opencaselaw.ch

A/HRC/WGAD/2022/10

Opinion No. 10/2022 concerning Arturo Cruz Sequeira and others (Nicaragua)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2022-04-08 · en UN

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.22-08068 (E) 200622 200622

Human Rights Council

Working Group on Arbitrary Detention

Views adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 10/2022 concerning Arturo Cruz Sequeira and others

(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 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,1 on 20 August 2021 the Working Group

transmitted to the Government of Nicaragua a communication concerning Arturo Cruz

Sequeira, Violeta Granera Padilla, José Aguerri Chamorro, José Bernard Pallais Arana, Daysi

Dávila Rivas, Ana Vijil Gurdián, Dora Téllez Argüello, Suyen Barahona Cuan, Jorge Hugo

Torres Jiménez, Víctor Tinoco Fonseca, Luis Rivas Anduray, Miguel Mora Barberena,

Miguel Mendoza Urbina and Pedro Chamorro Barrios. 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,

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/10

General Assembly

Distr.: General

27 May 2022

English

Original: Spanish

A/HRC/WGAD/2022/10

2

GE.22-08068

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

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.

Arturo Cruz Sequeira, a Nicaraguan national, holds a doctorate in history and is a

professor, a former ambassador of Nicaragua and an aspiring presidential candidate. He lives

in Managua. He was arrested on 5 June 2021 by the police at the International Airport in

Nicaragua. He was not shown an arrest warrant. Without his family’s knowledge, Mr. Cruz

Sequeira was taken to an unknown location, presumably a facility known as El Nuevo

Chipote.

5.

Violeta Granera Padilla, a Nicaraguan national, is a sociologist and human rights

defender, a former vice-presidential candidate and a member of the Political Council of the

Unidad Nacional Azul y Blanco (Blue and White National Unity Movement). She lives in

Managua. She was arrested on 8 June 2021 by 35 police officers and members of the Legal

Cooperation Directorate of the National Police and the Special Operations Directorate of the

police. She was beaten and handcuffed, and her home was searched without a warrant. She

was placed under incommunicado house arrest, with officers assigned to guard her. On 11

June, without informing anyone, officials transferred her elsewhere, presumably to El Nuevo

Chipote.

6.

José Aguerri Chamorro, a Nicaraguan national, is an economist and businessman and

the former president of the High Council of Private Enterprise. He lives in Managua. He has

been a public opponent of the Government since the national crisis of 2018 and has reportedly

been repeatedly harassed by the Police. He is a member of the opposition parties Ciudadanos

por la Libertad (Citizens for Freedom) and Alianza Ciudadanos por la Libertad (Citizens for

Freedom Alliance). He was arrested at his home on 8 June 2021 by police officers and armed

civilians who did not show a warrant. He was taken to an unknown location; no information

was provided as to his whereabouts, but it was later officially reported that he was in El

Nuevo Chipote.

7.

José Bernard Pallais Arana, a Nicaraguan national, is a lawyer and notary who lives

in León. He is a member of the Partido Liberal Constitucionalista (Liberal Constitutionalist

Party), a former deputy and the former Deputy Minister for Government and Foreign Affairs.

As a member of the Political Council of the Unidad Nacional Azul y Blanco and of the

National Coalition, he participated in the national dialogue between the Alianza Cívica por

la Justicia y la Democracia (Civic Alliance for Justice and Democracy) and the Government.

He was arrested at his home on 9 June 2021 by police officers and armed civilians who did

not show a warrant. Without his family’s knowledge, he was taken to an unknown location,

presumably El Nuevo Chipote.

8.

Daysi Dávila Rivas, a Nicaraguan national, is a psychologist and a member of the

Political Council of the Unidad Nacional Azul y Blanco and of the Executive Committee of

the Unión Democrática Renovadora (Union for Democratic Renewal). She lives in Managua

and is an active opponent of the Government on social networks. She was arrested at her

home in Masaya on 12 June 2021 by police officers and armed civilians, including members

of the Special Operations Directorate of the police, who did not show a warrant. She was

taken to an unknown location, presumably El Nuevo Chipote.

9.

Ana Vijil Gurdián, a Nicaraguan national, is a lawyer, a former president of the

Movimiento Renovador Sandinista (Sandinista Renewal Movement), which is now the Unión

Democrática Renovadora, and a member of the Board of Directors and Executive Committee.

A resident of Masaya, she is a public opponent and critic of the Government and has

previously been arrested in connection with her political activities. She was arrested at her

home in Managua on 13 June 2021 by police officers and armed civilians, including members

of the Special Operations Directorate of the police, who did not show a warrant. Without her

family’s knowledge, she was taken to an unknown location, presumably El Nuevo Chipote.

A/HRC/WGAD/2022/10

GE.22-08068

3

10.

Dora Téllez Argüello, a Nicaraguan national, is a historian, former guerrilla fighter,

founder and former president of the Movimiento Renovador Sandinista, a member of the

Executive Committee of the Unión Democrática Renovadora and a former vice-president of

the Council of State. She was Minister of Health in the 1980s and was formerly a deputy of

the Movimiento Renovador Sandinista. A resident of Masaya, she was arrested at her home

in Managua on 13 June 2021 by police officers and armed civilians, including members of

the Special Operations Directorate of the police, who did not show a warrant. Without her

family’s knowledge, she was taken to an unknown location, presumably El Nuevo Chipote.

11.

Suyen Barahona Cuan, a Nicaraguan national, has a degree in international relations

and is the president of the Unión Democrática Renovadora. A resident of Managua, she is a

feminist activist and participates in women’s rights movements denouncing abuse and

violence. She was arrested without a warrant at her home on 13 June 2021 by police officers

and armed civilians. Her family is unaware of her whereabouts. She is presumed to be in El

Nuevo Chipote.

12.

Jorge Hugo Torres Jiménez, a Nicaraguan national, is a former guerrilla fighter, a

retired army brigadier general, the co-founder of the Movimiento Renovador Sandinista party

and the vice-president of the Unión Democrática Renovadora. A resident of Managua, he

was arrested at his home on 13 June 2021 by police officers and officials from the Legal

Cooperation Directorate of the National Police, who did not show a warrant. He is presumed

to have been transferred to El Nuevo Chipote.2

13.

Víctor Tinoco Fonseca, a Nicaraguan national, is a sociologist and was formerly a

vice-chancellor, a Sandinista guerrilla fighter and a deputy. He is a member of the Unión

Democrática Renovadora and an opponent and critic of the Government. A resident of

Managua, he was arrested in the parking lot of a shopping centre on 13 June 2021 by armed

and hooded police officers who did not show a warrant. He was forcibly transported in an

unofficial van. His location has not been disclosed, but he is presumed to be in El Nuevo

Chipote.

14.

Luis Rivas Anduray, a Nicaraguan national with a doctorate in economics, is the vice-

president of the Nicaraguan Foundation for Economic and Social Development and the

executive president of the Banco de la Producción. A resident of Managua, in April 2018 he

presented reports to the media outlining the effects of the crisis and highlighting the risk of

job losses, increased poverty and a shrinking economy. He participated in the drafting of the

national report for the universal periodic review in 2018. He was arrested inside the Boques

del Terraza residential complex in Managua on 15 June 2021 by 17 police officers, who did

not show a warrant.

15.

Miguel Mora Barberena, a Nicaraguan national, is a journalist living in Managua. He

is the Director of 100% Noticias, a news outlet, and was a potential presidential candidate

for the Unión Democrática Renovadora. His candidacy was cancelled by the Supreme

Electoral Council. He was previously detained3 and benefited from the 2019 Amnesty Act,

but his case was not dismissed and the premises and equipment that had been confiscated

from him were not returned. He was arrested again at his home on 20 June 2021 by police

officers, including from the Special Operations Directorate, who did not show a warrant. He

was transferred to an unknown location, presumably El Nuevo Chipote.

16.

Miguel Mendoza Urbina, a Nicaraguan national, is a sports reporter and a resident of

Managua. He is a frequent critic of the Government on social networks. He was arrested in

the Monseñor Lezcano neighbourhood on 20 June 2021 by police officers who did not show

a warrant. His whereabouts were initially unknown, but he was presumed to have been taken

to El Nuevo Chipote.

17.

Pedro Chamorro Barrios, a Nicaraguan national, is a business administrator, the vice-

president of the Violeta Barrios de Chamorro Foundation, a former deputy for the Partido

Liberal Constitucionalista, a columnist for La Prensa and a member of the Ciudadanos por la

2 The Working Group was subsequently informed that Mr. Torres Jiménez had died from health

complications while deprived of his liberty.

3 Opinion No. 17/2020.

A/HRC/WGAD/2022/10

4

GE.22-08068

Libertad party. A resident of Managua, he was arrested at his home on 25 June 2021 by armed

police officers, who arrived in 10 patrol cars and entered the residence without a search or

arrest warrant. His whereabouts were unknown, but he was presumed to have been taken to

El Nuevo Chipote.

The arrests

18.

The source alleges that all of the detainees were arrested without a warrant, some in

the morning or afternoon and others at night, such as Ms. Dávila Rivas, Mr. Aguerri

Chamorro, Mr. Tinoco Fonseca, Mr. Rivas Anduray, Mr. Mendoza Urbina and Mr. Chamorro

Barrios. The search of Mr. Mora Barberena’s house lasted until the early hours of the

morning, in violation of the Code of Criminal Procedure, which requires a court order for

any arrest and stipulates that searches may be conducted only between 6 a.m. and 6 p.m.

Violence during arrests

19.

According to the source, violence was used during the 14 arrests. Ms. Granera Padilla

was hit in the face while being handcuffed. Mr. Pallais Arana’s home was put under siege,

and surveillance cameras were damaged the night before his arrest. At the time the arrest was

made, the Chief Police Commissioner of León entered the house without a warrant,

threatening to use violence if he was prevented. A photo of Mr. Pallais Arana taken at the

time of his arrest was disseminated. The search of Mr. Aguerri Chamorro’s home lasted for

more than three hours; doors were broken down and he was removed in his exercise clothes,

without being allowed to change.

20.

In the case of Ms. Dávila Rivas, despite her cooperation, more than 60 police officers

broke down the door and entered her home, destroyed the electric fence, arrested her and

spent five hours interrogating a family member not of legal age and two women who were

also present. The police officers asked them about their private and personal lives and took

items such as videos, family mementos and a tablet.

21.

The source claims that the arrests of Ms. Vijil Gurdián and Ms. Téllez Argüello were

particularly violent. Police officers broke down the doors, pointed firearms at those present

and threatened to kill their dogs. They searched the house for two hours, took various items

such as photos and family mementos, and questioned family members insistently about the

detainees’ private lives.

22.

Ms. Barahona Cuan observed the presence of the police and a drone at the entrance

gate. Arriving in eight patrol cars, armed officers with dogs broke down the gate and went

through the house pointing their guns and making threats. Mrs. Barahona Cuan left without

resisting and was taken away in a patrol car. Four officers searched her home for more than

six hours and questioned her family. Personal items were removed, along with the security

camera and the digital video recorder that captures the images from the camera, a computer,

digital cameras, cell phones and other objects. No inventory or records of the items seized

were issued. Minors related to Ms. Barahona Cuan were present at the time of the search.

23.

According to the source, Mr. Tinoco Fonseca was arrested at a restaurant while dining

with his family. An unofficial police vehicle followed them and kept them under surveillance

while they were in the restaurant. Officers used violence to arrest him in the parking lot,

without showing a warrant or informing him of the grounds for his arrest.

24.

Mr. Torres Jiménez also heard a drone fly overhead prior to his arrest. Officers from

the Special Operations Directorate of the police broke down the entrance gate and entered

the property, shouting and pointing guns at the heads and chests of the persons present. A

group of 16 police officers entered all the rooms of the house, breaking the locks. Mr. Torres

Jiménez’s family members raised their hands and stated that they were not armed. The

officers ordered them to lie on the ground and pointed guns at them while taking photographs.

25.

Mr. Rivas Anduray’s home was searched the day after his arrest by three police patrols

involving 25 officers, some of them hooded and others dressed in black. They entered the

house where his family was staying, asked where he was and pointed guns into the house.

When they were informed that he had been arrested the previous night, the officers’ attitude

A/HRC/WGAD/2022/10

GE.22-08068

5

changed and they searched the house for six hours. They seized tablets and cameras with

family photos.

26.

The police allegedly damaged windows close to the main entrance and tried to force

the door of Mr. Mora Barberena’s home. They used violence despite the fact that a family

member with a disability was present at the property. After forcing the door and arresting

Mr. Mora Barberena, they searched the house for three hours and threatened to return if the

investigation required it.

27.

Mr. Mendoza Urbina was arrested while alone in his vehicle. Eight male officers used

violence to enter his home and searched it without a warrant, finding only two women and a

7-year-old girl.

28.

Mr. Chamorro was at his home when officers arrived in approximately 10 police vans,

used violence to enter the property, seized his cell phones and arrested him without providing

any information on where he would be taken.

Lack of charges

29.

The source alleges that more than a month after the arrests, no charges had been filed

by the Public Prosecution Service, nor had the individuals been released. The authorities

based their actions on article 253 bis of the Act amending and supplementing the Code of

Criminal Procedure of Nicaragua (Act No. 1060). With the sole exception of Ms. Vijil

Gurdián, the 14 detainees have appeared at special hearings for the protection of

constitutional guarantees, which allow the investigation period to be extended for up to 90

days.

30.

The source highlights the fact that on the day the authorities requested an extension

of the detention, the Public Prosecution Service issued press releases communicating

information about the hearings and the decisions taken. Ms. Vijil Gurdián’s legal situation

and the court order imposing the 90-day period of judicial detention were not made public.

Mr. Aguerri Chamorro’s legal situation was disclosed after the habeas corpus motion was

refused. The refusal decision contains a reference to a hearing for the protection of

constitutional guarantees that was reportedly held on 10 June and at which the time limit for

the investigation and Mr. Aguerri Chamorro’s detention was extended to 90 days.

Obstruction of and restrictions on the preparation of a defence

31.

The source reports that the authorities imposed the appointment of public defenders

on all of the detainees. The decision was reversed at the insistence of the family members.

Private lawyers were denied meetings with their clients and access to the files.

32.

The 14 detainees requested the involvement of their lawyers. The requests were

granted belatedly, with the exception of that of Mr. Rivas Anduray, who requested private

counsel on 23 June and again on 29 June without receiving a response. The absence of a

response constitutes a violation of article 102 of the Code of Criminal Procedure, which

stipulates that the appointment of a defence lawyer must immediately be communicated to

the accused. All of the defendants faced obstacles to meeting with their lawyers. Mr. Aguerri

Chamorro’s lawyer requested on six occasions to be allowed to meet privately with his client

but was told that it was prohibited on the orders of a superior.

33.

The hearing for the protection of constitutional guarantees took place behind closed

doors and without lawyers present. The records were not made available to the lawyers, who

attended the court complex where the hearing was being held and requested access to the

courtroom. Family members learned through the media that the detention and investigation

period had been extended to 90 days.

Campaign of stigmatization

34.

According to the source, the President reportedly stated that the detainees were not

candidates or politicians, but “criminals” seeking to “overthrow the Government”. The Vice-

President stated that the arrest of the main opposition leaders was part of “the justice that the

Nicaraguan people have asked for, locating the criminals and terrorists and people who have

denigrated Nicaragua all over the world, people who are ‘the lowest of the low’”. These

A/HRC/WGAD/2022/10

6

GE.22-08068

statements, which were made despite the fact that the Public Prosecution Service had issued

a formal indictment, could be decisive in convicting the defendants in a judicial system that

has allegedly been used as an instrument of repression. These statements expose the detainees

to aggression from prison guards. Government media outlets have disseminated opinion

articles and news stories in which the defendants have been described as criminals.

Conditions of detention

35.

It is presumed that the 14 persons were detained at the premises of the Legal

Cooperation Directorate of the National Police, known as El Nuevo Chipote. This conclusion

is drawn from the police press release relating to the case of Mr. Aguerri Chamorro. In other

cases, such as that of Mr. Mora Barberena, after several visits to El Nuevo Chipote, an official

confirmed to his wife that he was being held there. Family members have concluded that the

detainees are there, as water and some toiletries have been accepted there for them to use.

Incommunicado detention

36.

The source indicates that family members have been prevented from visiting the 14

detainees and that the conditions in which they are being held are unknown. The families

were told that an initial period of eight days must elapse from the time of the arrest before a

visit could be requested. After that period, which was set arbitrarily, visits were subject to

authorization from a judge. When family members insisted on receiving authorization, they

were refused on the orders of a superior.

Lack of food and water

37.

Food and beverages delivered by family members have not been regularly passed on.

At first it was allowed, but later they were permitted to bring only snacks and drinks, and

subsequently only water. The source claims that this has been done in reprisal for their

opposition to the Government, and reports that individuals bringing food are subjected to

hostile and intimidating treatment and even interrogation.

Medical and specialized care

38.

Mr. Cruz Sequeira suffers from a heart condition and high blood pressure and requires

medication. His family received a prescription for high doses of his medication, for unknown

reasons. An anti-anxiety medication was added. The source is concerned that the increased

dosage indicates that his health has deteriorated. It is unknown whether the drugs are

administered. Ms. Granera Padilla is being treated for diabetes, heart problems and high

blood pressure. The prison authorities requested medication for her. The progression of her

health conditions is a matter of concern.

39.

Mr. Aguerri Chamorro suffers from reflux, migraines and gastritis. The authorities

requested medication, including an antacid, oral serum and saline solution, from the Police

Hospital. The family has sent all the medication with no certainty that it will be administered,

and they have no information on his current state of health.

40.

Mr. Pallais Arana has high blood pressure, diabetes, spinal problems and glaucoma.

He uses a sleep apnoea device and is obese. Ms. Dávila Rivas suffers from gastritis and

gastric colitis. Ms. Vijil Gurdián suffers from anaemia. The detainees’ symptoms require

medication, special diets and medical attention, which they are denied.

41.

Ms. Barahona Cuan suffers from anxiety. Mr. Tinoco Fonseca suffers from asthma,

high blood pressure, chronic insomnia and complications from coronavirus disease (COVID-

19) and has a sprained right foot. His medication has been delivered, but there are concerns

that he will suffer serious and irreparable consequences to his life and personal integrity. Mr.

Rivas Anduray suffers from high blood pressure, chronic low back pain, dyslipidemia,

suspected angina and sleep apnoea. Mr. Mora Barberena suffers from skin allergies. Some of

his medications were accepted but others were refused.

42.

Mr. Mendoza Urbina suffers from diabetes and high blood pressure. In January 2021,

he was diagnosed with COVID-19 and suffered after-effects including sweating and

A/HRC/WGAD/2022/10

GE.22-08068

7

shortness of breath. No medicines have been requested for him, and he is said to have been

seen by a police doctor.

43.

The source notes that judges do not respond with sufficient urgency to requests for

referral to a medical examiner. In the case of Mr. Pallais Arana, his lawyer filed a brief on

15 June, which was resolved on 18 June. Officers from the Legal Cooperation Directorate of

the National Police have verbally refused requests for medication, claiming that they must be

dealt with by the judicial authorities.

Category I

44.

It is alleged that the Nicaraguan police did not show a warrant for any of the arrests,

did not provide reasons justifying the arrests and did not provide the detainees with

information on the judicial avenues through which they could challenge the legality of their

detention or inform them of their right to have a lawyer of their choosing. Most of the arrests

were made at night, and the searches extended into the early hours of the morning, outside

the hours established in law. Armed civilians were involved in some of the arrests, acting in

coordination with the police. Family members were never informed of where the detainees

would be taken, and some of the detainees were taken away in unofficial vehicles.

45.

The source alleges that the conduct of the authorities constitutes 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 Right of Anyone Deprived of Their Liberty

to Bring Proceedings Before a Court. It also contravenes article 33 (1) of the Constitution,

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”.

46.

None of the detainees were brought before a judge within 48 hours, as stipulated in

Act No. 1060, which amends the Code of Criminal Procedure to allow for the investigation

period to be extended by up to 90 days. The police therefore acted without judicial oversight,

in violation of article 9 (3) of the Covenant and of principle 16 (1) of the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment. Judicial

oversight of detention is a fundamental safeguard of personal liberty and is necessary to

ensure that it has a legal basis. Failure to do so violates the right to appeal before a judge and

renders the detention unlawful.

47.

The detainees are being investigated for allegedly failing to comply with the Act on

the Defence of the People’s Rights to Independence, Sovereignty and Self-Determination for

Peace (Act No. 1055). The time limit for detention has been extended to 90 days in hearings

for the protection of constitutional guarantees, based on Act No. 1060, which amended the

Code of Criminal Procedure. This delay is in itself contrary to international human rights

standards. In addition, none of the hearings met the minimum due process requirements.

48.

Imposing mandatory pretrial detention without a case-by-case examination of its

necessity contravenes article 9 (3) of the Covenant and constitutes further evidence that there

was no legal basis for the detention. Even when pretrial detention is imposed in accordance

with national legislation, its consistency with the provisions of international law must be

ensured.

Category II

49.

The source alleges that the Government arrested the 14 individuals under article 1 of

Act No. 1055, which sets out restrictions on the right to run for elected office for persons

who:

[...] lead or finance a coup d’état, disrupt the constitutional order, promote or incite

terrorist acts, carry out acts that undermine independence, sovereignty or self-

determination, incite foreign interference in internal affairs, call for military

intervention, use funding from foreign powers to plan acts of terrorism and

destabilization, propose or organize economic, commercial or financial blockades of

the country or its institutions, demand, praise or welcome the imposition of sanctions

against the State of Nicaragua or its citizens, or harm the supreme interests of the

A/HRC/WGAD/2022/10

8

GE.22-08068

nation as set out in the legal system. Such persons shall be known as “Traitors to the

Homeland”.

50.

The application of the Act leaves open the possibility of charges for “acts of treason”,

“offences that jeopardize peace” and “offences against the Political Constitution of the

Republic of Nicaragua”, imposing restrictions that are incompatible with human rights

standards and affect the rights to political participation and to freedom of expression. The

definitions are very broad, leaving room to prevent the 14 individuals from participating in

the November 2021 elections.

51.

The detainees had announced their candidacy for the elections, belonged to political

opposition parties and had expressed their political views and/or exercised their right to

participate in public affairs in the context of an electoral contest. The authorities thus violated

their rights to freedom of expression, peaceful assembly and public participation, which are

recognized in articles 19, 21 and 25 of the Covenant.

52.

Article 25 of the Covenant protects the right of everyone to take part in the conduct

of public affairs, the right to vote and to be elected and the right to have access to public

service. States have an obligation to adopt the necessary measures to ensure that their citizens

enjoy these rights. Any conditions imposed on their exercise must be based on objective and

reasonable criteria; freedom of expression, assembly and association are essential conditions

for the effective exercise of the right to vote.

Category III

53.

It is presumed that the 14 detainees are being held in El Nuevo Chipote, which is

unsuitable for prolonged detention, endangering their physical and psychological integrity.

None of them have been permitted to receive visits from their relatives or to meet with their

lawyers to verify the conditions of their detention, with the exception of Mr. Cruz Sequeira,

who was permitted one meeting with his lawyer. Given the pattern of previous politically

motivated arrests in Nicaragua, it is feared that the detainees are being held in solitary

confinement, which violates the right to challenge the legality of the detention before a court,

as established in article 9 (4) of the Covenant, and the right to have contact with the outside

world, as enshrined in rules 43 (3) and 58 of the United Nations Standard Minimum Rules

for the Treatment of Prisoners (the Nelson Mandela Rules) and principles 15, 19 and 20 of

the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.

54.

The source fears that the authorities will use inhuman treatment, potentially including

torture or other ill-treatment, in order to force the detainees to make statements that would

justify the criminal charges laid against them. Such statements could not be used as evidence

in any proceedings.

55.

According to the source, seven of the detainees are over 60 years of age and prone to

health complications. Five of the detainees are women and are at risk of experiencing gender-

specific violations. Conditions in El Nuevo Chipote are unsuitable for such persons and

violate article 7 of the Covenant, articles 2, 11 and 12 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment and principles 6 and 33 of the

Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.

56.

Conditions of detention must guarantee the right of every person to a fair and impartial

trial, including the presumption of innocence. The source claims that legal procedures were

not followed in the detention of the 14 persons, which constitutes a violation of article 101

of the Code of Criminal Procedure.

57.

The detainees were also refused timely access to the criminal file. The communiqués

issued by the police and the Public Prosecution Service were the only source of information

about the legal actions against the 14 individuals. Their lawyers have not been provided with

a copy of the file despite repeated requests. This constitutes a violation of article 34 of the

Constitution.

58.

The source notes that the appointment of public defenders in the days following the

arrest and the difficulties in obtaining access to information prevented the preparation of the

A/HRC/WGAD/2022/10

GE.22-08068

9

defence, in violation of articles 10 and 11 (1) of the Universal Declaration of Human Rights,

article 14 (3) (b) of the Covenant and principle 9 of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment.

59.

It is alleged that, based on ambiguous criminal concepts, in the absence of a sufficient

body of evidence and with the intention of discrediting political opponents, the authorities

extended the investigation period to 90 days for all of the detainees, with the exception of

Ms. Vijil Gurdián. In her case, no information has been provided, but she remains in

detention.

60.

According to the source, the extension of the investigation period to 90 days

constitutes advance punishment and 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 for the Protection of All Persons

under Any Form of Detention or Imprisonment.

61.

Pretrial detention is a precautionary measure that should be used only to ensure the

proper conduct of the criminal proceedings. It is therefore an exceptional measure requiring

an individual assessment of a case in order to establish its necessity and proportionality. Even

where pretrial detention is provided for by law, it must be in accordance with international

law.

62.

In addition, public statements and articles published by pro-government media outlets

stigmatized the 14 individuals, violating the principle of the presumption of innocence. This

right obliges the State and its agents to treat accused persons as innocent until such time as

they are convicted, and to refrain from making public statements affirming their guilt. Acts

of this type are incompatible with article 11 (1) of the Universal Declaration of Human Rights

and article 14 (2) of the Covenant.

Category V

63.

The source alleges that the detention of the 14 individuals is arbitrary under category

V, since it occurs in the context of a pattern of persecution of members of political opposition

parties, human rights defenders and individuals who criticize the actions of the authorities.

Since 2018, the systematic practice of persecuting individuals on the basis of their political

opinions and depriving them of their liberty has been observed. The use of incommunicado

detention, the harassment of family members and the irregularities that have occurred since

the arrests were made serve as evidence that the authorities are doing everything in their

power to make an example of the detainees and send a message to their opponents.

64.

For these reasons, the source considers that the detention of the 14 individuals is

discriminatory and is related to their status as opponents of the Government, and that the

State’s actions contravene articles 2 and 26 of the Covenant and articles 1 and 7 of the

Universal Declaration of Human Rights.

Response from the Government

65.

On 20 August 2021, the Working Group transmitted the information contained in the

communication sent by the source to the Government and requested it to provide, by 19

October 2021, detailed information on the case to clarify the legal and factual grounds for

the detention of the individuals in question. The Working Group regrets that the Government

did not request an extension or respond to the communication within the time limit.

Discussion

66.

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.

67.

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

A/HRC/WGAD/2022/10

10

GE.22-08068

understood to rest upon the Government if it wishes to refute the allegations.4 In the present

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

by the source.

68.

The Working Group received convincing information from the source that Arturo

Cruz Sequeira, Violeta Granera Padilla, José Aguerri Chamorro, José Bernard Pallais Arana,

Daysi Dávila Rivas, Ana Vijil Gurdián, Dora Téllez Argüello, Suyen Barahona Cuan, Jorge

Hugo Torres Jiménez, Víctor Tinoco Fonseca, Luis Rivas Anduray, Miguel Mora Barberena,

Miguel Mendoza Urbina and Pedro Chamorro Barrios were all arrested between 5 and 25

June 2021, at various times of the day or night, in different locations and under different

circumstances. Mr. Cruz Sequeira was detained at the International Airport in Nicaragua; Ms.

Granera Padilla as she arrived home; Mr. Aguerri Chamorro, Mr. Pallais Arana, Mr. Torres

Jiménez, Mr. Mora Barberena, Mr. Chamorro Barrios, Ms. Dávila Rivas, Ms. Vijil Gurdián

and Ms. Téllez Argüello at their respective homes; Mr. Tinoco Fonseca, Mr. Rivas Anduray

and Mr. Mendoza Urbina in different public places; and Ms. Barahona Cuan while

participating in a protest.

69.

The 14 individuals are being investigated for allegedly failing to comply with the Act

on the Defence of the People’s Rights to Independence, Sovereignty and Self-Determination

for Peace (Act No. 1055). The detainees are well-known public figures in Nicaragua, having

held positions in political parties and in parliamentary and diplomatic public office and

worked to support democracy and human rights in the country.

Category I

70.

The Working Group is convinced that the 14 individuals were deprived of their rights

with no legal basis when they were arrested, either by officers of the National Police

accompanied by armed civilians or by other State security forces, who in all cases were

heavily armed and did not show a warrant, claiming the arrests were being made on the

ground of flagrante delicto. The detainees were not advised of the judicial avenues through

which they could challenge the legality of their detention or informed of their right to have a

lawyer of their choosing. In addition, violence and threats were used during the arrests, and

some of the detainees were beaten.

Circumstances of detention

71.

The Working Group has indicated that anyone who is arrested must be informed, at

the time of their arrest, both of the reasons for the arrest and of the judicial avenues available

for challenging its legality. The reasons given for the arrest must include not only the general

legal basis of the arrest, but also specific facts indicating the substance of the complaint and

the wrongful act committed. These reasons are understood as being the official basis for the

arrest, not the subjective motives of the arresting officer.5 The Working Group notes with

concern that the 14 individuals were not arrested in flagrante delicto and that it has not been

proven that there was a warrant for the arrests.6 The Working Group notes that some arrests

involved up to 60 officers, without any explanation of the forces that are lawfully permitted

to make arrests.

Mandatory pretrial detention

72.

The Working Group has been able to establish that the 14 individuals have been in

pretrial detention for almost a year. It is recalled that deprivation of liberty is not only a matter

of legal definition, but also of fact, and must be justified as reasonable, necessary and

proportionate in the circumstances and be re-evaluated over time.7 It must not be punitive in

nature and should be based on an individual assessment of each person’s case. Furthermore,

pursuant to article 9 (3) of the Covenant, a reasoned judicial decision must be issued, with an

4 See A/HRC/19/57, para. 68.

5 A/HRC/30/37, annex, principle 7.

6 Opinion No. 9/2018, para. 38.

7 Human Rights Committee, general comment No. 35 (2014), para. 18.

A/HRC/WGAD/2022/10

GE.22-08068

11

assessment of each individual case. The documents examined show that this was not done in

the case of the 14 detainees.

73.

The Working Group notes that the 14 persons are presumed to be detained at the

premises of the Legal Cooperation Directorate of the National Police, known as El Nuevo

Chipote. Their family members have been denied information or access to them and have

been told that visits are prohibited. This violates 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 Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court.

Under article 33 (1) of the Nicaraguan Constitution, detention may be imposed only through

a written order issued by a competent judge or by the authorities expressly empowered by

law, except in the case of flagrante delicto.

74.

The Working Group recalls that mandatory pretrial detention violates article 9 (3) of

the Covenant8 and highlights its arbitrary nature. Even when pretrial detention is imposed in

conformity with national legislation (Act No. 1060), it must also be consistent with the

relevant provisions of international law. It must be used as an exception and not the rule, as

it must be based on an individualized assessment of its reasonableness and necessity. The

source has convincingly argued that judicial detention and mandatory pretrial detention are

used in Nicaragua to punish human rights defenders, journalists and persons who speak out

against the Government and exercise their rights to freedom of expression, peaceful assembly

and participation in public life.

Searches

75.

The homes of the 14 individuals were searched without a warrant during or after their

arrests, and several items unrelated to the alleged investigation were confiscated, with no

records kept of the items seized. In the present case, the fact that the detainees’ homes were

searched without a warrant supports the conclusion that the authorities did not follow the

necessary procedures to ensure that there was a legal basis for the detention of the 14

individuals.9

Incommunicado detention and enforced disappearance

76.

The detainees were taken to unknown locations, and their families were refused

information regarding their whereabouts. The 14 individuals were subjected to

incommunicado detention and de facto enforced disappearance, as their whereabouts was not

disclosed and their family members and lawyers did not have access to them, placing them

outside the protection of the law.10 Subjecting detainees to incommunicado detention, which

places them outside the protection of the law, is a prima facie form of arbitrary detention and

constitutes a violation of articles 6, 8, 10 and 11 of the Universal Declaration of Human

Rights11 and principle 32 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment. Incommunicado detention is not permitted under

international human rights law, as it violates the right to challenge the legality of detention

before a judge.

77.

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment has consistently argued that the use of incommunicado detention is unlawful.12

The Human Rights Committee states, in paragraph 35 of its general comment No. 35 (2014),

that incommunicado detention that prevents prompt presentation before a judge inherently

violates article 9 (3) of the Covenant.

78.

Ms. Granera Padilla was placed under house arrest, heavily guarded and unable to

communicate with the outside world for three days, before being transferred to an unknown

8 See opinion No. 1/2018.

9 See opinion No. 83/2019, para. 51.

10 A/HRC/16/48/Add.3, paras. 29–32; and E/CN.4/1996/38, para. 55 (English only).

11 See opinions No. 46/2017, para. 22; No. 93/2017, para. 48; and No. 10/2018, para. 48.

12 A/54/426, annex, para. 42; and A/HRC/13/39/Add.5, para. 156 (English only).

A/HRC/WGAD/2022/10

12

GE.22-08068

location where she was held in incommunicado detention, in violation of articles 6, 9, 10 and

11 (1) of the Universal Declaration of Human Rights.13

79.

The Working Group emphasizes that judicial oversight of detention is a fundamental

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

absence of such oversight gives rise to a violation of the rights to have access to a lawyer of

one’s own choosing, to be brought promptly before a judicial authority and to challenge

before a judge the legality of the detention. In this sense, incommunicado detention is a

violation of article 9 (4) of the Covenant and of the right to an effective remedy, as enshrined

in article 2 (3) of the Covenant and article 8 of the Universal Declaration of Human Rights.

Legal assistance

80.

The Working Group notes that detainees were initially forced to accept public

defenders and that, subsequently, their access to lawyers of their choosing was obstructed.

The initial hearing was held behind closed doors, and the detainees’ lawyers were not present

and were not permitted to speak privately with any of them, with the exception of Mr. Cruz

Sequeira, who had a single meeting with his lawyer. The Working Group has stated that

confessions or signatures obtained without legal representation are not admissible as

evidence in criminal proceedings14 and that such actions indicate a serious lack of respect for

the right to sufficient time and facilities to prepare a defence, in contravention of articles 10

and 11 (1) of the Universal Declaration of Human Rights and article 14 (3) (b) of the

Covenant.

81.

These circumstances are exacerbated by the failure to bring the 14 detainees before a

judge within 48 hours, as required by the Constitution, the Human Rights Committee15 and

principle 32 (2) of the Body of Principles for the Protection of All Persons under Any Form

of Detention or Imprisonment.

Presumption of innocence

82.

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 a final judgment has been handed down. The

right requires the authorities, including the executive branch, to refrain from prejudging the

outcome of a trial, which entails abstaining from making public statements affirming the guilt

of the accused.

83.

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

The right to be presumed innocent requires the State to 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 verdict has been reached.16

84.

The Working Group has reiterated that public statements by officials openly

condemning defendants prior to sentencing violate the right to the presumption of innocence

and constitute undue interference that affects the independence and impartiality of the court,

since describing someone who has not yet been tried as responsible for a crime can lead the

13 See opinion No. 15/2019, para. 44.

14 A/HRC/45/16, para. 53. See opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019, para.

70; No. 73/2019, para. 91; and E/CN.4/2003/68, para. 26 (e).

15 General comment No. 35 (2014), para. 33.

16 Pollo Rivera et al. v. Peru, Judgment of 21 October 2016, para. 177; Tibi v. Ecuador, Judgment of 7

September 2004, para. 182; J. v. Peru, Judgment of 27 November 2013, paras. 244–247. See also

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

para. 42; Petkov v. Bulgaria, para. 91; Peša v. Croatia, para. 149; Gutsanovi v. Bulgaria, paras. 194–

198; Konstas v. Greece, paras. 43 and 45; Butkevičius v. Lithuania, para. 53; Khuzhin and Others v.

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

A/HRC/WGAD/2022/10

GE.22-08068

13

public to believe that the defendant is guilty and influence or prejudge the assessment of the

facts by the competent judicial authority. In this case, the constant public statements by high-

ranking government officials and the articles published by pro-government media outlets, in

which the 14 detainees were stigmatized, constituted a flagrant violation of the right to the

presumption of innocence. 17 In the light of these circumstances, the Working Group

emphasizes that public statements openly condemning an accused person before a sentence

has been passed violate the principle of presumption of innocence and constitute undue

interference that undermines the independence and impartiality of the court.18

85.

In view of the foregoing, the Working Group is of the opinion that the detention of

the 14 individuals by the Nicaraguan authorities is arbitrary and lacks any legal basis, since

it violates the legal guarantees required by international standards and rules, as identified by

the Working Group in accordance with category I.

Category II

86.

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. Both freedoms are the basis for the

effective exercise of a wide range of human rights, such as the rights to freedom of assembly,

freedom of association and 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.

87.

The importance of freedom of opinion is such that no government may impair 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, it is incompatible

with the Universal Declaration of Human Rights and the Covenant to criminalize the holding

of an opinion; equally, the harassment, intimidation or stigmatization of a person are not

permitted, including through arrest, pretrial detention, trial or imprisonment for reasons of

the opinions or political positions he or she may hold.

88.

The Working Group also recalls Human Rights Council resolution 12/16, in which

the Council called upon States to refrain from imposing restrictions that are not consistent

with article 19 (3) of the Covenant, including on participation in the discussion of government

policies and political debate; human rights reports; engaging in peaceful demonstrations or

activities in support of peace or democracy; as well as expressions of opinion, dissent,

religion or belief.

89.

Likewise, in its jurisprudence, the Working Group has consistently established that

deprivation of liberty is arbitrary when the authorities have detained a person to prevent him

or her from participating in public life, for example by initiating criminal proceedings that

render it impossible for a political leader to hold or seek a position of political or popular

representation.19

90.

The 14 individuals have taken a critical public stance against the current Government

and actively engaged in denouncing the serious human rights violations allegedly committed

in the country since the beginning of the crisis in April 2018. For these reasons, some of them

had already been harassed, persecuted and arrested on other occasions. The Working Group

notes that several of the detainees had reportedly announced that they would stand as

opposition candidates in the national elections, but their candidacies were thwarted by the

circumstances examined in this case.

91.

The Working Group considers that the present case is another example of criminal

proceedings being used to prevent political opponents from expressing their views and

participating in public life, in violation of articles 19, 20 and 21 of the Universal Declaration

of Human Rights and articles 19, 21 and 25 of the Covenant. The Working Group refers the

case to the Special Rapporteur on the promotion and protection of the right to freedom of

17 Human Rights Committee, general comment No. 32 (2007), para. 30; and Kozulina v. Belarus

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

18 See opinions No. 90/2017, No. 76/2018 and No. 89/2018.

19 See opinions No. 24/2015, para. 44; No. 30/2015, paras. 39, 44 and 47; No. 33/2015, paras. 83–85;

No. 36/2017, para. 108; No. 61/2018, para. 59; and A/HRC/36/37, para. 48 (d).

A/HRC/WGAD/2022/10

14

GE.22-08068

opinion and expression and the Special Rapporteur on the rights to freedom of peaceful

assembly and of association, for appropriate action.

92.

The Working Group recalls that the Human Rights Council has stated that the rights

set out in article 25 are related to, but distinct from, the right of peoples to self-determination.

By virtue of the rights covered by article 1 (1), peoples have the right to freely determine

their political status and to enjoy the right to choose the form of their constitution or

government. Article 25 deals with the right of individuals to participate in those processes

which constitute the conduct of public affairs.20

93.

In view of the foregoing, the Working Group considers that the detention of the 14

individuals who have worked to support democratic change and defend human rights and

who have adopted a critical stance towards the Government of Nicaragua is contrary to the

provisions of article 19 of the Universal Declaration of Human Rights and article 19 of the

Covenant, rendering it arbitrary under category II.

Category III

94.

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

detention of the 14 individuals resulted from their exercise of the rights to freedom of opinion,

expression, political participation and the active exercise of political rights in Nicaraguan

society, the Working Group considers the pretrial detention and the current legal situation of

the detainees to be disproportionate and unjustified. Nevertheless, since criminal proceedings

were launched against the 14 individuals for offences that carry a potentially long prison

sentence, and in view of the claims made by the source and the lack of a response from the

Government, the Working Group will proceed to analyse whether, during the course of the

judicial proceedings, the fundamental elements of a fair, independent and impartial trial were

respected.

95.

The Working Group is convinced that during the detention of the 14 persons, their

right to be promptly informed of the reasons for their arrest was not respected and they were

not shown an arrest warrant. They were not immediately brought before a judge, nor were

they duly assisted by trusted lawyers; they were not given the opportunity to request a court

to verify the legality of the detention, and they were subjected to mandatory pretrial detention,

in contravention of article 9 of the Covenant. They have been held in incommunicado

detention, in violation of their right to challenge the legality of the detention before a court,

as provided for in article 9 (4) of the Covenant.

96.

This continuing treatment constitutes a violation of the right to have contact with the

outside world, in accordance with rules 43 (3) and 58 of the Nelson Mandela Rules and

principles 15, 19 and 20 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.

97.

In addition, mandatory pretrial detention deprives detainees of their right to seek

alternatives to detention, in violation of their right to be presumed innocent under article 11

(1) of the Universal Declaration of Human Rights and article 14 (2) of the Covenant, as it

makes it impossible to request non-custodial alternatives to detention. In the present case, the

Working Group considers that the imposition of mandatory pretrial detention for the 14

individuals, without a case-by-case examination of its necessity, is contrary to article 9 (3)

and (4) of the Covenant and demonstrates the arbitrariness of the proceedings and the absence

of due process.

Adequate time and facilities for the preparation of a defence

98.

The Working Group recalls that accused persons must be provided with adequate time

and facilities to prepare their defence and must be guaranteed prompt access to and

confidential communication with legal counsel, as well as to the file containing all

documents, evidence and other materials that the prosecution plans to offer in court.21

20 General comment No. 25 (1996), para. 2.

21 Human Rights Committee, general comment No. 32 (2007), paras. 33–34.

A/HRC/WGAD/2022/10

GE.22-08068

15

99.

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.22

100.

The Working Group is convinced that none of the 14 detainees were accorded these

inalienable safeguards, meaning that the Nicaraguan 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.

Lack of medical assistance

101.

The Working Group notes that under article 10 of the Covenant, all persons deprived

of their liberty must be treated with humanity and with respect for the inherent dignity of the

human person, and that the denial of medical assistance constitutes a violation of rules 24,

25, 27 and 30 of the Nelson Mandela Rules and of principles 6 and 33 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

According to information from the source, the detainees’ personal health has suffered from

the lack of food, nutrition, hygiene, sanitation and appropriate housing, and from the absence

of specialized protection for certain aspects of each individual’s health, medical care for their

ailments and the medicines required to maintain and care for their health. These

circumstances contravene article 7 of the Covenant and articles 2, 11 and 12 of the

Convention against Torture.

102.

The Working Group recalls that the treatment of detainees and conditions of detention

must comply with international provisions and guarantee the right of every person to a fair

and impartial trial, including the presumption of innocence, since a person subjected to cruel,

inhuman and degrading treatment during detention and prosecution does not have the

necessary means and tools to prepare his or her legal defence, rendering it impossible for him

or her to receive a fair trial with due process guarantees. 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.

Competent, impartial and independent tribunal

103.

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 against him or her. The Working Group considers that the requirement of impartiality

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

prejudice, 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.

104.

The Working Group notes that the hearing for the protection of constitutional

guarantees was held behind closed doors and without the presence of lawyers, in violation of

article 14 (1) of the Covenant. The proceedings were not made available to the defence

lawyers. Family members learned of the extension of the mandatory pretrial detention

through the media, despite the fact that under article 14 (1) of the Covenant, a public hearing

is required.

22 A/HRC/30/37, annex, guideline 5.

A/HRC/WGAD/2022/10

16

GE.22-08068

105.

The Working Group considers that none of the exceptions to this rule stipulated in

article 14 (1) of the Covenant, such as national security or public order, can reasonably be

applied to the detainees’ hearing.23

106.

In the light of the foregoing, the Working Group considers that the 14 individuals’ fair

trial guarantees under articles 9 and 10 of the Universal Declaration of Human Rights and

articles 9 and 14 of the Covenant were seriously violated, rendering their detention arbitrary

under category III. In these circumstances, the Working Group refers the case to the Special

Rapporteur on the independence of judges and lawyers.

Category V

107.

The Working Group considers the deprivation of liberty to be arbitrary under category

V, since the 14 individuals detained are human rights defenders who have a history of

publicly defending human rights. The Working Group recalls that the right to hold and

express opinions, including opinions that are not in accordance with official government

policy, is protected by article 19 of the Universal Declaration of Human Rights and article

19 of the Covenant. All public figures, including those exercising the highest political

authority, such as heads of state and government, are legitimately subject to criticism and

political opposition.24 The Working Group therefore considers the detention to be arbitrary

under category V because of the discrimination against human rights defenders who publicly

express their political stance and opinions. The detention was imposed to prevent members

of political groups opposed to the Government from expressing their opinions and

participating in Nicaraguan public life, in violation of articles 19, 20 and 21 of the Universal

Declaration of Human Rights and articles 19, 21 and 25 of the Covenant.

Concluding remarks

108.

The Working Group expresses its deep concern at the death of Mr. Torres Jiménez

due to health problems, on 12 February 2022, while he was deprived of his liberty and in the

custody of the Government of Nicaragua, whose authorities were responsible for

guaranteeing his life, health and dignified treatment. According to the information received,

Mr. Torres Jiménez’s health deteriorated rapidly after his arrest, and his medical needs were

not properly attended to. It is of concern that the exact cause of his death remains unknown.

The Working Group urges the Government to urgently conduct a thorough, effective and

independent investigation into the circumstances that led to the death of Mr. Torres Jiménez.

The investigation must include a detailed report by an independent expert of the medical and

other care provided to Mr. Torres Jiménez following his arrest and must be conducted in a

transparent manner with the full involvement of Mr. Torres Jiménez’s family members and

their legal and medical representatives.

109.

The Working Group recalls that on 26 April 2006, the Government of Nicaragua

extended an open invitation to the special procedures of the Human Rights Council and that

the Working Group’s most recent visit to Nicaragua was from 15 to 23 May 2006. In order

to allow the Working Group to establish a direct dialogue with the authorities of the three

branches of government (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.

Disposition

110.

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

The deprivation of liberty of Arturo Cruz Sequeira, Violeta Granera Padilla,

José Aguerri Chamorro, José Bernard Pallais Arana, Daysi Dávila Rivas, Ana Vijil

Gurdián, Dora Téllez Argüello, Suyen Barahona Cuan, Jorge Hugo Torres Jiménez,

Víctor Tinoco Fonseca, Luis Rivas Anduray, Miguel Mora Barberena, Miguel

Mendoza Urbina and Pedro Chamorro Barrios is arbitrary, as it contravenes articles

23 See opinions No. 44/2016, para. 31; and No. 56/2017, para. 57.

24 Human Rights Committee, general comment No. 34 (2011).

A/HRC/WGAD/2022/10

GE.22-08068

17

6, 8, 9, 10, 11, 19, 20 and 21 of the Universal Declaration of Human Rights and articles

2, 7, 9, 10, 14, 19, 21, 22 and 25 of the International Covenant on Civil and Political

Rights, and falls under categories I, II, III and V.

111.

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

to remedy the situation of the 14 detainees 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.

112.

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

case, the appropriate remedy would be to ensure the immediate and unconditional release of

the 13 detainees who are still alive and to accord them, together with Jorge Hugo Torres

Jiménez’s family members, an enforceable right to compensation and other reparations, in

accordance with international law.

113.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of the 14

detainees and to take appropriate measures against those responsible for the violation of their

rights.

114.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression, the Special Rapporteur on the rights to freedom of

peaceful assembly and of association, 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.

115.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

116.

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 the 13 individuals have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to the 14

individuals;

(c)

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

the 14 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.

117.

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.

118.

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

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.

A/HRC/WGAD/2022/10

18

GE.22-08068

119.

The Working Group recalls 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.25

[Adopted on 31 March 2022]

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