CHAPTER III

PERSONAL LIBERTY [1]/

A. General Considerations

1. The right to personal liberty is guaranteed in Nicaragua through legal provisions of domestic law and international law, in other words by laws issued by the Government of Nicaragua before and after the triumph of the revolution and by international conventions whose enforcement and compliance within Nicaragua are obligatory.

The Statute on the Rights and Guarantees of Nicaraguans provides the following:

Article 8: Every individual has a right to individual freedom and personal security. No one may be arbitrarily detained or imprisoned or deprived of his liberty, except for reasons established by Law and in accordance with legal procedure.

Therefore:

1. A detention may only be carried out pursuant to a written judicial order or pursuant to an order from authorities specifically empowered to emit such an order except in the case of a detention in flagrante delicto.

2. Every detainee has the following rights:

a) To be informed and notified, without delay, of the cause of his detention and of the accusation, denunciation or charge leveled against him;

b) To be taken before a competent authority within a period of 24 hours or to be released;

c) To file a writ of habeas corpus;

d) To be treated with the respect proper to the dignity inherent in the human being;

e) To obtain recompense in the event of having been illegally detained or imprisoned.

2. The foregoing notwithstanding, the Government of national Reconstruction has also issued provisions in Nicaragua that limit, restrict and suspend the rights and guarantees of personal freedom vis-à-vis those indicted for crimes committed during the previous regime, for whom a system of exception has been decreed.

B. The emergency laws

1. In Chapter IV, the American Convention establishes the circumstances under which States Parties may suspend, for a strictly limited period of time, the obligations incurred by virtue of having ratified the Convention, in cases where war or some other emergency situation threatens the independence or security of the State. Under the protection of these provisions, any member state of the Organization of American States is empowered to defend the legal order and the security of the nation in times of danger, by resorting to genuine emergency measures.

2. On July 22, 1979, a State of Emergency was declared in Nicaragua through enactment of the law called the National Emergency law, two days earlier, the law on the Maintenance of Public Order and Security was promulgated. These legal texts comprise the juridical instrument with which the Government of national Reconstruction imposed order and restored the peace in Nicaragua.

3. To enforce and implement these emergency measures, the government established Special Emergency Tribunals, by means of Decree No. 23, August 7, 1979; whereby a structure was completed, which the Government of national Reconstruction deemed would be able to cope with the situation of extreme violence existing at the time.

The emergency laws and the emergency tribunals were conceived of as a means to deal with a truly emergency situation and, therefore, as temporary measures, to be in effect for a brief period. In fact, these emergency tribunals were never established.

4. The Law on the Maintenance of Public Order and Security, Decree No. 5, prescribed penalties of 3 to 10 years imprisonment of those who refused to honor the cease-fire of persisted in attempts to restore the previous regime. Or committed acts designed to bring the nation under foreign domination or to weaken its independence or integrity, or revealed secrets relating to its defense or foreign relations, or attempted to overthrow the authorities, or to prevent them form assuming their responsibilities, or to obstruct them in the performance of their functions, or who commit acts of sabotage. Moreover, it established a sentence of 1 to 4 years’ imprisonment for those who committed acts of plunder, looting, vandalism, destruction of public or private property. Gamble, or trafficked in the white-slave trade or in drugs, or engaged in any activity that constituted an offense against human dignity or engaged in speculation. Finally, it set a found to be in illegal procession of arms, explosives and other military munitions. And also for vagrancy, disorderly drunkenness, drug addiction and prostitution, as well as for those who disseminate verbal or written statements in an attempt to “harm the public interest or destroy the gains achieved by the people.�?

5. The National Emergency Law, Decree No. 10, established penalties of 3 months to years at public works for those who conspire to disrupt public or private transportation, for managers, administrators or individuals in charge of public or private businesses. For those who engage in speculation or establish monopolies and for those who engage in contraband or in illegal trafficking of national or foreign currencies of precipitate a flight of capital or commit fraud in payments for public services.

Further, the Emergency Law suspended approval of, and declared potentially annullable, transfers of immovable and movable property made subsequent to December 31, 1977, until such time as those transfers had been reviewed; it punished with 1 to 3 years imprisonment the concealment of such goods.

The same law provides that the State can expropriate any house or private dwelling for public purposes, on a temporary basis, granting just compensation to the owner. Similarly, it suspends eviction notices, and fines those that violate the standards with respect to rent. It empowers the State to intervene in businesses whose owners abandon them or refuse to put them into operation; it also gives the State authorization to requisition privately owned transportation equipment whenever necessary.

6. Of the emergency laws, mention should also be made of Article 51, which together with Article 49 of the Statute on the Rights and Guarantees of Nicaraguans. Suspended those individuals who were being investigated for crimes listed in the Penal Code and in international agreements, and committed during the Somoza regime from enjoyment of many of those rights and guarantees. The decree of suspension remained in effect until April 1981. The reasons why the Government of National Reconstruction took that decision are set forth in the pertinent part of the note sent by Foreign Minister Miguel D’Escot Brockman to the Secretary General of the OAS on January 23 of that year. It states the following:

The reasons why certain rights and guarantees of the individuals in question were suspended are well known; only 6 months ago, Nicaragua saw the end of a bloody civil war that brought down the Somoza dictatorship that had been in power for 45 years, kept there by a ferocious military apparatus composed of almost 15,000 men, trained by foreigners to hate, repress and murder anyone who opposed the dictatorship. Some 7,500 of these men accused of having committed every crime imaginable against the people of Nicaragua are now in prison, as ordered by the Special Tribunals. In other words, when one is faced with this type of situation, it is impossible to maintain a state of juridical normalcy, due to the very nature of the events that transpired.

C. The Status of the Members of the Former National Guard

1. When the revolution against the regime of General Anastasio Somoza Debayle triumphed and the National Guard was declared to be dissolved, its former members made differing decisions. A significant number fled abroad in search of refuge in neighboring countries such as Honduras, Costa Rica, El Salvador and Guatemala, or by plane fled to the United States and other countries; another large group decided to surrender, and, laying down arms, sought refuge at the local Nicaraguan Red Cross centers; others sought and obtained asylum in various foreign embassies in Managua, whole other left or remained in their homes.

2. In a number of communiqués and through its most distinguished official spokesmen, the Government of National Reconstruction announced that it was not seeking revenge or taking reprisals against former National Guardsmen who had not participated in serious crimes committed against the people and who were willing to joint what was called the national unity. [2]/

3. However, in the days following consolidation of the new Government, the Government of national Reconstruction began to detain those who sought refuge at the Red Cross and at other places and to hold them under arrest in the various prisons in the country; eventually, there were 6,500 individuals in confinement. The Government explained its calls for those individuals to be turned over to the new authorities and their subsequent detention by saying that prison detention was one means to avoid personal reprisals and vengeance, given the understandable rage that existed among the people against the former national Guardsmen and those who collaborated with the previous regime.

4. This number was later reduced through collective or individual pardons and, in some cases, through acquittal. By the time the Special Tribunals closed, of the 6,310 prisoners that existed at the time of the triumph of the revolution, 4,331 were convicted. [3]/

D. Cases Concerning the Right to Personal Liberty

1. In addition to the situation of the former Guardsmen and of individuals associated with the previous regime, the Commission has received various denunciations concerning individuals who had no link whatever with the National Guard or with the previous regime; rather, some cases involved individuals who had opposed the Government of General Somoza. These cases involve personal liberty and the inefficacy of the statutory guarantees established by the government of national Reconstruction with respect to such persons.

2. Thus, denunciations have been received on behalf of various individuals subject to illegal arrest and imprisonment without trial whom the Office of National Security arrested at their places of work or in their homes, for the simple fact, so the reports state, of not having an identification card with the political alignments of the current Government, or for having expressed critical personal opinions which the Nicaraguan authorities would regard as counter-revolutionary and harmful to the people’s interests.

Some of these denunciations are as follows:

Case No. 7484: Mr. Alberto Suhr Reyes

3. This case concerns the architect Alberto Suhr Reyes. According to the denunciation received, when he felt threatened by member of the Department of State Security , he personally filed a writ for protection against the threat of arrest before the Court of Appeals of Masaya on April 13, 1980. At that time the examining judge issued a report wherein he stated that as of that time, there was no charge or proceeding against him. However, a few days thereafter he was detained and brought before the Special Tribunals.

Case No. 7741: Roberto and Fernando Argüello Baltodano

and Francisco Gutíerrez Espinosa

4. A denunciation was filed as a result of the mass arrest, which took place on June 30, 1980, as part of a military operation. One of the pertinent parts of that denunciation states the following:

A writ of habeas corpus was filed on their behalf. Dr. Alejandro Burgos, the Judge appointed by the Court of Appeals, reported that there was no charge against them and that they remained in detention without having been brought before a judge; the authorities had exceeded the 24-hours time period that the law provides for remanding detainees, and he therefore ordered their immediate release. However, when an attempt was made to implement this decision, validity of the order was denied, arguing that these individuals were being “sentenced�? by the Police.

Case No. 7742: Jorge Luis Pérez González and Luis Enrique Ordeñana Valle

5. According to testimony received by the Commission during the on-site observation, another means used by the Department of State security to flout the efficacy of habeas corpus is to release the detainee on whose behalf a writ of habeas corpus has been filed and then to detain him again. The Commission is placing on record in this connection the denunciation concerning the persons of Jorge Luis Pérez González and Luis Enrique Ordeñana Valle, in which the claimant, who was not one of the individuals in question, states the following:

They were picked up on June 30 of this year in their respective homes in the San Judas neighborhood and were released on Saturday, July 5, as a result of a writ of habeas corpus filed on their behalf. However, in the early morning hours of Tuesday the 8th, they were picked up again. The charges against them where they were, and that authority had ordered that they be detained, were not know. We note that even though the first writ of habeas corpus was resolved in their favor, it was easy to flout it when these two individuals were taken for a second time. At no time were these individuals “common criminals�? or “anti-social�?; on the contrary they were former recognized patriotic combatants and hones people, who lived from their daily work. This situation awakens in all Nicaraguan families, whether affected or not, uncertainty and uneasiness in the face of the inefficacy of the writ of habeas corpus.

Case 7570: Alejandro Salazar, Mario Hannon, Leonardo Somarriba

Mario Lacayo, Jaime Castillo and Dora María Lau de Lacayo

6. A denunciation has been received concerning the detention of a group of prominent members of the private sector in Nicaragua. In application of Article 1, paragraphs a, b, c and d, and Article 3, paragraphs a and c, subparagraphs 1 and 2, of the Law of the Maintenance of Public Order and Security, these individuals were convicted of allegedly refusing to honor the cease-fire, placing the Nation under foreign denomination, revealing secrets concerning defense or foreign relations, attempting to overthrow the authorities or to prevent them from performing their functions, illegal possession of arms and disseminating statements aimed at injuring the people’s interests and destroying the goals achieved by the people.

In her brief, the defense attorney for these individuals states the following:

In is prejudicial to my defendants to consider them a part of a plot against the legally-constituted Government, since it is really impossible that any such plot had even the slightest, the most minimal, chance of taking shape. All eight are devoted to their work and have no combat background. The are not related to anyone in the Government or to anyone in the armed forces; they almost have no connections among themselves. It is truly inconceivable that they could carry out a coup detat. The foregoing is noted in the statement made by Commander Baltodano who states that there was no military involvement or involvement with people connected with the Government. No one is involved who could have made the coup d¢etat feasible; there are no arms of any kind anywhere; there is no money feasible; there are no arms of any kind anywhere; there is no money from contributions; there are no munitions. After establishing this, all that remains to be said is that there is no corpus delicti because there was no crime.

This is very injurious to my clients, all of whom are working men whose conduct is beyond reproach. They are directly responsible for part of the production of coffee and rice in Nicaragua. These men are truly useful to the country. In the past, because they sought better horizons for their country, they were the victims of violent repression. They fought to the extent that they could and cooperated as they were able to affect change. Once that change was achieved, they worked for the well being of society.

7. In addition to the examples cited above, other chapters of this report will discuss the situation of the journalist Mr. Guillermo Treminio [4]/ And of the National Coordinator of the Permanent Commission of Human Rights of Nicaragua, Mr. José Esteban González [5]/. These individuals have been arrested pursuant to the Law on the Maintenance of Public Order and Security.

E. The Pardons

1. The Government of National Reconstruction of Nicaragua has decreed two general pardons. The first pardon came in October 1980, when the Commission was about to conclude its on-site observation; that pardon affected 72 women detainees.

The Commission was aware that arrangements for this pardon began before its arrival and, it therefore had nothing to do with the presence of the IACHR in Nicaragua. The Nicaraguan authorities also stated the same on that occasion.

2. The second pardon came on December 10, 1980 and involved 503 individuals who were in detention. The text of Decree No. 589 states that the timing of the pardon is occasioned by the anniversary of the universal Declaration of the Rights and Duties of Man proclaimed by the United Nations General Assembly on December 10, 1948, and is also a result of the tenacious and praiseworthy efforts of the National Commission for the Promotion and Protection of Human Rights in Nicaragua, which has been especially concerned with the problem of overcrowding in prisons and the situation of those who have not yet been brought to trial or placed at the disposition of the organs of justice.

3. In addition to these general pardons, the Government has decreed certain individual pardons, and released individuals who did not appear to be seriously implicated with the previous regime. Also, in some cases, individuals have been permitted to complete their sentences in their homes.

F. The Status of Those Seeking Asylum

1. When the Sandinista Revolution triumphed, hundreds of former officers of the National Guard, and individuals connected with the Somoza regime, sought asylum in various foreign embassies in the city of Managua, in the hope that they would be regarded as persons in political asylum and that the new Nicaraguan Government would give them safe-conducts permitting them to leave the county. [6]/

2. Some of the relatives of those who sought asylum in the embassies have submitted individual denunciations to the Commission, claiming violation of the norms on the right to asylum and the terms of the American Convention; they also claim that their relatives are not allowed to received food, visits, or medical attention and are kept under circumstances constituting psychological torture. At present, however, this situation has in large part been remedied.

3. With respect to this situation, and in reply to a request for information in connection with case No. 7394, the Government of Nicaragua notified the Commission of the following:

…we wish to state, for the record that these persons are responsible for being the authors of the massive extermination of countless innocent and defenseless people on the streets and in the prisons of our country, among other charges. Their situation is being studied in the light of international law, especially articles II, III, IV, VI and VII, of the Convention for the Prevention and Punishment of the Crime of Genocide, which was ratified by Nicaragua on February 13, 1951, and which instrument is deposited with the General Secretariat of the United Nations.

Certain diplomatic representations accredited to the Government of Nicaragua have operated in a manner consistent with this policy, and have refused to give refuge to individuals of this kind.

4. Although of the 985 individuals who initially took refuge in various embassies in Managua, the Government has granted safe-conducts to 949 (in other words 96% of the total), as of the date of approval of this report there are still 36 persons seeking asylum, the majority of whom are in embassies of Central American countries.

5. The Commission is confident that the Government of National Reconstruction, which has expressed its unqualified respect for the institution of asylum, will soon grant the corresponding safe-conduct to the individuals who still remain in the embassies. As has been pointed out on other occasions, the Commission reiterates that the purpose of asylum, both territorial and diplomatic, is to safeguard the freedom, security and physical integrity of the individual. The individual who considers himself a target of prosecution may seek asylum, although asylum may only be granted by the State. The Commission also takes the position, however, that prolonged confinement in a place subject to diplomatic immunity is a violation of the freedom of the individual seeking asylum, which transforms the act of seeking asylum into a form of excessive punishment.

Notes_______________

[1] Article 7 of the American Convention on Human Rights states the following: “Right to Personal Liberty�?. 1) Every person has the right to personal liberty and security. 2) No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the Constitution of the State party concerned or by a law established pursuant thereto. 3) No one shall be subject to arbitrary arrest or imprisonment. 4) Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5) Any person detained shall be brought promptly before a judge or other officer authorized by the law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. 6) Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In states parties whose laws provide that anyone who believes himself to e threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such treat, this remedy may not be restricted or abolished. The interested remedies. 7) No one shall be detained for debts. This principle shall not limit the orders of a competent judicial authority issued for non-fulfillment of duties of support.

[2] See page 8 in the Introduction.

[3] According to information provided to this Commission by the Government of Nicaragua on February 23, 1981.

[4] The case of journalist Mr. Guillermo Treminio is discussed in Chapter VI, concerning freedom of expression and opinion.

[5] The case of Mr. José Esteban González is discussed in Chapter VIII on local human rights organizations.

[6] Nicaragua is party to the Convention on Asylum, signed in Havana on February 20, 1928, and ratified later, and to the convention on Political Asylum, signed in Montevideo in December, 1933, and later ratified. It also signed the Convention on Diplomatic Asylum on March 28, 1954, in Caracas, Venezuela, which it has not yet ratified.