doc. 25
30 June 1981
Original:  Spanish



          17.          To understand the nature of the questioning, the direction that the members of the Courts gave to the investigations and the criteria by which the initial stage of the trial was conducted in case No. 7698 against Juan Antonio Gutíerrez García, a former chauffeur of General Anastasio Somoza Debayle, who was tried and sentenced to 30 years imprisonment.


QUESTION:  Will the defendant please say why, knowing that the Somoza guard was destroying our major cities and indiscriminately murdering our people, he continued to serve Anastasio Somoza as a guard and chauffeur?  REPLIED:  Because I had a family to support and had I left I would have had no work and I always conducted myself properly.  QUESTION:  Who were your immediate superiors? Locate the.  REPLIED:  At General Headquarters, which was Camp Marte, Roberto Martínez Lacayo was the Commanding Officer when I enlisted in the army in 1956.  I then went to the Military Hospital; there I was under the orders of Col. Heberto Bermúdez, from 1957 to 1959.  Roberto Martínez for a time, and then I went to security where I was under Samuel Genie, who was Chief of security; Franklin Wheelock was his immediate superior, as executive Officer.  There were the following chiefs: Jaime Barquer, Lee Wong, and I don’t remember the others.  My immediate superior as chief of guards and chauffeurs was Carlos Egger, when he was with the Martínez triumvirate.  Then I was with Colonel Hugo Torres.  When I was with Somoza, my superior was Captain Manuel Díaz, who was there until the guard ended.  QUESTION: Will the defendant please indicate who was the Chief of the Army?  REPLY:  Director, Anastasio Somoza.  QUESTION: Will the defendant please say, who gave the orders to the National Guard or to the Army.  REPLY: It had to have been Somoza, because he was Commander-in-Chief of the army.  QUESTION: Will the defendant please indicate whether the National Guard and the National security Office, etc. are responsible for the murder of 45,000 Nicaraguan?  REPLY: I do not know.  QUESTION: Who does the defendant believe murdered all the innocent civilians that appeared on the lists in the newspapers and on the radio?  REPLY:  I read the newspapers but I didn’t know who did it.  I cannot accuse any one because I have not seen anything.  QUESTION: are you Catholic? REPLY:  Yes.


QUESTION:  How is it possible that the defendant, being a Catholic, could stand there, arms crossed and witness so many atrocities committed by the criminal Anastasio Somoza Debayle?  REPLY: Because I never realized who it was that gave the orders.  Because I was merely a chauffeur and I did not see the orders that he gave.  I do not know whether Somoza gave orders to kill anyone.  QUESTION: Why dos the defendant believes that all the people of Nicaragua struggled to bring down the regime of Anastasio Somoza Debayle?  REPLY: Because the people wanted to change the government.  QUESTION: Why does the defendant believe the people wanted to change the government?  REPLY:  Because Somoza had been in office for more than 45 years and they wanted a new face.   QUESTION: Does the defendant believe that if the Somoza  government or dictatorship of 45 years had been prosperous and just, all the Nicaraguan people, with the exception of the 10 or 15 thousand guardsmen that he had in his service, would have fought to bring him down.  REPLY:  If he had been just, those, same people would not have brought him down.  QUESTION:  Having acknowledged that the dictatorship of Somoza was unjust and in recent years responsible for so may crimes, why did the defendant continue in its service?  REPLY:  Because I has a family support and that was where I had my salary.  QUESTION: What was the code that Somoza used?  REPLY:  Jay five (J-5).  QUESTION:  Does the defendant know what the initial ALAS means? REPLY: No.  QUESTION: How many times did the defendant have to evade or circumvent attacks or pursuits in which Somoza was the target?  REPLY:  None.  QUESTION: Will the defendant please say why the guard carried arms, to what purpose?  REPLY: for their protection.  QUESTION:  Will  the prisoner please say what the bodyguards were to do incase Anastasio Somoza were attached?  REPLY: My mission was to follow him in a vehicle, and remain behind in an attempt to prevent an assault.  To find a way to capture the enemy.  QUESTION: How many times did the defendant use that tactic?  REPLY: Never, because nothing ever happened.  QUESTION: In the  23 years that the defendant was in the service of the guard, Somoza never had any enemies?  REPLY:  Every government has its enemies.  QUESTION:  Up until what day and time was the defendant in the service of Somoza?  REPLY: Until July 17; thereafter I remained with the new government of Urcuyo Maliaños.  QUESTION: HAVING BEEN WITH Somoza up until the last, why, in the opinion of the defendant, did Somoza flee?  REPLY: I do not know, only he knows. I was a member of the military and do not know why he fled.   QUESTION:  Did the defendant know where Somoza as going?  REPLY: I did not. QUESTION:  Where was Somoza’s point of departure?  REPLY: I went to the airport with the baggage in the early morning hours and there a plane was ready for Somoza.  QUESTIONS:  What did Somoza have as baggage?  REPLY: Suitcases.  QUESTION: How many of those suitcases were filled with dollars?  REPLY: I do not know.  Somoza arrived at Las Mercedes (airport) in a helicopter.  QUESTION:  Who was with Somoza?  REPLY: Somoza arrived with his brother José Somoza, Samuel Genie, María Helena de Porras and Adonis Porras, and an aide.  Of the aides, only Porras boarded the plane with Somoza.  QUESTION: Why didn’t the defendant go with Somoza?  REPLY: I do not know, I was in my country.  I never thought of leaving.  QUESTION:  Does the defendant feel any resentment toward Somoza? REPLY:  None.


QUESTION:  Will the defendant please say, if he could serve Somoza again, would he do so?  REPLY:  No. I am in my country and I am here to render service to my country and its government.  QUESTION: Why, if the defendant love his country?  REPLY:  Yes.  QUESTION:  Why, if the defendant loves his country, realizing that he was protecting Somoza, did he become an accomplice to all his murders; why did he continue to be loyal to Somoza?  REPLY: because i was a military man and I have to obey orders.  QUESTION: Why didn’t the defendant request a discharge?  REPLY:  Because I had a family to support.  QUESTION:  Taking into account the fact that the defendant is a mechanic, why didn’t he retire to civilian life and work as a mechanic?  REPLY:  Because I was not a mechanic by profession; I only had a knack for mechanics.  QUESTION:  What salary did the defendant receive as a guard of Somoza?  REPLY:  The salary of guard, was 590 córdobas; as a chauffeur, which was for the National Guard, they gave me 300 córdobas at Camp Marte; and 245 córdobas from the Security Office.  QUESTION:  In addition to those extra salaries, what other extra salaries did the defendant receive? REPLY:  In the Armored Battalion, they gave me 350 córdobas.  QUESTION: When the defendant went abroad, what per diem did he receive?  REPLY: The one time I went to El Salvador, they gave me fifty dollars for everything.  QUESTION: What were the last words Somoza said to the defendant before leaving?  REPLY: Nothing.  He said nothing to me.  At this point, the members of the Tribunal began their questioning, which was answered by the suspect as follows: QUESTION: Will de defendant please say whether he feels it was just to guard Somoza?  REPLY: No. QUESTION:  What did the defendant think when the people went into the streets to demand justice.  Did they do so with cause or not.  REPLY: i suppose that they were right to change the system of government.  QUESTION: When the defendant read La Prensa and Novedades, which newspaper did he feel told the truth with respect to the most recent events?  REPLY:  I read the newspapers but I didn’t analyze anything, because I don’t have a head for that.  QUESTION:  As a colleague of Jaime Roa, what type of conversation did the defendant have with him?  REPLY: None.  QUESTION:  Will the defendant please say if, as a member of the Somoza guard, he did something to free his country, or did we live in a free country.  REPLY: It was my understanding that we lived in a free country.  When the questioning was over, the defendant stated that he did not have money to appoint defense counsel and that he consented to the Tribunal appointing a public defender.  Having read the present minutes, they were found to be in order, approved and ratified.  We hereby sign the minutes.


          18.          Once the Special Tribunal had passed sentence, the guilty party had three days to file a written appeal before that same tribunal stating the grounds therefor.  The respondent, in this case the representative of the Office of the Special Prosecutor, also had three days to answer to complaints which were then passed on to the corresponding Court of Appeals.


          d)          Appeals


          19.          The appeal having been filed and the transcript sent up, the Court of Appeals reviewed the sentence and the appeal.  The law gave it very little time to take a decision and pronounce judgment: only three days.


          The law provides that the Court could not pass judgment of the verdict, as to the innocence or guilt of the individual tried;  the legal parameters established were for the Court to pass judgment only on the elements of the crime had been established, the punishment, and on the other circumstances decided in the sentence, which made these tribunals more like a Supreme Court than a Court of Appeals.


          In view of the great public interest that is in play:  to administer justice on the one hand and avoiding obvious errors on the other, so delicate and specialized a task is entrusted to the Supreme Court in almost all countries, as it is one means of repairing any errors of law that may have been committed by lower courts.


          The parties filing the appeals, on the advice of their defense counsels, some of whom are not attorneys, had to substantiate their appeals in the technical-legal errors committed in the lower courts, which, for the most part, were of two types: substantive because of the incorrect application of the law, in other words when a law that should not be applied I s applied or when a law is not applied in cases where it should be; or formal, because of the improper application or in-application of procedural standards.


          20.          Whatever the decision of the Court of Appeals, whether to confirm or change the lower court’s decision, the case is definitively closed with its ruling.  The decision taken by the Court of Appeals was carried out.  The law did not provide for the possibility of remanding the case to the lower court but rather ordered that the changes be made by the Court of Appeals; hence, its work was much more difficult and complicated, since this meant that in some cases the Court of Appeals had to correct and rectify the sentence without overturning it; in other cases, it had to declare the sentence either wholly or partially null.  In the process, the Court of Appeals could also change the length and nature of the punishment and where appropriate could also apply the principle of the most favorable law.  In other words, it could review anything that was a matter of law, but could not review questions of fact.


          21.          The serious gap that this procedure created was that these courts served no real function with respect to an appeal.  The existence of a higher tribunal necessarily implies a re-examination of the facts presented in the lower court.  In the Commission’s view such an appeal, has become part of the law of Nicaragua  [9]/, is essential, and cannot be omitted without depriving defendants of due process.  [10]/


E.       Office of the Special Prosecutor


          1.          The Office of the special Prosecutor, created by Decree 186 on the same day that the Special Tribunals were created, also participated actively in the cases brought before the Special Tribunals.  The Office of the Special Prosecutor came to be an ad hoc institution set up by the Government to supplement the legal structure of the Special Tribunals.


          2.          In an opinion dated November 23, 1979, the Supreme Court pronounced against creation of this Special Prosecutor’s Office, reasoning that it would cause confusion in the Nicaraguan legal system and that it would duplicate the functions established by law for the Attorney General’s Office.


          The report by the present Supreme Court to the Junta of the Government of national Reconstruction said:  “we think it neither useful nor advisable, because it creates another agency, that, given its similarity to the Office of the Attorney General and its members”, would cause confusion in the legal system.


          The opinion added:


I would be acceptable if the Attorney General were to delegate functions to the Criminal Prosecutor, or if the Junta of the Government of national Reconstruction itself, under the authority of Article 2 of the Organic Law of the Office of the Public Prosecutor, were to appoint specific prosecutors, but to do so on the basis of the existing law which already grants jurisdiction, and not thorough the existing law which already grants jurisdiction, and not through a new law established for that purpose, because of the pitfalls of slipping into reformism.


We note that the provisions are almost the same as those of the Organic Law of the Attorney General’s Office, which further confirms that they are unnecessary, because of the duplication of functions and the ensuing lack of unity.


          Decree 185, which created the Special Tribunals, and Decree 186, which created the Office of the Special Prosecutor, have produced the effects that the Supreme Court predicted and warned against, and rather than helping improve the administration of justice, have if fact created confusion caused the functions, which did not need to be given to a different body, to de duplicated.


          3.          Under the law establishing it, the Special Prosecutor’s Office is attached to the Government Junta, and consists of a Special Prosecutor, a Deputy Special Prosecutor and individual Public Prosecutors, who act on delegated authority.  The prosecutors do not have to be attorneys, and may be students in their last or penultimate year of law school.  Appointment requires exemplary conduct; they work on a full-time basis, and are prevented from holding any public office, other than a teaching position.


          As was the case with the Prosecutors referred to in the Organic Law on Courts, they represented the State in cases brought before the Special Tribunals, and performed the duties pertaining to the Department of the Public Prosecutor, in addition to rendering reports and opinions and advising the Junta on all matters related to the Special Tribunals.  Their most important intervention in court cases was set forth in the Law on the Special Tribunals:  they were responsible for preparing the Government’s case against persons indicted and of whom the military authorities had completed their summary investigations; releasing persons who were not guilty, monitoring compliance with the regulations set forth in he law, and intervening in cases of persons detained after November 29, 1979, who had not been brought before the Prosecutor or the Special Tribunals within the statue of limitations.


F.          Guarantees for the administration of justice and the Special Tribunals


          1.          Nicaragua’s legal system currently contains all the guarantees deemed necessary to ensure the full and correct administration of justice.  These guarantees are set forth in domestic law, particularly in the Statute on the Rights and Guarantees of Nicaraguans, issued on August 21, 1979, and in the tests of the international pacts and conventions on human rights to which Nicaragua is bound by ratification or accession.  11]/


          2.          Despite this, as pointed out in Chapter I,  [12]/ under Article 51 and Article 49, “persons under investigation for crimes, set forth in the Penal Code and in international conventions, that were committed during the Somoza regime”  are excepted from the Statute on the rights and guarantees of Nicaraguans.  Some of these guarantees, as will be seen below, are essential to due process.


          Focusing particularly on the rights and guarantees of due process in Nicaragua in relation to the Special Tribunals, the following may be observed:


          a)          Right to a hearing


          3.          The first and most elementary right of any individual accused of a crime, is, according to the American Convention on Human Rights,  [13]/ the right to a hearing.


          In its visit to the various prisons, the Commission was able to observe the large number of individuals who had not been given the opportunity to say a word in their own defense, since the authorities under whose charge they were being held by law, were unable to give them a hearing or to release them.


          4.          The right to a hearing has furthermore ceased to be operative since the time that the law on guarantees of Nicaraguans denied habeas corpus to the Somocist detainees.”  Without recourse to a judge who could rule on the legality of the detentions, it was impossible to prevent individuals from being kept in detention without having been given a hearing.


          In accordance with the Law on the Special Tribunals, in order for a detainee charged with having committed crimes under the pervious administration to be given a hearing, he first had to be brought before the Special Tribunals, however, since there was no time limitation set, thousands of detainees were not able to exercise their right to a hearing until after they had spent many months in detention.


          b)          Right to a fair trial within a reasonable time


          5.          In Nicaragua, as indicated, the “Somocist detainees” were deprived of the right to be tried in a timely manner, which is in contravention of the American Convention of Human Rights.  [14]/  By means of the Law establishing the Special Tribunals, all deadlines for bringing an accused before the Special Tribunals were suspended, if the accused had been detained prior to November 29, 1979, at which time, as said earlier, the Nicaraguan jails were full of Somocista prisoners.


          6.          Individuals detained without trial were in an irregular legal situation, which is difficult to describe.  They had not been detained by court order, nor were they at the disposal of the Executive.  The situation of all these people—who constituted a majority of the detainees—is of real concern to the Commission.  It made this concern known during its on-site observation, and repeated its position, as it has done in other countries, that detention for prolonged periods without due process is in violation of human rights, because it involves the imposition of a penalty without the prior benefit of trial, violating the rights to liberty, a fair trial and due process.


c.      The right to a competent, independent and impartial tribunal, previously established by law.


7.          The creation of the Special Tribunals by Decree No. 135 of the Junta of the Government of National Reconstruction constitutes a violation of this principle, which is set forth in the American Convention on Human Rights.  [15]/  It meant that judges, who were not the judges sitting on the Courts before the events, were called on to pronounce judgment of the accused Somocists, rather than allowing the existing courts to take the cases, as was appropriate, and as was recommended by the Supreme Court.


8.          Violation of the guarantee of a fair trial by the establishment of Special Tribunals, with the characteristics described in the pertinent portion of the report, meant submitting the accused Somocists to the legal judgment of people, some of whom at least, were not lawyers; to the judicial decision of people who were not judges; to the verdict of political enemies and to the judgment of people, influenced by the psychology of their victory, who were more inclined to be severe rather than fair.


          d)          Right to the presumption of innocence


          9.          The right of every person accused of a criminal offense to be presumed innocent until his guilt is fully proven is a principle set forth both in the American Convention on Human Rights and the Statute on the Rights and Guarantees of Nicaraguan, which provides in Article 11:


Every accused person shall be entitled to the following minimum guarantees, in equality of conditions:


a.      That his guilt shall not be presumed until a formal sentence of imprisonment has been pronounced against him;


h.      That a sentence of imprisonment shall not be imposed unless the facts of the crime are fully proven, and unless there is a serious presumption of guilt; and that the sentence of imprisonment be pronounced within the ten days following the warrant for his arrest


10.          However,  as  noted above, Article 51 of the Statute in reference, together with Article 49, suspended this right as far as the so-called “Somocist defendants” were concerned.  As a result, the Special Tribunals were authorized to proceed without this guarantee of due process.


11.          Regardless of the opinions as to the actual enforcement of the laws guaranteeing the right to a presumption of innocence, this right was not fully observed by the Special Tribunals in Nicaragua.  To the contrary, the judges of these Tribunals uniformly shared the view, as they told the Commission during its on-site observation and as the Commission was able to confirm on the basis of a number of sentences shown to it, the fact of having been a member of the former national Guard, or of bodies linked to it, was per se evidence that warranted a presumption of guilt.  As a result, the Special Tribunals began their investigation on the basis that all accused Somocists were guilty until they duly proved their innocence.


12.          However, for crimes other than that of illegal association, particularly the crime of wanton murder, the Special Tribunals on occasion used what is known as circumstantial evidence to presume the guilt of the accused.  Such a method, in and of itself, is not violative the right to a presumption of innocence.


A number of legal systems admit that, under certain circumstances, the benefit of the presumption of innocence is waived, and as a result, the burden of proof reverts to the accused, if certain circumstantial evidence is present.


The legal notion, “circumstantial evidence”, overrides the presumption of innocence; it inverts the burden of proof because of the overwhelming coincidence of inculpating evidence against the person accused.  According to this view, whenever such circumstantial evidence exists, the accused is presumed guilty.


During its on-site observation, the Commission looked further into the cases brought before the Special Tribunals, and found that in some cases, the accusation was based precisely on such circumstantial evidence, although this was not explicitly stated.  Thus, in the case of a National Guard Officer accused of wanton murder, the evidence leading to a presumption of his guilt was that he was part of a patrol that had assassinated a number of people, National guard documents attested to the fact that on the day the crime was committed, he was a member of that patrol, and that he had gone out to patrol the areas where the murder had taken place.


13.          Although there wee several cases in which recourse was had to circumstantial evidence, it should also be pointed out that in a good number of case, where such circumstantial evidence was not present, the principle of the presumption of innocence was dispenses with.


e)          Nullum crimen, nulla poena sine lege


14.           Under Article 12 of the Statute of rights and Guarantees of Nicaraguans, maintained in effect for the benefit of the “Somocist accused”, the cases brought before the Special Tribunals were handled, according to the principle set forth in this section which is expressly recognized in Article 9 of the American  Convention on Human Rights.  Article 1 of the Law crating the Special Tribunals states that they are established “for the purpose of trying cases involving crimes typified in the current Penal Code…”


          According to this principle, no one may be convicted for commission of a crime not previously considered a crime under the law, and no penalty other tan the one established by law may be imposed.  While this principle has been respected in Nicaragua, it is important to note that serious doubts are raised as regards certain conduct formerly considered legitimate which is now held to be a crime.


          15.          While the Commission has no doubt at all that certain officers of the National Guard must be held responsible for crimes against the international order and for wanton murder, it, at the same time, has serious reservations about the indiscriminate accusations of conspiracy to commit a crime, with which most of the members of the National Guard were charged, including those who had no direct responsibility of the commission of crimes, as was the case with physicians, dentists, administrative personnel, supply officers, drivers, barbers, or even soldiers who were not in a position to challenge the orders of their superior officers.


          f)          The Commission’s opinion


          16.          The Commission’s examination of the special Tribunal and the guarantees for the administration of justice vis-a-vis the Somocist accused warrants special comment.


          No one who is aware of the situation in Nicaragua during the last years of General Somoza’s Government can have any doubt about the horrendous crimes committed by the National Guard during that period.  The Commission itself had the opportunity to verify this, as it reported in its “Report on the Situation of Human Rights in Nicaragua”.  [16]/


          17.          After the military defeat of Somoza and the National Guard, the natural corollary was to place the responsibility with those who had committed such serious crimes.  This the Government of national Reconstruction decided to do, bringing those responsible to trial and sentencing them.  At the same time, it stated that its own human rights conduct would conform to its international commitments.


          The Commission does not doubt the Government’s sincere intention.  The Commission is also aware of the efforts the Government has made to prosecute these individuals within the existing Penal Code.


          18.          That does not mean, however, that abuses or irregularities were not committed in the operations of the Special Tribunals, or in the application of the guarantees for the administration of justice.


Ignoring the prudent counsel of the Supreme Court to increase the number of regular courts, it was decided for reasons of speed—later shown to be erroneous—to set up special tribunals to try the Somocists accused.


In the opinion of the Commission, the operations of such tribunals gave rise to certain irregularities that were incompatible with Nicaragua’s commitments under the American Convention on Human Rights.  Of particular concern to the Commission have been the following:  the accused lack of opportunity to exercise this rights, the length of time the detainees were kept in detention before being brought to trial; the composition of the Special Tribunals, the vagueness and imprecision of may of the charges; the every short periods the accused were given to prepare their defense and to present evidence; the lack of basis for the judgments; the lack of jurisdiction of the Appeals Court to review the facts established by the Special Tribunals; the campaigns organized by the government  of FSLN mass media against certain accused, when they appeared before the Special Tribunals, (in violation of the principle of presumed innocence); and in summary, the discrimination practiced against all the “accused Somocists” by denying them certain minimum guarantees that, by their very nature, ought to be applicable to all inhabitants of the country, and which are expressly set forth in the Statute of Rights and Guarantees of Nicaraguans and in the American Convention on Human Rights.


19.          The Commission trusts that now that the work of these Special Tribunals is ended and some of the defendants have been pardoned, all the sentences handed down by the Special Tribunals will be reviewed by a superior judicial authority, perhaps the Supreme Court or the Appeals Courts, and that all due process guarantees may be operative during such review


G.       Cases brought for violations of the Law on the Maintenance of Public Order and Security

1.          As said earlier, the law entitled the National Emergency Law, of July 22, 1979, and the Law on the Maintenance of Public Order and Security of July 20, 1979, were repealed, the first in its entirety and the second in part, by Decree No. 383 of April 29, 1980.  Decree No. 148 gives the regular courts jurisdiction over violations of the law on the Maintenance of Public Order and Security, but according to the procedures of the Special Emergency Tribunals.


2.          The repeal of the Emergency Law and the disappearance of the Special Emergency Tribunals meant a reduction in the scope of application of the law on the Maintenance of Public Order and Security, giving he impression that the Government of national Reconstruction was gradually annulling the exceptional, temporary measures that had been enacted, and that this process was related to a process of normalizing the situation in the country, which was now totally under control of the Government of National Reconstruction.


3.          The part of the law still in effect refers to crimes such as disregarding the cease-fire, acts intended to reinstate the Somoza regime, or acts intended to submit the country to foreign domination.


4.          The Commission has received a number of complaints under these provisions, which have been incorporated into the regular penal legislation.  Application of these provisions has been entrusted to the regular courts, through the summary procedure originally provided for the Special Emergency Tribunals.


5.          The procedure established for the Special Emergency tribunals, which the regular courts are currently applying in cases against those accused of counter-revolutionary activities, is as follows:


Article 5 of Decree No. 34.  “The case shall be heard orally, as follows:


a)       After the Attorney General or his departmental representative has presented the indictment, the person or persons indicted shall be so informed, either orally or in wiring, and they must reply within forty-eight hours;


b)       The persons named in the indictment may present their defense within the above-mentioned deadline, either in person or by appointing any other person of their choice.


c)       When the period for presenting his defense has expired, the case shall be open for the presentation of evidence for three days;


d)       Once the time for taking evidence is over, if any individual is in detention, the Court must hand down the sentence within forty-eight hours.  In other cases, the Court shall have up to ten days to make its ruling.


Article 6. The sentence may be appealed within forty-eighth hours by the person being sentenced, who shall appear and argue his case within 48 hours before the respective Court of Appeals.


Article 7.  The Court of Appeals shall rule within three days from the date on which the person appeared and stated his grievances.


          6.          This textual quotation of the procedural rules illustrates to what extent persons brought to trial are without recourse, or means of defense; the very short statutes of limitation are not justified when the most important matter is to ascertain the truth .  For that reason the Commission has been pleased to learn that it is the intention of the Government of National Reconstruction to amend the above-cited law to increase the time periods.


          7.          The Commission has recently received complaints concerning the former Minister of Defense of the Government of National Reconstruction, Bernardo Larios, and concerning Alejandro Salazar, Mario Hannon, Leonardo Somarriba, Gabriel Lacayo, Jaime Castillo, Alberto Barcenas and other businessmen, as well as the recent case of the National Coordinator of the Permanent Commission on Human Rights of Nicaragua, José Esteban González, who was subsequently acquitted.


H.       The Writ of Amparo and the Writ of Habeas Corpus


          1.          In order to maintain full observance of the rights and freedoms granted in the Fundamental Statute and in the Statute of Rights and Guarantees of Nicaraguans, the Junta of the Government of National Reconstruction, in Decree No. 232 of January 4, 1980, enacted the Law of Amparo for Personal Freedom and Security, which reinstated the Law on Amparo which had been repealed, and the Constitution of the Republic and other constitutional laws, by the Fundamental statute of July 20, 1979.


          2.          According to the law, amparo operates: a) on behalf of a person who has been detained or threatened with detention as a result of an order of any state employee, authority, entity or institution, whether autonomous or not; b) against acts restricting personal freedom that are committed by private individuals, and c) against a sentence of imprisonment imposed upon a person who has not been detained and who wishes to be released from its effects.


Except in the latter case of amparo, amparo against a sentence, of imprisonment, must be filed personally (either orally or in writing) by the person who has been accused (Art. 24), the writ of amparo may be filed on behalf of the alleged injured party by any individual at any time, either orally or in writing (by letter or telegram), any day and at all hours (Arts. 2 and 4).


3.          In the case of a person detained or threatened with detention as the result of the order of a public employee or authority, the Criminal Bench of the relevant Court of Appeals shall name a judge, who shall proceed to summon the employee named in the writ of habeas corpus.  The person (the employee or public authority) against whom the writ of habeas corpus was filed shall immediately obey the summons and the decisions of the judge, or shall otherwise be subject to sanctions ranging from a fine and indictment, to removal from his post, in the event his disobedience violated the court’s decision  (Article 8 and 12).


If the employee disobeying the writ of habeas corpus is an employee or agent of the executive, the Court hearing the case shall immediately inform the executive through the Supreme Court so that it may carry out the instructions within forty-eight hours.


If the Executive refuses, or allows the deadline to pass without complying with the writ, the Supreme Court shall make this fact known to the public without prejudice to its ordering trial for the non-complying employee, and without prejudice to the rights of the interested party or parties.


The Supreme Court may require the Attorney General to file the relevant indictment against the employee, agent or person responsible, without prejudice to using the police authorities to enforce the habeas corpus.  The interested party may also make such a request of the Attorney General (Article 13)


The Attorney General shall also act with the powers of an executing judge when ordered to do so by the Bench of the relevant Court, in order to discover the whereabouts of a person presumed detained, but whose whereabouts are unknown, when it is not known who ordered his detention (Article 9)


When the arrest warrant has been evaded, or if there is sufficient reason to believe that the detainee will suffer irreparable harm before he can seek relief through the normal course of justice, or whenever a reliable witness makes a sworn statement or there are general indications that a person has been illegally imprisoned or taken into custody, or else if there is good reason to believe that such a person will be deported, the court may, at the request of one of the parties, order the judge to take charge of the person and bring him before it.  This court shall decide what is needed to protect the individual, in accordance with the law.


A decision of the court denying the writ, or a reluctance on its part to hear the petition, can give rise to a compliant before the Supreme Court.


4.          The writ of habeas corpus filed on account of acts restricting personal liberty committed by private individuals must be filed with the District Judge of the Criminal Bench in question, who may himself act as the Judge, or he may delegate a representative.


5.          It is the Commission’s view that the law on amparo of January 4, 1980 is an adequate method of promoting the observance of the rights and freedoms contained in the Fundamental statute and the Statute on Rights and Guarantees of Nicaraguans.  However, because it is impossible for the “Somocist Defendants” to invoke this law, its limited application takes away some of its effectiveness.  Hence, the Commission  is confident that as the problem of such defendants is overcome, the law of amparo, as conceived by the Junta of the Government of National Reconstruction, will come to take on its full meaning, that is, preventing any abuse of freedom by the authorities.


I.          Defense Attorneys


          1.          Suspension of the guarantees of due process referred to earlier considerably restricted the work of attorneys appointed to defend the “Somocist detainees.”


The law setting up the Special Tribunals also established  that the defense could also be conducted by persons who are not attorneys, which is the case with some public defenders appointed by these Tribunals.


2.          A number of the defense attorneys with whom the Commission met during its on-site observation said that defending a case had proved really difficult because it meant sponsoring “Somocist detainees”, and that there was a general prejudice about the dishonor of taking on their defense because of all the crimes many of them had committed.


3.          As regards the trial, the attorneys also criticized the lack of adequate means, and the short period of time, twenty-four hours, within which to prepare their defense.  It was an extremely short time, not only for the reasons given in the pertinent part of the report, but also for the reasons given in the pertinent part of the report, but also because most of the accused came from distant parts of the interior of Nicaragua.  They had to collect the evidence they needed for their defense from a long distance, which became practically impossible in the very short time available during the period for taking evidence.


4.          Another difficulty faced in conducting the defense was the formula established for receiving notification of the admission of evidence:  this was done in the office where the court was sitting, which was another disadvantage for the attorney who had to go to Court everyday to find out what had been decided on his case and to participate in the taking of evidence.

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[9]         See articles 8, No. 2, letter h; and Article 25 of the Convection.

[10]         In its observations on the provisional report the IACHR adopted in 1981, the Government of Nicaragua pointed out that the text of the law that established the Special Tribunals notwithstanding, in practice the higher courts functioned as Courts of Appeals, since they could  assess the facts, correct technical-juridical errors, typify the crimes and punishment that were appropriate; in other words, in the opinion of the Government, these superior courts conducted a critical study of the proceedings, and often amended, either totally or partially, and outside established the legal parameters, those sentences that were most obviously unjust.  Further, the Government adds, these Tribunals even nullified various proceedings when they found that the trial omitted a procedure or any procedural and substantive error had been committed and sent the proceedings to the lower court to be corrected before passing sentence.  In its observations on the provisional report of the IACHR, THE Government of Nicaragua cited various cases to support its statement.

[11]         See Chapter I, section E.

[12]         See Chapter I, section F, paragraph e.

[13]         Art. 8 paragraph 1, of the American  Convention on Human Rights.

[14]         Art. 8 paragraph 1, of the American  Convention on Human Rights.

[15]         Article 8, paragraph 1, of the American  Convention on Human Rights.

[16]          OEA/Ser.L/V/II.45 doc.16, rev. 1 (17 November 1978).