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RESOLUTION
Nº 2/87 CASE
7788 NICARAGUA March
27, 1987 HAVING
SEEN: 1. Resolution Nº
20/86 approved by the Inter-American Commission on Human Rights on
April 18, 1986, attached hereto as Appendix Nº 1, which it resolved: 1.
To declare that the Government of Nicaragua has violated the
right to private property set forth in Article 2l of the American
Convention on Human Rights by confiscating the dividends earned on
shares owned by Mr. Carlos Martínez Riguero in the Empresa Cereales
de Centroamérica S.A. (CERSA). 2.
To declare that the Government of Nicaragua has violated the
right to private property set forth in Article 2l of the American
Convention on Human Rights by nationalizing the quarry located in the
"Las Brisas" subdivision belonging to Mr. Carlos Martínez
Riguero and by thus far failing to honor the pecuniary obligations
arising out of that measure despite the lengthy period that has
elapsed. 3.
To recommend to the Government of Nicaragua that it take steps
to reimburse, in accordance with the law, Mr. Carlos Martínez Riguero
for the amounts owed to him as unpaid dividends and for the
nationalization of the quarries referred to in paragraph 2. 4.
To send this resolution to the Government of Nicaragua so that
it may make any observations it deems pertinent within 60 days of the
date of the respective letter of transmittal. 5.
To publish this resolution in the Annual Report of the
Commission, for the purposes of Article 63.g of the Regulations, if
the Government of Nicaragua does not make the pertinent observations
within the period stipulated in the foregoing paragraph. 2. The
observations made by the Government of Nicaragua through a note dated
June ll, 1986, wherein it states: Inasmuch
as the complaint described above remains in effect and in light of the
provisions of the resolution that the Honorable Commission has issued,
the Government of Nicaragua sees fit to make a statement on the
matter, as follows: Mr. Carlos Martínez Riguero and the assets that
he claims in the complaint brought before that Commission were not
affected by Decree Nº 3 of June 20, 1979. With regard to the shares
that he claims to have owned in the Empresa de Cereales Nicaragüenses
(CERSA), these were placed under temporary government control and
later released, as attested to through certification issued by the
Ministry of Justice on May 8, 1980. (Please find attached a copy of
said certification.) (Appendix Nº 2). Accordingly,
the certification and exemption from tax liability was issued in the
name of Mr. Carlos Martínez R. and Mrs. Melba Páez de Martínez,
while settlements that the claimant had pending from the Nicaraguan
Government for various holdings were in process. That certification is
dated April 8, l98l. (Enclosed is a copy of that certification,
Appendix No 3.) In the exercise of its powers and procedures, the
Government of Nicaragua enacted the Law on Nationalization of the
Mining Sector and Establishment of the Corporation Nicaragüense de
Desarrollo Minero - CONDEMINA, by virtue of which the quarry owned by
Mr. Carlos Martínez Riguero, located in Las Brisas, was affected. The
effect on that property is, therefore, the consequence of a general
law. It can never be alleged that it was an individual and separate
decision on the part of the Government of Nicaragua. As
for the appraisal and compensation procedure, if said procedure was
not followed, it was precisely because the party concerned did not
take the measures called for in the matter. (Please find enclosed
signed photocopies of the Gazettes publishing the Law on
Nationalization and the Establishment of CONDEMINA, Decree Nº 137 and
Decree Nº 314) (Appendix Nº 4.) Mr. Chairman, the Government of
Nicaragua wishes to reiterate to the Commission that under our system
of law the regular and special remedies available to all Nicaraguans
seeking to settle a legal situation are immutable. Nonetheless, of his
own free will, Mr. Carlos Martínez Riguero opted to leave the country
without availing himself of the remedies available to him as a citizen
under the laws of the country. Though he has been absent since 1981,
it is utterly false that the Government of Nicaragua declared him to
be in absentia. 3. The
complainant's observations on the reply from the Government dated
September 9, 1986, and which in essence states: My
observations on the documents sent by the Government and mentioned
previously will appear together with the pertinent paragraphs of the
Government's reply. FIRST
PARAGRAPH "Mr.
Carlos Martínez Riguero and the assets that he claims in the
complaint brought before that Commission were not affected by Decree Nº
3 of June 20, 1979." MY
OBSERVATIONS ON THE FIRST PARAGRAPH Attached
to correspondence I addressed to you on June 11, 1981 was a copy of
"La Gaceta," the official newspaper of the Government of
Nicaragua, page 5 of which contains Decree Nº 3, of July 20, 1979. Since
this was nothing more than a copy of Decree No 3, let us look at your
"Report on the Situation of Human Rights in Nicaragua,
1981." Chapter
I of that report, on the existing legal system in that country,
establishes the following in paragraph F, section c: "Moreover,
through Decree Nº 3 of July 20, 1979, the Nicaraguan Government
empowered the Attorney General to take steps to seize, requisition and
confiscate all property of the Somoza family and of the military and
officials who had abandoned the country since December l977." In
turn, Decree No 3, dated July 20, 1979, given as Supporting Document Nº
9, establishes the following: "The
Attorney General is empowered to proceed forthwith to take steps to
seize, requisition and confiscate all property of the Somoza family
and of the military and officials who have left the country since
December 1977." In
view of the foregoing, the following are pertinent excerpts from a
communication I received on december l8, l979 from another branch of
the Government of Nicaragua, the original of which I included as
Supporting Document Nº 7 (Appendix Nº 5). Through that
communication, I am advised of the following: "On
November 20, the National Reconstruction Trusteeship received from the
Attorney General the list of shareholders whose shares in the
corporation known as CEREALES DE CENTROAMERICA, S.A. (CERSA) were
confiscated: ... ... Carlos
Martínez Riguero Said
shares are being represented by this Trusteeship as of that
date." It
is therefore clear that the Attorney General included me among the
persons who had been divested and that my shares were also
confiscated. Further,
on January 4, 1980, as shown in Supporting Document Nº 11 (Appendix Nº
6) of these proceedings, the Attorney General himself in charge of the
confiscation, addressed correspondence to my wife, Mrs. Melba Páez de
Martínez. The opening words of that communication constitute ample
proof of the CONFISCATION of my shares in CERSA. That document starts
as follows: "In
order to revoke the confiscation of CEREALES DE CENTROAMERICA,
S.A. that you request..." The
Attorney General was empowered to seize or confiscate assets; but all
the documentation referred to above shows that in the case of the
undersigned, his decision was to confiscate. Beyond any question, I
was the target of confiscation. We
see, then, that the claim made by the Government of Nicaragua in the
FIRST PARAGRAPH of its reply to the effect that the undersigned
claimant and his property were not adversely affected by Decree Nº 3
of July 20, 1979, is false. SECOND
PARAGRAPH The
Government states: "With
regard to the shares that he claims to have owned in the Empresa
Cereales Nicaragüenses (CERSA), these were placed under temporary
government control and later released, as attested to through
certification issued by the Ministry of Justice on May 8, 1980.
(Please find attached a copy of that certification.)" (Appendix Nº
2) MY
OBSERVATIONS ON THE SECOND PARAGRAPH An
initial observation on the second paragraph: The company from which
the Government confiscated my shares and the corresponding dividends
is not called "Cereales Nicaragüenses (CERSA)," but rather
CEREALES DE CENTROAMERICA, S.A. (CERSA). Let
us now turn to the certification to which the Government of Nicaragua
refers in this second paragraph, a copy of which it encloses. As noted
above, the undersigned enclosed the original version of that
certification. That "certification" states verbatim: "THE
MINISTRY OF JUSTICE OF THE REPUBLIC OF NICARAGUA HEREBY ATTESTS that
the shares belonging to Mr. Carlos Martínez Riguero in the Empresa
CEREALES DE CENTROAMERICA S.A. are not affected by Decrees Nos. Three
(3) and Thirty-eight (38) issued by our JUNTA OF THE GOVERNMENT OF
NATIONAL RECONSTRUCTION. Those shares must therefore be released.
We
see, therefore, that the Minister of Justice and the Attorney General
ATTEST that those shares must be released. Further, in
reference to the shares, the Minister of Foreign Affairs states that
they were released. As
may be seen from the documentation in the proceedings on this CASE
7788, the shares in CERSA that were confiscated from me are worth a
vast sum of money. If indeed these shares were released, it is
illogical for the Government to offer as evidence a statement to the
effect that "they must be released," rather than a receipt
signed by the injured undersigned attesting to the fact that he had in
fact received the shares that "must be released." Apart
from the matter of the "release of the shares" --which we
know did not occur--, the matter of the dividends earned on
those shares is still pending. Your
Resolution 20/86, which was duly transmitted to the Government of
Nicaragua, resolves the following: "To
declare that the Government of Nicaragua has violated the right to
private property set forth in Article 21 of the American Convention on
Human Rights by confiscating the dividends earned on shares..."
You
also apprised of the following: "To
recommend to the Government of Nicaragua that it take steps to
reimburse, in accordance with the law, Mr. Carlos Martínez Riguero
for the amounts owed to him as unpaid dividends... " However,
throughout its reply to your request for information concerning your
Resolution 20/86, the Government of Nicaragua does not make the
slightest mention of the word "dividends" and merely
enclosed "a statement" to the effect that "those shares
must be released." Moreover,
included in the existing documentation in the files on the present
CASE 7788 are a number of irrefutable documents wherein the
undersigned demands the actual release of his shares in CERSA, and
that the dividends earned on those shares be paid to him, however many
resources the Nicaraguan Government used--the Government Junta,
Ministers and Deputy Ministers of State responsible for government
agencies, Judges, Courts of Appeal, Supreme Court of Justice, etc.--to
definitively confiscate my shares in CERSA and the dividends those
shares earned for me. These
documents, which are too numerous and lengthy to duplicate here--even
partially--were enclosed with written correspondence presented to you,
the Commission, on June 11, 1981 and thereafter. I request that these
documents be included, in their entirety, in your resolution on the
present CASE 7788, as called for under the terms of the Convention and
your Regulations. The
foregoing observations on the SECOND PARAGRAPH of the reply from the
Government of Nicaragua on my shares in CERSA are incontrovertible
proof that no such shares "were released" despite the
Government's unfounded denial in its reply. It
is equally clear from the SECOND PARAGRAPH and even from the
Government's entire response that it makes not even the slightest
allusion to your resolution concerning the recommendation to that
Government of Nicaragua that it proceed to reimburse Mr. Carlos Martínez
Riguero for the amounts owed to him in the form of unpaid dividends. THIRD
PARAGRAPH "Consequently
(en consecuencia), the certification and exemption from tax liability
was issued in the name of Mr. Carlos Martínez R. and Mrs. Melba Páez
de Martínez, while settlements that the claimant had pending from the
Nicaraguan Government for various holdings were in process. That
certification is dated April 4, 1981. (Enclosed is a copy of that
certification, Appendix Nº 3.)" MY
OBSERVATIONS ON THE THIRD PARAGRAPH First,
we should take a look at the word "consecuencia". According
to the Dictionary of Synonyms and Antonyms by Professor Sainz de
Robles, that word is synonymous with "deduction and
conclusion." Thus,
according to the Government's reply, by deduction, in conclusion,
"as a consequence" of the fact that that Government had
taken control of and released my shares in the CERSA Corporation,
"the certification and exemption from tax liability was
issued" in my name, while settlements that the claimant had
pending from the Nicaraguan Government for various holdings were in
process. There
cannot be the slightest connection, link or relationship of any kind
whatsoever between the fact that some of my shares were seized or
CONFISCATED and later released and the fact that the undersigned was
exempted from any tax liability. The very "certification" in
question makes no reference to CONFISCATION, seizure, release of
shares, but rather to the fact that the Government must pay me for
several properties. Moreover,
let us look at the copy of the "certification and exemption from
tax liability" that in the THIRD PARAGRAPH the Government of
Nicaragua states it sent. I should clarify at this point that that
document, dated April 4, 1981, was enclosed with correspondence that I
conveyed to the Commission on July 15, 1981 as Supporting Document Nº
16, more than five years ago, and that has been part of the file for
CASE 7788 since that time. That
document states the following verbatim: "In
view of the fact that Comrade CARLOS MARTINEZ RIGUERO has pending
from the Government settlements on various holdings that were
negotiated by the Ministry of Transport as well as a quarry that was
nationalized, I am authorizing you to give him and his wife, Mrs.
MELBA PAEZ DE MARTINEZ, credit worthiness, until such time as the
government pays off that balance." Summing
up and to clarify the pertinent statements made by the Government in
the document quoted above, what we have is the following: Since the
undersigned claimant has pending from the Government settlement
(payment of a debt, according to the Larousse Dictionary) for several
holdings, the appropriate persons are authorized to extend credit
worthiness (capacity to pay debts, according to Larousse) until such
time as the Government makes settlement (pay off a debt, according to
Larousse). In
other words, in the "Certification" that the Government
encloses, according to the THIRD PARAGRAPH of its reply, IT CERTIFIES
that Comrade CARLOS MARTINEZ RIGUERO has pending from the
Government settlement on several properties; but in its reply to
you, the Commission, the Government talks about settlements on several
properties that the claimant had pending with the Government. As
can be seen, there is a world of difference between the CERTIFICATION
issued by the Government and the reply you received from the
Government, since the enclosed Certification clearly states that the
undersigned HAS several properties pending payment by the Government. Finally,
with regard to the THIRD PARAGRAPH of the reply from the Government of
Nicaragua under discussion, we see that it is not true that a
certification and tax exemption was issued in my and my wife's name by
virtue of the release of my shares in CERSA. We have also seen from
the CERTIFICATION that the Government enclosed that it admits it must
settle or pay to the undersigned claimant the amount owed to him for
several properties and the quarry involved in CASE 7788. FOURTH
PARAGRAPH The
reply from the Government. "In
the exercise of its powers and procedures, the Government of Nicaragua
enacted the Law on Nationalization of the Mining Sector and
Establishment of the Corporation Nicaragüense de Desarrollo Minero -
CONDEMINA, by virtue of which the quarry owned by Mr. Carlos Martínez
Riguero, located in Las Brisas was affected." The
undersigned and the Commission know that a general law such as the law
on nationalization of the means of production affects each and every
company involved in the production of the nationalized branch. In
relation to the FOURTH PARAGRAPH of the Nicaraguan Government's reply,
it is obvious that the Government is correct in stating that the Law
on Nationalization of the Mining Sector affected the quarry owned by
Mr. Carlos Martínez Riguero, located in Las Brisas. FIFTH
PARAGRAPH "The
effect on that property is, therefore, the consequence of a general
law. It can never be alleged that it was an individual and separate
decision on the part of the Government of Nicaragua." The
undersigned again notes that the files on this CASE 7788 contain no
document wherein the undersigned is claiming or contending or implying
that the law on nationalization of the mining sector under discussion
has been enacted as an individual and separate decision taken by the
Government of Nicaragua against him, though this has no bearing upon
the case whatsoever, which is that the Government owes me compensation
for my property. The
sole purpose of my complaint in CASE 7788 is that the Government of
Nicaragua comply with the provisions of the Law on Nationalization of
the Mining Sector that it enacted and with the American Convention on
Human Rights. As you well know, that Government accepted that
Convention, taking it as national law, pledging its national honor to
its observance. Moreover,
the Law on Nationalization of the Mining Sector (photocopies of which
the Government states it has enclosed, duly signed by the appropriate
official of the Ministry of Justice) states in its Article 2: "Mining
companies, working mines and quarries in the country are hereby
nationalized through state acquisition... The transfer of
equity to state ownership shall be effected as prescribed by the Law
upon publication on this Decree." A
look at the underlined parts of the above article in the foregoing
paragraph reveals that they were nationalized (in other words,
transferred to the community, according to the Larousse Dictionary)
"through," "as a result of," "thanks
to," according to that same dictionary) state acquisition
("purchase" according to that dictionary) of the mining
companies. Had
the State of Nicaragua observed its own Decree or Law on
Nationalization of the Mining Sector, it would have endeavored to
effect that nationalization through or by means of state purchase of
the property or means of production that had been nationalized. Insofar
as the Convention is concerned, your Resolution 20/86 on the present
CASE 7788 under discussion CONSIDERS: 8. That Article 21
of the American Convention on Human Rights establishes: "2.
No one shall be deprived of his property except upon payment of
just compensation, for reasons of public utility or social interest,
and in the cases and according to the forms established by law." SIXTH
PARAGRAPH The
Government states in this paragraph that: "As
for the appraisal and compensation procedure, if said procedure was
not followed, it was precisely because the party concerned did not
take the measures called for in the matter." The
word "measure," according to the dictionary, has the
following meanings: procedure, action, step. Note
that in this paragraph of its reply, the Government of Nicaragua makes
allusion to the appraisal and compensation procedure but immediately
thereafter states, "if said procedure was not followed..." Clearly,
the Government is making reference only to the compensation since, if
it had referred to assessment and compensation alike, it would have
had to state, "if these were not followed," thereby using
the plural, the proper form. In
reference to the COMPENSATION PROCEDURE referred to by the Government,
we should discuss the wording of the Law on Nationalization of the
Mining Sector. Article
2 of that Law, which appears under the heading, Nationalization of the
Mining Companies, has already been quoted and partially discussed in
the observations on the FIFTH PARAGRAPH of the Government's reply. We
know that the undersigned was notified to turn over his quarry mining
business. That notification is Appendix Nº 7 in the files. After
my company had been taken over by the State, I addressed
correspondence to the appropriate authorities asking them to proceed
to pay the fair compensation due, noting at that time that it would
have to proceed thus. That communication from the undersigned is
included as Appendix Nº 8. I
received a reply from the Government, which is the only one I have
received in response to my aforementioned petitions. That reply has
also been included in the files as Supporting Document Nº 12
(Appendix Nº 9). It states the following: "The
compensation, which we are sure will in no case exceed the value you
reported to the appropriate authorities as being the real value, can
be decreed by installments." Since
the Government has not specified the authority that would be called
upon to pay the compensation, I addressed many other pieces of
correspondence to the authorities involved in the enactment of the law
of nationalization, to those who ordered me to hand over my company to
the Government, and to those who authorized that order, etc. These
communications have been included in the records as supporting
documents Nº 13, 15 and 15 (Appendix Nº 10). I
have never received a reply from the various branches of government to
my requests, set forth in the indicated documents--not even an
indication of the authority that would be called upon to effect the
compensation required under the law. And
so we see that the injured claimant addressed all those involved--the
Government Junta, Ministers and Ministries, the Junta of
Reconstruction, and autonomous and semiautonomous government
entities--in an effort to have the State acquisition or purchase
transaction concluded in the appropriate logical manner: upon
enactment of the decree or law on nationalization or upon ordering
that the undersigned hand over his company. The
next article, Article 3 of the Law of Nationalization of the Mining
Sector, deals with the "Purchase Price"." As we have
seen, in its reply the Government of Nicaragua refers to this as
"appraisal," but makes no comment thereon whatsoever. It
therefore does not warrant any comment in these observations on the
Government's reply. I do, however, wish to point out that in writing
and documents that the undersigned is again asking be incorporated
into resolution 20/86 of the case or the report, that
"acquisition price" was already fully established (Appendix
Nº 11). Thus,
in connection with the COMPENSATION procedure indicated by the
Government, I shall copy below the pertinent article of the "Law
on Nationalization of the Mining Sector," entitled "Form of
Payment": "Article
4. The price of the shares shall be paid in Treasury bonds earning
interest at 6 1/2 percent per annum every twelve months, calculated
from the date of publication of this decree, and maturing in five
years." The
very ample documentation in these records, consisting of several
communications or "overtures" to the Government Junta, the
Junta of Reconstruction of Managua, to CONDEMINA, and to several
Ministers of State demonstrate that the measures I have taken have
never met with any success. In accordance with the Law on
Nationalization in question, such overtures should have been quite
unnecessary, since that Law does not establish or indicate or imply
that the party affected by the nationalization should make any
"overture" whatsoever. At
this juncture, it must be recalled that MORE THAN TWO YEARS elapsed
between the date of publication of the "Law on Nationalization of
the Mining Sector" on November 3, 1979, according to the
certified copy enclosed by the Government in its reply, and December
17, 1981, when I was compelled to leave the country. The pertinent
authorities to whom I had written had not responded to my petitions:
they made no decision on the matter; they paid no monies, Treasury
bonds, or interest "payable every twelve months," despite my
requests and the fact that in my communications to the Government and
the authorities involved I indicated my domicile or address. From
the Law on Nationalization of the Mining Sector and the sixth
paragraph of the Government's reply, it is glaringly apparent that the
Law in question makes no mention of the measure or "measures
called for in the matter"--as the Government states in its
reply--or of any other type of measure that should or might have been
used or taken by the party affected by the Law of Nationalization in
question. As
regards remedies of any kind, let us first look at what the Government
says in the next paragraph of its reply: SEVENTH
PARAGRAPH "Mr.
Chairman, the Government of Nicaragua wishes to reiterate to the
Honorable Commission that under our system of law the regular and
special remedies available to all Nicaraguans seeking to settle a
legal situation are immutable." As
we know, CASE 7788 concerns my shares in CERSA, and dividends on those
shares, and the nationalization of my quarry mining company. As
for my shares in CERSA, we have seen that on June 27, 1980, a voucher
on the "release" of those shares was delivered to me, even
though the actual shares were never given to me, nor were the
dividends they earned. As
for the national quarries, we have seen that on July 16, 1980, I
received a communication informing me that the compensation could be
decreed in installments. However, no mention was made of the authority
that was called upon to pay the due compensation, as the undersigned
had requested. What is more, thus far the Government has implicitly
refused to provide that information. From
the records and from the Government's own reply, we see that the just
compensation that the Law and the Convention require was never
honored, either in cash or in installments. Let
us see below what the undersigned could have done in regard to what
the Government appears to be saying in the seventh paragraph of its
reply, which is that "under our system of law, the regular and
special remedies available to all Nicaraguans seeking to settle a
legal situation are immutable." The
"Law on Immunity," Decree Nº 441, was published in the
official newspaper, "La Gaceta," 139th issue of
June 20, 1980--when the order to release my shares in CERSA, which
were never released, was given, and when the compensation for my
quarry had not been paid, as it still has not been paid. The
complete text of Article l of that "Law on Immunity" states
the following: "To
grant immunity to the members of the Junta of the Government of
National Reconstruction, representatives on the Council of State,
Magistrates of the Supreme Court of Justice, Ministers and Deputy
Ministers of State and Directors of Autonomous Agencies. Consequently,
while in office those officials may not be subject to any judicial or
prejudicial action before the Tribunals of the Republic." We
note from the above article that immunity was granted to, inter
alia, each and every official mentioned or involved in one way or
another in the documentation--decrees, laws, communications, vouchers,
certifications, etc.--on both measures, the CONFISCATION of my shares
in CERSA and the NATIONALIZATION of my quarry. However,
in the legal proceedings that could logically have been instituted,
and had there been a possibility of "settling a legal
situation," as the Government states in its reply, it would have
been absolutely essential for "the members of the Junta of the
Government of National Reconstruction" and the
"Ministers," "Deputy Ministers" and
"Directors of Agencies" involved to be brought to court in
one way or another --judicial or prejudicial. With
regard to the "Law on Immunity" previously cited and to the
contents of the foregoing paragraph, I am requesting that the
discussion set forth on page 31 of my brief dated May 10, 1981 be
considered and added to the present document of observations on the
Government's reply. That discussion is further and more irrefutable
proof that it was impossible for the undersigned claimant to avail
himself of the remedies to which the Government of Nicaragua refers in
its reply. Under
the laws that are generally invoked in many countries, there is
another well-known remedy: Amparo. I
must once again refer to this remedy of Amparo. According
to the "Fundamental Statute of the Republic of Nicaragua"
published in "La Gaceta," issue Nº 1 of August 22, 1979,
and under the provisions of Article 3 of that "Fundamental
Statute," the constitutional laws in effect as of that date,
including a Law on Amparo, were repealed. As
we have seen, I was advised of the CONFISCATION of my shares in CERSA
on December 18, 1979 (shown as supporting document Nº 7)
(Appendix Nº 5). The Government prepared a statement to the effect
that my shares should be released on May 8, 1980, though this
never occurred (shown as Supporting Document Nº A4). With
enactment of the Law on Nationalization of the Mining Sector, on April
29, 1980, I received orders to hand over my quarries to the
Government. This was done (see Supporting Document Nº 9) (Appendix Nº
7). When
I complained that nationalization should have been effected through
payment of fair compensation, I was informed on May 29, 1980
that the payment of that compensation could be "decreed by
installments." As the records show, despite several written
attempts on my part, no payment has even been made, either in cash or
in installments. In
light of the dates indicated on this page and bearing upon action
taken in the cases of the CONFISCATION and the NATIONALIZATION--August
22, 1979, December 28, 1979, May 8, 1980, April 29, 1980, and May 29,
1980--I wish to note that Decree Nº 417 on the "Law of
Amparo" came into existence as of its publication in "La
Gaceta," the official newspaper, issue Nº 122 of May 31,
1980--subsequent to all of the dates noted above. But
paragraph 5 of Article 28 of this "Law on Amparo"
establishes that Amparo is not admissible "against measures
ordered by the authorities or measures taken by them prior to the date
on which the present Law takes effect." Therefore,
in view of the fact that the "Law on Amparo" entered
into force on May 31, 1980 and that the measures ordered and taken by
the authorities, as we have seen, predated the Law in question,
"Amparo is not admissible." The
assertion by the Government of Nicaragua in the Seventh Paragraph of
its reply that regular and special remedies are "available to all
Nicaraguans seeking to settle a legal situation" is therefore
inaccurate. EIGHTH
PARAGRAPH The
Government states: "Nonetheless,
of his own free will, Mr. Carlos Martínez Riguero opted to leave the
country without availing himself of the remedies available to him as a
citizen under the laws of the country. Though he has been absent since
l98l, it is utterly false that the Government of Nicaragua declared
him to be in absentia." Let
us now turn to the allegation that I opted of my own free will to
leave the country. In
paragraph 7 of the Preamble of your Resolution on this CASE 7788, you
state that you learned that the Government of Nicaragua: l) had
expropriated the residence of Martínez Riguero, who was forced to
leave it; 2) had taken control of a portion of his property; 3) had
proceeded to collect the rent on houses on the property of the
undersigned, and 4) proceeded to detain him on one occasion. In
a brief dated May 17, 1982, the undersigned denounced, among the many
actions perpetrated against him by the Government, those to which you,
the Commission, refer in the previous paragraph. I am asking that
those complaints, which were accompanied by irrefutable substantiating
documents, be included in your report and/or the resolution on the
present CASE 7788. The
above points, which you summarized in that seventh paragraph of the
preamble of Resolution 20/86, appear in the letter, as follows: "MAY
1981 - MINISTRY OF HOUSING - A doctor, who is a very good person and
my friend, a graduate of the Patrice Lumumba People's University,
Moscow, USSR, sent to the Dirección General de Migración a
certificate attesting to the fact that Carlos Martínez Riguero
"has been treated, as he was in a delicate state of health, is
currently under treatment and requires further laboratory tests that
cannot be performed in our country for technical reasons and because
the equipment is lacking. The patient must travel to the United States
for that purpose." "On
April 9, 1981, a visa was issued to me by the appropriate
branch of the Ministry of Foreign Affairs, and that very same day, I
traveled to the United States." "Employees
or helpers, furniture, domestic animals and other persons remained in
our home. But at 10:45 a.m. on May 5, 1981, less than one month after
leaving to seek medical treatment, a painful notice from that Ministry
was received at my home, concerning my family's home. That notice
stated: 'In accordance with the provisions of Article l5 of the
Tenancy Law, I am hereby giving you, Mrs. Melba de Martínez, [my
wife] notice that you must make this housing available to the public
for rent... Failure to do so will force this Office to seize the
property to see that this order is enforced. Jorge A. Saamper B.
Tenancy Office.'" "SEPTEMBER
1980 - MINISTRY OF HOUSING. On the 8th of this month I received a
communication addressed to me: 'By virtue of Decree Nº 97 of
September 22, 1979, proceed to hand over all documentation on the
illegal subdivision 'Bajos de Acahualinca.' If you fail to comply, the
forces of law and order are authorized to carry out this order.' I
confirmed that the person who signed that document was in charge of
the Oficina Nacional de Repartos Intervenidos." "I
have never been informed that I had a subdivision that had been placed
under government control; I am not the owner of any illegal
subdivision; I am not the owner of the illegal subdivision 'Bajos de
Acahualinca,' and finally, the aforementioned Decree No 97 does not
authorize what was claimed in the 'order' from the Ministry of
Housing." I
so informed that branch of Government in writing. I
further pointed out that my family did own a subdivision and that it
was not illegal since it complied with all the requirements at the
time it was authorized. I
pointed out that that partition of lands was authorized by the Decree
on Urban Development issued by the Executive Committee of the National
District, Agreement Nº 168 of December 27, 1939, issued by the then
President of the National District--the appropriate authority at that
time-- Mr. Hernán Robleto and the Secretary, Dr. A. Narvaez I. There
was no possible way. A
uniformed and armed detail delivered a sealed notice signed by the
author of the earlier notice and from the same Ministry. It states the
following: "October 13, 1980 - SANDINISTA POLICE PRECINCT STATION
- Comrades: Pursuant to Decree Nº 97 of September 22, 1979 (Law on
Illegal Subdivisions), we are hereby requesting your assistance in
retrieving documentation from Mr. Carlos Martínez, part owner of los
Bajos de Acahualinca in this city, which this office placed under
government control on September 23, 1979." I
need not describe the effect on my family--wife and children, the
youngest of which is four years old--when they saw their home and
father's study, which they were entering to play, invaded by the armed
forces and their own father threatened. When
the armed forces had completed their assignment, I took the painful
decision: to take my youngest children out of Nicaragua. MARCH
1980 - MINISTRY OF HOUSING - 4 days - First payment collected by that
Ministry from the first tenant of one of my properties. Receipt Nº
124. This action was taken without my authorization and with no regard
for the law. 28th
of the month - I protested the foregoing in writing and provided proof
that my properties were legal. I asked that the monies taken in by
government representatives, based on a number of receipts, be returned
to me. April
21, 1980. The Ministry of Housing drew up a record to the effect that
the property corresponding to the afore indicated receipt, 'property
of Mr. CARLOS MARTINEZ RIGUERO, of this city, is not under government
control.' July
18, 1980. In writing, I continued to ask for my rent monies that the
government was still collecting. There was not the slightest
indication that it intended to deliver up said money to the
undersigned. FEBRUARY
1981 - MINISTRY OF THE INTERIOR. They arrested me on the 20th
of this month, accusing me of attempted murder. They took me to
prison. Under
the law, the procedures for investigation and/or punishment of a crime
like this involve a considerable period of time. I
spent an indescribable, terrible night during which I was threatened
(I am diabetic and hypertensive) and menaced. I signed what had to be
signed with such offices and bodies. The
following day, the 21st, I was released after paying
C$120.00 (for which I was given a receipt) and I was given the release
form which states: "Individual was detained on charges of public
drunkenness and disturbing the peace (signatures and seals of the
Ministry of the Interior)." Even
with all its amendments and related decrees, Decree Nº 488 issued by
the Government Junta states: "ARTICLE 4. Persons committing the
following offenses shall be punished by arrest and hard labor for ten
days to two years:... b) Vagrancy, drunkenness with disturbance of the
peace, drug addiction and prostitution." But
neither Decree Nº 488 nor any other decree allows for payment of a
fine or commutation of sentence or that I might be released the
following day, without remaining under arrest for the 'offense' with
which I was charged--for at least--ten years. In
the body of that same document referred to above, and always with all
the corroborating and irrefutable documents enclosed, I have a summary
account of actions perpetrated against the undersigned claimant to
persecute me. I pointed out several of those perpetrated by the
Ministry of Industry, the Office of the Deputy Minister of the
Corporación Industrial del Pueblo, District Judges, Courts of Appeal,
the Supreme Court of Justice and its very President. In
that same document, I prepared a partial list, in chronological order,
of certain other acts of persecution against the undersigned, to which
I attached the pertinent substantiating documentation. The
Government's assertion in this eighth paragraph to the effect that of
my own free will I opted to leave my country is, therefore, absurd. As
you may have sensed, this was a matter of survival. And
the Government goes on to say in this eighth paragraph that we now see
that the undersigned claimant left the country "without availing
himself of the remedies available to him as a citizen under the laws
of the country." But
in the observations of the seventh paragraph of the Government's
reply, it is clear that it was quite impossible for the undersigned to
avail himself of any recourse. In
any event, with a wide range of irrefutable documents, the undersigned
claimant has demonstrated that he somehow could not have availed
himself of the remedies mentioned by the Government. In
the eighth paragraph, the Government of Nicaragua goes on to assert
that the persecuted undersigned "has been absent since
1981." Neither
is this assertion accurate. In fact, let us look at the meaning of the
word "ausencia" (absence). The
Diccionario de Derecho Procesal Civil by Eduardo Vallares considers it
to be a forensic term that means: "Legal
status of a person whose whereabouts are unknown." And
you, the Commission, know very well that my whereabouts, dwelling,
place of residence, abode, are not unknown. This
is so much so that when completing your "Complaint Forms"
for the four complaints that I presented to you, I carefully filled in
all of the respective forms, including the part requesting the
following information: "IX.
Idenfication: Please indicate whether you wish your identity to
remain confidential:" I
consistently answered that question as follows: "It is not
necessary that my identity remain confidential." And
at the end of the "Complaint Forms," in the part where you
ask for the "FULL ADDRESS OF COMPLAINANT," I have invariably
supplied my full address, including the city, state, postal zone,
country and telephone. Thus,
since you complied with your Regulations by forwarding my complaints
to the Government of Nicaragua, it is only logical that they should
know or be able to find out, through you, what my exact address is. I
am thus quite sure that if the Government of Nicaragua had asked you
for my address for the purpose of looking for me to pay me for the
shares in CERSA or the dividends or the plots of land in my real
estate development or for the houses and income derived therefrom,
etc., you would have supplied the address. Finally,
in the last part of the eighth and final paragraph of the reply from
the Government of Nicaragua, it states that "Though he has been
absent since 1981 it is utterly false that the Government of Nicaragua
declared him to be in absentia." The
following constitutes a veiled threat to declare me in absentia
in order to apply its decree whereby all of my properties would be
expropriated. First,
there is nothing in the record showing that the undersigned mentioned
or implied that he was declared in absentia by the Government
or that you so imply. Formal
petition to the Honorable Inter-American Commission on Human Rights: In
accordance with the principles of paragraph 1 (in fine) of Article 50
of the American Convention on Human Rights and paragraph 5 of Article
47 of the Regulations of the Inter-American Commission on Human Rights
(updated as of July 1º, 1985), I am asking that all of the verbal
or written statements made by the parties, including this document, be
included in the Report or in your resolution. For
greater facility and because these statements are so voluminous, I
would suggest that mention be made only of the date stamped by the
parties in those statements and the date of receipt by your Executive
Secretariat. OMMISSIONS
IN YOUR RESOLUTION Nº 20/86 At
this point, I wish to make the observation that your Resolution Nº
20/86, CASE 7788 (Nicaragua), which was approved by the Commission at
its 888th meeting held on April 18 of this year, suffers
from certain omissions inasmuch as its condemnation of the Government
of Nicaragua falls short of what it should be and since it does not
make a ruling on all the issues in dispute. For
example, in operative paragraphs 1 and 3, you resolve to declare that
the Government of Nicaragua has violated Article 21 of the Convention
"by confiscating the dividends earned on shares" and you
recommend to the Government that it proceed to reimburse the
undersigned for "the amounts owed to him for unpaid
dividends" but you render no decision on the shares themselves,
whose value is fully determined in the records of the case, or on the
compensation that the undersigned claimant is due for damages caused
by the Government. Another
example is your failure to establish in the aforementioned resolution
the value of the quarry that was nationalized and that was disputed
with ample and specific documentation in CASE 7788. I
would request here that, inasmuch as the present notification has been
given, the aforementioned omissions in your resolution be corrected. CONSIDERING:
1. That in its
observations dated June 11, 1986, the Government of Nicaragua does not
provide any new evidence that invalidates the facts reported to the
Commission. 2. That the
claimant, Mr. Carlos Martínez Riguero, has convincingly rebutted the
arguments of the Government of Nicaragua and presented satisfactory
documentary evidence of the facts reported by him. 3. That therefore,
in the Commission's view, Mr. Martínez Riguero has not yet received
fair compensation for the assets referred to in this case: shares in
the Empresa Cereales de Centroamérica S.A. (CERSA) and dividends
earned on those shares, as well as the quarry located in Las Brisas. 4. That Mr. Martínez
Riguero took all possible action to obtain fair compensation for his
assets, without success, and that, further, he was prevented from
continuing such action, given the de facto situation created by
officials of the Government of Nicaragua, which gave rise to the
situations provided for in Article 46.2.a and b of the
American Convention on Human Rights regarding the exhaustion of
remedies under domestic law. 5. That Mr. Martínez
Riguero has estimated the value of the assets of which he was deprived
as a result of action taken by the Government of Nicaragua, at
US$63,402,651.00, according to the appraisal itemized in Appendix Nº
11 of this resolution. 6. That in the
present case, the friendly settlement procedure provided for in
Article 48.1.f of the American Convention on Human Rights is
applicable. In
view of which the Inter-American Commission on Human Rights, RESOLVES:
1. To declare that
the Government of Nicaragua has violated the right to private property
set forth in Article 21 of the American Convention on Human Rights by
not giving Mr. Carlos Martínez Riguero adequate compensation for
shares he owned in the Empresa Cereales de Centroamérica S.A. (CERSA)
and dividends earned on those shares. 2. To declare that
the Government of Nicaragua has violated the right to property set
forth in Article 21 of the American Convention on Human Rights by
failing to honor, thus far, the pecuniary obligations arising out of
nationalization of the quarry located in the "Las Brisas"
subdivision belonging to Mr. Carlos Martínez Riguero. 3. To recommend to
the Government of Nicaragua that it proceed to reimburse Mr. Carlos
Martínez Riguero for the amounts owed to him for his shares in the
Empresa Cereales de Centroamérica S.A. (CERSA) and dividends thereon
and the amount of money arising from nationalization of the quarry
located in the "Las Brisas" subdivision. 4. To send this
resolution to the Government of Nicaragua and to the complainant and
to publish it in the Annual Report of the Commission for the purposes
of Article 63.g of the Regulations if, within ninety days as of the
date of its approval, the Government and the complainant have not
reached a friendly settlement on the matter.
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