NICARAGUA: ARBITRARY DETENTIONS OF 14 GOVERNMENT DISSENTERS

The International League Against Arbitrary Detention urges the Government of Nicaragua to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 10/2022 concerning Arturo Cruz Sequeira, Violeta Granera Padilla, José Aguerri Chamorro, José Bernard Pallais Arana, Daysi Dávila Rivas, Ana Vijil Gurdián, Dora Téllez Argüello, Suyen Barahona Cuan, Jorge Hugo Torres Jiménez, Víctor Tinoco Fonseca, Luis Rivas Anduray, Miguel Mora Barberena, Miguel Mendoza Urbina, Pedro Chamorro Barrios, asking the Government of Nicaragua to immediately and unconditionally release them and to accord them an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning these individuals (Nicaragua): Opinion No.10/2022.

ARRESTS OF MULTIPLE PUBLIC OPPONENTS OF THE GOVERNMENT

Mr. Serqueira is the former ambassador to Nicaragua and pre-candidate for the Presidency; Mrs. Padilla is a human rights defender, former vice-presidential candidate, and member of the Political Council of the Blue and White National Unity; and Mrs. Chamorro is an economist, former president of the Consejo Superior de la Empresa. Messrs. Anduray (PhD in Economy), Barberena (journalist) and Urbina (sports columnist) have criticized the Government publicly. Messrs. Fonseca and Jiménez, and Mrs. Rivas, Gurdián, Mrs. Argüello, and Mrs. Cuan were all involved at different levels with the Unión Democrática Renovadoramovement. Messrs. Barrios and Arana were part of the Constitutionalist Liberal Party, and the latter was also a member of the Political Council of the National Blue and White Unity and the National Coalition. To sum up, all of them are Nicaraguan nationals and well known public figures in the country. They have held positions in political parties, parliamentary and diplomatic public service and are known for their work in favor of democracy and human rights in Nicaragua.

Between the 5th and 25th of june 2021 the authorities arrested these 14 individuals without prior warrant at different times of the day and night in various circumstances (i.e., in different places and by different authorities). In a nutshell, Mr. Sequeira was arrested at the International Airport of Nicaragua; Mrs. Padilla, when she was entering her home; Messrs. Chamorro, Arana, Jiménez, Barberena, Barrios and Mrs. Rivas, Mrs. Gurdián and Mrs. Argüello in their respective homes; Messrs. Fonseca, Anduray and Urbina, in different public places; and Mrs. Cuan, while participating in a demonstration. Except Mr. Anduray who was detained in a residence, all the others were detained at some point in a place known as "El Nuevo Chipote", some after having first been detained in their own houses (namely Mrs. Padilla, Mr. Barberena and Mr. Barrios) or within their neighbourhood (Mr. Urbina).

More than a month after their arrest, no charges had been filed against them. Based on article 253 bis of the Law on Reforms and Addition to the Code of Criminal Procedure (Law No. 1060), and at the exception of Mrs. Gurdián, their investigation period, and so their detention, were extended to 90 days. Since then, they have been investigated for allegedly failing to comply with the Law for the Defense of the People's Rights to Independence, Sovereignty and Self-Determination for Peace (Law No. 1055). At the time of the source’s communication to the Working Group, all were still being detained.

The Government was given the opportunity to contest these allegations, which it did not do.

ARRESTED WITHOUT AN ARREST WARRANT AND SUBJECTED TO INCOMMUNICADO DETENTION

According to the source, all individuals were arrested by different authorities which were always excessively armed, without being presented with an arrest warrant, being informed of the circumstances of their arrest, or being informed of their rights to a lawyer and to challenge the legality of their arrest. In some cases, up to 60 officers were present during the arrests, and most of them were carried out with violence (i.e., threats, beatings...). Moreover, the homes of the 14 individuals were searched at the time of their arrest or subsequently, without a court order.

Additionally, while they were being allegedly held at the National Police's Judicial Assistance Directorate, known as "El Nuevo Chipote", they were denied information or access to their families, in violation of article 9 (2) of the Covenant. At some point, they were taken to unknown locations, and their families and lawyers were denied information on their whereabouts. As such, they were subjected to a regime of incommunicado detention and de facto enforced disappearance. In these circumstances, the Working Group considered that their right to be protected under the law, to be promptly presented before a judicial authority and so to challenge the legality of their detention, as well as to access an effective remedy - as enshrined in articles 6, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (3), 9 (3) and (4) of the Covenant - were violated.

Specifically, Mrs. Padilla was placed under house arrest, heavily guarded and held incommunicado for three days. She was then transferred to an unknown location, which later appeared to be a private prison in the capital, and held there for 12 days. The Working Group found this in violation of articles 6, 9, 10 and 11 (1) of the Universal Declaration of Human Rights.

At the time of the source's communication, the 14 individuals had been subjected to mandatory pre-trial detention for nearly a year. The Working Group recalled that pre-trial detention should not be punitive, but should be based on an individualized determination. According to the source, such assessments were not carried out for the 14 individuals. Besides, the Working Group also mentioned that it was not sufficient for the pre-trial detention to be based on national legislations to be justified (i.e., referring here to Law No. 1060). As such, the Working Group considered that article 9 (3) of the Covenant had been violated.

The Working Group underscored the essential role of judicial oversight in safeguarding personal liberty and ensuring that detention is lawful. The absence of such oversight constituted a violation of several fundamental rights. Specifically, in this case the detainees could not freely choose their legal representation, as they were originally forced to hire public defenders. Their initial hearing was held behind closed doors, without the presence of their lawyers, and except for Mr. Sequeira, the detainees could not speak privately with their lawyers. As such, their right to have sufficient time and means to prepare their defence was found to have been violated, contrary to articles 10 and 11(1) of the Universal Declaration of Human Rights and article 14(3)(b) of the Covenant. The Working Group found that their situation was worsened by the fact that they were not promptly brought before a judge, which should have taken place within 48 hours of their arrest.

Furthermore, the source presented that statements were made by officials such as President of Nicaragua and in related media openly condemning and stigmatizing the 14 detainees before the confirmation of their sentences. In that regard, the Working Group recalled the right to the presumption of innocence protected under article 11 (1) of Universal Declaration of Human Rights and article 14 (2) of the Covenant. It confirmed that such statements made by officials constituted an undue intrusion which could affect the independence and impartiality of the court.

Hence, the Working Group found that the arrests and detentions of the 14 individuals lacked a legal basis, thus, their deprivation of liberty was arbitrary under category I.

DETAINED FOR EXERCISING THEIR RIGHTS TO FREEDOM OF OPINION, OF EXPRESSION AND TO TAKE PART IN PUBLIC AFFAIRS

The 14 detained individuals have publicly voiced critical opposition to the current Government, actively denouncing alleged serious human rights violations occurring in the country since the onset of the crisis in April 2018. Due to these actions, some had previously faced harassment, persecution, and multiple detentions. The Working Group also observed that several of these detainees had reportedly declared themselves as opposition candidates for the national elections; however, their candidacies were ultimately obstructed by the conditions examined in this case. In view of the complaints made by the source, the Working Group found that the detention of the individuals was a case of penal repression by the Government of Nicaragua in order to prevent them from expressing their political opinions and to participate in the public affairs of their country, in violation of articles 19, 20 and 21 of the Universal Declaration of Human Rights and articles 19, 21 and 25 of the Covenant.

For all of the above, the Working Group found that the detention of the 14 individuals was contrary to Category II.

VIOLATIONS OF THE RIGHT TO A FAIR TRIAL

The source submitted that none of the fourteen detainees were provided with adequate time and facilities for their defence, and that their prompt access to and confidential communication with lawyers, as well as to the file containing all the relevant information, should have been guaranteed. According to the Working Group, this indicated that Nicaraguan authorities failed to uphold the right of the accused to adequate time and resources to prepare a defence, including access to legal counsel of their choosing. Such actions contravene articles 10 and 11(1) of the Universal Declaration of Human Rights, as well as article 14(3)(b) of the Covenant.

In addition, the detainees have been held incommunicado, thus depriving them of the right to contest the lawfulness of their detention in court, as guaranteed under Article 9(4) of the Covenant.

The source also noted that the hearings were held behind closed doors, without the presence of lawyers, and that the recorded minutes were not made available to the defence. The detainees’ relatives found out about the extension of their detention for 90 days, for further investigation, through the media. The Working Group stressed that these actions disregarded the requirement in Article 14(1) of the Covenant, which mandates a public hearing.

The Working Group noted that all the 14 individuals underwent automatic pre-trial detention, depriving them of the right to pursue alternatives to detention and undermining the presumption of innocence protected under article 11 (1), of the Universal Declaration of Human Rights and article 14 (2), of the Covenant.

Furthermore, according to information from the source, the detainees were medically neglected and have suffered the impact on their personal health of the lack of food, nutrition, hygiene, sanitation, appropriate housing, specialized protection in certain aspects of the health of each of them, curative care for their ailments, medicines necessary to maintain and care for their state of health. The Government has not denied these allegations. All the above circumstances contravened article 7 of the Covenant and articles 2, 11 and 12 of the Convention Against Torture.

According to the information received, Mr. Jiménez's health deteriorated rapidly after his detention and his medical needs were not properly attended to, leading to his death on 12 February 2022. The Working Group expressed its deep concern for Mr. Jiménez’s passing, and reinforced that, while deprived of his liberty and in the custody of the Government of Nicaragua, the authorities were responsible for guaranteeing his life, health and treatment in accordance with human dignity.

Considering all the above, the Working Group found the respective detentions of these 14 individuals arbitrary under category III.

DISCRIMINATORY DETENTION OF HUMAN RIGHTS DEFENDERS

Considering the circumstances and context of the arrests, the Working Group considered the individuals' detention to be arbitrary because of the discrimination exercised against them as human rights defenders who publicly expressed their political positions and opinions. These detentions were carried out to prevent members of political groups opposed to the Government from expressing their opinions and participating in the public life of the country, in violation of articles 19, 20 and 21 of the Universal Declaration of Human Rights and Articles 19, 21 and 25 of the Covenant.

In conclusion, the Working Group found the respective detentions to be arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detentions of Messrs. Sequeira, Chamorro, Arana, Jiménez, Fonseca, Anduray, Barberena, Urbina, Barrios and Mrs. Padilla, Mrs. Rivas, Mrs. Gurdián, Mrs. Argüello, and Mrs. Cuan were arbitrary and fell under categories I, II, III and V because their deprivations of liberty were in contravention of articles 6, 8, 9, 10, 11, 19, 20 and 21 of the Universal Declaration of Human Rights and articles 2, 7, 9, 10, 14, 19, 21, 22 and 25 of the Covenant.

The Working Group recommended that the Government of Nicaragua take the necessary steps to remedy the situation of the 13 individuals - Messrs. Sequeira, Chamorro, Arana, Fonseca, Anduray, Barberena, Urbina, Barrios and Mrs. Padilla, Mrs. Rivas, Mrs. Gurdián, Mrs. Argüello, Mrs. Cuan - and the beneficiaries of Mr. Jiménez without delay and to bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release them immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law.