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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-seventh session, 27 April–1 May 2020

Opinion No. 21/2020 concerning 16 persons (Nicaragua)

1.

The Working Group on Arbitrary Detention was established by the Commission on

Human Rights in its resolution 1991/42. 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 decision 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 42/22.

2.

In accordance with its methods of work (A/HRC/38/36), on 16 December 2019 the

Working Group transmitted to the Government of Nicaragua a communication concerning

Amaya Eva Coppens Zamora, Atahualpa Yupanqui Quintero Morán, Derlis Francisco

Hernández Flores, Hansel Amaru Quintero Gómez, Ivannia del Carmen Álvarez Martínez,

Jesús Adolfo Tefel Amador, Jordán Irene Lanzas Herrera, José Dolores Medina Cabrera

Cabrera, María Margarita Hurtado Chamorro, Marvin Samir López Ñamendiz, Melvin

Antonio Peralta Centeno, Neyma Elizabeth Hernández Ruiz, Olga Sabrina Valle López,

Roberto Andrés Buchting Miranda, Wendy Rebeca Juárez Avilés and Wilfredo Alejandro

Brenes Domínguez. 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 deprivation of liberty as 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 or

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, established 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);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

United Nations

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General Assembly

Distr.: General

3 July 2020

English

Original: Spanish

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or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

Submissions

Communication from the source

4.

Amaya Eva Coppens Zamora is a national of Nicaragua and Belgium, born on 31

October 1994. She is a medical student and a feminist activist and is involved in the student

movement as a member of the Coordinadora Universitaria por la Democracia y la Justicia

(Coalition of Universities for Democracy and Justice) and the Articulación de Movimientos

Sociales de Nicaragua (Organization of Social Movements of Nicaragua). She was arbitrarily

detained on 10 September 2018 for her involvement in anti-government protests and released

on 11 June 2019 under an amnesty law.1

5.

Atahualpa Yupanqui Quintero Morán is a Nicaraguan national, born on 17 November

1992. She is a graphic designer, activist and member of the Organization of Social

Movements of Nicaragua. She is co-founder of the digital media site “Política Hora Cero”,

on which she has spoken out against the Government’s policies.

6.

Derlis Francisco Hernández Flores is a Nicaraguan national, born on 21 December

1987. He is a graphic designer, human rights activist and member of the Unidad Nacional

Azul y Blanco (Blue and White National Unity). He has been actively involved in anti-

government protests since April 2018.

7.

Hansel Amaru Quintero Gómez, is a Nicaraguan national, born on 29 August 1989.

He is an industrial engineer and a member of the Organization of Social Movements of

Nicaragua. He has protested actively against government policy and repression since April

2018.

8.

Ivannia del Carmen Álvarez Martínez is a Nicaraguan national, born on 16 June 1982.

She has a degree in psychology and is a human rights defender. She is a member of the

political council of the Blue and White National Unity and the Organization of Social

Movements. Since April 2018 she has been actively involved in anti-government protests.

9.

Jesús Adolfo Tefel Amador is a Nicaraguan national, born on 6 May 1986. He is an

industrial engineer and a member of the Alianza Cívica por la Justicia y la Democracia (Civic

Alliance for Justice and Democracy) and the political council of the Blue and White National

Unity. Since April 2018 he has been actively involved in anti-government protests.

10.

Jordán Irene Lanzas Herrera is a Nicaraguan national, born on 13 July 1997, and

works roasting chickens.

11.

José Dolores Medina Cabrera Cabrera is a Nicaraguan national, born on 14 August

1992. He is a publicist and co-founder of the digital media site “Política Hora Cero”, on

which he has spoken out against the Government’s policies.

12.

María Margarita Hurtado Chamorro is a Nicaraguan national, born on 1 October 1980.

She works in marketing and advertising, is a human rights defender and was a member of the

Movimiento de Acción Estudiantil (Student Action Movement). She is a contributor to El

Nuevo Diario and has actively participated in anti-government protests since April 2018.

13.

Marvin Samir López Ñamendiz is a Nicaraguan national, born on 15 November 1994,

and works as a bricklayer’s assistant.

14.

Melvin Antonio Peralta Centeno is a Nicaraguan national, born on 25 November 1986.

He is a law student and a member of the Movimiento Mi Nicaragua Libre (My Free Nicaragua

Movement) and the Blue and White National Unity and has been actively involved in anti-

government protests since April 2018.

15.

Neyma Elizabeth Hernández Ruiz is a Nicaraguan national, born on 6 March 1994.

She is an activist and a member of the Organization of Social Movements and the Blue and

White National Unity. Since April 2018 she has been actively involved in anti-government

protests.

1 Opinion No. 43/2019.

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16.

Olga Sabrina Valle López is a Nicaraguan national, born on 4 January 1991. She is an

industrial engineer, a feminist activist, a member of the Organization of Social Movements

of Nicaragua and a human rights defender and has actively participated in anti-government

protests.

17.

Roberto Andrés Buchting Miranda is a Nicaraguan national, born on 25 January 1988.

He is a student of economics and a member of the Coalition of Universities for Democracy

and Justice and the Organization of Social Movements. He has protested actively against

government policy and repression since April 2018.

18.

Wendy Rebeca Juárez Avilés is a Nicaraguan national, born on 21 October 1991. She

has a degree in business administration and is co-founder of the student organization Fuerza

Estudiantil Nicaragüense (Nicaraguan Student Force) and a member of the Construimos

Nicaragua (Let’s Build Nicaragua) political platform. Since April 2018 she has been actively

involved in the protests and has spoken out against government policy.

19.

Wilfredo Alejandro Brenes Domínguez is a Nicaraguan national, born on 3 February

1979, and is a businessman.

20.

The source reports that, on the morning of 14 November 2019, 10 mothers of political

prisoners began a hunger strike at the church of San Miguel Arcángel, in the city of Masaya,

demanding the release of their family members. In response, members of the Special

Operations Department of the National Police surrounded the church, preventing others from

entering or leaving. Immediately thereafter, the mayoral authorities of Masaya cut off the

church’s water and electricity supply, affecting those who were still in the church.

21.

It is reported that that night, young members of the Blue and White National Unity,

accompanied by other social leaders and people from the city of Masaya, showed up in front

of the church with bottles of water and medicine that they wanted to give to the hunger

strikers. The police who cordoned off the area denied them permission to do so and ordered

them to leave. However, some of the young people managed to get several bottles of water

through the church gates.

22.

According to the information received, after having handed over the bottles of water

and medicines to the striking mothers and leaving the church, as they were driving through

the city of Masaya in a convoy of four vehicles, the young people were intercepted and

arrested by the police.

23.

The source notes that, of the 16 persons arrested, two – Ms. Coppens Zamora and Mr.

Brenes Domínguez – had already been prosecuted for acts that took place in the context of

the April 2018 protests and had subsequently been released. Ms. Coppens Zamora was

charged on 18 September 2018 with the crimes of terrorism, kidnapping, illegal possession

of firearms and others. At that time the judge admitted the charges and ordered her pretrial

detention. She was subsequently released on 11 June 2019, under an amnesty law, after being

held in prison for almost nine months without trial. Mr. Brenes Domínguez was arrested on

4 January 2019 and was held in prison for more than four months without being charged

before a judge. He was released on 20 May 2019, but was summoned to the police station on

12 August for questioning in connection with the explosion of a handmade explosive device;

he claimed to have had nothing to do with the explosion, but was arrested on 22 August 2019

and released two days later.

24.

The source adds that 13 of the young detainees are members of the Blue and White

National Unity, a coalition of civil society movements and organizations, activists, human

rights defenders, students and organized citizens that is calling for democratic change in the

country. In addition to this group, Mr. Brenes Domínguez, Mr. Lanzas Herrera and Mr. López

Ñamendiz were also arrested. They are young people from the city of Masaya who arrived at

the San Miguel church on their own, but, according to the charge sheet, were travelling with

the 13 others at the time of their arrest.

25.

According to the information received, several of the persons were beaten by the

police during their arrest. Upon arrival at the police station in Masaya, Ms. Coppens Zamora

was severely beaten by an officer, leaving bruises on both arms and her right side. In addition,

she had abrasions on her wrists from the extremely tight handcuffs. Given this situation, at

the preliminary hearing, her legal counsel requested a forensic medical assessment. The judge

agreed and sent an official request to the Institute of Forensic Medicine.

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26.

It is also reported that Ms. Valle López was severely beaten on her right arm by the

police during her transfer from Masaya to Managua and was injured on her wrists by the

handcuffs. Mr. Peralta Centeno was beaten by a riot police officer as he was being loaded

into the police van. In addition, at the time of the transfer, Ms. Hurtado Chamorro was hit in

the mouth by the police. Mr. Lanzas Herrera and Mr. Brenes Domínguez received blows to

their arms. The source alleges that this shows a violation of the principle of proportionality

and an excessive use of police force.

27.

On 17 November 2019, the Assistant Public Prosecutor of Managua filed charges and

requested the opening of proceedings against the 16 detainees for the crimes of illicit arms

trafficking to the detriment of public security.

28.

On 18 November 2019, the second-in-command of the National Police’s Department

of Judicial Assistance presented the 16 detained persons at a press conference, all dressed in

the blue uniform worn in Nicaraguan prisons. The police described them as members of a

criminal gang who were planning an attack on public buildings and said that they had

hijacked three cars and a van in which weapons and explosives were found. The police

emphasized that Ms. Coppens Zamora and Mr. Brenes Domínguez had criminal records for

terrorism and other serious crimes.

29.

On the same day, 18 November, the preliminary hearing was held in the Fifth District

Criminal Court of the Managua District. The 16 arrested individuals were formally charged

with the crime of illicit arms trafficking. At the hearing, the defence lawyers argued for

exceptions to the judge’s competence, since the competent judge was the one in the place

where the events had taken place – in Masaya – and not in Managua. They also pointed out

that the arrests were arbitrary, as the police officers had not shown any warrants and the

individuals had not been caught in flagrante delicto. It was also alleged that the individuals

had not been brought before the competent judge within 48 hours of their arrest, in violation

of their constitutional rights. In this regard, the judge decided not to admit the defence’s

arguments. In addition, the defence lawyers requested that the detainees’ relatives be allowed

to enter the courtroom; this request was also denied. At the request of the defence,

arrangements were made for the lawyers to visit their clients in El Nuevo Chipote detention

centre. However, the defence lawyers were not allowed to visit their clients in the police

detention centre.

30.

At the time the complaint was filed, the source reported that the 16 individuals were

being held in El Nuevo Chipote detention centre. Ms. Coppens Zamora and Mr. Brenes

Domínguez were in punishment cells for the first days of their detention; the former was

transferred to a group cell on 18 November, after the preliminary hearing, while the latter

was transferred to a group cell on 19 November.

31.

The cell in which Ms. Coppens Zamora was held had no sunlight or ventilation. The

cell had two concrete bunk beds with cloth mattresses. Both mattresses were mouldy, which

provoked an asthma attack on the night of 15 November, resulting in her being rushed to one

of the prison’s medical posts. In the cell, there was a basin with water for bathing, which was

filled through a tap that flowed directly into the basin, but the tap could only be opened from

the outside of the cell, which meant she had no control over when the tap was opened or

closed. When Ms. Coppens Zamora was placed in the punishment cell, she was not provided

with water, nor was she provided with any throughout the following day.

32.

Additionally, Mr. Peralta Centeno and Mr. Hernández Flores were taken out of their

cells during the night for several hours and were questioned about who they had met with,

what they had done and what barricades they had participated in, among other things.

33.

The source reports that several of the detainees have health conditions that require

specialized care. Ms. Coppens Zamora has hypertension and asthma. On the night of 15

November, her health deteriorated because the guards did not give her the blood pressure

pills her parents had brought her that morning. Mr. Hernández Flores has hypertension, Mr.

Medina Cabrera Cabrera has anxiety problems and Ms. Hernández Ruiz has hyperthyroidism

and heart problems and was recently hospitalized for facial paralysis. Ms. Juárez Avilés

vomited blood in court on 18 November during the preliminary hearing and was treated by

the doctor at the judicial complex who suggested that she should be referred to a hospital as

a matter of urgency; her family and lawyers learned that she had been taken to the Carlos

Roberto Huembes police hospital. However, the families of all the detainees still do not know

the details of their detained relatives’ state of health.

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34.

The source alleges that the detention of the 16 persons is arbitrary under category I. It

claims that the police never showed an arrest warrant or stated that the arrests were made on

the grounds of flagrante delicto; in addition, at the time of the arrest, the police beat up several

of the individuals in question. None of the 16 individuals were informed of the reasons for

their arrest, of the judicial channels for challenging the legality of the deprivation of their

liberty, or of their right to have access to a lawyer of their choice. This conduct by the

authorities amounts to a violation of article 9 (2) of the Covenant and principles 7 and 9 of

the United Nations Basic Principles and Guidelines on Remedies and Procedures on the

Rights of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court. It is also

argued that it contravenes the Constitution of Nicaragua itself, article 33 (1) of which

establishes that: “detention may only be carried out by written order of the competent judge

or of the authorities expressly empowered by law, except in cases of flagrante delicto”.

35.

It is claimed that none of the 16 persons arrested was brought before a judge promptly

and within the time limit, i.e. within the 48 hours provided for in the Constitution. In view of

this delay, on 17 November 2019, the lawyers filed an appeal with the Office for the

Reception and Distribution of Cases and Documents. On the same day, the Prosecutor’s

Office filed charges of illicit arms trafficking and requested pretrial detention. The source

alleges that the police officers acted in the absence of judicial oversight, which amounts to a

violation of principle 16 (1) of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.

36.

The source recalls that judicial oversight of detention is a fundamental safeguard of

personal liberty and is necessary in ensuring the legality of detention. The absence of judicial

oversight constitutes a violation of the right to be promptly brought before a judicial authority

and to challenge the legality of the detention before a judge. In this regard, incommunicado

detention is a violation of article 9 (4) of the Covenant, in addition to the right to an effective

remedy under article 2 (3) of the Covenant and article 8 of the Universal Declaration of

Human Rights.

37.

According to the information received, the 16 persons arrested were charged with

illicit arms trafficking to the detriment of the public security of the Nicaraguan population

and were automatically placed in pretrial detention, as a result of the legal requirement arising

from Act No. 952, which amended article 565 of the Criminal Code, indicating that cases of

illicit arms trafficking must be subject to pretrial detention. Article 44 of Act 745 on

Enforcement, Privileges and Judicial Oversight of Criminal Sanctions establishes the same.

The source considers it important to point out that this type of serious crime carries automatic

pretrial detention, which is used in Nicaragua to punish human rights defenders, journalists

and all those who speak out against the Government, for exercising their rights to freedom of

expression and peaceful assembly.

38.

The source recalls that automatically ordering pretrial detention, without a case-by-

case examination of its necessity, is contrary to article 9 (3) of the Covenant and demonstrates

the lack of a legal basis for the detention.

39.

The source is of the view that the detention of the 16 individuals is also arbitrary under

category II. It points out that, at the time of the arrest, they were bringing water to a group of

mothers of political prisoners who were in a church in Masaya. The arrest was made by the

same group of police officers who besieged the church, preventing anyone from entering or

leaving, while electricity and water had been cut off.

40.

The 16 individuals have taken a critical public stance against the actions of the

Government and have taken an active stand in denouncing the alleged serious human rights

violations that have been committed in the country since April 2018. The source indicates

that, prior to these arrests, some had already been victims of harassment, persecution and

even detention on various occasions, as in the case of Ms. Coppens Zamora and Mr. Brenes

Domínguez.

41.

The source is of the view that the detention of these individuals is related to their

exercise of their freedom of opinion and expression and their critical stand against the current

Government. The authorities violated the right of the 16 detainees to freedom of opinion and

expression as enshrined in articles 19 of the Universal Declaration of Human Rights and the

Covenant. Freedom of expression is an indispensable requirement for the full development

of the person and constitutes the foundation stone for every free and democratic society. It is

also the basis for the enjoyment of other human rights, such as freedoms of assembly and

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association and the exercise of the right to political participation, as set forth in articles 20

and 21 of the Universal Declaration of Human Rights and articles 21, 22 and 25 of the

Covenant.

42.

In addition, it is alleged that the detention is arbitrary under category III. The source

claims that the 16 individuals are being held in the police detention centre known as El Nuevo

Chipote, in conditions that endanger their physical and psychological integrity.

43.

Ms. Coppens Zamora and Mr. Brenes Domínguez were held in isolation in

punishment cells for the first few days of their detention. The source argues that this

incommunicado detention regime violated their right to challenge the legality of the detention

before a court, as provided for in article 9 (4) of the Covenant. This continued treatment

violates the right to contact with the outside world, as set out in rules 43 (3) and 58 of the

United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela

Rules) and principles 15, 19 and 20 of the Body of Principles.

44.

In addition, the source adds that police officers took Mr. Peralta Centeno and Mr.

Hernández Flores out of their cells and interrogated them for long periods of time in the

middle of the night. It is recalled that statements obtained under torture or other cruel,

inhuman or degrading treatment may not be invoked as evidence in any proceedings except

those investigating allegations of torture and/or ill-treatment. This reaffirms the State party’s

obligation as a signatory to the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment and reaffirms articles 7 and 14 of the Covenant and the

Human Rights Committee’s general comment No. 32 (2007) on the right to equality before

courts and tribunals and to a fair trial.

45.

The source claims that some of the 16 persons detained have bruises from having been

beaten by the police at the time of their arrest and/or have medical prescriptions that require

special attention, which is not being provided by the prison authorities. Mr. Hernández Flores

has hypertension, Mr. Medina Cabrera Cabrera has anxiety problems, and Ms. Hernández

Ruiz has hyperthyroidism and heart problems and was hospitalized a month ago due to

problems with facial paralysis. Ms. Coppens Zamora also has hypertension and asthma.

46.

These conditions of detention are alleged to be in violation of principles 6 and 33 of

the Body of Principles, article 7 of the Covenant, and articles 2, 11 and 12 of the Convention

against Torture, among others. Treatment and conditions of detention must guarantee the

right of every person to a fair and impartial trial, including the presumption of innocence. It

is argued that persons subjected to cruel, inhuman or degrading treatment during their

detention and trial do not have the means and tools necessary to prepare their judicial defence

and such treatment makes a fair trial with due process impossible.

47.

The source emphasizes that none of the 16 persons deprived of their liberty were

informed by the authorities of the reasons for their arrest or promptly informed of the charges

against them, and they were not able to contact a lawyer they trusted from the moment of

their arrest. They were also not guaranteed private communication with their lawyer and were

not allowed to see their criminal case files in a timely manner. It was not until minutes before

the preliminary hearing took place that the detainees were allowed to speak to their defence

counsels. It is claimed that this prevented them from preparing their defence, in clear

violation of articles 10 and 11 (1) of the Universal Declaration of Human Rights and article

14 (3) (b) of the Covenant. Similarly, it is alleged that principle 9 of the Body of Principles,

which provides that persons deprived of their liberty shall have the right to legal assistance

by counsel of their choice, at any time during their detention, including immediately after the

moment of apprehension, was not respected.

48.

The source reports that the authorities arrested the 16 persons and placed them in

pretrial detention on the basis of the legal imposition of article 1 of Act No. 952, amending

article 565 of the Criminal Code, which stipulates that cases of illicit arms trafficking must

be subject to pretrial detention; article 44 of Act No. 745 establishes the same. The source

argues, however, that ordering the measure of pretrial detention without an individual

analysis justifying such a need constitutes premature punishment that violates the principle

of presumption of innocence, enshrined in article 11 of the Universal Declaration of Human

Rights, article 14 (2) of the Covenant and principle 36 (1) of the Body of Principles. The

source stresses that pretrial detention is a precautionary measure that should only be used to

ensure that criminal proceedings are carried out, but it cannot be ordered at the beginning of

the trial, when the guilt of the accused has not yet been established. The exceptional nature

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of pretrial detention requires an individual case-by-case analysis of the necessity and

proportionality of the deprivation of personal liberty. Thus, even where pretrial detention is

automatically provided for by law, it must also be in conformity with international law.

49.

On 18 November 2019, the National Police convened a press conference at which it

presented the 16 individuals, all wearing blue uniforms, to the media and publicly accused

them of being a criminal gang with plans to carry out attacks on public buildings. In addition,

it was mentioned that at the time of their arrest, firearms were found in their vehicles. The

police referred specifically to Ms. Coppens Zamora and Mr. Brenes Domínguez, stating that

they already had criminal records for terrorism and other serious crimes. The source considers

that it is important to remember that these statements were made on the same day that the 16

arrested persons were brought before a judge for the first time.

50.

The source indicates that the right to the presumption of innocence obliges State

institutions to treat the accused as innocent until a conviction is passed, which means

refraining from making public statements ascribing guilt. However, it is claimed that the

police authorities made public statements on the criminal responsibility of the 16 persons

arrested, even before the preliminary hearing had taken place; in other words, when it was

not even certain that the judge would admit the Public Prosecutor’s Office’s charges and

order their pretrial detention. The 16 individuals were portrayed as criminals through the

government media, as if they had already been convicted, which is why the source alleges a

violation of article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of

the Covenant.

Government reply

51.

The Working Group transmitted the information contained in the communication sent

by the source to the Government on 16 December 2019, requesting it to provide detailed

information on the case by 14 February 2020. The Working Group regrets that it did not

receive a timely response to the communication from the Government. In the absence of a

response from the Government to the communication submitted by the source, the Working

Group has decided to render the present opinion, in conformity with paragraph 15 of its

methods of work.

Deliberations

52.

The Working Group notes that the 16 individuals were released on 30 December 2019,

under the family cohabitation regime, with severe restrictions on their freedom of movement.

Under paragraph 17 (a) of its methods of work, the Working Group may render an opinion

notwithstanding the release of the persons concerned. The detainees were allegedly subjected

to serious violations of their human rights. Furthermore, the release was ordered unilaterally

by decision of the organs of the executive branch, before the judgment of the court of first

instance had been handed down, and without the endorsement of the court trying the case;

the judicial proceedings are still in progress, which could lead to a subsequent prison

sentence. The Working Group therefore considers it important to render an opinion on the

present case.

53.

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, then the burden of proof should

be understood to rest upon the Government if it wishes to refute the allegations.2 In the

present case, the Government has chosen not to challenge the prima facie credible allegations

made by the source.

Category I

54.

The Working Group received information from the source, which was not

contradicted by the Government, that on the morning of 14 November 2019, 10 mothers went

on hunger strike at the San Miguel Arcángel church in the city of Masaya to demand the

release of their family members, who were in prison for political reasons and that, in

2 A/HRC/19/57, para. 68.

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response, members of the police surrounded the building to prevent anyone from entering or

leaving. At the same time, the authorities cut off the church’s water and electricity supply.

55.

The Working Group has been convinced that, despite the police siege, a group of

young people who support democratic change in the country, human rights defenders, social

leaders and inhabitants of the city of Masaya expressed their support for and solidarity with

the mothers on hunger strike by providing bottles of water and medicine.

56.

In this context, Amaya Eva Coppens Zamora, Atahualpa Yupanqui Quintero Morán,

Derlis Francisco Hernández Flores, Hansel Amaru Quintero Gómez, Ivannia del Carmen

Álvarez Martínez, Jesús Adolfo Tefel Amador, Jordán Irene Lanzas Herrera, José Dolores

Medina Cabrera Cabrera, María Margarita Hurtado Chamorro, Marvin Samir López

Ñamendiz, Melvin Antonio Peralta Centeno, Neyma Elizabeth Hernández Ruiz, Olga

Sabrina Valle López, Roberto Andrés Buchting Miranda, Wendy Rebeca Juárez Avilés and

Wilfredo Alejandro Brenes Domínguez were arrested by the police while they were driving

in a convoy of four vehicles after participating in the expressions of support for the mothers

of the political prisoners.

57.

The Working Group has stated that persons who are arrested must not only be

informed, at the time of arrest, of the reasons for their arrest,3 but also of the judicial avenue

for challenging the lawfulness of the deprivation of their liberty.4 The reasons given for the

arrest must include not only the general legal basis of the arrest but also factual specifics

indicating the substance of the complaint and the wrongful act committed. These reasons are

understood to be the official basis for the arrest, not the subjective motivations of the arresting

officer.5 The Working Group considers that in order for a deprivation of liberty to have a

legal basis, it is not sufficient simply for there to be a law pursuant to which an arrest can be

made. The authorities must invoke that legal basis and apply it to the circumstances of the

case through a judicial order.6

58.

In addition, the Working Group considers that persons deprived of their liberty are

entitled to be informed by the authorities, at the time of their arrest, of their right to be assisted

by a lawyer of their own choosing.7 Persons deprived of their liberty also have the right to be

informed promptly of the charges against them.8

59.

In this regard, the Working Group has been convinced that, at the time of the arrest,

the police officers did not inform the individuals of the reasons for their arrest and did not

show arrest warrants. In addition, the Working Group notes that the 16 individuals were doing

charitable work, providing solidarity and assistance by giving water to the mothers who were

demonstrating, so this could hardly be considered a violent action or one that incited violence.

The 16 individuals were not arrested for committing a crime in flagrante delicto.

60.

Similarly, the Working Group received convincing information that the 16 individuals

were brought before a judge after the 48-hour period required by law. The Working Group

notes that it was not until 17 November 2019 that the Assistant Prosecutor of Managua

brought charges and requested the opening of proceedings against the 16 detainees, without

the Government having submitted any information on the criminal conduct allegedly

attributed to them, or any evidence to support it.

61.

The Working Group also received convincing information about the application of

automatic pretrial detention against the 16 persons arrested in the present case on charges of

carrying weapons.

62.

The Working Group recalls that, in its opinion No. 1/2018, it examined this matter in

detail and concluded that mandatory pretrial detention is in violation of article 9 (3) of the

International Covenant on Civil and Political Rights, which stipulates that detention pending

3 Covenant, art. 9 (2).

4 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), principle 7. Right to

be informed.

5 Ibid.

6 Opinions No. 46/2019, No. 33/2019, No. 14/2019, No. 9/2019, No. 53/2018, No. 46/2018, No.

36/2018, No. 10/2018 and No. 38/2013.

7 A/HRC/30/37, principle 9. Assistance by legal counsel and access to legal aid.

8 Covenant, art. 9 (2).

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trial should be the exception rather than the rule and must be based on an individualized

determination that it is reasonable and necessary.9

63.

The Working Group considers that automatic pretrial detention for specified offences

deprives detainees of their right to seek alternatives to detention, such as bail, and violates

the right to be presumed innocent under article 11 (1) of the Universal Declaration of Human

Rights and article 14 (2) of the Covenant. The imposition of pretrial detention for specified

offences reverses the presumption of innocence, as persons accused of those offences are

automatically detained, without there being a balanced consideration of alternatives to

detention. The Working Group wishes to emphasize that international standards, in particular

article 9 (3) of the Covenant, do not preclude the imposition of pretrial detention in certain

circumstances. However, they do stipulate that such detention may be ordered only once a

judicial authority has carried out an individualized assessment of the case.

64.

The Working Group considers that automatically ordering the pretrial detention of the

16 individuals, without a case-by-case examination of its necessity, is contrary to article 9

(3) and (4) of the Covenant and demonstrates the lack of a legal basis for the detention.

65.

In the light of the above, the Working Group is of the opinion that the detention of the

16 individuals by the authorities was arbitrary under category I.

Category II

66.

The Working Group emphasizes that, under article 19 of the Universal Declaration of

Human Rights and article 19 of the Covenant, everyone has the right to freedom of

expression, which includes the right to impart information and ideas of all kinds, whether

orally or in any other form. The exercise of this right may be subject only to such restrictions

as are expressly established by law and necessary to ensure respect for the rights or

reputations of others, or to protect national security, public order, or public health or morals.10

67.

The Working Group is of the view 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.11 They form a basis for the full

enjoyment of a wide range of other human rights, such as the right to political participation,

as set forth in article 21 of the Universal Declaration of Human Rights and article 25 of the

Covenant.12

68.

The importance of freedom of expression is such that no Government may infringe

other human rights on the basis of a person’s actual or perceived opinions, whether of a

political, scientific, historical, moral, religious or any other nature. Consequently,

categorizing the peaceful expression of an opinion as an offence is not compatible with the

Universal Declaration of Human Rights or the Covenant, and nor is it permissible for persons

to be harassed, intimidated or stigmatized, arrested, detained, tried or imprisoned, on account

of their opinions or the expression thereof.13

69.

In the present case, the Working Group is convinced that the 16 individuals were

arrested after they brought water to a group of mothers of political prisoners who were in the

San Miguel Arcángel church in Masaya, and that the arrest was made by the police officers

who had set up a blockade to prevent anyone from entering or leaving the church. The act

that led to the arrest of the 16 individuals was their support of a peaceful demonstration,

which called for the release of a group of people who were allegedly being deprived of their

liberty for political reasons. In this regard, the Working Group considers that such activity

amounts to the exercise of the right to freedom of opinion, expression and political

participation, as well as the defence and promotion of the right to personal liberty, which are

protected by the Universal Declaration of Human Rights and the Covenant.

9 Opinions No. 64/2019, No. 53/2018, No. 16/2018, No. 1/2018, No. 24/2015 and No. 57/2014;

A/HRC/19/57, paras. 48 to 58 and Human Rights Committee, general comment No. 35 (2014) on

liberty and security of person, para. 38.

10 Opinion No. 58/2017, para. 42.

11 General comment No. 34 (2011) on freedoms of opinion and expression, para. 2.

12 Ibid., para. 4.

13 Ibid., para. 9.

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70.

Similarly, the Working Group is aware that the detained individuals have campaigned

for democratic change and the defence of human rights and that they are critical of the

Government. Furthermore, the Working Group recalls that 2 of the 16 persons detained (Ms.

Coppens Zamora and Mr. Brenes Domínguez) had already been arbitrarily deprived of their

liberty for incidents that occurred in the context of the April 2018 protests, as acknowledged

in opinion No. 43/2019.

71.

In the present case, the Working Group is convinced that the detention of the 16

persons was a consequence of the exercise of their freedom of opinion and expression, as

well as of their critical stance towards the Government, through support for the mothers who

went on hunger strike to demand the release of their imprisoned family members.14

72.

Therefore, the Working Group considers that the detention of the 16 individuals, after

they had exercised their freedom of opinion and expression, as well as their right to

participate in public affairs, by supporting the cause of the striking mothers, is contrary to

articles 19 and 21 of the Universal Declaration of Human Rights and articles 19 and 25 of

the Covenant, which makes it arbitrary under category II.

Category III

73.

In the light of the findings made in relation to category II, in which it concluded that

the detention results from the exercise of the rights to freedom of opinion and expression, the

Working Group considers the pretrial detention and the trial to be disproportionate and

unjustified. However, since criminal proceedings were initiated, and in view of the claims

made by the source and the lack of response from the Government, the Working Group will

proceed to analyse whether, in the course of the judicial proceedings, the fundamental

components of a fair, independent and impartial trial were respected.

74.

As stated above, the Working Group is convinced that during the arrest of the 16

persons, the rights to be immediately informed of the reasons for the arrest, to be brought

promptly before a judge, to have access to a court to verify the lawfulness of the detention

and not to be subjected to automatic pretrial detention were not respected, in contravention

of article 9 of the Covenant.

75.

Article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the

Covenant recognize the right of all persons charged with a criminal offence to be presumed

innocent. This right imposes a number of obligations on all State institutions to treat persons

accused of a criminal offence as innocent until they have been found guilty.

76.

In the view of the Working Group, as well as that of the Human Rights Committee,

this right carries an obligation for all authorities, including the executive branch, to refrain

from prejudging the outcome of a trial, which means abstaining from making public

statements affirming the guilt of the accused.15

77.

The Inter-American Court of Human Rights has stated that:

The right to be presumed innocent requires that the State refrain from informally

convicting a person or making public declarations regarding his or her guilt, thereby

shaping public opinion, so long as the person’s guilt has not been proven according to

law. This right can be violated by the judges in charge of the proceedings or indeed

by other public authorities, who therefore have a duty to exercise discretion and

caution when making public statements regarding criminal proceedings before the

person has been tried and a judgment has been made.16

14 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote

and Protect Universally Recognized Human Rights and Fundamental Freedoms (General Assembly

resolution 53/144).

15 General comment No. 32 (2007) of the Human Rights Committee on the right to equality before

courts and tribunals and to a fair trial, para. 30. See also Kozulina v. Belarus

(CCPR/C/112/D/1773/2008), para. 9.8.

16 Inter-American Court of Human Rights, Pollo Rivera et al. v. Peru, para. 177. See also Tibi v.

Ecuador, para. 182; J. v. Peru, paras. 244–247. Similar language appears in the findings of the

European Court of Human Rights in the cases of Allenet de Ribemont v. France, para. 41; Daktaras v.

Lithuania, para. 42; Petyo Petkov v. Bulgaria, para. 91; Peša v. Croatia, para. 149; Gutsanovi v.

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78.

The Working Group has determined that statements publicly condemning the accused

person before a sentence has been passed violate the presumption of innocence and constitute

undue interference that undermines the independence and impartiality of the court.17 Public

statements by officials violate the right to the presumption of innocence of a person when

they hold him or her responsible for a crime for which he or she has not yet been tried, thereby

attempting to convince the public to believe them guilty and prejudging the assessment of

the facts by the competent judicial authority.18

79.

In the present case, the Working Group received convincing information that, on 18

November 2019, the second-in-command of the National Police’s Department of Judicial

Assistance presented the 16 detained persons at a press conference, all dressed in the blue

uniform worn in Nicaraguan prisons. At the event, the police pointed out that the individuals

were members of a criminal gang planning to commit attacks against public buildings, and

that weapons and explosives had been found in the four vehicles in which they were

travelling. The police emphasized that Ms. Coppens Zamora and Mr. Brenes Domínguez had

criminal records for terrorism and other serious crimes, despite the fact that they had been

released under an amnesty law.19

80.

In addition, as shown above, the authorities ordered the automatic pretrial detention

of the 16 individuals on charges of the crime of illicit arms trafficking. In this respect, the

Working Group considers that ordering the measure of pretrial detention without an

individual analysis justifying such a need constitutes premature punishment that violates the

principle of presumption of innocence, enshrined in article 11 of the Universal Declaration

of Human Rights and article 14 (2) of the Covenant.

81.

The Working Group considers that the right to be presumed innocent, as recognized

in articles 11 and 14 of the Covenant, was violated when the 16 individuals were presented

to the media as guilty, wearing prisoners’ uniforms, and the police authorities made

statements concerning their presumed criminal liability and the automatic application of

pretrial detention.

82.

The Working Group also points out that all persons charged with a criminal offence

have the right to be informed promptly and in detail in a language that 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.20

The Working Group emphasizes that persons charged with a criminal offence have the right

to be assisted and defended by counsel of their own choosing.21

83.

Like the Human Rights Committee, the Working Group considers that the

requirement that persons be informed promptly of the nature and cause of the charges against

them may be satisfied orally, provided that the information is later confirmed in writing, that

the applicable law is stated and that the facts on which the charge is based are described.22

84.

As regards the right to be assisted by counsel and to have adequate time and facilities

for the preparation of a defence, the Working Group considers that accused persons must be

given adequate time and facilities to this end. This means that they must be granted prompt

access to counsel, the ability to communicate with their counsel privately and in conditions

that ensure the confidentiality of their communication, 23 adequate time to prepare their

defence 24 and access to the case file containing all the documents, evidence and other

materials that the prosecution plans to offer in court.25

Bulgaria, paras. 194–198; Konstas v. Greece, paras. 43 and 45; Butkevičius v. Lithuania, para. 53;

Khuzhin and Others v. Russia, para. 96; Ismoilov and Others v. Russia, para. 161.

17 Opinions No. 90/2017, No. 76/2018 and No. 89/2018.

18 See opinions No. 6/2019 and No. 12/2019.

19 Act No. 996, the Amnesty Act, adopted by the National Assembly on 8 June 2019 and published in

La Gaceta Diario Oficial No. 108 of 10 June 2019.

20 Article 14 (3) (a) and (b) of the Covenant.

21 Article 14 (3) (d) of the Covenant.

22 General comment No. 32, para. 31.

23 Ibid., para. 34.

24 Ibid., para. 32.

25 Ibid., para. 33.

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85.

The Working Group also takes the view that:

The factual and legal basis for the detention shall be disclosed to the detainee and/or

his or her 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.26

86.

In the present case, the Working Group is convinced that none of the 16 persons

deprived of their liberty were informed by the authorities of the reasons for their arrest, they

were not promptly informed of the charges against them, and they were not able to contact

the lawyers they trusted from the moment of their arrest. They were also not guaranteed

private communication with their lawyer and were not allowed to see their criminal case files

in a timely manner.27

87.

In the Working Group’s opinion, this implies that the authorities did not respect the

right to have adequate time and facilities for the preparation of a defence, including access to

a lawyer of their own choosing, in contravention of articles 10 and 11 (1) of the Universal

Declaration of Human Rights and article 14 (3) (b) of the Covenant.

88.

Furthermore, according to article 14 (1) of the Covenant, everyone is entitled to a fair

hearing by a competent, independent and impartial tribunal in the determination of any

criminal charge brought. The Working Group considers that the requirement of impartiality

demands that judges must not allow their judgment to be influenced by personal bias or

prejudices, nor harbour preconceptions about the particular case before them, nor act in ways

that promote the interests of the parties. The tribunal must also appear to a reasonable

observer to be impartial.28

89.

In this regard, the Working Group has repeatedly stated that the criminal prosecution

of persons accused of offences committed in a particular territory by courts located in another

jurisdiction constitutes a violation of the right to a hearing before a competent court duly

appointed by law if national legislation expressly attributes competency to the jurisdiction

that corresponds to the place in which the offence is alleged to have been committed.29

90.

In the light of the information received, which was not refuted by the Government,

the Working Group is convinced that, under the domestic law of Nicaragua, competency to

hear a case falls to the court in whose jurisdiction the offence is alleged to have been

committed. In this regard, the Working Group is aware that, while the detention and the

alleged offences with which the individuals were charged were allegedly committed in

Masaya, the preliminary hearing on 18 November was held before the Fifth District Criminal

Court of the Managua district, where the 16 persons were formally charged with the offence

of illicit arms trafficking. Therefore, the Working Group considers that the court that heard

the case of the 16 persons was not the competent court; consequently, the right to be tried by

the natural judge was violated, in contravention of article 14 (1) of the Covenant.

91.

In the light of the foregoing, the Working Group considers that the fair trial guarantees

under articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14

of the Covenant were partially seriously violated, which renders the detention arbitrary under

category III.

92.

In the light of the information and allegations made in the present case, 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, the Special Rapporteur on the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health, the Special Rapporteur on the promotion

and protection of the right to freedom of opinion and expression, and the Special Rapporteur

on the situation of human rights defenders.

26 A/HRC/30/37, guideline 5, right to be informed, para. 56.

27 Opinions No. 70/2019, para. 79; No. 78/2018, paras. 78 and 79; No. 18/2018, para. 53; No. 89/2017,

para. 56; No. 50/2014, para. 77 and No. 19/2005, para. 28 (b).

28 General comment No. 32, para. 21.

29 Opinions No. 43/2019, para. 77; No. 30/2014, para. 51; No. 28/2014, para. 46; No. 1/2015, paras. 31

and 34; No. 6/2019, para. 135 and No. 12/2019, para. 121.

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93.

Lastly, in order to allow the Working Group to establish a direct dialogue with all the

authorities of the State (the executive, the legislature and the judiciary), representatives of

civil society and detainees, with the aim of gaining a better understanding of the situation of

deprivation of liberty in Nicaragua, the Working Group suggests that the Government may

wish to consider inviting it to make a country visit, as requested in its notes verbales of 24

April and 21 November 2018. The Working Group recalls that on 26 April 2006 the

Government extended an open invitation to the special procedures of the Human Rights

Council and that its most recent visit to Nicaragua was from 15 to 23 May 2006.30

Decision

94.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Amaya Eva Coppens Zamora, Atahualpa Yupanqui

Quintero Morán, Derlis Francisco Hernández Flores, Hansel Amaru Quintero Gómez,

Ivannia del Carmen Álvarez Martínez, Jesús Adolfo Tefel Amador, Jordán Irene

Lanzas Herrera, José Dolores Medina Cabrera Cabrera, María Margarita Hurtado

Chamorro, Marvin Samir López Ñamendiz, Melvin Antonio Peralta Centeno, Neyma

Elizabeth Hernández Ruiz, Olga Sabrina Valle López, Roberto Andrés Buchting

Miranda, Wendy Rebeca Juárez Avilés and Wilfredo Alejandro Brenes Domínguez

was arbitrary, being in contravention of articles 9, 10, 11 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 falls within categories I, II and III.

95.

The Working Group requests the Government of Nicaragua to take the steps necessary

to remedy the situation of Amaya Eva Coppens Zamora, Atahualpa Yupanqui Quintero

Morán, Derlis Francisco Hernández Flores, Hansel Amaru Quintero Gómez, Ivannia del

Carmen Álvarez Martínez, Jesús Adolfo Tefel Amador, Jordán Irene Lanzas Herrera, José

Dolores Medina Cabrera Cabrera, María Margarita Hurtado Chamorro, Marvin Samir López

Ñamendiz, Melvin Antonio Peralta Centeno, Neyma Elizabeth Hernández Ruiz, Olga

Sabrina Valle López, Roberto Andrés Buchting Miranda, Wendy Rebeca Juárez Avilés and

Wilfredo Alejandro Brenes Domínguez 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 Covenant.

96.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Amaya Eva Coppens Zamora, Atahualpa

Yupanqui Quintero Morán, Derlis Francisco Hernández Flores, Hansel Amaru Quintero

Gómez, Ivannia del Carmen Álvarez Martínez, Jesús Adolfo Tefel Amador, Jordán Irene

Lanzas Herrera, José Dolores Medina Cabrera Cabrera, María Margarita Hurtado Chamorro,

Marvin Samir López Ñamendiz, Melvin Antonio Peralta Centeno, Neyma Elizabeth

Hernández Ruiz, Olga Sabrina Valle López, Roberto Andrés Buchting Miranda, Wendy

Rebeca Juárez Avilés and Wilfredo Alejandro Brenes Domínguez and accord them an

enforceable right to compensation and other reparations, in accordance with international

law.

97.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of the 16

detained individuals named and to take appropriate measures against those responsible for

the violation of their rights.

98.

In line 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, the Special Rapporteur on the right of everyone to the enjoyment

of the highest attainable standard of physical and mental health, the Special Rapporteur on

the promotion and protection of the right to freedom of opinion and expression, and the

Special Rapporteur on the situation of human rights defenders for appropriate action.

99.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

30 A/HRC/4/40/Add.3.

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Follow-up procedure

100.

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 Amaya Eva Coppens Zamora, Atahualpa Yupanqui Quintero Morán,

Derlis Francisco Hernández Flores, Hansel Amaru Quintero Gómez, Ivannia del Carmen

Álvarez Martínez, Jesús Adolfo Tefel Amador, Jordán Irene Lanzas Herrera, José Dolores

Medina Cabrera Cabrera, María Margarita Hurtado Chamorro, Marvin Samir López

Ñamendiz, Melvin Antonio Peralta Centeno, Neyma Elizabeth Hernández Ruiz, Olga

Sabrina Valle López, Roberto Andrés Buchting Miranda, Wendy Rebeca Juárez Avilés and

Wilfredo Alejandro Brenes Domínguez have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to the 16 detained

individuals;

(c)

Whether an investigation has been conducted into the violation of the rights of

the 16 detained individuals 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.

101.

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.

102.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of 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.

103.

The Working Group notes that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has 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.31

[Adopted on 1 May 2020]

31 Human Rights Council resolution 42/22, paras. 3 and 7.