occurred prior to
February 12, 1991, the date on which the State accepted the jurisdiction of
this Court, so that the merits of the Case are limited exclusively to the
consideration of breaches of procedure.
47. The exhaustion of domestic remedies in a strictly procedural case concerns
the merits and these refer precisely to the Nicaraguan Judiciary's ineffectiveness
in ruling on the investigation and punishment, if appropriate, of the persons
responsible for the death of young Genie-Lacayo and on the reparations to
which his relatives are entitled. This Court therefore dismisses it on the basis
of the evidence contained in the docket.
48. However, the Commission must in all cases pay due attention to Article
46(1)(a) of the Convention whereby it is called upon to take account of the
prior exhaustion of domestic remedies as an admissibility requirement which
serves, inter alia, to determine
the timeliness of the petition submitted to it (Art. 47 of the Convention),
subject, of course, and if appropriate, to subsequent review by the Court,
which shall be the body that rules on the matter in the last resort.
V
49. The Court shall now consider the arguments of both parties on the merits
of the Case.
50. In its application to the Court and in its closing arguments, the Commission
contends, in essence, that the Government had violated, to the detriment of
the relatives of the young Genie-Lacayo, Articles 8, 25 and 24 of the Convention
as a result of the Nicaraguan Judiciary's reluctance to prosecute and punish
those responsible for Genie-Lacayo's death and to order reparation for the
damages caused.
51. The Commission is of the view that the Government also infringed, in
addition to Article 8(1), the provisions of Article 2 of the American Convention
by failing to take such legislative or other measures as were necessary to
give effect to the rights and freedoms enshrined in the Convention; that Decrees
591 and 600, in granting broad margins of discretion and entrusting the Army
High Command with the punishment or otherwise of the accused, established
conditions conducive to the violation of the rights to justice, to due process
and to equal protection, and that those provisions placed the members of the
Sandinista Popular Army on a different
level to the rest of Nicaraguan society, thereby impairing the rights enshrined
in the American Convention.
52. The Commission further stated that the Government agents committed
acts that resulted in the denial of justice, including the disappearance of
evidentiary documents and the contempt displayed by the military witnesses
who refused to appear to testify before the Seventh Court of the Criminal
District of Managua. According to the
Commission, the domestic case was not processed within a reasonable time and,
furthermore, norms contrary to the purpose and aim of the American Convention
were applied, such as Decrees 591 and 600, containing respectively the Law
on the Organization of the Military Judge Advocate and Military Criminal Procedure,
and the Provisional Military Criminal Law.
53. The Commission reiterated its view that to prosecute ordinary crimes
as though they were military crimes simply because they had been committed
by members of the military breached the guarantee of an independent and impartial
tribunal, basing its argument on a decision of the United Nations Human Rights
Committee; United Nations fundamental principles three and five concerning
the Independence of the Judiciary: Article 16(4) of the Minimum Standards of Rules
of Human Rights in States of Emergency (Paris, 1984), and the literature of
the Inter-American Commission itself. The Commission also cited the considerations
expressed by the Supreme Court of Justice of Nicaragua in its judgment of
December 20, 1993, which led that jurisdiction to determine the responsibility
of the persons accused of the murder of young Genie-Lacayo belonged to the
military courts, supported by aforementioned Decrees 591 and 600, but adding
that it did not agree with its provisions so that, in the opinion of that
High Court, they should be amended by the National Assembly at its earliest
convenience.
54. In its response to the application and in its closing arguments, the
Government maintained in substance that the dockets of the police inquiry
and the criminal case in the court's showed that there had been continuous
and ongoing procedural activity, so that justice had been promptly and fully
administered.
55. According to the Government, the allegation that justice had been obstructed
by the refusal of twelve military witnesses to testify before the court of
first instance was unacceptable, inasmuch as most of the military witnesses
had given statements; if a few had not done so it was because they had not
been duly summoned.
56. The Government also challenged the Commission's allegation that the
delay in the proceeding had resulted in a denial of justice, arguing that
the proceedings in the Seventh Court of the Criminal District of Managua,
the Court of Appeal, and the Supreme Court of Justice had been conducted in
conformity with the rules in force in Nicaragua. The duration of the police investigation and the judicial proceeding
were in keeping with the complexity of the case, the numerous pieces of evidence
collected, the vast number of testifying witnesses, and the petitions filed
by the parties to the case. The Government maintained that the Commission's
claim that the fact that the case has lasted four years signified a denial
of justice was unacceptable, that period being normal for criminal cases in
Nicaragua.
57. According to the Government, the fact that the civil courts had declared
themselves incompetent to hear a case that falls within the purview of the
military courts does not imply any denial of justice, this situation having
been discussed in the appeal and review before the Supreme Court of Justice,
because, according to the Nicaraguan Constitution and its Code of Criminal
Investigation, the trial should take place before a competent judge and pursuant
to the procedures and formalities established in the law.
58. The Government states that the Commission's claim that normative provisions
that run counter to the object and purpose of the Convention were applied
to the detriment of the interested party is untenable, since the proceeding
established in Decrees 591 and 600 on military justice does not disregard
the suspects' right to a fair trial; in a word, all evidence is allowed and
challenge procedures established, so that those provisions do not violate
the right to equal protection and to a fair trial as set forth in the Articles
8, 25 and 24 of the Convention.
VI
59. At the hearing before the Court, witness Raymond Genie-Peñalba, father
of the victim, explained at length all the representations made to the various
administrative, police, judicial and military authorities in his inquiries
into the death of young Genie-Lacayo. He made particular mention of some problems
he had encountered throughout the process and of the effect that certain actions
on the part of the Nicaraguan authorities, especially the military -such as
obstruction of visits to the Military Unit involved, destruction of some records,
disposal of weapons and vehicles probably used in the crime, and the absence
of some witnesses- had had on the case. He gave a full account of the raison
d'être of certain remedies applied by the plaintiff and how they were
disposed of or left pending.
60. Witness Hernaldo Zúñiga-Montenegro, a Member of the Nicaraguan National
Assembly and President of the Special Legislative Commission created within
that collegiate body to investigate the death of young Genie-Lacayo, made
special reference to the request to the Government of Venezuela for the dispatch
of experts to deliver a forensic report on the events, a copy of which was
sent to the tribunal hearing the case at its express request and which he
understood to have been attached to the file.
61. Assistant Attorney-General María Alicia Duarte-Bojorge informed the
Court of the role played by the Office of the Attorney-General in such cases,
furnishing a detailed account of her own work in this particular case.
She told how, despite her request, the weapons allegedly used in the
crime, the logs of the arrival and departure of military vehicles, of weapons
and other monitoring logs and the vehicles themselves could not be inspected
by the judge. In her view, the military authorities clearly
obstructed the progress of the case and caused delays by impeding the procurement
of evidence.
62. Witness Sidney Lacayo-Guerra, Chief of Army Special Military Unit 003
responsible for General Humberto Ortega's security, said that the Unit kept
detailed records of movements of personnel, weapons and vehicles and that
the logs corresponding to October 28, 1990, could not be produced during the
inspection conducted by Judge Boanerges Ojeda because they had been burned
on military orders. He also referred
to the mechanisms for the sale of used vehicles, explaining the manner in
which the sale of the "Renegades" allegedly involved in the case
had been effected. In his view, Judge
Ojeda had been afforded every facility available during his visit to the Unit.
He declared that upon receipt of the first summonses for members of
General Ortega's escort to testify before the judicial authorities, he had
retained the services of an attorney to ensure that those summoned should
be properly briefed on the events about which they were to testify and the
procedure for so doing but that, in the last analysis, the witnesses had appeared
of their own free will and had also presented themselves at the military court.
63. In 1990 witness Moisés Omar Hallesleven-Acevedo was Chief of Military
Counterintelligence, which came under the General Staff, whose Chief at the
time was Major-General Joaquín Cuadra-Lacayo, and the Army High Command, then
headed by General Humberto Ortega. In his statement he referred extensively to the investigation conducted,
which included the logs of movement of personnel, vehicles and weapons and
the inspection of the weapons themselves, reports which had been made orally
to the police. He further declared
that neither the police nor any other authority had asked him for the logs
before they were burned on the orders of the Chief of Unit 003.
64. Witness Boanerges Ojeda-Baca, Seventh Judge of the Criminal District
of Managua, stated that he had received the docket in mid-1991.
He furnished a detailed explanation of all the incidents in the case;
the evidence sought; which evidence was requested and received; the judicial
inspection of Unit 003; and the difficulties he had encountered in summoning
the military witnesses, which obliged him to approach even the President of
the Republic herself on the matter; and other incidents which he portrayed
as lack of cooperation on the Army's part.
He further stated that he had given his full attention to the instant
Case despite the normal heavy workload in his office.
He explained that the Office of the Attorney-General had sought the
opinion of the Venezuelan experts because decisions of that kind were not
normally delivered at the investigation stage and that it had not been transmitted
to the parties inasmuch that was a task for the civil courts.
He described the legally established deadlines for the investigation
and explained why they could not be met in certain cases. According to the witness, the Venezuelan experts' investigation was
considered to be presumptive at the time of the decision as to whether the
process should be transferred to the military courts. He explained the role of the police in the initial investigations
and the procedure for obtaining evidence through the Ministry of the Interior.
He added that on account of his political leanings he had been prevented
from conducting a serious and professional investigation of the case and mentioned
the letter he had received from Mr. Ricardo Wheelock, Chief of Public Relations
of the Sandinista People's Army, dissuading him
from continuing to summon the witnesses who had not appeared, which Mr. Wheelock
considered to be an excessive act of harassment. The sender of this letter had relayed it to
the media. Although the witness had
requested the file relating to Sub Commander Mauricio Aguilar's murder, it
had not been given to him. He referred
to subsequent laws 124 and 164 whereby any person is entitled to participate,
either on his own behalf or in a class action, in the proceedings on any type
of crime, something which did not occur at that time. He reported that when he had in his possession the evidence required
for him to judge that the alleged authors of the murder of young Genie-Lacayo
could be linked to General Ortega's escort, he had decided to declare himself
incompetent to continue hearing the case and to refer it to the military courts,
in accordance with the laws in force.
65. Witness Carlos Hurtado-Cabrera served as Minister of the Interior of
the Republic of Nicaragua and in that capacity was responsible for the National
Police. He explained to the Court the
role that the Police Force, which fell within his purview, played in the investigation
of misdemeanors conducted under the National Police Chief.
In the Ministry the case came under the direct supervision of Vice
Minister José Pallais and, in order to expedite the investigations, the Police
appointed Colonel Javier López to act as liaison officer, while the Army appointed
Colonel Hallesleven. He understood that the Police had the opportunity
to review all the files held at Unit 003 on the basis of the oral reports
supplied to it. In the witness' view,
the Police acted autonomously.
66. The file contained, in addition to the witnesses' statements, copies
of the files of the cases tried in the civil courts, in the military courts
and in the Supreme Court of Justice.
VII
67. The Court now determines the relevant facts which it deems to have
been proven or not proven, as follows:
68. It has been proven that the Nicaraguan military authorities obstructed,
or failed to cooperate adequately in, the investigations conducted by the
Attorney-General's Office and with the Seventh Judge of the Criminal District
of Managua in which the preliminary proceedings took place; a number of problems
were encountered in the procurement of evidence needed for the due processing
of the case (letter of February 7, 1992, from Ricardo Wheelock, Chief of Public
Relations of the Sandinista Popular Army; letter of April 24, 1992, from General Joaquín
Cuadra-Lacayo; letter of January 21, 1992, from the Seventh Court of the Criminal
District to the President of Nicaragua; notes of June 18, 1992, to the Minister
of the Interior and the Chief of Public Relations of the Sandinista Popular Army and records of
that Office of March 3 and April 7, 1992; notes from the Attorney-General
of January 20, February 26, March 25, April 30, May 11, June 8 and 15, and
July 1, 1992; note from Sidney Lacayo-Guerra of May 4, 1994; Record of the
On-site Inspection of Unit 003 of June 2, 1992; testimony of the Attorney-General
Alicia Duarte-Bojorge, the Seventh Court of the Criminal District, Boanerges
Ojeda-Baca, and Raymond Genie-Peñalba).
69. It has been proven that the judicial investigations were extensive
and the evidence copious, justifying the fact that the early stages were more
protracted than other cases unlike the Genie Lacayo Case (letters of August
16, 1991, and July 1, 1992, from the Attorney-General to the Seventh Court
of the Criminal District, and testimony of Attorney-General Alicia Duarte-Bojorge
and the Judge of the Seventh Court of the Criminal District, Boanerges Ojeda-Baca).
70. It has been proven that the victim's father was prevented by law from
originally participating in the proceeding, but that he was able to do so
when the law was amended. It has neither
been proven that his representations were obstructed nor that they caused
unnecessary delays (Decree 1130, Law of Criminal Procedural Reform, Law 37,
Law of Criminal Procedural Reform, Law 124, Law of Criminal Procedural Reform,
document of September 4, 1991, from the Seventh Court of the Criminal District
of Managua; letter of September 19, 1991, from the Attorney-General; briefs
containing Mr. Raymond Genie-Peñalba representations; accusation of July 6,
1992; briefs containing the injuries suffered; appeal of July 6, 1992; application
for judicial review of November 9, 1992; incident of disqualification of February
25, 1994; appeal of disqualification of June 20, 1994; incident of substantial
nullity of February 7, 1994; incidents of annulment of notification of June
28, 1994; of appeal of July 1, 1994, and of judicial review of August 29,
1994; and briefs on the various incidents of the proceeding -in the civil
and military courts- concerning expert appraisals, inspections, evidence,
summonses of witnesses; and testimony of Attorney-General Alicia Duarte-Bojorge;
the Seventh Judge of the Criminal District, Boanerges Ojeda-Baca, and Raymond
Genie-Peñalba).
71. It has been proven that the Supreme Court of Justice of Nicaragua,
despite the considerable time that has elapsed and the various requests from
the parties for a ruling, has not settled the application for judicial review
(Application for judicial review filed by Mr. Raymond Genie-Peñalba on August
29, 1994; incident of abandonment of the application for judicial review submitted
by the defense of September 8, 1994; briefs from the defense of August 7,
1995, and August 21, 1996; briefs from Raymond Genie-Peñalba of September
28 and October 24, 1994, June 7 and October 3, 1995, and February 2, May 29,
July 28, and November 4, 1996; brief from Magistrate Alba Luz Ramos-Vanegas
of June 12, 1996, and testimony of Raymond Genie-Peñalba).
72. It has been proven that the application of Decrees 591 and 600 concerning
military trials in Nicaragua did not violate the principle of equality, did
not provoke capitis diminutio of
Mr. Raymond Genie-Peñalba, nor did it diminish the independence or impartiality
of the military tribunals, inasmuch as Article 243 of Decree 591, which provides
that the Supreme Court of Justice handling the pending application for judicial
review be constituted with four additional members from the military appointed
by the Sandinista Popular Army's
High Command and the Senior Official of the Ministry of the Interior, was
not applied in this case. It has not
been proven that the principle of predominance of the "Sandinista juridical conscience" was
applied in the rulings of the military courts. (judgment of June 27, 1994,
of the Military Tribunal of First Instance of the Armed Forces' Military Advocate;
Judgment of August 19, 1994 of the Army High Command constituted as a Tribunal
of Second Instance; and closing arguments of the Government and the Commission).
73. It has not been proven that Mr. Raymond Genie-Peñalba exercised the
simple and prompt recourse referred to in Article 25 of the American Convention.
VIII
74. Article 8 of the American Convention which concerns the right to a
fair trial establishes the main lines of what is known as "due process
of law" or "the right to legal defense," which consist of the
right of every person to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature made
against him or for the determination of his rights and obligations of a civil,
labor, fiscal, or any other measure.
75. In order to establish violation of Article 8, it is necessary, first
of all, to establish whether the accusing party's procedural rights were respected
in the trial to determine those responsible for the death of young Genie-Lacayo.
76. There is abundant evidence in the Case file to show that certain military
authorities either obstructed or refused to collaborate adequately in the
investigations by the Office of the Attorney-General and with the judge of
first instance (supra 68).
The situation reached the point where that court was constrained to
contact the President of the Republic by letter of January 21, 1992, -which
appears in the Case file,- to intercede with the military authorities for
them to afford the facilities needed for the inspection of Military Unit 003,
and that unit's weapons, vehicles and weapons log (supra
68). In accordance with the foregoing, the judge in charge of the case until
he declared himself incompetent encountered problems, generated by the authorities,
in collecting the evidence he considered necessary for the proper trial of
the case, which constitutes a violation of Article 8(1) of the Convention
(supra 68).
77. Article 8(1) of the Convention also refers to reasonable time. This
is not an easy concept to define. In
defining it, one may invoke the points raised of the European Court of Human
Rights in various decisions in which this concept was analyzed, this article
of the American Convention being equivalent in principle to Article 6 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms.
According to the European Court, three points must be taken into account
in determining a reasonable time within which the trial must be conducted:
a) the complexity of the matter; b) the judicial activity of the interested
party; and c) the behavior of the judicial authorities (See, inter alia, Eur. Court H.R., Motta judgment of 19 February 1991, Series A no. 195-A, para. 30; Eur. Court H.R., Ruiz-Mateos case v. Spain
judgment of 23 June 1993, Series A no. 262, para. 30).
78. With regard to the first point, it is clear that the matter under consideration
is somewhat complex, since the investigations were very extensive and the
evidence copious, owing to the wide impact of the death of young Genie-Lacayo
(supra 69).
All of this could justify the fact that the trial, which also involved
many incidents and instances, lasted longer than others with different characteristics.
79. As regards the second point, which refers to the procedural activity
of the interested party, there is no record that Mr. Raymond Genie-Peñalba,
the victim's father, behaved in a manner incompatible with his role as private
accuser or that he obstructed the process, because he did no more than apply
the impugnment measures recognized in the legislation (supra
70).
80. With reference to the third point, that is, the behavior of the Nicaraguan
judicial authorities, this Court finds that there were no excessive delays
at the various stages of the proceedings, with the exception of the phase
which is yet to be settled (supra
71), that is, the application for judicial review before the Supreme Court
of Justice filed by the accusing party on August 29, 1994, admitted by that
Tribunal on August 31 and which, notwithstanding the various requests from
the parties, has still not been disposed of.
Even considering the complexity of the case, as well as the excuses,
impediments and substitution of judges of the Supreme Court of Justice, the
two years that have elapsed since the application for judicial review was
admitted is not reasonable; this Tribunal therefore deems it to violate Article
8(1) of the Convention. It will do
so in the operative part relating to Article 1(1), which contains the general
obligation to respect the Convention.
81. In addition to the examination of possible delays at the various stages
of the proceeding, in determining what constitutes a reasonable time throughout
the entire process, the European Court has employed what it refers to as a
"global analysis of the proceeding"
(Motta, supra 77, para. 24; Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198
and Eur. Court H.R., Unión Alimentaria
Sanders SA judgment of 7 July 1989, Series A, no. 157). Even without taking into account the police
investigation and the time spent by the Office of the Attorney-General of
the Republic of Nicaragua in bringing the case before the court of first instance,
that is, between July 23, 1991, on which date the court issued the order to
initiate the proceeding, and the present time at which a firm judgment has
still not been rendered, more than five years have elapsed; the Court deems
this period to exceed the limits of reasonableness prescribed in Article 8(1)
of the Convention.
82. Faced with the arguments adduced by the Commission and the Government
concerning Decrees 591 and 600, the Court, in its Judgment of January 27,
1995, on preliminary objections in this matter, determined that it could not
examine the abstract compatibility of those decrees and the American Convention,
but reserved the power to examine the merits of the case and the effects of
their application on the human rights protected by the Convention (Genie Lacayo Case, Preliminary Objections,
supra 4, para. 51).
83. The analysis of the proceedings has led the Court to determine (supra
72), that it is clear that Decrees 591 and 600 concerning trials in the military
courts were applied in this Case; it is therefore appropriate to examine whether
the provisions applied conform to the precepts of the Convention.
84. That conformity must be examined exclusively insofar as its concerns
the procedural rights of Mr. Raymond Genie-Peñalba, who is the interested
party in this matter, but not in relation to the defendants in the case, inasmuch
as the case is not being heard by this Court; the fact that it involves a
military court does not per se signify
that the human rights guaranteed the accusing party by the Convention are
being violated.
85. The evidence given in this matter shows that Mr. Raymond Genie-Peñalba
was able to participate in the military proceeding, submit evidence, avail
himself of the appropriate remedies and, lastly, apply for judicial review
before the Supreme Court of Justice of Nicaragua, whose remit it is to rule
on the merits of the criminal case and determine, as appropriate, whether
specific procedural rights were violated. Consequently, the interested party cannot claim that the application
of the decrees on military trials have restricted his procedural rights protected
by the Convention (supra 72).
86. With regard to the argument that the decrees breach Article 8(1) of
the Convention in that they affected the impartiality and independence of
the military tribunals that heard the case, because of both their composition
-especially in the second instance, in which senior army officers were involved-
and the possible use of ideological elements such as that of the "Sandinista
juridical conscience", established in Article 52 of Decree 591 on evaluation
of evidence, and Article 4(9) of Decree 600 which replaces criminal responsibility
with disciplinary responsibility, this Tribunal feels that although those
provisions were in force when the military case was heard and that they could
have impaired the independence and impartiality of the military tribunals
that heard the case, they were not applied in this specific Case (supra 72).
87. On the other hand, while it is true that in the military judgment of
first instance the court invoked, inter alia, Article 11 of Decree 591 in which the expression "Sandinista law" was used, that term
has only a superficial ideological connotation since, according to the aforesaid
precept that forms part of the Chapter on the objectives of the military criminal
process, the purpose of that process is to
These
guidelines are common to general military criminal law regardless of the political
orientation of the State in question, and in this Case the use of that epithet
does not affect this conclusion; it has not been proven that the invoking
of Article 11 has either diminished the impartiality and independence of the
tribunals or violated Mr. Raymond Genie-Peñalba's procedural rights.
88. This Court finds that it has not been proven that Mr. Raymond Genie-Peñalba
found himself in a situation of inferiority in relation to the defendant or
the military judges when he appeared as the accusing party before the military
courts; consequently, there was no violation of the right to equal protection
of the law, established in Article 24 of the Convention and invoked by the
Inter-American Commission, inasmuch as that right may only be examined in
this Case with regard to the procedural rights of the interested party (supra
72).
89. Article 25 of the Convention governs the simple and prompt recourse
for the protection of persons injured by violations of their rights enshrined
in the Convention. In the instant Case
the Commission has indicated the possible violation of Mr. Raymond Genie-Peñalba's
procedural rights protected under Article 8(1) of the Convention during the
criminal case, but not the non-existence or ineffectiveness of this remedy,
nor even that it was applied; consequently, the Court considers that Article
25 of the Convention was not violated (supra 73).
90. The Commission alleges that the Government of Nicaragua violated the
provisions of Article 2 of the Convention inasmuch as, owing to the incompatibility
of Decrees 591 and 600 with the Convention, it has not fulfilled the obligation
to adopt such legislative or other measures as may be necessary to give effect
to the rights or freedoms enshrined therein.
91. With regard to the Government's failure to comply with Article 2 of
the American Convention with the application of Decrees 591 and 600, this
Court found that the military courts did not per se violate the Convention (supra
84), and regarding the alleged application of some of the provisions of those
decrees that could contravene the Convention, it has already been determined
that they were not enforced in the instant Case (supra 72). Consequently, the
Court does not express an opinion on the compatibility of these articles with
the Convention; to act otherwise would be to make an abstract analysis, which
lies outside the purview of this Court.
92. It must be said, also, that the Legislative Assembly of Nicaragua has
issued Law 181 containing the Code of Military Organization, Jurisdiction
and Social Welfare of August 23, 1994, promulgated on September 2, 1994, which
amended a number of the provisions of the above-cited decrees. This law was not enforced in the instant Case
and the Court, therefore, refrains from examining it.
93. As regards the allegation made by the Commission and challenged by
the Government to the effect that non-compliance with the recommendations
it made in its reports constitutes a violation of the principle of pacta
sunt servanda, the Court merely reiterates its declaration in another
case:
[i]n
the Court's Judgment, the term "recommendations" used by the American
Convention should be interpreted to conform to its ordinary meaning, in accordance
with Article 31(1) of the Vienna Convention on the Law of Treaties. For that reason, a recommendation does not have
the character of an obligatory judicial decision for which the failure to
comply would generate State responsibility.
As there is no evidence in the present Convention that the parties
intended to give it a special meaning, Article 31(4) of the Vienna Convention
is not applicable. Consequently, the
State does not incur international responsibility by not complying with a
recommendation which is not obligatory (Caballero
Delgado and Santana Case, Judgment of December 8, 1995. Series C No. 22, para. 67).
94. Lastly, in accordance with general international law, the Inter-American
Court does not act as an appellate court or a court for judicial review of
rulings handed down by the domestic courts. All it is empowered to do in this
Case is call attention to the procedural violations of the rights enshrined
in the Convention which have injured Mr. Raymond Genie-Peñalba, the interested
party in the matter; however, it lacks jurisdiction to remedy those violations
in the domestic arena, a task, as has been pointed out before, that falls
to the Supreme Court of Justice of Nicaragua when it disposes of the application
for judicial review which is yet to be resolved.
95. In view of the nature of the violation which the Court has found attributable
to the Government in this Case ‑the authorities' obstruction of the
judicial investigation and unwarranted delay in the process- which it will
mention in the operative part of this Judgment, any attempt to determine compensation
for damages would be based on mere speculation as to the outcome if this type
of violation had not occurred (Eur. Court HR, Case of Schmautzer v. Austria, judgment of 23 October,
1995, Series A no. 328-A; Eur. Court H.R., Hauschildt judgment of 24 May 1989,
Series A no. 154; Eur. Court H. R., Saïdi v. France judgment of 20 September
1933, Series A no. 261-C and Eur. Court
HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312) and
therefore refrains from so doing. On
the other hand, it considers that, in fairness, it must order the Government
to pay pecuniary compensation to the father of young Jean-Paul Genie-Lacayo,
which it fixes at US$ 20,000 (twenty thousand dollars of the United States
of America) or its equivalent in the local currency of Nicaragua, to be paid,
without deduction for taxes, within six months of the date of notification
of this Judgment. The amount to be
paid shall be calculated on the basis of the exchange rate between the United
States dollar and the Nicaraguan currency on the New York stock exchange on
the day before the payment is made.
96. Since the Court has found that human rights protected by the Convention
have been violated, it finds that Nicaragua must use every means at its disposal
to ensure by law the free and full exercise of human rights; as a consequence
of that obligation, it must secure the restitution of the violated right and,
where appropriate, remedy the delay that is the subject of the violation indicated.
IX
97. NOW, THEREFORE:
THE COURT,
unanimously
1. Dismisses the preliminary objection of non-exhaustion of domestic remedies
interposed by the State of Nicaragua.
unanimously
2. Decides that the State of Nicaragua has violated Article 8(1) of the
Convention, in connection with Article 1(1), to the detriment of Mr. Raymond
Genie-Peñalba.
unanimously
3. Decides that the State of Nicaragua has not violated Article 2, 25,
24 and 51(2) of the Convention.
by
four votes to one
4. Sets at US$20,000 (twenty thousand dollars of the United States of
America), or its equivalent in cordobas on the date of payment, the amount
that the State of Nicaragua must pay, exempt from tax, as fair compensation
to Mr. Raymond Genie-Peñalba within six months of the date of this Judgment.
This payment shall be effected in
the form and on the terms set forth in paragraph 95 of this Judgment.
Judge Pacheco-Gómez dissenting.
Done
in Spanish and English, the Spanish text being authentic, in San Jose, Costa
Rica, on this twenty-ninth day of January, 1997.
Héctor
Fix-Zamudio
President
Hernán Salgado-Pesantes
Rafael Nieto-Navia
Alejandro Montiel-Argüello
Máximo Pacheco-Gómez
Manuel
E. Ventura-Robles
Secretary
Read
at a public session at the seat of the Court in San Jose, Costa Rica, on January
31, 1997.
So
ordered,
Héctor
Fix-Zamudio
President
Manuel
E. Ventura-Robles
Secretary