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Nicaragua Criminal Justice System
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
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