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.24-17141 (E) 281024 061124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its one hundredth session, 26–30 August 2024
Opinion No. 30/2024, concerning Ignacio Celso Lino, Argüello Celso
Lino, Donald Andrés Bruno Arcángel and Dionisio Robins Zacarías
(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 23 June 2023 the Working Group
transmitted to the Government of Nicaragua a communication concerning Ignacio Celso
Lino, Argüello Celso Lino, Donald Andrés Bruno Arcángel and Dionisio Robins Zacarías.
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,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/30
General Assembly
Distr.: General
2 October 2024
English
Original: Spanish
A/HRC/WGAD/2024/30
2
GE.24-17141
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Ignacio Celso Lino is a national of Nicaragua and a member of the Mayangna
Indigenous People. As a territorial trustee of the Mayangna community of Suniwás
(Bonanza), he is responsible for ensuring the preservation of his community’s collective
lands. He is also a member of a group of volunteer forest rangers who defend Mother Earth
in the Mayangna Sauni As territory in the Bosawás Biosphere Reserve.
5.
Argüello Celso Lino is a national of Nicaragua, a member of the Mayangna
Indigenous People and a communal judge of the Mayangna community of Suniwás, being
responsible for ensuring the collective security of his community. He is a member of a group
of volunteer forest rangers who defend Mother Earth in the Suniwás-Saubí sector of the
Mayangna Sauni As territory.
6.
Donald Andrés Bruno Arcángel is a national of Nicaragua, a member of the Mayangna
Indigenous People of Suniwás, and an artisanal miner of a gold vein located near
Kiwakumbaih. He is a member of a group of volunteer forest rangers who defend Mother
Earth in the Kahka sector (Kibusna, Pisbawas and Alal communities) of the Mayangna Sauni
As territory.
7.
Dionisio Robins Zacarías is a national of Nicaragua and a member of the Mayangna
Indigenous People of Suniwás. Mr. Robins Zacarías has been an activist for the
Constitutionalist Liberal Party, which has traditionally formed part of the opposition to the
Sandinista National Liberation Front. He is a member of a group of volunteer forest rangers
who defend Mother Earth in the Mayangna Sauni As territory.
i.
Context
8.
According to the source, the Indigenous communities in the area are experiencing
difficulties caused by the invasion of non-Indigenous settlers in the Mayangna Suani As
territory. The source adds that Indigenous lands have been invaded by criminal gangs made
up of non-Indigenous people, specifically, ex-military personnel demobilized from the army
and the Nicaraguan resistance of the 1980s who claim to be protected by the Sandinista
National Liberation Front.
9.
The source reports that threats were made against the Indigenous persons who
managed the Kiwakumbaih mine in the Mayangna Sauni As territory because, in 2021,
settlers had been evicted from the mine by Indigenous forest rangers originating from the
territory. On 11 August 2021, the president of the Mayangna Sauni As Indigenous territorial
government sent a letter to the Bonanza National Police, requesting their support at the
Kiwakumbaih mine owing to “an emergency conflict situation”. However, the authorities did
not go there.
10.
On 23 August 2021, about 37 people were working at the Kiwakumbaih mine on
Pukna hill. Traditionally, the hill has been used by Indigenous communities for subsistence
activities. At 3 p.m., a group of armed men surrounded the site and began to attack the
community members who were there. About 22 people managed to escape and survive the
attack, including several children. During the massacre, several people were killed and
several women were raped, including minors.
11.
According to the source, while the victims have repeatedly stated that the massacre
was perpetrated by a group of non-Indigenous men, the National Police have claimed that the
perpetrators were a group of Mayangna Indigenous persons. Charges were subsequently
brought against 14 members of the Mayangna Indigenous People. Many of the defendants
are volunteer forest rangers and Indigenous land defenders, including Messrs. Celso Lino,
Mr. Bruno Arcángel and Mr. Robins Zacarías.
12.
The tensions in the territory caused by the presence of settlers are constant. On
25 January 2023, the Office of the United Nations High Commissioner for Human Rights
A/HRC/WGAD/2024/30
GE.24-17141
3
publicly called on the Government to protect the human rights of these Indigenous
communities.
ii.
Arrest and trial proceedings
13.
Five days after the Kiwakumbaih massacre, on 28 August 2021, the Celso Lino
brothers were arrested at 4 p.m. by the National Police at their homes in the community of
Suniwás. The source claims that the arrest was carried out without a warrant, allegedly for
the illegal possession of firearms.
14.
Mr. Bruno Arcángel was arrested by the National Police at 4 a.m. on 4 September
2021 at his home in the community of Kibusna. According to the source, the arrest was
carried out without a warrant. Police searched the house without finding anything unusual.
15.
Mr. Robins Zacarías was arrested at 3 p.m. on 3 December 2021 when he was
withdrawing his children’s maintenance allowance from the office of the Nicaraguan Social
Security Institute in Bonanza. The police also failed to produce a warrant at the time of his
arrest.
16.
According to the source, the National Police identified the four Indigenous persons,
along with 10 others, as the perpetrators of the Kiwakumbaih massacre. This contradicted the
testimonies of more than 20 surviving witnesses of the massacre, who stated that the
perpetrators were heavily armed, non-Indigenous men in military clothing who spoke
Spanish.
17.
Of the 14 Indigenous persons identified by the National Police as perpetrators, only
four have been captured: Mr. Robins Zacarías, Mr. Bruno Arcángel and Messrs. Celso Lino.
18.
According to the source, the three persons who were initially arrested – Mr. Bruno
Arcángel (arrested on 4 September 2021) and Messrs. Celso Lino (arrested on 28 August
2021) – were presented to the media on 8 September 2021 as the perpetrators of the
Kiwakumbaih massacre, without having been tried and in violation of the constitutional
guarantee of the presumption of innocence.2 The news was widely disseminated.
19.
According to the source, after Messrs. Celso Lino and Mr. Bruno Arcángel had been
arrested, they were held incommunicado for several months, without access to trusted
lawyers, at the third district police station of the National Police in Managua. During the first
two hearings, they were assigned court-appointed lawyers.
20.
On 16 September 2021, not knowing where and in what state the detained persons
were being held, the families of Messrs. Celso Lino and Mr. Bruno Arcángel filed
applications for habeas corpus but the judicial system did not grant them.
21.
On 9 September 2021, a special hearing for the protection of constitutional guarantees
was held and Messrs. Celso Lino and Mr. Bruno Arcángel were imprisoned for 90 days so
that more thorough investigations could be carried out. This procedure is based on Act
No. 1060, which provides that the 48-hour detention period established in the Constitution
may be extended to between 15 and 90 days so that formal charges may be brought.
According to the source, this law violates the presumption of innocence and the right to be
informed without delay of the charges brought against defendants.
22.
On 13 September 2021, the initial hearing was held and the evidence put forward by
the Public Prosecution Service was reviewed. The source claims that State agents arbitrarily
proceeded to question and beat them during the investigation stage of the proceedings.
23.
On 8 December 2021, following the arrest of Mr. Robins Zacarías on 3 December
2021, the four were transferred to the Jorge Navarro prison complex in Tipitapa, near
Managua. Only then were the detained persons able to call their families, using another
inmate’s mobile phone, to tell them how and where they were.
24.
On 13 December 2021, the Public Prosecution Service brought the four individuals
before the Fifth District Criminal Court of Managua and charged them with the alleged
offences of making threats with weapons and aggravated murder, concurrent with the offence
2 See https://www.youtube.com/watch?v=bZnBpFzBbaI.
A/HRC/WGAD/2024/30
4
GE.24-17141
of ordinary abduction, on the basis of Act No. 952. The detained persons were thereby
removed from their lawful court; since the acts took place under the territorial jurisdiction of
Bonanza, the competent judge to hear the case was the district judge of Siuna.
25.
The source states that the four individuals were tried without an interpreter, despite
the fact that their mother tongue is not Spanish. It also notes that at the trial hearing on
18 February 2022, the Public Prosecution Service put forward a number of experts but did
not put forward any witnesses. However, all the defence witnesses were consistent in stating
that the defendants were not the perpetrators of the massacre.
26.
The source reports that the Seventh District Criminal Court of Managua, basing its
decision solely on the testimony of the police, found the four Indigenous persons guilty in a
trial hearing held on 18 February and issued a judgment to that effect on 10 March 2022. On
28 July 2022, the First Chamber of the Managua Court of Appeal upheld the ruling,
dismissing the appeals filed on behalf of the four convicted persons. In October 2022, special
appeals for judicial review were filed.
27.
The Seventh Criminal Court of the judicial district of Managua sentenced the detained
persons to life imprisonment with the possibility of review for the offence of aggravated
murder of nine persons during the Kiwakumbaih massacre (some of the victims were the
in-laws of the detained persons). They were also sentenced to 4 years’ imprisonment for the
offence of the ordinary abduction of a woman and an Indigenous girl.
28.
According to the source, the sentence was handed down by the judge of the Seventh
Criminal Court of the judicial district of Managua, who has been sanctioned by the European
Parliament and the United States of America for his lack of judicial independence. The source
adds that First Criminal Chamber of the Managua Court of Appeal, which upheld the first
instance judgment on 28 July 2022, has also been sanctioned by the European Parliament for
its lack of judicial independence.
29.
After the Court of Appeal had upheld the conviction, special appeals for judicial
review were filed on behalf of the four Indigenous persons in October 2022. On 13 January
2023, a hearing before the Supreme Court of Justice of Nicaragua was requested but a
decision on the request has not yet been issued.
30.
The source claims that, on the day of the massacre, Messrs. Celso Lino, in their
capacity as Indigenous communal authorities, were coming from Managua along with other
community members after meeting with representatives of the Government and the
Sandinista National Liberation Front, to whom they had explained what the Indigenous
communities of the area were experiencing as a result of the invasion of non-Indigenous
settlers in the Mayangna Sauni As territory. The source adds that witnesses testified during
the trial hearing that the Celso Lino brothers were far from Kiwakumbaih at the time and date
of the massacre. It also states that Mr. Bruno Arcángel, who was working on a gold vein near
the site, fled like the rest of the survivors of the massacre.
31.
In the meeting with representatives of the Government and the Sandinista National
Liberation Front, Messrs. Celso Lino did not reach any agreement regarding the invasion of
settlers in the Mayangna Sauni As territory. The source adds that the failure to achieve
consent at the meeting could have led to their being unfairly blamed for the Kiwakumbaih
massacre.
32.
According to the source, during the trial hearings, public access to the trial was
restricted to the media and the detained persons’ relatives, in violation of the constitutional
guarantee of public criminal proceedings.
33.
The source points out that the witnesses who were interviewed were coerced by police
officers into blaming the Indigenous persons. Furthermore, during the trial, the defendants
were not tried on an individual basis and individual consideration was not given to the
evidence for each of the acts with which they were charged.
34.
The source reports that the family members have very few financial resources, making
it costly and difficult for them to visit the detained persons and to bring them food and
medication. The family members, who come from Bonanza, must travel to the Jorge Navarro
prison complex in Tipitapa, near Managua (about 500 km away). When family members
A/HRC/WGAD/2024/30
GE.24-17141
5
manage to reach the prison, the prison authorities do not always allow them to visit the
detained persons or deliver food to them.
35.
The source states that the parents of some of the detained persons are older persons
and that the women who visit them have limited knowledge of Spanish. In the Suniwás
community, where most of the family members live, there is no access to mobile phones, so
they must travel to a hill or to the municipal capital of the town of Bonanza to be able to
communicate by phone.
36.
According to the source, the detained persons have never been allowed conjugal visits.
They receive visits from family members during the last week of each month rather than
every two weeks, as they were allowed to do before August 2022. The source adds that, since
December 2022, family members have been allowed to speak with the detained persons for
only five to ten minutes, at a distance of several metres and through a glass window, using
mobile phones provided by prison guards. Before December 2022, family members could
talk to the detained persons for up to one hour and could also hug and touch them.
37.
With regard to food, the four individuals have not been allowed to cook in the prison
since August 2022. Since that date, they have not been allowed to receive rice or beans from
their family members and may now receive only oatmeal and biscuits. The food in the prison
is scarce, raw and not well cooked and the water that they drink is dirty, which affects the
detained persons’ health.
38.
The source claims that Messrs. Celso Lino and Mr. Bruno Arcángel asked for the
prison food to be improved. As a consequence, in April 2023, the guards poured buckets of
very cold water on them every morning while they were still asleep. The source also states
that they were left lying there, wet and immobilized hand and foot. This has caused the
detained persons to suffer from colds and infections (mainly in the sores caused by their
shackles and chains).
39.
The source argues that the detained persons have been subjected to ill-treatment and
torture. From the outset, the prison authorities have continually questioned them. From
August 2022 onwards, the Indigenous persons were separated and placed in three-person
cells with two other unknown persons (ordinary convicts). The ordinary convicts mistreated
them, mainly when they spoke in the Mayangna language. In addition, they were beaten and
threatened with razor blades or makeshift metal knives and told that they would rot there in
jail. After 10 p.m., the detained persons are not allowed to speak; if they do, the guards pour
cold water on them.
40.
The source adds that, since December 2022, they have been held in punishment cells
and family members have seen them chained hand and foot. Because they are chained hand
and foot 24 hours per day, it is difficult for them to eat, relieve themselves, sleep or bathe.
When they go out into the light, they cannot see and their eyes and head hurt.
41.
The source claims that the four Indigenous persons are subjected to two forms of
sexual torture. Firstly, acts perpetrated by the other inmates (ordinary convicts), who sexually
penetrate them while threatening them with bladed weapons. Secondly, acts perpetrated by
prison guards using objects such as the ends of weapons or batons.
42.
According to the source, the family members have brought these abuses to the
attention of the lawyers handling their cases so that the lawyers can file a complaint with the
judge and visit them in the prison complex. But the lawyers have said that they fear being
subjected to reprisals if they complain to the authorities, who do not allow them to visit the
prison system, which is why they have never visited the detained persons in the prison.
43.
The source argues that the fundamental rights of the detained persons have been
violated as they have been denied healthcare despite the fact that they suffer from serious
illnesses. Mr. Bruno Arcángel has been denied healthcare despite the fact that he suffers from
heart disease. Mr. Argüello Celso Lino has not received assistance, although his stomach is
swollen and he complains of being in pain. Mr. Argüello Celso Lino has severe gallbladder
disease. The prison authorities sometimes put them in an ambulance and take them to the
city, where they are left in the ambulance all day, becoming dehydrated, without being given
any water or being taken to their medical appointment. They are then taken back to the prison
at the end of the day. The prison system also does not allow family members to bring them
A/HRC/WGAD/2024/30
6
GE.24-17141
medication. The source adds that a surgical procedure had been scheduled but was not
permitted to take place.
44.
The source states that Mr. Robins Zacarías looks swollen and pale and suffers from
high blood pressure and cataracts, aggravated by the lack of light in the isolation cell. He also
suffers from a kidney infection and has not been examined or assessed by a doctor.
Mr. Robins Zacarías was the Chair of the Moravian Church Committee of the Saubí
community. His family members tried to bring him a Bible but the system did not allow them
to do so.
45.
Mr. Ignacio Celso Lino has a hernia and claims to suffer from severe stomach pains
caused by untreated gastritis. He has asked the prison authorities for help but has not received
any medical assistance.
46.
The source states that allowing detained persons to suffer from ailments without
attending to them properly may also constitute torture or, at least, ill-treatment. If they do not
receive adequate assistance, their health could be severely damaged, which, coupled with the
poor prison conditions, would place them at imminent and serious risk of harm. This harm
could result in their deaths and would therefore be irreparable.
47.
The source adds that the Indigenous leaders are allowed only one conjugal visit per
month instead of the fortnightly visits that other prisoners receive. In addition, they continue
to sleep on concrete slabs without mattresses or sheets. They continue to be left in only their
underwear or without any clothing at all, subjected to physical and sexual punishments, and
held in insolation in maximum security cells that the prisoners call “El Infiernillo”, which are
infested with mosquitoes, have no ventilation and are totally dark.
48.
The source reports that, on 13 April 2023, the Inter-American Commission on Human
Rights granted precautionary measures in favour of the four Indigenous persons but the
Government did not implement them. On 22 June 2023, the Inter-American Commission on
Human Rights requested the Inter-American Court of Human Rights to issue provisional
measures. On 27 June 2023, the Inter-American Court of Human Rights ordered Nicaragua
to adopt the necessary measures to protect the life, physical integrity, health and personal
liberty of the four Indigenous persons and granted Nicaragua until 10 July 2023 to release
them.
iii.
Legal analysis
49.
The source states that the detentions of the four Indigenous persons are arbitrary and
fall within categories I, II, III and V of the Working Group.
a.
Category I
50.
The source states that the arrests were carried out without warrants. It also states that
it is not a case of flagrante delicto because there is no evidence against the Indigenous persons
and because the survivors of the massacre testified that the attackers were non-Indigenous
men who were heavily armed with military weapons and unknown to the members of the
Indigenous community. In addition, the witnesses state that Mr. Bruno Arcángel was a victim
of the attack and that the other three detained persons were far away from the scene.
b.
Category II
51.
The source states that the four detained persons are members of an Indigenous People
that constitutes an ethnic, religious and linguistic minority in Nicaragua, and that they are
discriminated against for reasons of race, colour, language, religion, political opinion,
national or social origin, property, birth or other status. The source states that this
discrimination has restricted their access to a simple legal remedy, to equal protection under
the law and to be heard by a competent, independent and impartial tribunal. They have also
been discriminated against in respect of their right not to be subjected to arbitrary arrest or
detention, and the right of their people to be protected against persecution, forced
displacement and genocide. In addition, their right to participate in government and in the
defence of their communities’ lands and their right to self-determination and to define
A/HRC/WGAD/2024/30
GE.24-17141
7
development on their own terms on the basis of their world view as Mayangna Indigenous
People have been violated.
52.
The source states that the Celso Lino family has a long history of community
leadership in Suniwás and in the defence of the Mayangna Sauni As territory. They have
played a leading role in confronting settlers who invade the land and usurp their communal
natural resources.
53.
The source adds that Mr. Ignacio Celso Lino, in his capacity as community trustee,
continued to defend everything that was within his power to defend, with the support of the
community members. After he was arrested, his property was invaded by non-Indigenous
settlers.
54.
According to the source, the community members believe that Mr. Ignacio Celso Lino
has been deprived of his liberty for exercising his fundamental rights and freedoms as a
community trustee, while defending the collective rights to land and the Indigenous territories
titled by the State for the benefit of the Indigenous communities. His actions opposed an
illegal policy of internal colonization imposed by the State, which has resulted in the
usurpation of the lands of the Indigenous Peoples and the people of African descent of the
Caribbean Coast of Nicaragua. Indigenous communities have been attacked for almost a
decade by non-Indigenous settlers who have gone unpunished. For this reason, the members
of the community believe that the State is making an example of the convicted Indigenous
persons so that other members of the Indigenous communities refrain from defending their
traditional and ancestral lands and territories.
55.
The source adds that Mr. Argüello Celso Lino has been deprived of his liberty for
fulfilling his role as communal judge, in exercise of his fundamental rights and freedoms, in
order to defend the collective rights to land and Indigenous territories titled by the State for
the benefit of his community.
56.
According to the source, Mr. Robins Zacarías may have been deprived of his liberty
because he had served for a long time as a volunteer forest ranger and an activist for the
Constitutionalist Liberal Party, which forms part of the opposition to the Sandinista National
Liberation Front.
57.
As for Mr. Bruno Arcángel, the fact that his gold vein was taken by the settlers after
his arrest raises suspicions that this may be one of the reasons for his illegal conviction.
58.
The source states that, if the Indigenous authorities and leaders had been the
perpetrators of the attacks, the deprivation of their liberty should have brought the attacks on
the Indigenous communities to an end. However, the attacks have not stopped.
c.
Category III
59.
The source claims that the lack of an impartial, professional and independent judicial
system has violated the four Indigenous persons’ right to due process and fundamental
safeguards and their imprisonment has involved incommunicado detention, isolation and
ill-treatment.
d.
Category V
60.
The source claims that the outcomes of the criminal proceedings transcend the parties
directly involved and affect all members of the Mayangna Sauni As territory, as the
criminalization of the Indigenous leaders and defenders of their lands and territory, and the
severe penalties handed down to them, are reprisals for having carried out this defence.
61.
The Indigenous origins of the detained persons are a key element in the discrimination
to which they were subjected in depriving them of their liberty, on the basis of their ethnic or
social origin, language, religion and property, since their defence of their lands and other
natural resources is driven by the spiritual, cultural and economic dependence of the
Indigenous communities on their lands and territories.
A/HRC/WGAD/2024/30
8
GE.24-17141
(b)
Response from the Government
62.
On 23 June 2023, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide, by 22 August 2023, detailed information on the situation of the
four individuals, clarifying the legal and factual grounds for their detentions and explaining
how they are compatible with the obligations of Nicaragua under international human rights
law and, in particular, the treaties ratified by the State.
63.
The Working Group regrets that the Government has not submitted a response or
requested an extension in accordance with paragraph 16 of the Working Group’s methods of
work.
2.
Discussion
64.
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.
65.
In determining whether the detentions of Messrs. Celso Lino, Mr. Bruno Arcángel
and Mr. Robins Zacarías are arbitrary, the Working Group has regard to the principles
established in its jurisprudence to deal with evidentiary issues. If the source has presented a
prima facie case for breach of international law constituting arbitrary detention, the burden
of proof should be understood to rest upon the Government if it wishes to refute the
allegations.3 Mere assertions that lawful national procedures have been followed are not
sufficient to rebut the source’s allegations.
a.
Category I
66.
The source claims that the detention of the four individuals is arbitrary because it lacks
a legal basis under category I.
67.
The Working Group recalls that the rule of law is a principle of governance that
requires measures to ensure adherence to the principles of supremacy of law, equality before
the law, accountability to the law, fairness in the application of the law, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness and procedural
and legal transparency.4 States parties must conform to this standard, since the rule of law is
the cornerstone of due process, which is essential for the protection of human rights. The
violation of these principles is reflected in the different categories of arbitrary detention
identified by the Working Group.
68.
The Working Group has considered the context in which the detentions under
consideration took place, that is, the massacre that occurred in the Mayangna Suani As
territory, an ancestral Indigenous territory that – according to the source – has been invaded
by criminal gangs made up of non-Indigenous people, specifically, former demobilized
members of the army and the Nicaraguan resistance of the 1980s who claim to be under the
protection of the Sandinista National Liberation Front. Between 9 and 16 people were killed
in the massacre, almost all of whom were Indigenous members of the Miskitu and Mayangna
communities who worked as artisanal miners.
69.
The source adds that the existing tensions are constant. The situation escalated to the
point where, on 25 January 2023, the Office of the United Nations High Commissioner for
Human Rights issued a new call for Nicaragua to protect the human rights of these Indigenous
communities.
70.
The source states that the defendants are Indigenous persons who have lived within
their communities, working as subsistence farmers, and that they hold positions of authority
and respect in the community as judges, trustees and protectors and defenders of their
ancestral territory.
71.
The Working Group notes the source’s claim that the arrests were carried out by the
police in an abusive manner and that all the authorities persist in treating the four human
3 A/HRC/19/57, para. 68.
4 S/2004/616, para. 6.
A/HRC/WGAD/2024/30
GE.24-17141
9
rights defenders as murder suspects despite the fact that 20 surviving witnesses of the
massacre have stated that the perpetrators were not Indigenous.
72.
In view of the lack of information provided by the Government, the Working Group
concludes that the four human rights defenders were detained without any legal basis, in
violation of article 9 of the Covenant, in the circumstances set out below.
73.
The source states that, five days after the Kiwakumbaih massacre, on 28 August 2021,
Messrs. Celso Lino were arrested at 4 p.m. by the National Police at their homes in the
community of Suniwás. Mr. Bruno Arcángel was arrested by the National Police at 4 a.m. on
4 September 2021 at his home in the community of Kibusna. The arrests were carried out
without warrants. Mr. Robins Zacarías was arrested at 3 p.m. on 3 December 2021 when he
was withdrawing his children’s maintenance allowance from the office of the Nicaraguan
Social Security Institute in Bonanza. The police also failed to produce a warrant at the time
of his arrest.
74.
The Working Group notes that no arrest warrant was produced in any of the four
arrests described above. Furthermore, the arrested persons were not informed of the reason
for the arrest or of their right to have recourse to a lawyer or an interpreter, since their mother
tongue is not Spanish. On the contrary, the arrests were forcibly carried out while the detained
persons were at home or, in one case, at his children’s school. In addition, the homes of the
detained persons were searched without warrants and no evidence was found.
75.
The Working Group is alarmed to note that these arrests cannot be considered to have
been made in flagrante delicto since 20 people have specifically stated that the aggressors
were not Indigenous, wore military uniforms and spoke Spanish.
76.
The Working Group recalls that, under international law, the authorities must invoke
the legal basis for an arrest and apply it to the circumstances of the case, from which it follows
that the accused person is entitled to be presented with an arrest warrant or court order (or
equivalent document)5 in order to ensure the exercise of effective oversight by a competent,
independent and impartial judicial authority, which is procedurally inherent in the right to
liberty and security and the prohibition of arbitrary deprivation under articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 (1) of the Covenant and principles 2, 4 and
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.6
77.
The Working Group considers that, in order to invoke a legal basis for deprivation of
liberty, the authorities should have informed the detained persons of the reasons for their
arrest at the time of their arrest. In failing to do so, they violated article 9 of the Universal
Declaration of Human Rights, as well as principle 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, rendering the
arrests devoid of any legal basis.
78.
The Working Group is seriously concerned to note that the four Indigenous persons
were held in pretrial detention, and recalls that deprivation of liberty is not only a question
of legal definition, but also of fact, and must be justified as reasonable, necessary and
proportionate in the light of the circumstances and reassessed as it extends in time.7 It must
not be punitive in nature and must be based on an individual evaluation of each case.
Furthermore, article 9 (3) of the Covenant requires that the justification for pretrial detention
must be analysed in a reasoned judicial decision in every case. This was not done in the case
of the four Indigenous persons, who were arrested, held incommunicado, hindered and
delayed at all stages of the proceedings, and denied alternative measures to detention and
access to a trusted lawyer.
79.
The Working Group recalls that, in accordance with article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the rule and should be ordered for the
5 Opinion No. 88/2017, para. 27. In cases of arrests made in flagrante delicto, it is not generally
possible to obtain a warrant.
6 Opinion No. 3/2018, para. 43; and Human Rights Committee, general comment No. 35 (2014),
para. 33.
7 Human Rights Committee, general comment No. 35 (2014), para. 18.
A/HRC/WGAD/2024/30
10
GE.24-17141
shortest possible time. Pretrial detention must be based strictly on an individualized
determination that it is reasonable and necessary for such purposes as to prevent flight,
tampering with evidence or the recurrence of the offence. The Working Group has not
received any plausible explanation for the application of this measure and notes that the
source has attached documentation proving non-compliance with these standards.
80.
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 the Covenant,
require that anyone arrested or detained on a criminal charge be brought promptly before a
judge so that a decision on his or her situation may be taken. As the Working Group has
reiterated in its jurisprudence, 48 hours is ordinarily sufficient to meet such a requirement,
and any additional delay must remain absolutely exceptional and be justified in the
circumstances.8
81.
The Working Group finds that the four Indigenous persons were not brought promptly
before a judicial authority, in violation of article 9 of the Universal Declaration of Human
Rights and article 9 of the Covenant.
82.
Having examined all the documentation, the Working Group concludes that the
detention of the four Indigenous persons is arbitrary because it lacks a legal basis and falls
within category I.
b.
Category II
83.
The source alleges that the detention of the four Indigenous persons is arbitrary under
category II as it results from the exercise of fundamental rights or freedoms, including the
rights to equality before the law, freedom of movement, freedom of expression, freedom of
assembly and association and freedom to participate in public affairs, all of which are
guaranteed by the Universal Declaration of Human Rights and the Covenant.
84.
The detained persons are members of an Indigenous People that constitutes an ethnic,
religious and linguistic minority. The source states that the detained persons have dedicated
their lives to defending their territory, although they do not receive equal protection before
the law and their people are not protected against persecution, forced displacement or
genocide. Furthermore, they have not been guaranteed the rights to participate in government,
to defend their communities’ lands, to self-determination or to define development on their
own terms on the basis of their world view as Mayangna Indigenous People.
85.
In the absence of any contradictory information, the Working Group is persuaded by
the source’s claims that the real reasons for the detention of the four Indigenous persons are
linked to the Government’s efforts to curtail the freedom to promote, protect and exercise the
right to participate in public affairs.
86.
This situation prompts the Working Group to reaffirm that the work of human rights
defenders is fundamental to the strengthening of democracy. The obstacles and restrictions
faced by environmental human rights defenders have been of particular interest to the
Working Group 9 and the Human Rights Council. The latter has adopted a resolution
recognizing the importance of environmental human rights defenders and their protection,
expressing grave concern about their situation around the world, strongly condemning all
violations or abuses against environmental human rights defenders by State and non-State
actors, and stressing that such acts may violate international law and undermine sustainable
development at the local, national, regional and international levels.10
87.
The Working Group notes that the Celso Lino family has a long history of community
leadership in Suniwás and in the defence of the Mayangna Sauni As territory. They have
played a leading role in confronting settlers who invade the land and usurp its communal
natural resources.
8 See opinion No. 66/2020; and Human Rights Committee, general comment No. 35 (2014), para. 33.
9 See Opinion No. 3/2020.
10 See Human Rights Council resolution 40/11.
A/HRC/WGAD/2024/30
GE.24-17141
11
88.
The Working Group notes that Messrs. Celso Lino have been deprived of their liberty
for exercising their fundamental rights and freedoms as a communal trustee and a communal
judge, in defence of the collective rights to land and Indigenous territories titled by the State
for the benefit of their communities. Mr. Robins Zacarías has been deprived of his liberty
because he had served for a long time as a volunteer forest ranger and a member of the
Constitutionalist Liberal Party, which forms part of the opposition to the Sandinista National
Liberation Front.
89.
The Working Group is persuaded that Indigenous Peoples who are defending their
territory are being persecuted and intimidated. In the present case, both the Inter-American
Court of Human Rights and the Office of the United Nations High Commissioner for Human
Rights have issued warnings about this situation. The Indigenous persons have repelled the
settlers by exercising community resistance, which they did by voicing their complaints and
objections, mobilizing in defence of the territory in question and sharing information about
the situation through various media outlets. These activities were carried out peacefully and
were therefore protected under international human rights law.11 These rights – to freedom
of expression, peaceful assembly and association – were restricted for the detained persons,
resulting in their arrest and prosecution.
90.
The Working Group does not consider that an analysis was conducted to determine
whether the grounds on which articles 19 (3), 21 and 22 (2) of the Covenant allow for the
restriction of these rights, namely, to ensure respect for the rights or reputations of others or
to protect national security, public order, or public health or morals, actually applied.
Moreover, it should be recalled that a heightened standard of protection and detention review
applies in cases where freedom of expression and opinion appear to have been restricted,
particularly when such detentions involve human rights defenders.12
91.
The source claims that the right to seek, receive and impart information and ideas of
all kinds has been violated, insofar as, since 2015, the authorities have officially and
repeatedly refused access to information on the granting of the mining concession, the
environmental license and the municipal operating permits issued to the mining company.
92.
The source points out that the aforementioned detentions violate article 25 of the
Covenant as they result solely from the exercise of activities to defend the detained persons’
right to live in their ancestral territories and their opposition to the Government’s decision to
grant these lands, which constitute a protected area, to settlers and outsiders for the purposes
of mining.
93.
The Working Group notes that environmental defenders are entitled to the rights and
protections set out in the Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms, including the rights to freedom of expression, assembly and
association, and the right to an effective remedy.
94.
According to the United Nations Declaration on the Rights of Indigenous Peoples,
Indigenous Peoples, in exercising their right to self-determination, have the right to autonomy
or self-government in matters relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions. This view is strengthened by the opinion of
the Human Rights Council that environmental defenders have the right to be protected in
their work. In addition, the Council has called on States to promote a safe and enabling
environment in which individuals, groups and organs of society, including those working on
human rights and environmental issues, including biodiversity, can operate free from threats,
hindrance and insecurity.13
95.
In the absence of information provided by the Government, the Working Group
considers that the source has demonstrated that the four human rights defenders were
detained for exercising their rights enshrined in the Declaration on Human Rights Defenders,
11 Human Rights Committee, general comment No. 37 (2020).
12 Opinions No. 88/2017; and No. 41/2017, para. 95.
13 See Human Rights Council resolution 40/11.
A/HRC/WGAD/2024/30
12
GE.24-17141
and for promoting democratic participation and combating violations of the environmental
rights of their community.
96.
The Working Group has determined that the detention of persons for their activities
as human rights defenders is a violation of their rights to equality before the law and equal
protection of the law, their rights to freedom of opinion, expression and association, and their
right to participate in political affairs recognized in both the Universal Declaration of Human
Rights and the Covenant. These are long-standing fundamental principles in the area of the
protection of human rights and their violation renders the detention of the four human rights
defenders arbitrary under category II.
97.
In view of the gravity of the case, the Working Group will refer it 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, the Special
Rapporteur on the human right to a clean, healthy and sustainable environment and the
Special Rapporteur on the rights of Indigenous Peoples.
c.
Category III
98.
In the light of its findings under category II, namely, that the detention results from
the exercise of the rights to freedom of opinion, expression, association and political
participation, the Working Group considers that there are no grounds for a trial. However,
since a trial has taken place, and in view of the claims made by the source, the Working
Group will proceed to analyse whether, in the course of this trial, the fundamental
components of a fair, independent and impartial trial were respected.
99.
The source reports that, once detained, the four Indigenous persons disappeared and
remained incommunicado for several months, without access to trusted lawyers. On
16 September 2021, not knowing where and in what state the detained persons were being
held, the families of Messrs. Celso Lino and Mr. Bruno Arcángel filed applications for habeas
corpus, which were denied.
100.
The source reports that, following the arrest of Mr. Robins Zacarías on 3 December
2021, the police transferred the four defendants to the Jorge Navarro prison complex in
Tipitapa, near Managua. Only then were the detained persons able to call their families, using
another inmate’s mobile phone, to tell them how and where they were.
101.
During the disappearance and incommunicado detention, the detained persons were
tortured, according to the source. In addition to being continually questioned, they were
placed in ordinary cells with other dangerous prisoners whom they did not know. The other
prisoners abused them by beating them and threatening them with razor blades. After 10 p.m.,
they could not talk because the guards would pour ice water on them.
102.
Since December 2022, they have been held in punishment cells and their relatives saw
that they were chained hand and foot 24 hours per day, making it difficult for them to eat,
relieve themselves, sleep or bathe. They were then held in solitary confinement and in total
darkness all day and night. In addition, according to the source, the detained persons were
subjected to sexual torture by other inmates and by prison guards.
103.
This situation has contributed to the physical and psychological deterioration of the
detained persons and is beginning to have serious and irreparable consequences for their
health, endangering their lives. The aim of the authorities is to break their resistance and to
make an example of them for other members of their communities so that they do not
continue to defend their lands. This situation is also directly linked to the context of violence
caused by the internal colonization of the lands of the Indigenous Peoples of the Caribbean
Coast.
104.
The abuse and torture described have been reported to their lawyers, who are afraid
to file a complaint for fear of being subjected to reprisals. In total disregard for the law, the
lawyers are not permitted to visit their clients. The source argues that the most fundamental
rights of the detained persons have been violated as they have been denied medical care
despite the fact that they suffer from serious illnesses.
A/HRC/WGAD/2024/30
GE.24-17141
13
105.
The Working Group is persuaded that the State has violated article 9 (3) and (4) of the
Covenant and the right to an effective remedy provided for in article 2 (3) of the Covenant
and articles 6 and 8 of the Universal Declaration of Human Rights.14 It reiterates its concern
that holding persons in an unknown location is prima facie considered to be enforced
disappearance, and holding them incommunicado violates their right to challenge the
lawfulness of their detention before a court, as enforced disappearance constitutes a
particularly aggravated form of arbitrary detention. In the present case, the complainants were
disappeared for several months; consequently, the Working Group refers the case to the
Working Group on Enforced or Involuntary Disappearances.
106.
The detained persons have been continually subjected to torture, prompting the
Inter-American Court of Human Rights to issue provisional measures in their favour.
However, as the acts of torture continue to be carried out, the Working Group is alarmed to
receive reports from the source indicating that these Indigenous authorities and leaders are
currently still not allowed to receive conjugal visits and that they receive visits from their
family members only once a month (unlike other prisoners, who receive visits every two
weeks). They also continue to be poorly fed and the water that they drink continues to be
dirty; they continue to suffer from chronic illnesses without receiving any healthcare or
medication. In addition, they continue to sleep on cement slabs without mattresses or sheets;
they continue to be left in only their underwear or without any clothing at all, subjected to
physical and sexual punishments, and kept in insolation in maximum security cells that the
prisoners call “El Infiernillo”, which are infested with mosquitoes, have no ventilation and
are totally dark.
107.
The acts of torture to which the four detained persons were subjected, which were not
investigated by the authorities, as demonstrated by the source, violate the absolute prohibition
of torture as a peremptory norm of international law, article 5 of the Universal Declaration
of Human Rights, article 7 of the Covenant and articles 2 and 16 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The situation
described is so serious that the Working Group has decided to refer the case to the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
108.
The Working Group recalls that the denial of medical care can constitute a form of
torture and cruel and inhuman treatment.15 Noting the gravity of the allegations, the Working
Group considers that the violations relating to the conditions of detention of the four
Indigenous persons and the lack of medical care significantly undermined their ability to
properly defend themselves. The Working Group has consistently concluded that torture or
other forms of ill-treatment or punishment that make it impossible for a person to prepare a
proper defence for a trial constitute a violation of his or her right to a fair trial.16
109.
The Working Group notes that everyone has the right not to be arbitrarily deprived of
his or her liberty and to be presumed innocent until proven guilty. The right of the accused
to be presumed innocent is one of the cornerstones of the right to a fair trial. The presumption
of innocence is enshrined in article 14 (2) of the Covenant. The presumption of innocence
means that a person accused of a criminal offence should be treated and considered as if he
or she has not committed an offence until convicted by a final judgment issued by an
independent and impartial court.17
110.
In the case of the four defenders, the police recorded a video (see para. 18) and
broadcast it to the whole country, presenting the defenders as the perpetrators of the massacre
committed. Subsequently, according to the source, the police and other authorities gave
extensive statements to the press on the matter.
111.
The four defendants were therefore put on display as convicted criminals, in violation
of article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the
Covenant, which recognize the right to the presumption of innocence.18
14 Opinions No. 82/2018, para. 28; and No. 18/2019, para. 33.
15 A/HRC/38/36, para. 18, and opinion No. 20/2022, para. 104.
16 Opinion No. 65/2022, para. 117.
17 Human Rights Committee, general comment No. 32 (2007).
18 Ibid., para. 30.
A/HRC/WGAD/2024/30
14
GE.24-17141
112.
The Working Group recalls that, according to general comment No. 32 (2007) of the
Human Rights Committee, the right to equality before the courts and tribunals and to a fair
trial is a key element of human rights protection and serves as a procedural means to
safeguard the rule of law. Furthermore, the aim of article 14 of the Covenant is to ensure the
proper administration of justice, guaranteeing a series of specific rights, which, in the case of
the four Indigenous persons, have been violated.
113.
The Working Group stresses that one of the fundamental guarantees of due process is
the principle of legality. Charges that do not correspond to the facts fail to meet the
requirement of legal certainty and enable guilt by analogy, as has clearly occurred in the
present case.
114.
One of the various procedural flaws that has been identified is that the indictment
hearing was convened without the defendants being able to speak with their lawyers or
families or being able to prepare a defence against the charges. Furthermore, 20 witnesses
who claimed that the defendants were not the perpetrators were ignored and the offence with
which they were charged was not established. The detained persons were not provided with
an interpreter, in violation of article 14 (3) of the Covenant.
115.
The trial proceedings were repeatedly suspended because of the coronavirus disease
(COVID-19) pandemic. The Working Group is alarmed to note the source’s claim about the
court’s lack of territorial jurisdiction in the present case. The Working Group is aware that it
was the Managua judicial district that heard the charges against the four Indigenous persons
and that this is neither where they live nor where the offence was allegedly committed.
Therefore, the court that convicted them does not have jurisdiction or competence.
116.
The four Indigenous persons should be under the jurisdiction and competence of the
Bonanza district judge, as Bonanza is the jurisdiction to which the Indigenous territory where
the events allegedly occurred belongs.
117.
In its jurisprudence, the Working Group has repeatedly stated that, where national law
expressly assigns competence to the court of the jurisdiction where an offence was allegedly
committed, it is a violation of the right to be tried by the competent or duly appointed judge
for a person accused of an offence committed in one jurisdiction to be tried by a court in
another jurisdiction.19
118.
In the light of the foregoing, and in the absence of information provided by the
Government, the Working Group considers that the court that heard the case of the four
Indigenous persons was not competent to do so, which violated their right to be tried by the
duly appointed judge, in contravention of article 14 (1) of the Covenant.
119.
The Working Group notes the ineffectiveness of the appeals filed by the four
defendants to request a review of the custodial measure against them and to request medical
examinations and medication.
120.
The Working group notes, moreover, that in order to ensure that detained persons are
able to effectively exercise their right to challenge the legality of their detention, they should
have access, immediately after their arrest, to legal assistance of their own choosing, and such
access must be provided without delay. 20 In addition, legal consultation and all
communications with lawyers must remain confidential. The Working Group is alarmed to
note that the lawyers have not been able to meet with their clients, as this is prohibited in the
place where they are being held.
121.
This situation alarms the Working Group, which considers that the months during
which the four Indigenous persons were without legal assistance prevented them from having
a fair trial in conformity with the principle of equality of arms and from enjoying their right
to have adequate and sufficient time and facilities to prepare a defence, in violation of
articles 10 and 11 (1) of the Universal Declaration of Human Rights and article 14 (3) (b) of
the Covenant.
19 Opinion No. 58/2021, para. 85.
20 A/HRC/30/37, annex, paras. 12–15.
A/HRC/WGAD/2024/30
GE.24-17141
15
122.
In the light of the foregoing, the Working Group is persuaded that the authorities failed
to comply with international standards relating to the right to a fair, independent and impartial
trial. Accordingly, the Working Group declares the detention of the four Indigenous persons
to be arbitrary under category III.
d.
Category V
123.
The source states that the four persons were detained because of their activities as
defenders of the human rights and environmental rights of their people and ancestral
territories, and because of their status as Indigenous persons and their unfavourable political
view of the Government, which does not comply with its obligation to protect these
territories.
124.
The Working Group recalls that detention is arbitrary under category V when it
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, sex, orientation, disability, or any other status, that aims towards or can result in
ignoring the equality of human beings.
125.
Furthermore, the Working Group notes that one of the factors that suggest that there
is a discriminatory aspect to a deprivation of liberty is whether it is part of a pattern of
persecution against the detained persons that includes, for example, previous arrests or acts
of violence or threats.21
126.
As established in the discussion concerning category II, the detention of the four
defenders resulted from their exercise of their fundamental rights under international law.
When a deprivation of liberty has resulted from the active exercise of civil and political rights,
there is a strong presumption that the deprivation of liberty also constitutes a violation of
international law on the grounds of discrimination.22 In this context, the Working Group
refers to the source’s allegations, not refuted by the Government, that have already been
considered in the present opinion.
127.
Where Indigenous territories are concerned, The Working Group endorses the views
expressed by the Committee on the Elimination of Racial Discrimination, which has urged
Nicaragua to guarantee the protection of the rights of Indigenous Peoples to own, use,
develop and exercise control over their lands, territories and resources; and to make progress
in the demarcation and titling of these territories, and to ensure their legal recognition and
legal protection.23 With regard to reports of acts of violence and attacks on the lives and
physical integrity of members of Indigenous Peoples and people of African descent,
specifically in the Mayangna Sauni As territory in the Bosawás Biosphere Reserve, the
experts found it regrettable that they had received no information indicating that these abuses
have been investigated and they fear that they could go unpunished.24
128.
The source has also stated that, during the proceedings, the four defenders were treated
with evident contempt and with particular harshness because they are Indigenous persons.
They were even denied access to an interpreter.
129.
The Working Group considers this detention to be arbitrary under category V because
of the discrimination exercised against the four Indigenous persons. The four defenders were
detained because they formed part of the political opposition, because of their roles within
their community and to teach a lesson to the other residents of the place, in violation of
articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the
Covenant.
e.
Concluding remarks
130.
In order to allow the Working Group to establish a direct dialogue with all State
authorities, representatives of civil society and detained persons, with a view to gaining a
21 A/HRC/36/37, para. 48.
22 Opinion No. 88/2017, para. 43; and No. 59/2019, para. 79.
23 CERD/C/NIC/CO/15-21.
24 Ibid.
A/HRC/WGAD/2024/30
16
GE.24-17141
better understanding of the situation of deprivation of liberty in the country, the Working
Group would welcome the opportunity to conduct a visit to Nicaragua, as requested in its
notes verbales of 24 April and 21 November 2018. 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 its most recent visit to Nicaragua was from
15 to 23 May 2006.25
3.
Disposition
131.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ignacio Celso Lino, Argüello Celso Lino, Donald
Andrés Bruno Arcángel and Dionisio Robins Zacarías, being in contravention of
articles 2, 3, 6–11 and 18–20 of the Universal Declaration of Human Rights and
articles 2, 9, 14, 16, 19, 21, 22, 25 and 26 of the Covenant, is arbitrary and falls within
categories I, II, III and V.
132.
The Working Group requests the Government of Nicaragua to take the steps necessary
to remedy the situation of the four individuals without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the Covenant.
133.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the four individuals immediately and accord
them an enforceable right to compensation and other reparations, in accordance with
international law.
134.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the four
individuals and to take appropriate measures against those responsible for the violation of
their rights.
135.
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 situation of human rights
defenders, the Special Rapporteur on the human right to a clean, healthy and sustainable
environment, the Working Group on Enforced or Involuntary Disappearances, the Special
Rapporteur on Torture and the Special Rapporteur on the rights of Indigenous Peoples.
136.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
137.
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 four individuals have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the four
individuals;
(c)
Whether an investigation has been conducted into the violation of the rights of
the four 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.
138.
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
25 A/HRC/4/40/Add.3.
A/HRC/WGAD/2024/30
GE.24-17141
17
whether further technical assistance is required, for example through a visit by the Working
Group.
139.
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.
140.
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.26
[Adopted on 30 August 2024]
26 Human Rights Council Resolution 51/8, paras. 6 and 9.