HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF NICARAGUA
The Human Rights Committee today concluded its consideration of the third periodic report of Nicaragua on the measures undertaken by that country to implement the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Ivan Lara Palacios, Special Penal Prosecutor in Nicaragua’s General Prosecutor’s Office, drew the Committee’s attention to many improvements achieved by the Nicaragua during the last 20 years when Nicaragua last appeared in front of the Committee. Among those improvements was a major overhaul of the legal system, including the separation of ministries, the creation of new offices and the adoption of a new Criminal Code. Mr. Lara Palacios underlined that the National Police had managed to hit hard on organized crime, including international drug trafficking. Nicaragua did not have any juvenile gangs anymore and was now one of the safest countries in Latin America.
Mr. Lara Palacios explained that Nicaragua had made massive efforts for raising awareness that the violation of women’s rights constituted a violation of human rights and to eliminate stereotypes that impacted on equality. Also the participation of women in public affairs was taken seriously and the target was 50 per cent. Mr. Lara Palacios regretted that Nicaragua had serious budgetary limitations that made it impossible to cover all social necessities of the Nicaraguan people. Without doubt, the Government’s first priority was to eradicate poverty and to protect social and economic rights which had been neglected during 16 years of a neo-liberal government.
In preliminary concluding remarks, the Chairman of the Committee, Rafael Rivas Posada, said that the Committee was mindful of the dynamic process in Nicaragua underway in recent years regarding the reform of its legal system. It was aware of the great human rights violations that had affected the Nicaraguan people earlier, and a vast range of issues addressed by the recent reform. The Committee saw as equally important how constitutional provisions were adapted to reality. He stressed the Committee’s mandate to draw attention to the provisions of the Covenant regarding the life and health of women. The Committee thought it to be excessively restrictive to criminalize medical personnel because they terminated a pregnancy. The State Party had to address that problem and find ways to ensure women’s rights to physical integrity, health and life. Also, concerning abuse of authority by the police, it was not clear what sanctions had been provided and what the results of investigations were.
Over the course of two meetings, the Nicaraguan delegation answered questions by the Committee relating to a number of issues, including abortion; maternal mortality; extrajudicial killings of street children; damages due to pesticides; land-ownership of indigenous peoples; political participation of indigenous peoples; problems in the prison centers; freedom of the press; domestic violence; sexual exploitation by children; abuse of authority by the police; and implementation of the criminal code.
The Nicaraguan delegation was made up of members of the General Prosecutor’s Office, the Permanent Mission of Nicaragua to the United Nations Office at Geneva and the Ministry of Foreign Affairs.
When the Committee resumes its work on Monday, 20 October at 3 p. m., it will start its review of the fifth periodic report of Spain (CCPR/C/ESP/5).
Report
According to the third periodic report of Nicaragua (CCPR/C/NIC/3), Nicaragua has a large number of workers employed on banana plantations who have been affected by the use of pesticides such as Nemagon, which causes serious health problems including cancer, genetic malformations, sterility and skin diseases. The report notes that since the exposure of workers to a banned toxic product constitutes an abuse of power by the multinational corporations concerned and a serious violation of the human rights to health, safety and life, a Special Act had been adopted by the Government of Nicaragua on 5 October 2000. This Act dealt with the processing of actions brought by persons affected by the use of pesticides manufactured from dibromochloropropane (DBCP), such as Nemagon. More than 3,000 of the persons affected began a fight to obtain fair compensation, both in the national and in the United States courts. This fight was partially successful in Nicaragua, for in December 2002 a court ordered three United States companies (Dow Chemical, Standard Fruit and Shell Oil) to pay 490 million dollars.
Concerning maternal mortality, the report notes that the 2005 maternal mortality rate was between 150 and 200 deaths per 100,000 live births. In absolute numbers according to the Ministry the rates have declined since 2003: in 2004, 40 women died, and in 2005 the figure fell to 33. However, this caused deep concern for the country’s women’s organizations. Between 25 and 30 per cent of the total number were deaths of adolescent mothers. In the Atlantic region and in the areas of most difficult access the maternal mortality rate is double the national average. One in four births occurs as a result of adolescent pregnancy, and one third of the women who die in childbirth are adolescents, even though the fertility rate in this age group has declined. The unequal access of the poorest members of the population to health care is one of the main causes of maternal and infant mortality in Nicaragua, owing both to the great distances between rural settlements and health posts and State hospitals and to the high cost of travel to them. The poor provision for basic needs such as health and food in the countryside and marginal urban zones has a serious impact on the right to life in Nicaragua: most of the deaths of women and children are due to lack of the minimum medical care and a good diet.
The report notes that since April 2006 the question of abortions has generated much controversy between the social groups for and against abortion, in terms of the conflict between the right to life of women and unborn babies. There have been marches and petitions to the National Assembly to abrogate an Article of the current Criminal Code, which allows therapeutic abortion, while other petitions sought the retention of this article in the nation’s law. The National Assembly adopted an Act abrogating the Article in question on 26 October 2006.
Introduction of the Report
IVAN LARA PALACIOS, Special Penal Prosecutor in Nicaragua’s General Prosecutor’s Office, introducing the report, expressed the delegation’s gratitude for this opportunity to present the third consolidated periodic report and the flexibility of the Committee to consider a report that was more than 15 years late. He explained that the Constitution provided basic principles that were in harmony with international instruments, including the International Covenant on Civil and Political Rights. Nicaragua had undergone enormous changes in its legal system, among them affecting the Supreme Court and the National Police.
Mr. Lara Palacios explained that in 2001, powers and functions of the Public Ministry and General Prosecutor’s Office had been separated. Before, the functions had been exercised by the same organ that represented at the same time the State and the society in general. The Public Ministry represented the public when it was victim of a crime and the General Prosecutor’s Office represented and defended the interests of the State. In that institutional reorganization the Procedural Penal Code was established to replace the inquisitive procedural system which was more than 100 years old. In 1996, an ombudsman for human rights was established for the promotion and defense of human rights with the mandate of overseeing the work of the public administration and ensuring that human rights were not violated by the State by its actions or omissions. In this regard, ombudsmen for the rights of children, indigenous peoples, disabled, ethnic minorities were established as well.
Mr. Lara Palacios underlined that the National Police had managed to hit hard on organized crime, including international drug trafficking. In this context, it had to be mentioned that the police developed preventive efforts in marginalized urban communities, which included social and recreational activities to prevent juvenile violence. A significant fact was also that Nicaragua did not have any juvenile gangs anymore and was one of the safest countries in Latin America. This was due to strong disciplinary measures that the police had undertaken on all levels toward officers that were engaging in crimes such as drug trafficking. That was why the confidence of the people in the police could be restored. With respect to the Committee’s concerns regarding police violence and abuse of authority, Mr. Lara Palacios explained that in 2007 363 such complaints had been received and 37.5 per cent had been proven. Of the 721 police officers that had been denounced, 221 had been sanctioned.
Further, on 14 February 2008 a law on equality of rights was passed. Nicaragua had since made massive efforts for raising awareness that the violation of women’s rights constituted a violation of human rights and to eliminate stereotypes that impacted on equality. Regarding domestic violence, the campaigns worked with slogans such as “Break the silence, denounce violence” or “a home cannot be made with violence, give love to your family”. For participation of women in public affairs, the target was 50 per cent. In the autonomous region of Atlantico Sur, 70 per cent of public posts were filled by women, in the national election 35 per cent and 10 per cent in the municipalities.
Mr. Lara Palacios said that Nicaragua had serious budgetary limitations that made it impossible to cover all social necessities of the Nicaraguan people. Without doubt, the Government’s first priority was to eradicate poverty and to protect social and economic rights that had been neglected during 16 years of a neo-liberal government. He highlighted various programmes by the Government with the goal to improve literacy, access to food and health services.
Mr. Lara Palacios underlined that torture was prohibited in Nicaragua and that he Government had ratified the Convention against Torture and its Optional Protocol. The new Penal Code clearly defined and penalized acts of torture and established that confessions obtained by torture were illicit. Furthermore, the Committee had earlier on expressed concerns regarding extrajudicial executions of street children that appeared to have taken place in Nicaragua. This case had been studied by extraconventional mechanisms of the United Nations that had concluded that those allegations were based on speculation.
Response by the Delegation to Questions Sent to Nicaragua in Advance
Regarding family violence and sexual violence, the Nicaraguan delegation said that it was trying to eradicate violence against women. On 11 November 2007, the new Penal Code had been adopted which defined domestic or intrafamiliar violence as a crime. In the Public Ministry a specialized unit had been created to investigate such crimes.
Concerning abortion and an assumed increase in clandestine abortion and the maternal mortality rate, the delegation said that the earlier law dated back more than 100 years and had been changed in 2006. The delegation gave further information on the causes of maternal death: in 2007, 59 per cent of maternal death cases were due to hemorrhages. This statistical data had been taken during the “epidemiological week” of the year 2007. Further, 72 percent of maternal deaths were in the rural regions, 72 per cent of the affected women had a low level of education and 21 per cent were without any schooling at all.
Concerning bad conditions in prisons, the delegation said that the budget for food and sanitation had been very low. But in situ visits had taken place to observe the situation of prisoners. Indeed, there was a great lack of potable water and food. Also, due to inadequate infrastructure the proliferation of disease was facilitated. Action had been taken to improve budgetary provisions. As to changes that would take effect in 2008, the delegation explained that instructions had been given to the national treasury to provide funding for the overhaul of pre-trial detention cells among other projects. The delegation admitted that there were huge problems in penitentiary centres in Nicaragua.
Also regarding the prison system, the delegation explained what the term “donados” meant. This term was used by the detainees themselves for detainees who did not have families that took care of them. The Government had undertaken measures to provide those persons with food and basic legal services. The Government was also working with non governmental organizations to find solutions for these persons. For 2007, statistics showed that 1,024 persons were in this condition.
Questions by the Experts
An Expert welcomed developments to constitutionally ban the death penalty. He asked how this was being implemented.
An Expert asked if there had been palpable progress that had been achieved in promoting women’s participation.
Concerning police brutality, an Expert said that there were way too many cases, as well as during so-called preventive custody. Nicaragua should pay special attention to indemnifying the victims of police brutality. In general, there was no guarantee to effective remedy. Further, there seemed to be ill-treatment towards Ombudsmen, as means to put pressure on them. Unfortunately, there had also been statements by Government officials that human rights organizations were financed by drug cartels.
Regarding trafficking and violence against women, an Expert noted that information was only given by non governmental organizations and the Government was not involved at all. Another Expert said that there were excessive delays in investigation of incidents of sexual violence. The Expert recommended that there should be more effective access for women to justice. Also, the behaviour of the police had to change, especially the attitude towards and the reception of women in police stations. She suggested that police were provided with information on women’s rights in order to minimize the re-victimization of women. Another Expert said that there must be shelters to protect women who went to the police station to make accusations regarding domestic violence, since there was a great fear of women to even launch a complaint because they were not protected at all by the State Party. The Expert asked for more information about such shelters.
Concerning violations, including torture and ill-treatment by the National Police, an Expert welcomed the fact that allegations were taken seriously, since a third of the cases were found to be positive. The delegation had said that 721 police officers had been denounced and 221 of them had been sanctions. What was the nature of the sanctions?
Regarding abortion, an Expert repeated that the Ministry of Health said that there were less cases of maternal death since 2006. She stressed that the maternal mortality rate had risen from 72 to 86 per cent per 100,000 live births which was a better way of measuring. She wanted to know whether women who had died as a result of a complication could have been treated with therapeutic abortion? Another Expert added that a number of the so-called suicides had occurred when women took in pesticides vaginally. In that context the question had to be asked whether there were no other ways for termination of pregnancy. One Expert underlined that the discussion was not about voluntary but therapeutic abortion. Since Nicaragua was a secular state, how could it reconcile this secularity with the ban on abortion? Why was it banned? Since the maternal mortality was especially high among girl with no education or a low level of education, what measures had been taken for the schooling of girls in rural and urban areas?
One Expert noted that in the area of criminal justice there had been substantial progress. But had there been measures taken to reduce the duration of pre-trail detention? Furthermore, the unusual problem of the “donados” in the prisons had to be solved. It seemed that those people were in a legal black hole. For further consideration of the prison system, statistical data referring to the number of people that were awaiting trial in Nicaraguan prisons would be useful. The figure needed to be compared to the total population of detainees.
Responses by the Delegation
Regarding the death penalty, the delegation explained that even before its accession to the second Optional Protocol, Nicaragua had had provisions banning the death penalty in the Constitution. No law could oppose the Constitution and reestablish the death penalty. Nicaragua paid special attention to this matter, also in the case of extradition to a country that had the death penalty.
Concerning equality between men and women, the delegation explained that “machismo” existed in Nicaragua among men and women. Changes in thinking had to take place and measures must be enacted gradually. Compared to previous years there were now 4 ministers out of 12 that were women. In rural areas women filled 70 per cent of the posts.
The delegation explained that in rural areas there was a low cultural level, also at the legal level. Judicial facilitators filled gaps, since legal experts were normally in cities. Many of the facilitators were women and also facilitated access to justice for women. Also, alternative dispute settlement bodies had been established to prevent judicial backlog.
With regard to the pesticide Nemagon, the delegation explained that this was a very difficult subject to deal with. People that were affected were usually poor and many cases had taken place in the United States. However, Nicaragua had been working together with the affected community. When President Ortega’s Government assumed office, the prosecutor said that affected persons should be given assistance and a constitutional committee was established. The delegation underlined that this matter was not waived or shelved and people affected by the pesticide were taken care of. If people did not have the means to seek legal assistance, the Government would provide for it, be it in domestic or and foreign courts. The Ministry of Health had given care though hospitals and had registered 1,650 cases of hospitalization because of the pesticide Nemagon. Also, out of 30,000 people, 21,000 had been given legal assistance and various organizations were involved in assisting victims. The delegation concluded that there were positive results, but they were not final.
Turning to the abuse of authority by the National Police and the legal framework, the delegation made reference to the new Criminal Code that had entered into force in May 2008. It had a chapter that dealt with the abuse of authority and the crime of torture was identified in the Criminal Code. However, to provide statistics was difficult at this time. The delegation mentioned that the Government had also tried to prevent such behaviour through courses at the Police Academy. One of them involved the study of human rights. He added that of course police officers were meant to protect the rights of people and not violate them and that therefore media attention was very high on such cases.
As to shelters for women that wanted to flee domestic violence, the delegation explained that there were no shelters that dealt with the matter. The delegation would inform about other measures later on.
With regard to abortion, the delegation repeated that a law had been passed in November 2006 which criminalized intentional abortion. It had to be clear that at no point did the law punish the doctor if the mother’s life was at risk. Nicaragua was a country of 5.6 million people and a secular state. Notwithstanding this fact the social reality needed to be taken into account, 90 per cent of the population practiced Christianity. There were no statistics yet on what percentage of maternal death could have been avoided by therapeutic abortion. Abortion in general was a thorny issue and Nicaragua was divided on the issue. The socio-cultural elements had to be taken into account and if the people of Nicaragua wanted to change the law, they could do so through political participation. It was also clear that doctors were compelled to provide assistance if women came to hospitals with problems linked to abortion. If they did not do so, they could be charged with homicide by omission.
With respect to arbitrary detention, the delegation clarified that the maximum length of a court procedure was three months if the accused was detained. If the accused was not detained, the maximum length was six months. If that time elapsed without a ruling being handed down, the person had to be set free. Before the enactment of the new Criminal Code, pre-trial detention could be indefinite but that had now changed. A person could not be detained for longer than three months, unless it was a very complicated crime such as transnational crime. In that case the maximum period of detention was 12 months.
The delegation clarified that the term “donado” referred to people who were detained and had no family who visited them. It was stressed that the donados called themselves donados. The judiciary was responsible for these cases. Of course there were problems and they had to be frank about that, however, this was not a widespread problem.
Regarding the desolate condition of the prisons, especially regarding black water and lack of potable water, the delegation said that Nicaragua was working on implementation of the recommendations of a working group that had visited those prisons. Nicaragua was for example constructing two new prisons as a measure against overcrowding. If foreigners had to be detained, their diplomatic representatives were duly notified through UNHCR or other bodies. In the absence of diplomatic representation, legal defense was provided by UNHCR.
Another Expert reiterated her question on alleged extrajudicial killings of street children.
Concerning threats against journalists, the delegation said that three complaints had been received by the Ombudsman. They had been lodged by journalists. Regarding human rights organizations, there was no reference to specific cases. If there had been cases of physical ill-treatment there were legal provisions to protect the right of all citizens. The delegation also explained that there was a provision on the right to strike. However, regulations had to be met by organizations in order to ensure that the rights of the individuals and the public were not violated.
There was no practice of extrajudicial killings. Police and armed forces were especially training with regard to the protection of children and youth. The United Nations decided in 2006 not to follow-up on these alleged crimes. There had been common crimes in which those responsible had been prosecuted. There were two cases in which two police officers were involved. As a result, it was shown that the State was not involved and the United Nations body had dropped the investigation.
Questions by Experts
An Expert asked what the dates were to solve the overcrowding in prisons. Regarding sanctions for people who committed abuse of power, an Expert asked what kind of sanctions had been handed down. What about compensation for victims of those cases?
On the issue of abortion, an Expert welcomed the attitude of the delegation and the acknowledgment of the controversy of that subject. However, the Expert had so far not seen evidence that a doctor was allowed to perform an abortion in order to save a mother’s life. His understanding was also that the law criminalized abortion with or without consent. Did the State Party allow the life of the mother to prevail over the ban on abortion?
Response by the Delegation
The Nicaraguan delegation said that children were often found abandoned by their parents and were often not acknowledged by their fathers. That was a growing problem and family courts and family judges had been installed to deal with it. The law set forth that the Ministry of Women, Children and Family was allowed to initiate administrative hearings. There was also training for civil servants, civil judges and prosecutors in that matter and projects for poor people had been started.
With regard to children’s sexual exploitation and what measures had been taken to fight it, the delegation said there had been 11 cases in 2006 and 2007 in which children had been exploited commercially, according to the Ministry of Women, Children and Family. During the same period the Public Ministry recorded 15 cases, six of which resulted in condemnations and nine of which had been dropped. The Family Ministry had registered 159 cases linked to sexual violence, 137 to prostitution, 20 to trafficking and two to child pornography.
Regarding indigenous peoples, the delegation wanted to provide information on the measures taken against the marginalization of the indigenous peoples in the region of the Atlantic Coast, the representation of indigenous peoples in the Government and the process of demarcation of communal land, in particular in connection with the ruling of the Interamerican Court in favour of the community of Awas Tingni. The new Government that had taken office in 2007 had placed special attention on the integration and participation of the indigenous populations in public and economic life through the procedures of the regional autonomy and specialized public offices on municipal, regional and national level. A Council for the Development of the Atlantic Coast had been created with the objective to promote development in the region. Also a national plan for the period of 2009 until 2012 had been developed with the aim to reduce poverty in the municipalities of the Costa Caribe. Regarding the representation in public offices, during the governments of 1997 to 2001 and 2002 to 2006, indigenous peoples were not represented at all in the executive power. Only in the last year did an indigenous woman become vice minister for external affairs. After the election of 2006, five delegates had been elected that had an indigenous background and were of African descent. Further, the Government was committed to the process of granting individual land ownership of former communally used land.
Questions by the Experts
With regard to the freedom of expression and the right to access to information, an Expert noted that it was now legally secured which was commendable. But he wanted to know more about the practical side of what was said in the Constitution itself. In 2004, a journalist of the newspaper La Prensa was murdered and the culprits had not been identified. In 2006 reporters belonging to another newspaper had been brutally attacked by the National Police while they were covering a public demonstration. What had happened with respect to these cases?
On abortion, an Expert said that the delegation often referred to the fact that the public was divided on the subject of abortion. Why then did high officials of the government publicly say that this was criminal conduct?
Concerning the right to strike, an Expert noted that it was subject to stringent constraints. Also, the fact that no legal strikes had taken place did point to a clear curtailment of that right.
With respect to children born out of wedlock or children who had not been acknowledged by their fathers, an Expert said that 31 per cent of the families in the capital were headed by women. That was a very high percentage.
Regarding the implementation of the judgment of the Inter-American Court regarding the delimitation of communal land, an Expert asked how many property titles had been granted. She welcomed that more attention was paid to the development of economic programmes. But poverty levels were still extremely high on the Atlantic Coast in comparison with the Pacific Coast. What measures had been taken in that regard? Concerning political activity and the level of involvement in the electoral process, an Expert noted that the YATAMA party had a very high level of indigenous people but she wanted to know how active this party was in the government. She had noticed that there tended to be high levels of abstentions from these parties when it came to votes.
An Expert said that he was surprised that a case had been brought to court by the Nicaraguan Association for Human Rights against a group of nine women who were accused of abetting sex molestation and engaging in abortion by supporting a young woman who had been raped several times in her early childhood already by her stepfather and had to bring a pregnancy to term at the age of 13.
Answers by the Delegation
Regarding attacks on journalists, the delegation said an Expert had mentioned two specific cases. In the first case, the offender had been identified quickly because the shot that killed the journalist was fired just a few meters away. The perpetrator was now serving a sentence in the penitentiary system. In the second case, the deed was not linked to the profession of the victims but nevertheless, the perpetrators had been convicted and were now serving their sentences.
Concerning the implementation of the Criminal Code, the delegation informed the Committee that there was a plan. With the creation of new offices within the justice system and the rearrangement of the system, training was required. This had been instituted through the judicial training schools to provide the tools to those in the judicial system. Regarding the human rights ombudsman and the conflict settlement process, the delegation said that the ombudsmen were commissioned by the National Assembly with the purpose of monitoring the implementation of international and human rights standards so that the citizens might contact the office and lodge a complaint of alleged human rights violations by State officials. The human rights ombudsman was empowered to investigate or request mandatory reports from any government official. After the investigation, he issued a finding, whether or not it had been proven that a human rights violation had occurred. The competent authorities who employed the person must then determine the sanction of this official which was ranging from reprimand to dismissal. Compliance with that recommendation would be ensured by the judicial system. As for the conflict settlement procedure, the delegation explained that the members were named by the Supreme Court and were independent. The aim was to use mediation instead of going before court.
With regard to land titles, the delegation clarified that Nicaragua had given out titles to one indigenous group. This action was not prompted by the Inter-American Court. Other groups would receive those titles pursuant to the Constitution, since there was a positive intent to bring justice to the ethnic and indigenous communities who lived on the Caribbean Coast.
Lastly, the delegation said that it would bring the concerns of the Committee about the complaint against the group of women who supported the young girl who had been hindered from terminating her pregnancy to the highest government levels in Nicaragua.
Question by an Expert and Response by the Delegation
Regarding the last election, an Expert asked why two major parties, the New Sandinista Party and the Conservative Party, had been excluded. What rules did the parties not meet this time? She added that both parties were old parties that had met rules for eligibility for 130 years.
The delegation gave a preliminary answer in explaining that Nicaragua was a rather politicized country that adopted radical and innovative decisions. Regarding new alliances that had arisen it could be observed that they seemed to be powerful but in electoral terms they did not get a significant number of votes. Also candidates dropped out at the last minute.
RAFAEL RIVAS POSADA, Chairman of the Committee, said that the Committee was mindful of the dynamic process in Nicaragua underway in recent years regarding the reform of its legal system. It was aware of the great human rights violations that had affected the Nicaraguan people earlier, and the vast range of issues addressed by the recent reform. The Committee saw as equally important how constitutional provisions were adapted to reality. One had to acknowledge that it was hard to strike a judgment on this matter and time had to pass to this end. Mr. Rivas Posada highlighted the reform of the Criminal Code, measures taken for the protection of women and the rights of minorities.
However, Mr. Rivas Posada said that there were grave concerns that should prompt Nicaragua to continue energetically to address existing problems. There appeared to have been violations of the International Covenant of Civil and Political Rights, for example the fact that there could be imprisonment for failure to comply with requirements of child support. There was no doubt that the Covenant said that in such cases imprisonment was not justified. The Committee had a mandate to draw attention to the provisions of the Covenant regarding life and health of women. It was an excessively restrictive approach to the matter to criminalize medical personnel because they terminated a pregnancy. The State Party had to address that problem and find ways to ensure women’s rights to physical integrity, health and life.
Concerning abuse of authority by the police, it was not clear what sanctions had been provided and what the results of investigations were. The fact that Nicaragua had taken so long to submit its report led to the assumption that at least some concluding remarks of the last review had lost their relevance. A more regular cooperation was needed so that the Committee could fulfill its mandate. But Nicaragua had now modernized its legal system and Mr. Rivas Posada reiterated his thanks to the Nicaraguan delegation for its presence.
For use of the information media; not an official record
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