One day before the OAS´s Interdisciplinary Group of Independent Experts (known by their Spanish acronym GIEI) issued their report, they were expelled from Nicaragua by order of the government. This body was invited in by the Nicaraguan Government to help the Nicaraguan authorities investigate and determine those guilty of what the report now calls “crimes against humanity”- 109 deaths just between April 18-May 30, 2018. Since the report was issued the 24 hour news channel “100% Noticias” was raided by police and closed down, with the Director and News Director jailed and indicted for terrorism, an event which served to validate accusations contained in the report.
The full report can be found in Spanish at http://gieinicaragua.org/giei-content/uploads/2018/12/GIEI_INFORME_PRINT.pdf
This is the English translation of the conclusions and recommendations sections.
NICARAGUA: Report on the Violence Events between April 18 and May 30, 2018
By the Interdisciplinary Group of Independent Experts (GIEI)
CONCLUSIONS AND RECOMMENDATIONS
Dec 20, 2018
Since the beginning of its work, the government of Nicaragua systematically denied the information required by the GIEI, as well as any possibility of relating with other State institutions. This meant that the GIEI was unable in its entire mandate to carry out the work of cooperation with the criminal investigations contemplated in the Agreement.[1] On the other hand, the violence and state repression continued even after the installation of the GIEI, which was a serious limitation to carry out the commissioned work.
While not having the cooperation and collaboration of the Nicaraguan authorities to carry out the collaboration, which implied close work with them, the GIEI used a methodology that was based principally on gathering information from open sources and the analysis of official documentation provided by the State to the IACHR and from other confidential sources. A large number of documents were examined, including videos, photographs and journalistic articles and material from the media and social networks, many of which were recorded by the citizenry participating in the protests. In audiovisual material alone more than 10,000 files were reviewed and analyzed.
In spite of the obstacles due to lack of cooperation from state authorities, and the risk of protection that the sources consulted faced, the GIEI was able to pull together, analyze and verify a wide amount of information that allowed it to arrive at reasonable conclusions to reconstruct the events just as they occurred, the circumstances, and identify the possible individuals responsible.
The GIEI was able to confirm that the State resorted to abusive and indiscriminate use of force to repress peaceful protest demonstrations. A repressive pattern, which was verified at different times and places of Nicaragua, was the use of firearms, including military weapons, directly against the demonstrators. It was able to be confirmed that they used lead bullets, whose calibres correspond to different types of weapons, among which were military rifles.
These repressive actions happened in different scenarios where protest actions were being carried out: demonstrations in public places, university takeovers, and highway roadblocks. The GIEI was able to determine that most of the murders and the seriously wounded were the responsibility of the National Police, whose troops acted directly and also in a coordinated fashion with para-state armed groups. The behavior of the formal structure of the National Police along with parallel structures was another distinctive characteristic of the repression of the protests that could be seen in the immense majority of repressive events.
It has also been verified that the State resorted to the detention of hundreds of people in police sweeps during the course of the protests. The people detained were left at the exclusive disposition of the National Police and suffered different forms of mistreatment and abuse. Some denouncements referred to situations of torture, even though GIEI was not able to confirm that that has been a pattern during the months of April and May.
The GIEI received as well different evidence that showed the discrimination suffered by wounded demonstrators when they went to public hospitals in a range of situations, that went from the denial of medical attention, even in the face of very serious cases, to instances of inadequate attention and the mistreatment of relatives.
These acts occurred in a context where a public discourse of stigmatization of the protests was maintained by the highest State authorities, and political support for the repression was exhibited.
The GIEI thinks that the numerous crimes committed within the context of the repression of the demonstrators constituted crimes against humanity. This presumes certain consequences, such as the non applicability of statutory limitations, the impossibility of dictating norms of amnesty, or similar norms that would prevent trying or sentencing, the possibility that tribunals from other States might intervene in virtue of the principle of universal competency, and even the eventual intervention of the International Criminal Court, in the case that the Security Council of the United States remits the situation to the ICC, or that the State of Nicaraguan itself might accept their competency in virtue of Art. 12.3 of the Rome Statute.
The GIEI also has verified that, even though the demonstrations were essentially peaceful, their repression by the police and pro-governmental groups provoked a violent response on the part of some demonstrators against the government, which was translated into deaths, injuries and attacks on private property. The GIEI did not find evidence that these violent acts had been coordinated or form part of a plan.
The State of Nicaragua has violated its due diligence duty in terms of the investigation of the cases of violent deaths from April 18th to May 30, 2018. Of the 109 cases of violent deaths registered by the GIEI, just 9 have been tried. At least 100 cases remain in impunity, and in many of them the proceedings required to clarify the facts have been neglected, like the proper processing of crime scenes and the practice of autopsies. In the 9 cases that have been prosecuted, 6 have to do with victims that have some relationship to the State of Nicaragua or with the party in power. Serious weaknesses are also evident in these investigations. The prosecutor´s office did not act in an objective and impartial way, did not exhaust all the lines of investigation, and accused people who could be innocent, some of whom have already been convicted. A situation which is not only unjust for the accused, but also for the victims and relatives in not having a correct response. In no case has a process been initiated against the forces of State security, in spite of the abundant evidence that points to their responsibility.
The criminal justice system – the Prosecutor´s Office and the Supreme Court – have acted as one more piece of the structure for the violation of human rights through the criminalization of the citizens who participated in the protests. Illegitimate use has been made of the criminal categories of terrorism and organized crime, among others, to persecute and punish acts of opposition to the government in the processes initiated against the students, peasant and social leaders. In all these processes there has been serious violations of personal freedoms, from orders for arbitrary arrests, to the generalized use of preventive imprisonment, without meeting with the reasons required, including non compliance with the terms for judicial control over imprisonment. The right to defense and public trial also have been seen to be violated. Finally, it has been established that habeas corpus or the recourse for personal exhibition has been ineffective.
The violence unleashed since the social protest begun on April 18th has caused a profound harm to families, communities and Nicaraguan society. It has impaired peaceful co-existence, altered daily life, and deepened social polarization. The violence carried out has generated deep marks of pain and indignation, that are mixed with the marks left by previous confrontations, and have produced the estrangement and distrust of broad sectors of the population with State institutions. The wounds will be very difficult to heal if they are not dealt with in a holistic way, with truth, justice and reparations for the people who have lost loved ones, people wounded who have been left with incapacitating consequences; the disappeared, jailed and displaced; all those who have suffered the violence and have been wronged, as well as those who suffer persecution and threats for being their relatives.
RECOMMENDATIONS
Aware of the fact that periods of serious human rights violations tend to severely weaken the quality of public institutions, even more when the political authorities use those institutions to commit or endorse their abuses, the GIEI recommends:
- That the government ensure that the right to meet be fully respected and guaranteed through the proper protection of public demonstrations, in accordance with applicable international human rights standards and norms.
- That the government end the harassment of human rights defenders, journalists and other social leaders, ensuring the conditions for them to be able to fully carry out their work and exercise their rights, particularly the freedom of expression, meeting and association.
- That the Nicaraguan State begin a holistic reform of institutions directed at modifying the conditions that generated and intensified the repression and political persecution. This reform is important to fulfill the commitment to change and ensure the non repetition of human rights violations, seeking to banish violence as a means for resolving conflict, and establishing a new inclusive social pact so that the State might really be the expression of all Nicaraguans.
- It is recommended that the State implement a Holistic Reparations Plan (PIR) that would remediate and compensate for the human rights violations, as well as the losses or social, moral and material damages suffered by the victims, taking into account the considerations made in Chapter XII.
In general in the face of the behavior of public officials from different entities of the state apparatus who have participated in practices that violated human rights during the events of violence since the social protests that began on April 18, 2018, the GIEI recommends.
- Investigating and eventually removing officials who have participated in human rights violations. Reform institutions and promote the presence of democratic authority and State services throughout the national territory. Recognize popular organizations, local identities and cultural diversity, promoting citizen participation from the plurality of different political options and positions.
- Immediately dissolving and disarming the para-state armed groups and protect the population of all illegal and violent acts. Through exhaustive, impartial and transparent investigations, determine whether they have participated in criminal acts, especially in attempts against life and other fundamental rights, and in those cases process and try them.
In terms of the behavior of the National Police of Nicaragua, who have shown a series of institutional practices in violation of human rights, which have extended over time and have increased in severity; in addition to considering the experience of other countries, and the urgent necessity of once again providing the State with a police institution which would ensure internal order based on principles of democratic control and respect for human rights, the GIEI recommends:
- Purging the police institution, removing those commands or agents who participated in acts in violation of human rights. This separation will have to be done after an exhaustive, administrative investigation in order to define responsibilities and avoid reprisals, and independently of the corresponding criminal investigations. To ensure the transparency of this task they could designate observers from civil society.
- Reviewing the normative legal framework of the institution, concurrent with the suggested process, in order to ensure the guarantee of non repetition, taking into consideration the re-establishment of obligatory retirement of the director of the National Police every five years, once their period has been completed, incorporating mechanisms for civil supervision and control, external to the institution, regulating law 872 in accordance with professional guidelines and respectful of human rights, implementing a police career in order to ensure the entry and promotion by merit and police professionalization; eliminating the figure of voluntary police; trasferring the youth recovery programs to other government entities outside of the police; reviewing the internal norms and administrative procedures that regulate the behavior of agents.
- Reform article 231 third paragraph of the Penal Processing Code so that all deprivation of liberty be authorized by a judge, eliminating the possibility that detentions be done based on a police order.
In terms of the system for the administration of justice, investigations show that the judicial system did not adequately use the law to defend the rights of the victims of human rights violations. On the contrary, it was turned into a tool for the criminalization of social protest. “The validity of rights and freedoms in a democratic system require a legal and institutional order where the law prevails over the will of rulers and individuals, and where there is effective judicial control over the constitutionality and legality of acts of public authorities” (Rome Statutes of the International Criminal Court), the GIEI recommends:
- Investigating the behavior and eventually purging the justice system of those judges and other officials who violated due process, or who have not complied with maintaining their independence from the political authorities. These processes should be done in accordance with international standards.
- Establishing a judicial career based on objective criteria and merit for admission, promotion and removal of judges and magistrates which would include the Supreme Court. This career system should include objective criteria, clearly defined and established in the law, for the selection and naming of magistrates and judges. These criteria should demand that the people selected to occupy judicial positions be qualified people of integrity, with appropriate training and judicial qualifications and proven independence to exercise the responsibility.
- Do the naming of magistrates and judges through a public contest based on merit, that would ensure citizen oversight.
- Taking into account the lack of independence demonstrated by the judicial system, establish the necessary reforms and mechanisms to ensure that the acts of violence occurred starting April 18th be prosecuted by judicial entities composed of magistrates who would ensure impartiality, expertise, and have adequate resources. For that purpose different possibilities must be evaluated that would include the eventual participation of international judges and/or advice and support from international cooperation, particularly from countries who have had to deal with and prosecute processes of violent repression.
- Taking into account the lack of independence demonstrated by the judicial branch, establish the necessary reforms and mechanisms to ensure the review of the sentences that were issued and those that are issued in the future by the current tribunals, in order to determine whether they have violated constitutional guarantees or legal dispositions that would have adverse affects on due process. This process of review should be done with the people convicted or sentenced on probation. This task should be carried out by magistrates duly selected for their personal and professional qualities, and recognition of their autonomy and independence. Evaluating the possibility of calling in magistrates from other countries and/or requesting support of international cooperation for this task is recommended.
- Reaffirming that the purpose of the penitentiary system is the re-education, rehabilitation and reincorporation of the convict into society, and improving the conditions of the penal population in terms of access to basic services of food and health care, with an emphasis on women, and access to relatives and civil society organizations specialized in penitentiary treatment.
- Urging the Government to ratify the Rome Statute of the International Criminal Court for the purpose of ensuring that the crimes against humanity are not left in impunity and as an assurance of their non repetition; and accepting the competency of the International Criminal Court on the crimes against humanity committed since April 18, 2018, in accordance with what is established in Art. 12, subsection 3.
The Public Ministry as an institution independent of the executive branch and responsible for the analysis, investigation and exercise of penal action in cases, has not fulfilled its duty to represent the victims, no matter what their ideology or social or political context, and carry out exhaustive, independent and impartial investigations; which is why the GIEI recommends for their reform:
- Investigating and eventually removing the prosecutors and officials who did not fulfill the independent exercise of their function, or obstructed the clarification of the facts. These processes should be carried out in accordance with international standards.
- Establishing a career for prosecutors on the basis of objective criteria and merit for admission, promotion and removal of prosecutors, that would include the Attorney General. This career system should include objective criteria, clearly defined and established in the law, for the selection and naming of prosecutors. These criteria should require that the people selected be qualified people of integrity with the appropriate training and judicial qualifications, and proven independence for the exercise of their responsibility.
- Do the naming of prosecutors through a public contest, based on merit, that would ensure citizen oversight.
- For the purpose of recovering the trust and credibility of the Public Ministry, and ensure the victims, their relatives and the entire society a quick, independent and impartial investigation of the violent acts that occurred in the period between April 18 and May 30, as well as those that occurred later, it is urgently recommended the creation of a Special Prosecutor Office, composed of members duly selected for their personal and professional qualities and the recognition of their autonomy and independence. For that purpose civil society has to participate in the process of the identification of the profiles, as well as in the selection of the prosecutors. Likewise, to strengthen their independence and autonomy, and ensure impartial investigations that would include all those directly and indirectly responsible like their chain of command, it is recommending evaluating, at least in the first phase, the suitability that along with national prosecutors, international prosecutors be called to be part of the Special Prosecutor´s office. It is recommended in that sense that the countries of the international community might put at the disposition of the State of Nicaragua profiles of prosecutors from their nationality qualified for that purpose, and who would accompany the creation process.
Recommendations to other actors:
- For the purpose of preventing impunity for the crimes against humanity, it is recommended that the member States of the regional system (OAS) and the international system (UN) begin investigations, and in their case prosecute those responsible for the crimes referred to in the framework of universal jurisdiction, and in accordance with the internal legislation of each country.
- It is recommended that international bilateral and multilateral aid, as well as regional and international financial entities, incorporate an analysis of human rights of the country and the level of compliance with the commitments assumed, so their contribution might be focused on the elimination of the challenges and obstacles identified by the treaty supervision bodies, and by international mechanisms for the protection of human rights.
- Finally, the GIEI considers essential that Nicaraguan society in general, and particularly the most privileged and less vulnerable sectors, do not leave the victims of the serious acts of violence alone, and accompany them in their claim for justice and reparations.
[1] Refers to the “Agreement between the Secretary General of the Organization of American States, the Interamerican Commission on Human Rights, and the Government of Nicaragua for the investigation of the acts of violence that happened in the period between April 18 and May 30 in Nicaragua.”