Rapporteur on the Rights of People Deprived of Liberty visits Nicaragua

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ZETA.- As part of the work of the Special Monitoring Mechanism for Nicaragua (MESENI), the IACHR Rapporteurship on the Rights of People Deprived of Liberty conducted a working visit to Nicaragua between September 18 and 20, 2018. The aim of the visit was to analyze the conditions in which people deprived of their liberty over incidents associated with the protests that began on April 18 are being held. The delegation included the Rapporteur, Commissioner Joel Hernández, and other staff from the IACHR executive secretariat.

For the purposes of the visit, the IACHR requested through diplomatic means that the state of Nicaragua facilitate access to El Chipote Legal Police Department and two penitentiaries: La Esperanza and La Modelo. The IACHR also asked the state to assist with organizing meetings between the Rapporteur and the Ministry of Foreign Affairs, the Public Prosecutor’s Office, the National Police Force, and the Office of the Ombudsman for the Defense of Human Rights. The IACHR laments the state’s failure to respond to these requests. “The conditions in which people deprived of their freedom are being held, given the current context in Nicaragua, is of serious concern to the IACHR, which is why a special monitoring mechanism has been established,” said Commissioner Joel Hernández, the Rapporteur on the Rights of Persons Deprived of Liberty. “As a consequence, we would like to once again inform the state of Nicaragua of our readiness and ongoing interest in visiting these detention centers,” he added.

During the visit, the Rapporteurship met with representatives from civil society and the legal representatives and families of people who have been deprived of their freedom. On September 19, the Rapporteurship led two workshops on international standards concerning the treatment of persons deprived of their freedom, which were attended by a total of 45 people who included the family members and defense attorneys of people who have been arrested.

According to the information received by the Rapporteurship and MESENI, in late July 2018, following the operations to dismantle and remove the barricades that had been set up all over the country, there was an increase in the targeted, large-scale repression of demonstrators, which took the form of arbitrary illegal arrests. By late August, these repressive tactics were focusing on criminalizing social and student leaders by depriving them of their freedom and initiating criminal proceedings against them.

The Rapporteurship was also made aware that a total of six people who had been granted precautionary measures by the IACHR had been deprived of their liberty after these were issued. These people are: Cristhian Rodrigo Fajardo Caballero, Yubrank Miguel Suazo Herrera, Yaritzha Juddyth Roustrán Mairena, Levis Josué Artola, María Adilia Peralta Cerrato, and Kevin Rodrigo Espinoza. The Commission once more stresses how vital it is for the state of Nicaragua to take all measures necessary to guarantee these individuals’ rights to life and integrity. The state must place particular emphasis on ensuring that its agents respect these rights and protect them when threatened by third parties. The Commission urges the state of Nicaragua to provide detailed information on the current whereabouts of these individuals, including information on their state of health and the conditions in which they are being held.

The IACHR wishes to express particular concern over the events of September 23. MESENI was informed of acts of repression on the part of government supporters, riot squads, and the National Police Force during the We Are the Voice of Political Prisoners protest march. The ensuing acts of aggression against protesters led to the death of teenager Matt Romero, while at least five others sustained gunshot wounds and dozens were illegally and arbitrarily arrested. The IACHR urgently calls on authorities to thoroughly investigate these events. It also urges the state to guarantee that the general principles of legality, exceptionally, proportionality, and absolute necessity are adhered to in relation to the use of force during social protests.

According to public statements made by the vice minister of the interior regarding the number of people who were deprived of their liberty during these events, as of September 18, some “184 men and 17 women—a total of 204 detainees” were being held by the National Penitentiary System over incidents associated with the protests that began on April 18. Of the 204 detainees, seven have been sentenced and 197 are in pretrial detention.

The IACHR notes with concern that these figures do not include the number of people who are under arrest at the Legal Police Department or people being held at police stations. Reports from civil society put the total number of arrests at over 300. It is imperative that the IACHR meet with Nicaraguan authorities to compare data and ascertain the exact number of detainees and the grounds for the charges being pressed against them. The IACHR would like to reiterate that it is ready and willing to meet with the competent authorities.

During its visit, the Rapporteurship was also informed that the arbitrary arrest of social and student leaders and political dissidents has become a recurring practice. Likewise, the Rapporteurship and MESENI were informed of irregularities in the arrest processes and the negative effects of the conditions in which detainees are being held, which are incompatible with human dignity.

With regard to the arrests in question, the testimonies that the IACHR received all note that detainees are being held without court orders or arrest warrants, that no information has been provided on the reasons for their arrest, which in some cases was carried out by parapolice groups or masked civilians. Likewise, one of the main allegations made in the testimonies of detainees’ family members was that they were held for several hours in clandestine detention centers—such as municipal facilities or premises belonging to the governing political party—before being transferred to police stations or the Legal Police Department in Managua. The Rapporteurship and MESENI also received reports on the excessive use of force at the time of arrest even though those being detained did not put up resistance. This was manifest in the deployment of disproportionate numbers of police agents and types of equipment, the use of firearms to strike people, threats, and the kicking of detainees in the back of police vans while they were being taken to detention centers. One widely known example of this are the allegations that have been made by the family of Bryan Calderón, who remains hospitalized in the city of Jinotega after being seriously injured by national police agents during his arrest.

The IACHR wishes to stress that article 7 of the American Convention on Human Rights includes protection against arbitrary detention by strictly regulating the grounds on which people can be arrested by law and the procedures that can be used. An arrest is arbitrary and illegal when it is not based on the reasons for arrest that are set out in the law, when it does not comply with the procedural formalities that must be followed by the judiciary and the police, and when it is used for purposes other than those foreseen by and set out in the law. Furthermore, the state of Nicaragua must guarantee that the general principles around the use of force are respected during arrests. Specifically, any force used by police officers during an arrest should be strictly commensurate with the aim they seek to achieve and should only be used when needed to overcome resistance from the person being arrested.

Another point of concern regarding these arrests is the failure to comply with the obligation to bring detainees before a legal authority within 48 hours of arrest, as is established in article 33 paragraph 2.2 of the Political Constitution of Nicaragua and article 95 paragraph 9 of the Criminal Code. The Commission reiterates that according to article 7.5 of the American Convention on Human Rights, any person who is arrested should be brought before legal authorities without delay. Furthermore, the Rapporteurship and MESENI were informed of the ineffectiveness of habeas corpus petitions. Civil society organizations and family members reported on practices to prevent habeas corpus petitions from being granted, including a) appointing legal counsels or judges to the case who were either deceased or lived abroad or in areas that were far from the penitentiary in question; b) attempts on the part of judges to charge money in return for granting such petitions; and c) refusals on the part of prison authorities to grant access to judges who have been appointed to assess conditions of detention at the prisons in question. In particular, the Rapporteurship and MESENI discovered that seven habeas corpus petitions had not been granted in connection with the arrest of Lenin Antonio Salablanca, who allegedly spent over 20 days at El Chipote penitentiary without being brought before legal authorities or being allowed contact with his family.

In relation to arrests during protests, the Rapporteurship was informed of the widespread and practically universal application of pretrial detention based on crime type, without regard for the principles that govern its use. The IACHR notes that the obligatory use of pretrial detention based on crime type runs counter to the American Convention and constitutes an interference on the part of the legislature in the discretionary powers vested in the judiciary. The use of pretrial detention should be based on the right to be presumed innocent and should be applied in accordance with the principles of exceptionality, legality, necessity, and proportionality.

The way that pretrial detention is currently being used in Nicaragua runs counter to international standards on the issue, so allegations of charges being based solely on the testimony of public officials or undercover agents who remain masked throughout trials are particularly alarming. Another serious point of concern are the reports around detainees’ lack of access to legal counsel before hearings: instead, they are allegedly only granted limited contact with their defense attorneys during the hearings themselves. Family members and legal representatives argued that this state of affairs was having serious negative repercussions on detainees’ defense strategies.

The Rapporteurship wishes to express its concern at the fact that charges of terrorism are being pressed against detainees. Act no. 977 on money laundering, the financing of terrorism, and the financing of the proliferation of weapons of mass destruction, which was passed by the National Assembly on July 16, 2018, and published in the Official Gazette on July 20, 2018, amended articles 394 and 395 of the Criminal Code, which address crimes of terrorism and the financing of terrorism.

Article 1 of the Act establishes that its purpose is to “protect the Nicaraguan economy and the integrity of the financial system from the risks associated with money-laundering, the financing of terrorism, and the financing of the proliferation of weapons of mass destruction.” It is thus clear that the purpose of criminalizing terrorism falls within the specific framework of Act 977 and seeks to comply with Nicaragua’s international obligations around combating terrorism. Consequently, this offense cannot be extrapolated to entirely unrelated situations. The Rapporteurship calls on the judiciary to better scrutinize charges of terrorism, especially given that the factor in the definition of this crime which relates to “disturbance of the constitutional order” is highly subjective and does not form part of international practices to suppress terrorism.

Furthermore, the Rapporteurship is especially concerned about the conditions in which people arrested in connection with the protests in Nicaragua are being held. These conditions include cruel or degrading treatment, unsanitary conditions, poor medical attention, obstructions to visits, and the unjustified use of maximum security regimes. According to the testimonies the IACHR received, detainees at El Chipote are held in their underwear in high-temperature environments and are unable to wash regularly or change their clothing. Similarly, at La Modelo and La Esperanza penitentiaries, these detainees are being treated differently from other inmates in terms of the food, medicines, basic necessities, and personal hygiene supplies they are provided with. Of particular concern for the Rapporteurship are restrictions around these detainees receiving water supplies from their families. In some cases, they have only been allowed to receive 3 liters of water per week. The Rapporteurship and MESENI were also informed of the lack of appropriate specialist medical care for people who suffer from serious health conditions. This is the case despite the issuing of court orders to provide such care where necessary.

With regard to the conditions of detention in prisons, the Rapporteurship wishes to note that the obstruction of visits to detainees is one of the main complaints it has received. In connection with this, the Rapporteurship and MESENI received reports on the discretionary use of the visiting system at both La Modelo and La Esperanza penitentiaries. According to the testimonies received by family members and civil society organizations, prison authorities arbitrarily revoke scheduled visits or postpone or reschedule these without prior notice. In other cases, family members alleged that visits were deliberately scheduled on the day that hearings would be held. These obstructions to visits are also severely affecting detainees’ access to various basic supplies, including toiletries, medicines, and clothing. This is due to the fact that these are solely provided by family members, in most cases, not the penitentiary itself.

Likewise, based on the testimonies it received, the Rapporteurship noted that maximum security regimes are being applied in a discretionary fashion and are not justified by objective criteria that detainees and their family have been informed of. Consequently, detainees in the maximum security facilities at La Modelo penitentiary are being held in solitary confinement in dark cells and are only allowed visits from family members and telephone calls once a month. Furthermore, according to family members, detainees held at maximum security facilities are treated worse than other inmates also being held there, namely by being provided with less food and water less often. People held at these facilities are punished by having the windows of their cells sealed up.

The Rapporteurship and MESENI were informed of the particular risks that faced by women who are deprived of their freedom. At El Chipote and La Esperanza, female detainees are forced to perform squats in the middle of the night while naked as a form of punishment. This practice is allegedly repeated multiple times at La Esperanza. They are also woken in the middle of the night with the sole aim of interrupting their sleep. Given that the imprisonment of women is especially significant as it can result in gender-specific violations of their rights, the IACHR wishes to stress that it is the state’s duty to promptly adopt strict measures to prevent and eradicate forms of violence and discrimination against these women.

“The failure of the state to respond to our requests for meetings with authorities is a matter of grave concern. These meetings would have enabled us to compare the information we have received from civil society with reports from the state. This applies to the numbers of people being deprived of their freedom and other aspects of concern to the IACHR,” said Commissioner Antonia Urrejola, the Rapporteur for Nicaragua. “Given these circumstances, the state should respond promptly to requests for information so as not to obstruct the IACHR’s monitoring work,” she added.

This current context is highly polarized: Nicaraguan society perceives the punitive action on the part of the state as a way of repressing the right to protest, freedom of expression, peaceful assembly, and participation in political life. Consequently, the judiciary must resolve these cases by examining all charges being pressed with the utmost care, given the violations of due process that took place during arrests and detention, the crimes that detainees are being charged with, and the objective assessment of evidence presented at trial. In view of the high number of criminal proceedings that have been initiated, the Rapporteurship observes that the state’s obligation to conduct trials in strict accordance with the law especially important and it calls on the judiciary to fully exercise its independence.

Based on the inter-American standards on the issue and the information and testimonies it received during its visit, the IACHR is making the following recommendations to the state of Nicaragua:

  1. Abolish the practice of arresting people without a written warrant issued by a public official who is expressly authorised by law, even if they are in the act of committing an offence in violation of article 33 paragraph 1 of the Constitution of Nicaragua.
  2. Bring all people who are arrested before legal authorities within 48 hours of their arrest so as to clarify and establish their legal status, as is established by article 33 of the Constitution of Nicaragua and article 95 of the criminal code.
  3. Verify immediately that all instances of pretrial detention comply with the corresponding international standards, namely exceptionality, legality, proportionality, and reasonability. When this measure is not based solely on procedural criteria—such as the risk of escape or hindering the investigation—alternative measures should be applied.
  4. Reconsider charges of terrorism, bearing in mind the aim of Act 977.
  5. Guarantee due process for all people arrested in connection with the protests that have been happening in Nicaragua since April 2018. Immediately inform the person under arrest and their family and representatives of the motives and reasons for which they are being held. This is a point of particular concern. Furthermore, detainees must be guaranteed appropriate legal counsel, with whom they must have regular contact and who must be able to play a part in preparing for their hearings. They must also have unrestricted access to these legal representatives. All those accused of crimes have the right to not be compelled to testify against themselves or plead guilty.
  6. Guarantee that all people in state custody are treated with dignity. In particular, ensure that they receive appropriate medical care for their particular health conditions, are provided with sufficient quantities of highly nutritious food, and are held in sanitary conditions. With regard to the conditions of female detainees, adopt all comprehensive measures necessary to ensure that their rights are respected and guaranteed such that they do not suffer discrimination and are protected from all gender-specific forms of violence.
  7. Provide immediate medical assistance to all detainees with health conditions that require this, especially Brenda María Muñoz Martínez, Elsa Valle, Olesia Muñoz, Ricardo Adán Gutierrez Siria, and Juan Carlos Baquedano.
  8. Establish the conditions necessary for guaranteeing that people deprived of liberty can contact their families by ensuring that visiting regimes are appropriate, regular, and predictable. Visits should take place in a respectful fashion at least as often as set out in the Penitentiary Regulations and in conditions that are in no way degrading to the people deprived of their liberty. Likewise, the state must guarantee that medicines, food, and toiletries are allowed to reach those being held in prisons.
  9. In maximum security regimes, solitary confinement should be an exceptional measure that is based on an individual risk analysis, limited to the shortest possible time, and used only as a last resort. Any solitary confinement orders must be approved by a competent authority and be subject to independent review. 
  10. In the case of the judiciary, exercise full independence when trying defendants, in compliance with the highest international and Inter-American standards of human rights, taking into account the conditions of detention in which defendants are being held and the crimes that they are being charged with and allowing them to exercise their right to defense.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

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