Nicaragua Table of Contents
Immediately after the Sandinista victory in 1979, the FSLN government enacted by decree a Statute on the Rights and Guarantees of Nicaraguans. Among many provisions, the decree banned the death penalty and all forms of torture as well as cruel and degrading punishment. The maximum sentence for any crime was set at thirty years. Basic procedures were outlined for arrest and detention, including a defendant's right to legal counsel. Arbitrary violation of an individual's personal integrity, home, or correspondence was prohibited. These principles were gradually eroded by a series of measures, the first of which, the Law of National Emergency in 1982, legalized prolonged detention of opponents of the government and imposed constraints on political opposition and labor groups. An expanded State of Emergency, announced in 1985, virtually suspended all civil liberties, including the prohibition against arbitrary imprisonment, the presumption of innocence, the right to a fair and speedy trial, the right to trial, and habeas corpus.
An immediate problem faced by the new Sandinista administration in 1979 was how to handle the approximately 7,800 former National Guardsmen and former Somoza government officials who had been interned and then incarcerated. There was strong popular sentiment for executing those who were identified as torturers or "war criminals." Both Sandinista troops and the general public killed some captured Somoza supporters--the Sandinista junta later admitted that perhaps 100 Somoza officials had been put to death in the chaotic period following the July 1979 victory--but most were held for appearances before special tribunals that sat between November 1979 and February 1981. Trials by these politicized tribunals were heavily publicized to remind the public of the evils of the Somoza administration. Some 6,300 trials were conducted, with a 78 percent conviction rate and sentences ranging up to thirty years. Their proceedings were widely criticized by international human rights groups. Sandinistas who were not lawyers sat as judges and presented evidence. The charges were often vague and imprecise, and defendants had little time to prepare a defense. A proper appeals mechanism was lacking, and some of the accused were exposed to a campaign against them by the FSLN media. Nevertheless, the accused had legal representation, media access was permitted, and the convictions were based on the previously existing legal code. Observers sympathetic to the Sandinistas argued that the justice administered by the special tribunals was relatively fair, especially when compared to actions taken by other newly victorious revolutionary governments in a similarly heated atmosphere.
A major problem of the early years of the Sandinista administration was the overcrowded criminal docket, which led to lengthy periods of detention for those awaiting trial and sentencing. In 1983 jury trials were limited to only the most severe felonies, on the grounds that this limitation would help unclog the courts. A law of amparo, a feature of Spanish common law empowering courts to obtain redress of administrative excess or error, was suspended by the 1982 Law of National Emergency. The emergency law also suspended the limitation of seven days' detention without arraignment.
Two additional legal innovations were introduced by the FSLN junta. One was the People's Anti-Somoza Tribunals (Tribunal Popular Anti-Somocista--TPAs). Similar to the special tribunals, members of the TPA panels were drawn from Sandinista mass organizations, and their jurisdiction was over persons charged as members of the Nicaraguan Resistance. The TPA's jurisdiction later was expanded to include a broad category of acts construed to threaten the revolution. Defendants were held incommunicado for indefinite periods, and their legal counsels were unable to present a proper defense. In some cases, defendants were compelled to appear without benefit of attorney. Nearly all the accused were convicted, usually after long detention before trial. The TPAs were abolished in 1988, but many of the TPA judges were transferred to regular criminal courts.
The second legal innovation was an expansion of police power. In 1980 the Sandinista Police were given authority to adjudicate cases of cattle rustling, drug dealing, and insult to authority. Later, police power was further expanded to include breaking up unauthorized demonstrations and dealing with economic crimes such as hoarding, with sentences of up to two years. This new authority also extended the traditional powers of police judges to impose sentences of up to six months on such charges as vagrancy, drunkenness, or disturbing the peace. The police courts could impose sentences without granting defendants the right to counsel, the right to call witnesses, or the right to appeal to courts in the regular judicial system.
After the Chamorro government took office in 1990, it began efforts to depoliticize the judiciary. However, it was not until late 1993 that the Supreme Court, whose members serve six-year terms, had a non-Sandinista majority. Some progress was made in replacing Sandinista appointees to the 250 trial and appellate judgeships, yet Sandinista appointees remained in the majority in 1993. Nevertheless, because the Supreme Court appoints appeals and lower court judges, the prospect for more non-Sandinista judges seems favorable.
Military courts continue to be responsible for dealing with crimes committed by or against members of the armed forces or police. Proceedings of trials in military courts are secret, although information can be released at the discretion of the military. According to the United States Department of State's annual human rights reports, convictions by military courts are rare, and even when soldiers are convicted, they receive light sentences or the sentences are not enforced. According to a 1991 study by Americas Watch, virtually no political crimes--whether committed by members of the military, ex-Contras, or civilians partial to the Sandinistas or to UNO--were prosecuted in the judicial system.
Procedures for the arrest of criminal suspects are set forth in the Police Functions Law. The law requires police to obtain a warrant before detaining a suspect, but the warrant is issued by a police official rather than a magistrate. The law also permits police to detain suspects for up to nine days for the purpose of collecting evidence before being brought before a judge. Police are required to inform families when persons are detained but rarely do so, and detainees are not granted access to legal counsel once charged, as required by the constitution. The Reform Law of Penal Procedures, passed in 1991, provides for a maximum of three days' detention, but police continue to follow the Police Functions Law, which has not been amended. The 1991 reform law also provides for bail; previously only compelling reasons such as ill health qualified accused criminals to remain at liberty while awaiting trial.
Defendants have the right to legal counsel at their trials. Although indigents are entitled to pro bono counsel, public defenders do not exist. In spite of the constitutional right to a speedy trial, arrested persons often spend months in jail before appearing in court. Under the 1991 law reforming penal procedures, jury trials have been restored. However, the jury system has not proven effective, partly because prospective jurors seek to evade jury duty, delaying trials. Those convicted have the right of appeal.
In 1993 the role of the Nicaraguan military was still in a state of flux. Only established as a modern national entity in the 1930s, the Nicaraguan army was first a tool of the Somozas (as the National Guard) and then the military arm of the FSLN during the Sandinistas' eleven years in government. Despite massive downsizing and attempts to increase professionalism in the 1990s, in 1993 the Nicaraguan army was still controlled by its former FSLN leaders and unsure of its role. Whether the country's armed forces could become a truly national army was a question still unanswered.
* * *
The history of the Nicaraguan armed forces from the country's beginnings until the first years of the Sandinista era is traced in Armed Forces of Latin America by Adrian J. English. Revolution and Foreign Policy in Nicaragua by Mary B. Vanderlaan reviews the Sandinista military buildup and defense policy during the Sandinistas' first six years. Supplementary information on the Sandinista People's Army can be found in an article by Stephen M. Gorman and Thomas W. Walker in Nicaragua: The First Five Years. The brief article, "Nicaragua in Crisis," by Julio Montes in Jane's Intelligence Review summarizes the effects of the tremendous cutback in the armed forces since 1990.
Much of the data on the Nicaraguan weapons inventory cited in this chapter is based on The Military Balance, 1993-94 from the International Institute for Strategic Studies and information from Jane's Fighting Ships, 1993-94.
The Nicaraguan internal security situation, law enforcement, and conditions in the court and prison systems have been surveyed in various reports of Americas Watch and in the United States Department of State's annual Country Reports on Human Rights Practices. (For further information and complete citations, see the Bibliography.)
Data as of December 1993
Nicaragua Table of Contents