Opinion; Subjects: NICARAGUA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.19-10889 (E) 170919 180919
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fourth session, 24 April–3 May 2019
Opinion No. 16/2019, concerning Carlos Ramón Brenes Sánchez
(Nicaragua)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council resolution 1/102, the Council assumed the mandate of
the Commission. The Council most recently extended the mandate of the Working Group
for a three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 7 November 2018 the
Working Group transmitted to the Government of Nicaragua a communication concerning
Carlos Ramón Brenes Sánchez. The Government has not replied to the communication. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards the deprivation of liberty arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights and
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV); and
(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation; or
disability or other status, and which aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2019/16
General Assembly
Distr.: General
27 June 2019
English
Original: Spanish
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Submissions
Communication from the source
4.
Carlos Ramón Brenes Sánchez is a Nicaraguan national who was born in 1955. Mr.
Brenes is a retired army general and former member of the Sandinista National Liberation
Front. He suffers from diabetes, high blood pressure and related ailments and is reportedly
currently detained at La Modelo prison.
Arrest, arraignment and detention
5.
According to the source, Mr. Brenes was arrested on 28 August 2018 at the Peñas
Blancas border crossing when he was on his way to Costa Rica for a medical check-up. The
source indicates that the circumstances of the arrest could not be clarified, as Mr. Brenes
has not been able to communicate properly with his defence counsel. His family learned of
his arrest through social media and government communications, which portrayed him as a
convicted criminal, damaging his reputation and undermining the presumption of his
innocence.
6.
The source reports that five days prior to the arrest, on 23 August 2018, the Public
Prosecution Service allegedly brought charges against Mr. Brenes. However, Mr. Brenes
was never duly notified of any charges. The source further reports that, at the time of the
arrest, Mr. Brenes was not informed of the reasons for his arrest or of the charges against
him.
7.
The source also indicates that, on the day of the arrest, 28 August 2018, at 11 a.m.,
the National Police came to Mr. Brenes’ home and conducted an extensive search of the
building without a warrant or other authorization from a judge. The purported purpose of
the raid was to search for weapons, which were not found.
8.
At 7 p.m. that same day, Mr. Brenes’ family learned that he had been taken to El
Chipote prison. According to the source, he was not given a medical examination as
required upon admission. The following day, his family took food and medicines to the
prison and handed them over to officials posted outside the facility. The officials were
given a 15-day supply of medication.
9.
On 29 August 2018, Mr. Brenes was brought before a judge in Managua for a
preliminary hearing and charged with terrorism, organized crime, obstruction of public
services and aggravated criminal damage. His lawyer, appointed at his family’s request,
was only allowed to communicate with her client in the presence of the judge and
prosecutors. The defendant and his counsel were not given the opportunity to meet prior to
the hearing to prepare a proper defence. Moreover, Mr. Brenes’ family was not allowed to
enter the courtroom or attend the arraignment hearing.
10.
The source reports that, when the family arrived at the prison to bring Mr. Brenes
food on 31 August 2018, they learned that he had been transferred to La Modelo prison. On
1 September, the family went to La Modelo and confirmed that he was being held there, in
the prison’s maximum-security unit, but were not allowed to visit him.
11.
On 3 September 2018, after a wait of more than four hours, two members of Mr.
Brenes’ family were allowed to visit him in prison for the first time. However, the source
reports that they suffered physical and psychological abuse when they were searched on
entry, and that they were photographed and videotaped during the visit. The source further
notes that, during this visit, Mr. Brenes indicated that some of the medications he needed
were not being given to him regularly and that he was being held in total isolation and
subjected to intimidation and ill-treatment by the authorities.
12.
During the visit, his family members noted a distinct difference in the treatment
afforded to prisoners held in the maximum-security unit, political prisoners like Mr. Brenes,
and ordinary prisoners. The latter enjoy longer visiting hours and more privacy and are
allowed to receive more food and other goods from their relatives.
13.
According to the source, Mr. Brenes continues to be held in isolation and is only
allowed outside once a week for one hour. He has only been allowed two family visits. Mr.
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Brenes has still not been seen by a doctor, although the charging documents claim that he
was examined. He has been denied access to his lawyer and has not been given adequate
time and facilities to prepare his defence. The intended defence witnesses have withdrawn
for fear of reprisals, having declined to give testimony after hearing about threats to other
witnesses in similar cases.
14.
The source alleges that the detention of Mr. Brenes is arbitrary because it lacks any
legal basis (category I); was a result of the exercise of his human rights (category II); and
occurred in violation of the international norms relating to the right to a fair trial and due
process (category III).
Category I
15.
The source argues that there is no legal basis for Mr. Brenes’ detention, since the
facts of the case – the reading out of a statement in which he called for respect for the law
and the application of constitutional norms – do not constitute an offence justifying a
person’s arrest under the applicable legislation.
16.
The source points out that the charges brought by the Public Prosecution Service do
not meet the requirements laid down in article 77 (5) of the Code of Criminal Procedure,
namely the need for a “clear, precise, specific and detailed account of the offence, the
suspect’s involvement therein, the possible legal classification of the offence and the
supporting evidence available at the time”. The source notes that the charge sheet does not
list the individual alleged offences, nor does it make clear how Mr. Brenes was involved in
each of them, although details of his involvement in each alleged offence should have been
presented. According to the source, the judge should not have admitted the charges, but
instead should have ordered the victim’s immediate release.
Category II
17.
The source points out that Mr. Brenes has been detained for maintaining a critical
stance vis-à-vis the Government. Since he left the Sandinista National Liberation Front in
the 1990s, Mr. Brenes has openly criticized and opposed the Government’s policies,
corruption and human rights violations.
18.
On 16 May 2018, Mr. Brenes read out a statement entitled “Justice, Democracy and
Peace” in Monimbó Plaza, in Masaya, on behalf of retired Sandinista People’s Army
officers, activists and former combatants. In the document, the signatories set forth their
position in regard to the profound crisis triggered by the peaceful popular uprising in the
country. The source stresses that, although Mr. Brenes has criticized the Government’s
policies, corruption and human rights violations, he has never participated actively in anti-
government protests.
19.
The source states that there are reasons for believing that Mr. Brenes’ detention may
be linked to an arrest warrant issued for one of his relatives, who was a member of the
Sandinista Renewal Movement and was present when the statement was read out. On the
day of Mr. Brenes’ arrest, his daughter was told by a lawyer close to the Government that
“it was your uncle they were after”.
Category III
20.
The source alleges that Mr. Brenes was never formally notified that he had been
charged with the crimes of terrorism, organized crime, obstruction of public services and
aggravated criminal damage, and that proceedings had been instituted against him for those
crimes. Hence, Mr. Brenes was not officially informed of the charges prior to his detention.
21.
Furthermore, the source notes that the judiciary and the Ministry of the Interior,
through the National Police and the prison system, have failed to respect the right to a
presumption of innocence by publicly treating and depicting Mr. Brenes as a convicted
criminal before a public oral trial had been concluded, or even started.
22.
The source further notes that Mr. Brenes’ right to a defence has been violated, since
his lawyer has not been granted access to her client to provide legal representation and
assistance. According to the source, there has also been a violation of article 26 (4) of the
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Constitution of Nicaragua, which stipulates that all persons have the right to be informed of
all information that the State authorities have compiled on them and of the reasons why
such information has been compiled. From the moment the National Police launched the
investigation, and while the investigation was ongoing, Mr. Brenes should have been
informed of the specific offences of which he was accused so that he could refute the
charges, submit evidence and prepare his defence.
Response from the Government
23.
On 7 November 2018, the Working Group transmitted the allegations set out in the
preceding paragraphs to the Government. In accordance with paragraph 15 of its methods
of work, the Working Group requested the Government to furnish all available information
on the case and the allegations within 60 days from the date of the transmittal of the
communication. In accordance with paragraph 16, if the Government desires an extension
of the time limit, it may be granted a further period of a maximum of one month in which to
reply.
24.
The deadline to respond expired on 7 January 2019, but the Working Group did not
receive a response from the Government of Nicaragua.
Discussion
25.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
26.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations
(A/HRC/19/57, para. 68). In the present matter, the Government has chosen not to
challenge the allegations made by the source.
Category I
27.
The Working Group notes that anyone who is arrested should be informed at that
time of the reasons for the arrest1 and of the possible judicial avenues for challenging the
unlawfulness of the deprivation of liberty. 2 Furthermore, all persons deprived of their
liberty should, upon apprehension, be promptly informed of their right to legal assistance
by counsel of their choice.3 The Working Group also recalls that incommunicado detention
violates individuals’ rights to have access to counsel of their choice, to be brought before a
judge promptly and to challenge the unlawfulness of their detention before a judge. The
Working Group therefore considers that incommunicado detention inherently violates
article 9 of the Universal Declaration of Human Rights and article 9 (3) of the International
Covenant on Civil and Political Rights.4
28.
The Working Group notes that, according to the information received from the
source, which was not refuted by the Government, Mr. Brenes was arrested on 28 August
2018 without being informed of the reasons for his arrest or, subsequently, of the charges
against him, although the Public Prosecution Service had reportedly brought charges
against Mr. Brenes five days before the arrest. The Working Group has received no
information from the Government indicating that Mr. Brenes was apprehended in flagrante
delicto or pursuant to a duly exhibited arrest warrant. Consequently, the Working Group
considers the detention of Mr. Brenes to be arbitrary under category I.
1 International Covenant on Civil and Political Rights, article 9 (2).
2 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), Principle 7
(Right to be informed).
3 Ibid., Principle 9 (Assistance by legal counsel and access to legal aid).
4 Opinion No. 53/2016, para. 47.
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Category II
29.
In order to determine whether the deprivation of liberty of Mr. Brenes resulted from
the exercise of the rights and freedoms guaranteed in the Universal Declaration of Human
Rights, the Working Group recalls that, in accordance with its established practice, all
persons have the right to freedom of expression, which includes the right to impart
information and ideas of all kinds, either orally or through any other media of their choice.
The Working Group further recalls that the exercise of this right may be subject to
restrictions expressly provided by law which are necessary to ensure respect for the rights
or reputation of others, or for the protection of national security, public order, or public
health or morals.5
30.
The Working Group shares the view of the Human Rights Committee that freedom
of opinion and freedom of expression are indispensable conditions for the full development
of the person and constitute the foundation stone for every free and democratic society.6
These two freedoms, as reflected in articles 18 and 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant, provide the basis for the full enjoyment of a
wide range of other human rights, such as the right to freedom of assembly and association,
and for the exercise of the right to political participation set forth in articles 20 and 21 of
the Universal Declaration of Human Rights and articles 21, 22 and 25 of the Covenant.7
31.
The Working Group recognizes the importance of the right to freedom of opinion.
No Government should infringe a person’s other human rights as a result of the opinions –
political, scientific, historical, moral or religious – expressed by or attributed to that person.
In the view of the Working Group, criminalizing the expression of an opinion is
incompatible with the Universal Declaration of Human Rights and the Covenant.
According to the Human Rights Committee, this means that the harassment, intimidation or
stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of
the opinions they may hold, constitutes a violation of the Covenant. Any form of effort to
coerce the holding or not holding of any opinion is prohibited.8
32.
The Working Group received information from the source, which was not refuted by
the Government, according to which, on 16 May 2018, Mr. Brenes read out a declaration
entitled “Justice, Democracy and Peace” in Monimbó Plaza, in Masaya, on behalf of retired
Sandinista People’s Army officers, activists and former combatants. In the document, the
signatories set forth their position vis-à-vis the profound crisis triggered by the peaceful
popular uprising in the country. Moreover, since the 1990s, Mr. Brenes has openly
maintained a critical position towards the Government in the face of allegations of
corruption and human rights violations.
33.
The Working Group therefore considers that Mr. Brenes was detained by the
Government of Nicaragua for exercising his right to freedom of opinion by expressing his
views on a situation of public interest and criticizing the Government, for example by
reading out a declaration in public. This violates articles 18 and 19 of the Universal
Declaration of Human Rights, and article 19 of the Covenant, rendering the deprivation of
liberty arbitrary under category II.
Category III
Presumption of innocence
34.
Both the Universal Declaration of Human Rights and the Covenant recognize the
right of everyone charged with a criminal offence to be presumed innocent. This right
imposes a number of obligations on State institutions, including prosecution services, to
treat persons accused of a criminal offence as innocent until they have been found guilty
beyond any reasonable doubt. In the view of the Working Group, this right carries an
5 Opinion No. 58/2017, para. 42.
6 Human Rights Committee, general comment No. 34, para. 2.
7 Ibid., para. 4.
8 Ibid., paras. 9 and 10.
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obligation for all public authorities of a country to refrain from prejudging the outcome of a
trial, e.g. by abstaining from making public statements affirming the guilt of the accused.9
35.
The Working Group has received credible information from the source, which was
not refuted by the Government, that indicates that the judiciary and the Ministry of the
Interior, through the National Police and the prison system, have failed to respect Mr.
Brenes’ right to be presumed innocent by publicly treating and depicting him as a convicted
criminal although no public oral trial has been held. The Working Group considers this to
be a violation of article 11 (1) of the Universal Declaration of Human Rights and article 14
(2) of the Covenant.
Adequate time and facilities for the preparation of a defence
36.
The Working Group recalls that all persons charged with a criminal offence have the
right to be informed promptly and in detail and in a language which they understand of the
nature and cause of the charge against them, as well as to have adequate time and facilities
for the preparation of their defence and to communicate with counsel of their own
choosing.10
37.
The Working Group shares the view of the Human Rights Committee that the right
to be informed promptly of the nature and cause of the charges brought may be met by
stating the charge either orally – if later confirmed in writing – or in writing, provided that
the information indicates both the law and the alleged general facts on which the charge is
based.11
38.
As regards the right to a defence lawyer and adequate time and facilities to prepare a
defence, the Working Group is of the view that the accused must be given adequate time
and facilities. This implies prompt access to counsel and the ability to meet with counsel in
private and to communicate in conditions that fully respect the confidentiality of their
communication, 12 adequate time to prepare the defence 13 and access to all documents,
evidence and other materials that the prosecution plans to offer in court.14
39.
The Working Group also considers that the factual and legal basis for the detention
should be disclosed to the detainee and/or his representative without delay so as to provide
adequate time to prepare the challenge. Disclosure includes a copy of the detention order,
access to and a copy of the case file, in addition to the disclosure of any material in the
possession of the authorities, or to which they may gain access, relating to the reasons for
the deprivation of liberty.15
40.
In the present case, the Working Group, on the basis of the information provided by
the source, which was not refuted by the Government of Nicaragua, notes that, on 29
August 2019, Mr. Brenes was brought before a judge in Managua for a preliminary hearing
and charged on counts of terrorism, organized crime, obstruction of public services and
aggravated criminal damage, without having been formally informed of the charges against
him. The Working Group is convinced that Mr. Brenes’ lawyer was only able to
communicate with her client in the presence of the judge and prosecutors, and that the
defendant and his counsel were not given the opportunity to meet prior to the hearing to
prepare a proper defence.
41.
In the light of the foregoing, the Working Group finds that the Government of
Nicaragua failed to ensure Mr. Brenes’ right to adequate time and facilities for the
9 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 30.
10 International Covenant on Civil and Political Rights, art. 14 (3) (a) and (b).
11 Human Rights Committee, general comment No. 32, para. 31.
12 Ibid., para. 34.
13 Ibid., para. 32.
14 Ibid., para. 33.
15 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), Guideline 5
(Right to be Informed).
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preparation of his defence and to communicate with counsel of his choosing, in violation of
the Universal Declaration of Human Rights and article 14 (3) (b) of the International
Covenant on Civil and Political Rights, as well as rules 41 and 61 of the United Nations
Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
42.
Given that Mr. Brenes was not informed of the reasons for his arrest by the
Nicaraguan government authorities at the time of his arrest, was not promptly informed of
the charges against him, was unable to communicate with counsel of his choosing from the
moment of his detention, was not able to meet with his lawyer in private and was denied
timely access to his case file and was not given adequate time to prepare his defence, the
Working Group finds that Mr. Brenes’ detention contravenes articles 9, 10 and 11 of the
Universal Declaration of Human Rights and articles 9 and 14 of the Covenant, rendering it
arbitrary under category III of the Group’s methods of work.
43.
The Working Group notes that since the start of the protests in April 2018, special
procedures mandate holders of the Human Rights Council have sent at least five separate
communications to the Government of Nicaragua expressing concern about numerous
allegations of human rights violations, including excessive use of force during peaceful
public demonstrations, resulting in death, detention and damage to the integrity of persons
and violations of the right to freedom of expression and association. One of the
communications, for example, cites the collective detention of 40 persons on their way to a
peaceful public protest. The communications have also mentioned smear and public
stigmatization campaigns conducted by State officials and authorities against human rights
defenders and political opponents or critics of the Government.16
44.
In the light of the information received about Mr. Brenes’ health status, the supply
of medicines and his alleged ill-treatment while in detention, the Working Group, in
accordance with paragraph 33 (a) of its methods of work, refers the present case to the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment and the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
45.
Lastly, in order for the Working Group to establish a direct dialogue with the
authorities in the country, including government authorities, and with representatives of
civil society and detainees, with the aim of gaining a better understanding of the situation of
deprivation of liberty in the country and the reasons why arbitrary detention occurs, the
Working Group suggests that the Government should consider inviting the Working Group
to conduct a country visit.
Disposition
46.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Carlos Ramón Brenes Sánchez contravenes articles 9,
10, 11, 18 and 19 of the Universal Declaration of Human Rights and articles 9, 11,
14 and 19 of the International Covenant on Civil and Political Rights, and is
arbitrary under categories I, II and III.
47.
The Working Group requests the Government of Nicaragua to take the steps
necessary to remedy the situation of Mr. Brenes without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights.
48.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Brenes immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
49.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
16 See communications NIC 1/2018, NIC 3/2018, NIC 4/2018, NIC 5/2018 and NIC 1/2019, available
at: https://spcommreports.ohchr.org/.
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Brenes and to take appropriate measures against those responsible for the violation of his
rights.
50.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment and the Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health, for
appropriate action.
51.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
52.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Brenes has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Brenes;
(c)
Whether an investigation has been conducted into the violation of Mr.
Brenes’ rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Nicaragua with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
53.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
54.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of the transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such
action would enable the Working Group to inform the Human Rights Council of progress
made in implementing its recommendations, as well as any failure to take action.
55.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.
[Adopted on 29 April 2019]