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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fifth session, 14–18 November 2022

Opinion No. 73/2022, concerning Juan Sebastián Chamorro García and

Félix Alejandro Maradiaga Blandón (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 51/8.

2.

In accordance with its methods of work, 1 on 13 June 2022 the Working Group

transmitted to the Government of Nicaragua a communication concerning Juan Sebastián

Chamorro García and Félix Alejandro Maradiaga Blandón. 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,

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

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/73

General Assembly

Distr.: General

27 March 2023

English

Original: Spanish

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Submissions

Communication from the source

4.

Juan Sebastián Chamorro García is a national of Nicaragua and was born on

23 February 1971. He was 50 years old at the time of his arrest. He is an economist, a leader

of the Alianza Cívica por la Justicia y la Democracia (Civic Alliance for Justice and

Democracy) and a critic of the Government. He was a candidate for the presidency of

Nicaragua.

5.

Mr. Chamorro is the nephew of a former President of Nicaragua and the cousin of a

presidential candidate who is under house arrest. Mr. Chamorro García announced his own

candidacy for President on 27 February 2021 with a message of justice for victims of human

rights violations.

6.

Mr. Chamorro García was Executive Director of the Alianza Cívica por la Justicia y

la Democracia from 2019 to 2021. Because of his activism, he and his family have been

subjected to attacks, beatings, raids, insults, fines running into the millions, threatened

property seizure and arrest warrants. On 22 December 2018, Mr. Chamorro García was

summoned by the police because of his criticism of the President. The police reportedly then

began regularly detaining him and circling his office, which caused him to start working

remotely and sleeping in different houses.

7.

According to the source, Mr. Chamorro García’s movements were restricted. On

25 October 2020, the police prevented him from travelling because of his work with the

Alianza Cívica por la Justicia y la Democracia. The police later informed him that he could

not leave Managua because he was being investigated, but they did not tell him the reason

for the investigation. The restriction remained in effect until his arrest; meanwhile, the police

continued to monitor him. From 20 May 2021, the police had him under de facto house arrest

and further restricted his movements.

8.

Félix Alejandro Maradiaga Blandón is a national of Nicaragua and was born on

23 September 1976. He was 44 years old at the time of his arrest. Mr. Maradiaga Blandón is

an activist, a political figure, an academic and a critic of the Government. He was a

presidential candidate for the Unidad Nacional Azul y Blanco party.

9.

In 2007, he founded the Instituto de Liderazgo de la Sociedad Civil (Civil Society

Leadership Institute), an educational initiative for the development of leadership potential. In

2017, he was appointed Executive Director of the Instituto de Estudios Estratégicos y

Políticas Públicas (Institute of Strategic Studies and Public Policy), a civil society association

focused on public policies in the region. On 28 February 2021, he announced that he would

run for President in the November 2021 elections.

10.

The source states that Mr. Maradiaga Blandón has long been a target of the

Government because of his activism. On 9 July 2018, the Inter-American Commission on

Human Rights found that his situation was urgent and that he was at serious risk after he had

been followed, harassed and sent death threats. After he was assaulted and falsely accused of

financing terrorism, Mr. Maradiaga Blandón fled Nicaragua in July 2018. When he returned,

in September 2019, his passport was confiscated and he was monitored by the police and sent

death threats. From September 2020, the police restricted his movements and maintained a

continuous presence in the area surrounding his house, which left him unable to leave his

home for three months.

Arrests

11.

According to the information received, Mr. Chamorro García was arrested on 8 June

2021 at his home. That day, he had received a summons from the Public Prosecution Service

to appear for an interview the following day. Later, however, he received a message

informing him that there was a significant police presence in front of his house.

12.

According to the source, 40 armed police officers arrived at the property, where they

jumped over the wall and forced the front door. Mr. Chamorro García got on his knees and

raised his hands, and two police officers took him away. The other officers remained at the

property and surrounded the house, and at least 25 armed officers conducted a search of the

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property. During the four-hour raid, the police searched the entire residence and took away

anything of possible value or interest, including notebooks, papers, electronic devices, mobile

telephones, several DVDs and the Internet router. The police never presented an arrest or

search warrant.

13.

In a press release dated 8 June 2021, the police indicated that Mr. Chamorro García

was under investigation for carrying out acts undermining independence, sovereignty and

self-determination. This was all done pursuant to article 1 of Act No. 1055, on the Defence

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

14.

As for Mr. Maradiaga Blandón, he received a summons from the Public Prosecution

Service on 5 June 2021 to appear at its main office for an interview on 8 June 2021. The

summons contained no other information, not even, for example, the reason for the

appointment.

15.

Mr. Maradiaga Blandón appeared before the Public Prosecution Service on 8 June.

He remained at its offices for almost four hours, gave a statement and was closely questioned.

He was interrogated about his international activities, his interactions with the

United Nations, his travels during the previous 10 years and the sources of funding of the

organizations where he worked. He was not accused of an offence but was told that he would

remain under investigation.

16.

Mr. Maradiaga Blandón left the offices of the Public Prosecution Service at

12.20 p.m., in his own vehicle, but was followed by numerous government agents.

Approximately 20 minutes later, the police arrested him in La Biblia Park. The arrest took

place at a police checkpoint, away from the reporters who had gathered in front of the Public

Prosecution Service.

17.

Although Mr. Maradiaga Blandón did not resist arrest, the police officers hit him in

the face, got him out of his car, put him in the police vehicle and drove away. The officers

presented no warrant authorizing the arrest. Later, also on 8 June, the National Police issued

a press release identical to the one on Mr. Chamorro García.

Disappearance

18.

The source reports that, for 84 days after their arrests, Mr. Chamorro García and

Mr. Maradiaga Blandón were disappeared; they were held in secret locations, without access

to their families, lawyers or doctors. On 10 June, the Public Prosecution Service publicly

announced that it had requested special hearings to extend the investigation and detention

period to 90 days. It had done so because of supposed “strong evidence that [they had] acted

against the interests of Nicaraguan society and the rights of the people under Act No. 1055”.

In both hearings, the request to extend the period of detention to 90 days was granted.

Mr. Chamorro García and Mr. Maradiaga Blandón were present at the hearings, which were

held at the prison, in secret, in the early hours of the morning. Neither man’s attorney was

informed and, therefore, neither attorney was present.

19.

On 26 August 2021, the Public Prosecution Service announced that it had filed charges

against Mr. Chamorro García and Mr. Maradiaga Blandón “on suspicion of committing acts

against Nicaraguan society and the State of Nicaragua that constitute the offence of

conspiracy to undermine national integrity under articles 410 and 412 of the Criminal Code”.

Reportedly, the prosecution alleges that they and other opposition leaders conspired to deploy

foreign funds “for the purposes of providing logistical support and fostering conditions likely

to do harm to the supreme interests of the nation”. Additional charges against the defendants

include calling for international sanctions, encouraging foreign interference in domestic

affairs and discrediting the Government.

20.

It is reported that Mr. Chamorro García and Mr. Maradiaga Blandón were tortured.

The lights in Mr. Chamorro García’s cell remained on 24 hours a day, and he was interrogated

for at least one hour every day. Mr. Maradiaga Blandón was held in solitary confinement for

the first two months of his detention and was also interrogated frequently. Both men lost

between 9 and 11 kilograms in the first three months of detention.

21.

On 31 August 2021, Mr. Chamorro García and Mr. Maradiaga Blandón each received

a visit from a family member, the first contact that they had had since 8 June. On

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3 September 2021, they appeared at a hearing that was closed to the public. At the hearing,

which took place at El Chipote and not in a court, the judge granted the prosecutor’s request

to initiate criminal proceedings. Mr. Chamorro García and Mr. Maradiaga Blandón had had

no time alone with their lawyers prior to the hearing, and their lawyers did not have access

to their case files. Because a trial date had not been set, their detention would continue

indefinitely. Both remained in incommunicado detention until 11 October, when they were

allowed a second visit with family members. On 23 October 2021, the Government indicated

that the trial date would remain unscheduled owing to the “overloaded calendar” of the

judicial office and “force majeure”.

22.

The source explains that Mr. Chamorro García and Mr. Maradiaga Blandón had

difficulty hiring a lawyer because of the persecution faced by anyone defending political

prisoners. Mr. Chamorro García’s lawyer fled the country in June 2021, citing threats against

him and his family. Mr. Maradiaga Blandón’s lawyer fled in October 2021, also pointing to

government persecution.

23.

It is claimed that, in seven months of detention, Mr. Chamorro García and

Mr. Maradiaga Blandón were visited a total of four times. At the same time, neither had been

allowed to see his lawyer since the hearing on 3 September 2021. During this time,

Mr. Chamorro García was held in a cell with the lights on all day, every day, while

Mr. Maradiaga Blandón was held in complete darkness. They received only small portions

of food, with little nutritional value, which led to drastic weight loss. They have been allowed

only 15 minutes of exposure to sunlight every 10 days. They have been denied reading

material. They have not been allowed contact with the outside world through telephone calls

or correspondence.

24.

According to the source, on 7 November 2021, after having imprisoned seven

opposition presidential candidates and having forced three more into exile, the President and

Head of Government was proclaimed the winner of an election in which no opposing

candidate was allowed to participate.

Trial and conviction

25.

The source indicates that, on 8 February 2022, it was announced that the trial of

Mr. Chamorro García, Mr. Maradiaga Blandón and five other individuals would begin on

15 February 2022, after months of suspension. As in the cases of other politicians arrested

since May 2021, the trial was held at El Chipote and not, as required by law, in a court.

Neither the public nor the press were able to attend.

26.

Mr. Chamorro García and Mr. Maradiaga Blandón were denied the opportunity to

meet with their lawyers before the trial to prepare their defence. In the case of Mr. Maradiaga

Blandón, the lawyer who had represented him at the initial hearing on 3 September 2021 (the

only hearing that had been held since he had been arrested) had been forced to flee and go

into exile. His second lawyer had been arrested. His third lawyer had also fled and gone into

exile. The lawyer that Mr. Maradiaga Blandón had at the hearing was his fourth legal

representative, and their first meeting took place on the day of the trial.

27.

According to the information received, neither the defendants nor their lawyers were

provided with documentary evidence relating to the charges, nor were they notified in

advance of the witnesses who would be testifying against the defendants. The defence

considered it too dangerous to call witnesses to testify on the defendants’ behalf, fearing that

they would face retaliation and be arrested or persecuted.

28.

The trial took place in an auditorium. Each defendant was allowed to have one family

member present, but they were prohibited from bringing in any material, including paper or

pencils. They were allowed to talk to their loved ones for no more than 10 minutes, while

eating lunch, under police supervision.

29.

According to the source, the defendants entered the auditorium in single file, with

their heads bowed. They were handcuffed, dressed as prisoners and escorted by police

officers. They were seated in chairs placed in a row, with police officers between them to

prevent them from speaking.

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30.

On the first day of the trial, Mr. Chamorro García and Mr. Maradiaga Blandón were

able to speak with their lawyers for two minutes before the hearing began, while police

officers monitored them. Some days during the trial, they were not allowed to speak to them

at any time. Throughout the trial they were seated away from their lawyers to prevent

communication between them. At several points during the trial, the lawyers were prevented

either from addressing the judge or from speaking.

31.

Mr. Chamorro García and Mr. Maradiaga Blandón heard the accusations against them

for the first time on the first day of the trial. They were prevented from speaking at any time

and were allowed only to indicate “yes” or “no” with their heads. They were even punished

for doing so too enthusiastically. On the last day of the trial, each was allowed to make a

three-minute statement. This was the first time that they had been allowed to speak during

the proceedings.

32.

The source notes that, during the trial, the public prosecutor’s office called 27 police

officers as witnesses. The acts that were imputed to Mr. Chamorro García and Mr. Maradiaga

Blandón were participating in a WhatsApp group and taking part in some television

interviews. In addition, the items taken during the illegal searches were produced as material

evidence, but that evidence was never related to the alleged offence. For example, a USB

memory stick was submitted as evidence and the public prosecutor’s office claimed that it

contained documents demonstrating illegal activity, but the documents themselves were

never presented. In the case of Mr. Chamorro García, the public prosecutor’s office submitted

a mobile telephone taken during the search that was set to the factory settings and had not

been used in years.

33.

Furthermore, it is reported that a police officer accused Mr. Chamorro García of

calling for sanctions on a news programme and during a trip to Washington, D.C. but was

unable to answer the most basic questions regarding his accusation, such as when the news

had been circulated and the programme broadcast, how he remembered that the person on

the programme had been Mr. Chamorro García, on what dates Mr. Chamorro García had

travelled to Washington, D.C. and with whom he had met. The witnesses called by the public

prosecutor’s office had little or no knowledge of the alleged criminal activity.

34.

Mr. Chamorro García and Mr. Maradiaga Blandón were found guilty on 23 February

2022 and sentenced to 13 years’ imprisonment on 3 March 2022.

Category I

35.

The source claims that Mr. Chamorro García and Mr. Maradiaga Blandón have been

arbitrarily detained under category I since there is no legal basis for their detention.

36.

According to the source, Mr. Chamorro García and Mr. Maradiaga Blandón were not

informed of the reasons for their arrest at the time of their arrest nor were they shown an

arrest warrant. Moreover, neither of them was in the process of committing an offence when

arrested. Although they received summonses for interviews at the offices of the Public

Prosecution Service, Mr. Chamorro García was arrested before his interview, while

Mr. Maradiaga Blandón was arrested after his, and no charges were filed until months later.

37.

According to the police press releases, both men were arrested on 8 June 2021, and it

was later announced that they were under investigation for violating article 1 of Act

No. 1055. However, the Act does not authorize arrest; rather, the punishment that it sets out

for persons who violate it is disqualification from public office. Being under investigation

for violating Act No. 1055 was the sole basis for the arrests.

38.

In addition, it is indicated that no court made an individualized determination as to the

reasonableness and necessity of placing Mr. Chamorro García and Mr. Maradiaga Blandón

in pretrial detention. The detention was later ordered under Act No. 1060, which does not

require an individualized determination.

39.

Act No. 1060 provides for the amendment of the Code of Criminal Procedure to

enable the judicial authority, at the request of the prosecutor, to detain suspects for up to

90 days in order to provide more time for the gathering of evidence for possible criminal

charges. The Act requires only that the court consider factors unrelated to the necessity or

reasonableness of the detention, such as the seriousness of the facts and the complexity of

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the investigation. It is therefore argued that Act No. 1060 is contrary to international human

rights law.

40.

The provisions of Act No. 1060 allow for excessively broad and vague interpretations

and grant unlimited discretion. The prosecutor cited the Act as the grounds for making the

request at the secret hearings on 9 and 10 June 2021, and it was on that basis that

Mr. Maradiaga Blandón and Mr. Chamorro García were placed in pretrial detention.

41.

The source recalls that neither Mr. Chamorro García nor Mr. Maradiaga Blandón was

informed promptly of the charges. Both were arrested on 8 June 2021, and charges were not

filed against them until 25 August of the same year. They were held without charge,

incommunicado, for 78 days.

42.

The source stresses that, during the first 84 days of their detention, Mr. Chamorro

García and Mr. Maradiaga Blandón were subjected to enforced disappearance and were

completely denied access to a lawyer and to their families. Their lawyers were not notified

of the second preliminary hearing and could therefore not attend. After the hearing on

3 September 2021, they were held incommunicado, without access to a lawyer, for another

41 days. As a result, throughout that entire period, from the time that their deprivation of

liberty began, they were not allowed to challenge the lawfulness of their pretrial detention.

43.

Despite being officially accredited as their defence counsel, Mr. Chamorro García’s

and Mr. Maradiaga Blandón’s lawyers were not allowed to challenge the lawfulness of their

clients’ detention. They were not informed of when the hearings would take place, nor did

they have access to the case files. As a result, Mr. Chamorro García and Mr. Maradiaga

Blandón were prevented from challenging the lawfulness of their detention, which constitutes

arbitrary detention under category I.

Category II

44.

The source claims that the detention of Mr. Chamorro García and Mr. Maradiaga

Blandón is a direct result of their exercise of their rights to freedom of expression, of

association and of participation in public affairs.

45.

Mr. Chamorro García and Mr. Maradiaga Blandón were arrested because they were

political candidates for the opposition. Their arrests, like those of five other opposition

candidates, occurred during an election year. Furthermore, both are being investigated for

violating Act No. 1055, the penalty for which is a prohibition against seeking public office.

On the basis of these facts – their past activities as described above, the political context

surrounding their detention and the penalty for violations of Act No. 1055 – the conclusion

is that Mr. Chamorro García’s and Mr. Maradiaga Blandón’s exercise of their right to

participate in government affairs is the reason for their detention.

Category III

46.

The source argues that Mr. Chamorro García and Mr. Maradiaga Blandón have been

victims of numerous violations of their rights under articles 7, 9 and 14 of the Covenant,

making their detention arbitrary under category III.

47.

Mr. Chamorro García and Mr. Maradiaga Blandón were disappeared and held in secret

locations, without access to their families, lawyers or doctors. Both were arrested by the

police without being given an explanation or being told where they were being taken. Their

family members suspected that they were being held at El Chipote, but every time that they

tried to visit them, the guards would not confirm whether they were there. The Government

did not confirm their whereabouts until 31 August 2021, when they were allowed a brief visit

with a family member at El Chipote.

48.

At the hearings on 9 June, 26 August and 3 September 2021, Mr. Chamorro García

and Maradiaga Blandón were denied access to a fair and impartial tribunal. This stemmed

from the Government’s overall control of the judiciary and the increasing repression of the

political opposition ahead of the November 2021 elections.

49.

On 9 June 2021, at a secret hearing held in the middle of the night, the Sixth District

Criminal Court of Managua ordered that Mr. Maradiaga Blandón, whose lawyer was not

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present, be placed in pretrial detention for 90 days. On 10 June, Mr. Chamorro García was

ordered to be placed in pretrial detention for 90 days, also at a secret hearing where his lawyer

was not present.

50.

On 26 August 2021, at a preliminary hearing, the two men were charged with violating

articles 410 and 412 of the Criminal Code, which prescribe penalties for undermining

national integrity and for criminal incitement, instigation and conspiracy. Mr. Chamorro

García and Mr. Maradiaga Blandón were arrested under a law that penalizes offenders by

disqualifying them from seeking public office. They and five other political candidates have

been subjected to prolonged pretrial detention without any individualized determination

being conducted as to its necessity or reasonableness. Consequently, it is claimed that the

judiciary can be considered neither fair nor impartial.

51.

The source adds that none of the hearings in the trial against Mr. Chamorro García

and Mr. Maradiaga Blandón were public, and the Government has not explained why they

were held in secret. The hearings on 9 and 10 June 2021 took place at around 2 or 3 a.m., in

the middle of the night. The 26 August hearing was also held in secret, without the lawyers

being informed. The hearing on 3 September was held inside El Chipote and was also closed

to the public.

52.

In addition, it is claimed that Mr. Chamorro García and Mr. Maradiaga Blandón have

been denied access to a lawyer of their choosing, as their lawyers have now fled the country,

citing government persecution as the reason.

53.

Mr. Chamorro García’s and Mr. Maradiaga’s legal counsel did not have the

opportunity to prepare an adequate defence. The lawyers were not informed of the hearing

on 9 June 2021, even though they had requested accreditation as counsel. Neither lawyer had

been notified or was present at the 26 August hearing where the detainees were charged,

which occurred when the lawyers for both had been accredited. Mr. Chamorro García’s

lawyer therefore filed a motion at the 3 September hearing to have the charges dropped, but

it was denied. Although the lawyers were present at the 3 September hearing, neither had

time alone with their client, and they were denied access to their files.

54.

The source claims that Mr. Chamorro García’s and Mr. Maradiaga Blandón’s right to

be presumed innocent was violated on 8 June 2021, when the Vice-President and First Lady

of Nicaragua publicly referred to them and other persons under investigation as “terrorists”

and “criminals”, adding that: “They believe they’ll be forever unpunished, [but] justice

arrives, late but it arrives in this Nicaragua that had been prospering and in reconciliation.

How much we would have done with what this mountain of thieves stole, not just thieves but

also terrorists, criminals.”2 Publicly speaking about Mr. Chamorro García and Mr. Maradiaga

Blandón as if they were criminals constitutes a violation of the presumption of innocence.

55.

The prolonged pretrial detention of Mr. Chamorro García and Mr. Maradiaga Blandón

constituted a further violation of the presumption of innocence. In June 2021, both were

ordered to be held in judicial detention for 90 days to allow the Government to continue

investigating the accusations against them. It is claimed that this was the practical equivalent

of a criminal sentence, despite the absence of a conviction. On 3 September, when the judge

granted the prosecutor’s request to initiate criminal proceedings, they were again placed in

incommunicado detention for a prolonged period.

56.

The source claims that Mr. Chamorro García and Mr. Maradiaga Blandón have been

subjected to torture or cruel, inhuman or degrading treatment. They were disappeared for

84 days, and the Government failed to actively confirm that they were alive and in detention,

which caused great anguish and stress to their families. It was confirmed that both were alive

on 31 August 2021, when they briefly reappeared and were allowed a visit from a family

member. However, both were held incommunicado again from the 3 September hearing until

11 October. The trial date was not set following the 3 September hearing.

57.

During their first three months in custody, Mr. Chamorro García and Mr. Maradiaga

Blandón lost between 9 and 11 kilograms in weight. Mr. Maradiaga Blandón was held in

2 See https://www.nbcnews.com/news/latino/nicaragua-arrests-potential-challengers-president-daniel-

ortega-rcna1154.

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solitary confinement for the first two months of his detention. Mr. Chamorro García was held,

from 7 October 2021, in a cell where the lights were on for 24 hours, and he was subjected

to repeated interrogations.

Category V

58.

Lastly, the source adds that both Mr. Chamorro García and Mr. Maradiaga Blandón

have been targeted by the Government because of their open criticism of it, their appeals for

accountability, justice and human rights, their association with civil society groups and their

meetings in the country and abroad. It is thus claimed that Mr. Chamorro García’s and

Mr. Maradiaga Blandón’s detention is discriminatory and therefore arbitrary under

category V.

Discussion

59.

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.

60.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations.3 In the present

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

by the source.

61.

The Working Group reaffirms that States have an obligation to respect, protect and

uphold all human rights and fundamental freedoms, including liberty of person, and that any

national law allowing deprivation of liberty should be made and implemented in conformity

with the relevant international standards. Consequently, even if the detention is in conformity

with national legislation, regulations and practices, the Working Group has a mandate to

assess the judicial proceedings and the law itself to determine whether the detention is

consistent with the relevant provisions of international human rights law.4

Category I

62.

The source claims that the detention of Mr. Chamorro García and Mr. Maradiaga

Blandón was arbitrary under category I; that is, that there was no legal basis for their

detention.

63.

In view of the information received, which was not contested by the Government, the

Working Group considers that Mr. Chamorro García and Mr. Maradiaga Blandón were

arrested without a warrant on 8 June 2021 and were not promptly informed of the charges

against them, which were not filed until 25 August 2021. This meant that they were held,

incommunicado, without charge for 78 days. They were also not informed of the judicial

avenues available for challenging the lawfulness of the deprivation of their liberty or of their

right to have lawyers of their choosing, nor were they allowed to contact their families. There

was consequently a violation of the right to liberty of person of both men, as they were

detained without a legal basis.

64.

The Working Group emphasizes that the reasons for an arrest must be set out in the

corresponding warrant, which must state the legal basis and the facts underlying the

complaint and identify the unlawful act committed. These reasons are understood as being

the official basis for the arrest, not the subjective motives of the arresting officer.

65.

What the source has described is a violation of the rights protected under articles 3, 5,

8, 9 and 11 of the Universal Declaration of Human Rights, articles 9 (1) and (2) and 14 (2)

of the Covenant, principle 10 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment and principle 7 of the United Nations Basic

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

4 Opinion No. 5/2020, para. 71; No. 46/2019, para. 50; No. 4/2019, para. 46; and No. 10/2018, para. 39.

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Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of

Their Liberty to Bring Proceedings Before a Court.

66.

The Working Group notes that, prior to his arrest, Mr. Chamorro García’s home was

searched without a warrant being presented, breaching the inviolability of those premises;

such inviolability is necessary for the enjoyment of the right to privacy and a home. The

search was conducted outside the bounds of the law, since the officers had not given prior

notice to a person living at or present in the residence, nor were the required observers present

to watch the search and take note of what was seen or taken.5 Items seized during the search

were not subsequently used at any stage of the proceedings. The fact that the residence was

searched without a warrant and that the items taken were not used as evidence at trial supports

the conclusion that the authorities did not follow the necessary procedures in order to ensure

that the detention had a legal basis.6

67.

In addition, it is indicated that no court made an individualized determination that the

use of pretrial detention was reasonable and necessary. The pretrial detention of both men

was later ordered under Act No. 1055, which does not authorize arrests. The Working Group

notes that both detainees were presidential candidates during an election period and that they

were subsequently tried under the provisions of Act No. 1060, which is characterized by its

vagueness, as it allows for excessively broad and vague interpretations and thus grants

unlimited discretion to the authorities.

68.

Act No. 1060, which amended the Code of Criminal Procedure, does not require an

individualized assessment of the reasons for detention; rather, it allows a judicial authority to

detain suspects for up to 90 days for the gathering of evidence for possible criminal charges.

The court, in ordering pretrial detention, considers factors unrelated to the necessity or

reasonableness of the detention.

69.

The Working Group has repeatedly indicated that a decision to place a person in

pretrial detention must be based on an individualized determination that it is reasonable and

necessary taking into account all the circumstances, for such purposes as to prevent flight,

interference with evidence or the recurrence of crime.7

Disappearance, incommunicado detention and torture and cruel, inhuman and degrading

treatment

70.

The Working Group has been persuaded that, for 84 days after their arrest,

Mr. Chamorro García and Mr. Maradiaga Blandón were disappeared and held

incommunicado, being detained in secret locations, without access to their families, lawyers

or doctors. Both were arrested by the National Police on 8 June 2021, without an explanation

or information on where they would be taken. The Government did not confirm their

whereabouts until 31 August 2021.

71.

In the light of these circumstances, the source has established a credible prima facie

case that Mr. Chamorro García and Mr. Maradiaga Blandón were subjected to arbitrary

detention, incommunicado detention and disappearance, supporting a conclusion that their

right to an effective remedy to challenge the lawfulness of their detention under articles 2 (3)

and 9 (4) of the Covenant and article 8 of the Universal Declaration of Human Rights was

violated. Furthermore, the detainees remained outside the protection of the law, in violation

of their right to recognition under article 6 of the Universal Declaration of Human Rights and

article 16 of the Covenant. Enforced disappearance is prohibited by international law and is

considered a particularly aggravated form of arbitrary detention. 8 The Working Group

decides to refer the present case to the Working Group on Enforced or Involuntary

Disappearances.

72.

The Working Group notes that the factors set out in the International Convention for

the Protection of All Persons from Enforced Disappearance are present in the case of

5 Human Rights Committee, general comment No. 16 (1988).

6 Opinion No. 83/2019, para. 51.

7 Human Rights Committee, general comment No. 35 (2014), para. 38.

8 Human Rights Committee, general comment No. 35 (2014), para. 17. See also Opinions No. 38/2021;

No. 77/2020; No. 13/2020; No. 11/2020; No. 6/2020 and No. 5/2020.

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Mr. Chamorro García and Mr. Maradiaga Blandón, namely: (a) deprivation of liberty;

(b) direct intervention by, or acquiescence of, agents of the State; and (c) a refusal to

acknowledge the detention or concealment of the fate or whereabouts of the person. In the

present case, Mr. Chamorro García and Mr. Maradiaga Blandón were deprived of their liberty

through the direct intervention of the State’s law enforcement authorities, which refused to

confirm their fate or whereabouts for around three months.

73.

Furthermore, the Working Group notes that incommunicado detention, especially

during the early stage of an investigation, is a situation conducive to torture and cruel or

inhuman treatment, as it may be used to coerce the detainee to confess to the alleged offences

and admit guilt.9 Subjecting detainees to incommunicado detention places them outside the

protection of the law,10 which 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.

74.

The use of incommunicado detention prevents the effective exercise of the right to

challenge the lawfulness of the detention before a judge. The Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment has repeatedly found that the

use of incommunicado detention is unlawful under international law. 12 Incommunicado

detention that prevents a detainee from being brought promptly before a judge inherently

violates article 9 (3) of the Covenant.13 It may also be considered as amounting to a form of

torture or ill-treatment, prohibited under article 7 of the Covenant and articles 1 and 16 of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.

75.

Mr. Chamarro García was kept in a cell where the lights were on all day, every day,

while Mr. Maradiaga Blandón was kept in complete darkness. Both were allowed only

15 minutes of sunlight every 10 days and were denied reading material and contact with the

outside world through telephone calls or correspondence. The Working Group underscores

that the torture and other cruel, inhuman and degrading treatment that Mr. Chamorro García

and Mr. Maradiaga Blandón were subjected to, as described by the source, violate the

absolute prohibition of torture as a peremptory norm of international law and article 5 of the

Universal Declaration of Human Rights, article 7 of the Covenant and articles 2 and 16 of

the Convention against Torture. The Working Group decides to refer the case to the Special

Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

76.

The Working Group is concerned about the deplorable, unhealthy conditions, which

endanger the lives and well-being of Mr. Chamorro García and Mr. Maradiaga Blandón and

have caused them to experience drastic, severe weight loss. The Government must keep in

mind 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;

endangering the health of the detainees constitutes a violation of the United Nations Standard

Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular

rules 24, 25, 27 and 30.

77.

The Special Rapporteur on the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health has indicated, with regard to the right to

health in contexts of confinement and deprivation of liberty, that violations of the right to

health interfere with fair trial guarantees. Violations of the right to health emerge as both

causes and consequences of confinement and deprivation of liberty, as they leave persons

unable to adequately prepare their defence.14 The Working Group will refer the present case

9 General Assembly resolution 68/156, para. 27; A/56/156, para. 39 (f); Human Rights Committee,

general comment No. 35 (2014), paras. 35 and 56.

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

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

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

13 General comment No. 35 (2014), para. 35.

14 A/HRC/38/36, para. 18.

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11

to the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health.

78.

The Working Group finds that all these circumstances constitute serious violations of

the fundamental principles and rights contained in the Universal Declaration of Human

Rights and the Covenant and render the detention of Mr. Chamorro García and

Mr. Maradiaga Blandón arbitrary under category I.

Category II

79.

The source claims that the detention of Mr. Chamorro García and Mr. Maradiaga

Blandón is arbitrary because it is the direct result of their exercise of their rights to freedom

of expression, of association and of participation in public affairs.

80.

The freedoms of opinion, expression, assembly, association, participation and even

peaceful protest are the cornerstones of any free and democratic society. These freedoms are

the basis for the effective exercise of a wide range of human rights set forth in articles 20 and

21 of the Universal Declaration of Human Rights and articles 19, 21, 22 and 25 of the

Covenant. Mr. Chamorro García and Mr. Maradiaga Blandón were detained and proceedings

were initiated against them precisely because of their work to promote freedom of expression,

association and assembly, and the detention and proceedings prevented them from

participating in political and democratic life.

81.

The Working Group has been persuaded that Mr. Chamorro García has been

persecuted by the Government since 2018 for his criticism of the President and for his

leadership role in the opposition. The police have subjected him to constant harassment and

intimidation, forcing him to work remotely and sleep in different locations. This took the

form of de facto house arrest, when guards outside his home and neighbourhood did not allow

him to leave the residential complex where he lived. Mr. Chamorro García was arrested on

8 June 2021 in retaliation for his public criticism of the Government and for his membership

and leadership role in the opposition.

82.

Mr. Maradiaga Blandón has also been targeted by the Government for his criticism

and his leadership role in the opposition. He has been subjected to death threats, surveillance

and periods of arbitrary house arrest since early 2018. In addition, he was falsely accused of

financing anti-government protests. According to the source, he fled Nicaragua in July 2018

after being brutally assaulted by the police. When he returned in September 2019, he was

subjected to reprisals, including the confiscation of his passport, the placement of 16 to

22 guards outside his home and three months of de facto house arrest. He again faced

fabricated charges regarding the alleged use of foreign funds to commit ill-defined offences.

In the source’s opinion, Mr. Maradiaga Blandón was arrested on 8 June 2021 in retaliation

for his criticism of the Government and his leadership role in the opposition.

83.

Mr. Chamorro García and Mr. Maradiaga Blandón were arrested because they were

political candidates for the opposition and they belonged to and participated in political and

civil society organizations. Their arrests, like those of five other opposition candidates,

occurred during an election year. Furthermore, both are being investigated for violating

Act No. 1055, the penalty for which is a prohibition against seeking public office. In the light

of these facts – their past activities, the political context surrounding their detention and the

penalty for violations of Act No. 1055 – Mr. Chamorro García’s and Mr. Maradiaga

Blandón’s exercise of their right to participate in government affairs is related to their

detention and is the reason for it.

84.

The Working Group has established in its jurisprudence 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.15

85.

The Working Group is deeply concerned about the reports it has received of the

harassment, intimidation, threats and arrests to which Mr. Chamorro García and

15 Opinions No. 61/2018, para. 59; No. 36/2017, para. 108; No. 33/2015, paras. 83–85; No. 30/2015,

paras. 39, 44 and 47; and No. 24/2015, para. 44; and A/HRC/36/37, para. 48 (d).

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Mr. Maradiaga Blandón have been subjected. The Working Group applies a heightened

standard of review in cases in which freedom of expression and opinion is restricted or in

which social or democratic activists or human rights defenders are involved.

86.

The Working Group once more reminds the Government of Nicaragua that citizens

are entitled to take part in the conduct of public affairs by exerting an influence on them,

either through debate and dialogue with their representatives or through their capacity for

organization.16

87.

In the light of above considerations, the Working Group decides to refer 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 situation of human rights defenders

and the Special Rapporteur on the rights to freedom of peaceful assembly and of association.

88.

The Working Group, after carefully examining the claims and all available

information, considers that the detention of Mr. Chamorro García and Mr. Maradiaga

Blandón is arbitrary, because it resulted from their exercise of their rights to freedom of

opinion, expression, assembly, association and participation in public affairs, which are

protected under articles 19, 20 and 21 of the Universal Declaration of Human Rights and 19,

21, 22 and 25 of the Covenant, and therefore falls under category II.

Category III

89.

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

that the detention resulted from an exercise of the rights to freedom of opinion, expression,

assembly, association, participation and the active exercise of political rights in Nicaraguan

society, the Working Group considers the pretrial detention and the trial against the detainees

to be disproportionate and unjustified. Nevertheless, since criminal proceedings were

launched for offences that carry a potentially long prison sentence, and in view of the claims

made by the source, the Working Group will proceed to analyse whether, during the course

of the proceedings, the fundamental elements of a fair trial were respected.

Presumption of innocence

90.

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

Covenant recognize the right of all accused persons to be presumed innocent.17 In this regard,

the Working Group has determined that statements publicly and openly condemning the

accused persons before a judgment has been made violate the presumption of innocence and

constitute undue interference in the independence and impartiality of the trial.18

91.

However, according to the source, in a press release dated 8 June 2021, the police

indicated that Mr. Chamorro García was under investigation for acting in a manner that

undermines independence, sovereignty and self-determination, in application of article 1 of

Act No. 1055 on the Defence of the People’s Rights to Independence, Sovereignty and

Self-Determination for Peace.

92.

Subsequently, the Vice-President and First Lady of Nicaragua referred to them and all

opposition leaders or potential presidential candidates as “terrorists” and “criminals”, adding

that: “They believe they’ll be forever unpunished, [but] justice arrives, late but it arrives in

this Nicaragua that had been prospering and in reconciliation. How much we would have

done with what this mountain of thieves stole, not just thieves but also terrorists, criminals.”19

On the day of the hearing, the defendants entered the auditorium one by one, with their heads

bowed, dressed as prisoners, handcuffed and escorted by police officers.

93.

All public authorities have the duty to refrain from prejudging the outcome of a trial

through public statements affirming the guilt of the accused.20 This duty was not observed in

16 Human Rights Committee, general comment No. 25 (1996).

17 Human Rights Committee, general comment No. 32 (2007), para. 30.

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

19 See https://www.nbcnews.com/news/latino/nicaragua-arrests-potential-challengers-president-daniel-

ortega-rcna1154.

20 See opinion No. 40/2019.

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the case of Mr. Chamorro García and Mr. Maradiaga Blandón. In addition, they were

automatically subjected to prolonged pretrial detention, which means that they were treated

as guilty long before they were tried.

Automatic pretrial detention

94.

The violation of the presumption of innocence is aggravated by the automatic

imposition of pretrial detention pursuant to Act No. 1060, which authorizes the Public

Prosecution Service to request an extension of the time period for investigation and judicial

detention when it is considered that, given the results of the investigation, more time is

needed to obtain additional information or sufficient evidence. An additional element in this

case is the prolonged nature of the detention since, at a secret hearing in June 2021,

Mr. Chamorro García and Mr. Maradiaga Blandón were placed in judicial detention for

90 days to allow the Government to continue investigating the accusations.

95.

In the view of the Working Group, the placement of Mr. Chamorro García and

Mr. Maradiaga Blandón in judicial detention was the practical equivalent of a criminal

sentence, despite the absence of a conviction. In addition, on 3 September 2021, when the

judge granted the prosecutor’s request to initiate criminal proceedings, they were again

placed in incommunicado detention for a prolonged period.

96.

The Working Group reiterates that pretrial detention should not be punitive in nature,

should be the exception rather than the rule and should be ordered for the shortest time

possible. It should be based on an individual assessment of the particular circumstances of

each case and of each individual. Article 9 of the Covenant requires that a judicial authority

assess the need for pretrial detention in each case; according to the documents examined, this

has not occurred. The Working Group wishes to recall that it has already considered the issue

in depth and concluded that mandatory pretrial detention violates articles 9 and 14 of the

Covenant.21

Independent and impartial tribunal

97.

The Working Group stresses that legal safeguards against arbitrary deprivation of

liberty, as set out in article 9 of the Universal Declaration of Human Rights and article 9 of

the Covenant, require that anyone arrested or detained on a criminal charge be brought

promptly before a judge for the exercise of judicial oversight.22 The Working Group has been

persuaded that the accused were not brought promptly before a competent, independent and

impartial authority, in violation of article 9 (3) of the Covenant.

98.

The Working Group further notes with concern that these violations have been

instigated and perpetrated by the public prosecutor’s office and stresses that the prosecution

service cannot be considered an independent judicial authority for the purposes of article 9

(3) of the Covenant.23 It is recalled that the national legal system should provide for a

separation between the authority conducting the investigation and the authorities responsible

for detention and for ruling on questions related to pretrial detention. This separation is a

necessary requirement to prevent conditions of detention from being used to impair the

effective exercise of the right to defend oneself, favour self-incrimination or allow pretrial

detention to amount to a form of advance punishment.

99.

The Working Group notes that the detainees were unable to meet with their lawyers

to prepare their defence, which constitutes a violation of the right to a defence provided for

under articles 10 and 11 of the Universal Declaration of Human Rights and article 14 (3) (b)

of the Covenant.

100.

Furthermore, Mr. Chamorro García and Mr. Maradiaga Blandón have been denied

access to a lawyer of their choosing. The persecution of their lawyers has been so intense that

21 Opinions No. 53/2018, No. 16/2018, No. 1/2018, No. 24/2015 and No. 57/2014; A/HRC/19/57,

paras. 48–58; and Human Rights Committee, general comment No. 35 (2014), para. 38.

22 See opinions No. 66/2020, No. 60/2020, No. 49/2019, No. 30/2017 and No. 6/2017; and Human

Rights Committee, general comment No. 35 (2014), para. 33.

23 Human Rights Committee, general comment No. 35 (2014), para. 32. Opinions No. 41/2020, para. 60;

No. 5/2020, para. 72; and No. 14/2015, para. 28; and A/HRC/45/16/Add.1, para. 35.

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two of them have fled the country, citing government persecution as the reason for their exile.

Despite being officially accredited as their defence counsel, Mr. Chamorro García’s and

Mr. Maradiaga Blandón’s lawyers were, moreover, not allowed to challenge the lawfulness

of their clients’ detention. They have faced obstacles, such as the refusal to inform them of

when the hearings would take place, and they did not have adequate facilities to mount a

defence, which is an inalienable right for protection against arbitrary detention. They were

prevented from communicating with their lawyers privately and confidentially,24 they were

given limited time to prepare their defence, 25 and they were denied access to the file

containing all documents, evidence and other materials that the prosecution planned to offer

in court.26

101.

The Working Group recalls that the right to legal assistance is an essential guarantee

of equal access and procedural fairness. All persons deprived of their liberty have the right

to legal assistance by a counsel of their choice at any time during their detention, including

immediately after their arrest, and such access is to be provided without delay.27 None of

these guarantees have been observed in the present case.

Due process

102.

One of the fundamental guarantees of due process is the principle of legality, which

includes: (a) the principle of non-retroactivity; (b) the prohibition against analogy; (c) the

principle of certainty; and (d) the prohibition against uncodified – that is, unwritten, or

judge-made – criminal provisions. This means that an act may be punishable only if, when

committed, it was the object of a valid, sufficiently precise, written criminal law to which a

sufficiently certain sanction was attached.28 The Working Group notes that Act No. 1055,

under which Mr. Chamorro García and Mr. Maradiaga Blandón were convicted, was drafted

in a vague and excessively broad manner, and its use to curtail freedom of opinion and

expression, and the definition of certain crimes related to national security to encompass

legitimate activities, such as exercising the right to freedom of expression, did not appear to

comply with the principles of legal certainty, necessity and proportionality.29

103.

The hearings against Mr. Chamorro García and Mr. Maradiaga Blandón were not

public, and the Government has not availed itself of the opportunity to explain why they were

held in secret. The hearings on 9 and 10 June 2021 took place at around 2 or 3 a.m. and the

Public Prosecution Service did not announce that they had been held until the afternoon of

10 June. The 26 August hearing was also held in secret, neither lawyer was notified that it

had taken place and the Public Prosecution Service did not announce that it had occurred

until the following day. The hearing on 3 September was held inside El Chipote and was also

closed to the public.

104.

The Working Group is concerned about the secrecy surrounding the proceedings

against Mr. Chamorro García and Mr. Maradiaga Blandón, as thus far all pretrial hearings

appear to have been held behind closed doors; neither their families nor their lawyers were

informed of the progress of the case and have not been able to visit them. There has been

significant interference with the lawyers’ ability to ensure the effective exercise of the right

to a defence. The Working Group wishes to recall that for a trial to meet the requirements of

article 14 of the Covenant, “the tribunal must also appear to a reasonable observer to be

impartial”.30

105.

It is claimed that the due process violations in this case demonstrate that the court’s

actions were politically motivated. As discussed earlier, both were arrested under a law that

24 Human Rights Committee, general comment No. 32 (2007), para. 34.

25 Ibid., para. 32.

26 Ibid., para. 33.

27 A/HRC/30/37.

28 Claus Kreß, “Nulla poena nullum crimen sine lege”, Max Planck Encyclopedia of Public

International Law, vol. 7, Rüdiger Wolfrum (ed.) (2010), pp. 889 and 890; and Payam Akhavan,

“Judicial guarantees”, The 1949 Geneva Conventions: A Commentary, Andrew Clapham, Paola Gaeta

and Marco Sassoli (eds.) (2015), p. 1227, cited in opinion No. 10/2018, para. 50.

29 CCPR/C/VNM/CO/3, para. 45 (a).

30 Human Rights Committee, general comment No. 32 (2007), paras. 21 and 34.

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15

penalizes offenders by disqualifying them from running for elected office. They and five

other candidates have been subjected to prolonged pretrial detention without any

individualized determination being conducted as to its necessity or reasonableness. In the

light of the foregoing, the Working Group considers that the right of Mr. Chamorro García

and Mr. Maradiaga Blandón to a fair, independent and impartial trial, provided for under

articles 9, 10 and 11 of the Universal Declaration of Human Rights and articles 9 and 14 of

the Covenant, was seriously violated, rendering their detention arbitrary under category III.

Category V

106.

Non-discrimination, together with equality before the law and equal protection of the

law, constitute a basic and general principle of human rights protection. Thus, article 2 (1) of

the Covenant sets out an obligation for each State to respect and to ensure to all individuals

within its territory and subject to its jurisdiction the rights recognized in the Covenant,

without distinction of any kind.

107.

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

V in this case, since Mr. Chamorro García and Mr. Maradiaga Blandón can be described as

human rights defenders with a consistent history of publicly defending human rights and

democracy. 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. It is clear that 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.

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.

108.

The Working Group wishes to reiterate its suggestion that the Government consider

inviting it to visit Nicaragua so that it may engage in a direct dialogue with the authorities,

representatives of civil society and detained persons, with a view to gaining a better

understanding of deprivation of liberty in the country. On 26 April 2006, Nicaragua extended

an open invitation to the special procedures of the Human Rights Council, and the last time

that the Working Group visited Nicaragua was in 2006.

Disposition

109.

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

The deprivation of liberty of Juan Sebastián Chamorro García and

Félix Alejandro Maradiaga Blandón, being in contravention of articles 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, is

arbitrary and falls within categories I, II, III and V.

110.

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

to remedy the situation of Juan Sebastián Chamorro García and Félix Alejandro

Maradiaga Blandón 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.

111.

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

case, the appropriate remedy would be to release Mr. Chamorro García and Mr. Maradiaga

Blandón immediately, unconditionally and without limitations and accord them an

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

law. In the current context of the global coronavirus disease (COVID-19) pandemic and the

threat that it poses in places of detention, the Working Group calls upon the Government to

take urgent action to ensure the immediate release of Mr. Chamorro García and

Mr. Maradiaga Blandón.

112.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

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GE.23-04625

Mr. Chamorro García and Mr. Maradiaga Blandón and to take appropriate measures against

those responsible for the violation of their rights.

113.

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, the Special Rapporteur on the right of

everyone to the enjoyment of the highest attainable standard of physical and mental health

and the Working Group on Enforced or Involuntary Disappearances.

114.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

115.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Chamorro García and Mr. Maradiaga Blandón have been released

and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Chamorro

García and Mr. Maradiaga Blandón;

(c)

Whether an investigation has been conducted into the violation of

Mr. Chamorro García’s and Mr. Maradiaga Blandón’s rights and, if so, the outcome of the

investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Nicaragua with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

116.

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.

117.

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 of any failure to take action.

118.

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.31

[Adopted on 15 November 2022]

31 Human Rights Council resolution 51/8, paras. 6 and 9.