CONCLUSIONS AND RECOMMENDATIONS

A. Conclusions

In light of the background information and considerations set forth in the present report, the Commission considers it appropriate to express the following conclusions:

1. The Junta of the Government of National Reconstruction, once in power, solemnly assumed a commitment to respect human rights. Its attitude in this regard, has been expressed in its ratification of various international human rights protocols, among them the Pact of San José de Costa Rica of 1969: in the issuing of the statute of the Rights and Guarantees of Nicaraguans; and in the creating of the National Commission for the Promotion and Protection of Human Rights, the inspiration for which is found in various resolutions adopted by agencies of the United Nations.

2. The death penalty was officially abolished by the Junta of the government of National Reconstruction, which reiterated its intention to respect the lives of all who were defeated in the civil war. Despite this, the Commission has received denunciations of violations of the right to life committed in the weeks immediately following the establishment of the revolutionary Government, at a time when it did not yet exercise effective control of public power. In so far as the right to life is concerned, the Commission is particularly troubled by the illegal executions, and among these, those which took place in La Pólvora Prison in Granada at the end of July 1979. Although the Commission has been informed that these matters are being investigated, it has no information to the effect that the responsible persons have been punished.

3. With regard to the right to liberty, nearly 6,500 ex-members of the National Guard and those who closely collaborated with the former government were initially detained and jailed. As a result of collective and individual pardons and acquittals, this number was reduced to 3,580 persons.

4. With respect to the right to a fair trial and due process, the Commission observes that: a. special courts have been established to try those referred to as Somocist prisoners, who, in turn, have been tried and sentenced without the benefit of some of the guarantees of due process; b. in the functioning of the courts, there were certain irregularities which are incompatible with the commitments assumed by Nicaragua under the American Convention on Human Rights. In particular violative of the Convention were the lack of opportunity for the prisoners, to assert their rights, the creation and the composition of the special courts. The vagueness and imprecision of many of the allegations or charges, the inadequate amount of time allowed to prepare the defends and present evidence, the lack of findings to support the conclusions of the sentences, and the lack of competence for the appeals courts to review the facts established by the special courts of first instance; c. although the crimes which have been attributed to those referred to as Somocist prisoners are detailed in the Penal Code—such as violation of the international order, wanton murder, and association or the purpose of criminal activity—the imputation of this last criminal charge to all the former members of the National Guard cannot always be justified; d. in some cases, there has been a lack of due process with respect to persons who have been accused of acts against National security under the terms of the Law for a the Maintenance of Public Order and Security. In fact, the Government has indicated its intention to modify this law.

5. In relation to the right to personal integrity, the Commission verified that the prisoners are subjected to conditions that are inconsistent with the minimum requirements necessary to respect human dignity, as established in the Statute on Rights and Guarantees of Nicaraguan People and the American Convention on Human Rights. The Commission recognizes, however, that the penal institutions, which have always been rudimentary, had further deteriorated prior to the fall of Somoza. The Commission has been informed, moreover, that after it made its visit to the country and submitted its preliminary recommendations in this regard, the prison situation has been improved to the extent that the economic resources of the Nicaraguan government permit. In addition, the economic resources of the Nicaraguan government permit. In addition, although the Commission has received denunciations of torture it whishes to state that it not the policy of the Government to tolerate torture, and that the Government has adopted the necessary measures to avoid it.

6. In so far as freedom of thought, expression and information is concerned, although in general, these liberties exist to a certain degree in Nicaragua. The Commission considers that the Law on the Maintenance of Public Order and security, as well as the provisions of the last part of Article 3, added to the general law on the communications media, limits the full force of these liberties.

7. With respect to political rights, although the Commission takes into account the special conditions existing in Nicaragua, it considers the absence of a law that guarantees and regulates the functioning of political parties. The postponement of general elections until 1985, and the prohibition of partisan political activities for candidates to electoral office before 1984, to limit the effect of an authentically democratic regime and the fill exercise of the political rights consecrated in the American Convention on Human Rights.

8. As for the situation of human rights organizations, the Commission considers it praiseworthy that the Government has created the National Commission for the Promotion and Protection of Human Rights. At the same time, however, the Commission believes that unjustifiable obstacles have been put in the way of fulfilling the important functions of the Permanent Commission on Human Rights.

9. Finally, in relation to economic and social rights, the Commission recognizes that within the short period that the Government of Nicaragua has been in power. It has made major efforts toward the reconstruction of the country and the restructuring of social and economic conditions in Nicaragua, in order to implement these rights.

B. Recommendations

By virtue of the conclusions set forth above, the Commission feels the following recommendations to the Government of National Reconstruction of Nicaragua are warranted:

1. With respect to the executions, which took place in La Pólvora jail in Granada shortly after the revolutionary triumph, to carry out the appropriate investigation, to bring to trial and punish those responsible, using the full force of the law.

2. In order to clarify the number and location of the prisoners, to publish a complete list of all those detained, indicating the detention center in which they are located.

3. With respect to those persons who belonged to the National Guard or collaborated with the former regime, and who have been given sentences of less than five years by the Special Tribunals, to consider the possibility of granting them a pardon.

4. With respect to the crippled, the handicapped, the gravely ill and the elderly, whatever sentence they have received, to consider likewise the possibility of granting them a pardon, or if that is not possible, commuting the sentence to house arrest.

5. With respect to the other prisoners sentenced to more than five years, to ask for a review of all the sentences handed down by the Special Tribunals by a judicial authority. Which might be either the Supreme Court or the Court of Appeals; and to insure that all prisoners be afforded the rights of due process in their defense.

6. With respect to prison conditions to continue to fulfill each and every one of the preliminary recommendations made to the Junta of National Reconstruction on October 11, 1980. [1]/

7. To modify the Law on the Maintenance of Public Order and Security, inasmuch as its breadth and excessive generality could cause abuses in its application against political dissidents of the present regime.

8. To modify legislation related to freedom of expression and opinion inasmuch as its breadth and excessive generality have in some cases limited the effect of these rights.

9. With respect to political rights, to adopt the necessary measures to assure ideological pluralism, freedom of organization and the functioning of political parties and in general to assure the effective exercise of political rights of all citizens so that circumstances can be created that will permit general elections to be held within a short and reasonable period of time.

10. With respect to the organizations that promote and protect human rights, to assure complete autonomy in the exercise of their activities, as well as the physical integrity and personal freedom of their officials.

Notes________________

[1] These preliminary recommendations indicate: that the level of congestion in the cells be reduced; that each of the prisoners be given a bed and a mattress, that the prisoners be given better food, that family visits be permitted more frequently and on a regular basis; that a system be established permitting prisoners to go more often to the bathroom, to wash their uniforms more often, and to leave their cells and get fresh air at least once a day for a reasonable time; that there be investigations and, if appropriate, punishments against those in charge of the prisoners who beat or torture them, against the instructions of the Government of National Reconstruction; that the necessary measures be taken to assure that medicine sent to prisoners by their families actually reaches them; that the medical services and medicines necessary for the care of sick prisoners be made available in the penal institutions; that prisoners with contagious diseases be transfers to adequate health care centers, though these may be under guard; that all penal institutions permit religious observance and attendance at religious services; that prisoners be allowed to receive some books, journals, magazines and craft materials; that in all detention centers, prisoners relatives be authorized to bring them food twice a week; that the search of relatives who visit the prisoners be compatible with their human dignity; that sanitary conditions in the detention centers be substantially improved; that juveniles be released, of if it is not possible or appropriate to release them, that they be held in special rehabilitation centers; that prisoners, if willing, lend their services for the purpose of enlarging and improving existing installations—the service of private institutions and international organizations might be used to the same end. The Nicaraguan government contends that it has accomplished several of these recommendations. See note number 7, on bottom of page 112.