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.25-08844 (E) 250825 260825
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 14/2025, concerning Abdul Montoya Vivas (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 19 July 2024 the Working Group
transmitted to the Government of Nicaragua a communication concerning Abdul Montoya
Vivas. 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/2025/14
General Assembly
Distr.: General
27 June 2025
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Abdul Montoya Vivas is a 65-year-old Nicaraguan former guerrilla who supported
the Sandinista National Liberation Front during the 1980s. Since the onset of the social and
political crisis in 2018, Mr. Montoya Vivas has become a critic of the current Government.
(i)
First detention in 2018 and trial proceedings
5.
Mr. Montoya Vivas was arbitrarily detained on 13 August 2018, two days after
participating in a march in Matagalpa for the release of political prisoners. He was charged
with the alleged murder of a member of the Sandinista National Liberation Front.
6.
That same day, without the trial proceedings having commenced, he was presented to
the media as guilty of murder and terrorism. He was transferred to “El Chipote” in Managua,
where he was held in incommunicado detention with another political prisoner. He was not
brought before a judge until five days after his arrest.
7.
On 16 August 2018, the Public Prosecution Service indicted Mr. Montoya Vivas, and
the Seventh Court of Managua admitted the indictment. The initial hearing was held on
8 September and, although testimony did not link him to the shooting, the case was sent to
trial. On 17 December 2018, he was sentenced to 60 years’ imprisonment for terrorism and
abandonment of persons.
8.
With the support of a non-governmental organization, his relatives mounted a legal
defence, but were only able to attend hearings briefly, at their conclusion.
9.
On 11 June 2019, Mr. Montoya Vivas was released from prison under the Amnesty
Act, although his case was not dismissed. The aim of this law, passed on 10 June, was to free
those who had participated in the protests of April 2018. The source indicates, however, that
its ambiguity allowed for new arrests for the exercise of political rights and the freedoms of
assembly, association and expression.2
10.
After his release, Mr. Montoya Vivas complained that he had been beaten by State
agents and had suffered ill-treatment that could amount to torture. The lack of medical care
caused him to develop diabetic neuropathy.
11.
There is no public official information about his case and neither his family nor his
defence has had access to the case file.
(ii)
Second arrest and detention in 2023 and trial proceedings
12.
Mr. Montoya Vivas was arrested for a second time on the morning of 3 April 2023
after taking a bus to the city of Jinotega to buy medicine. The National Police intercepted the
bus and proceeded to make the arrest. There is no record that Mr. Montoya Vivas was shown
an arrest warrant or informed of the reasons for his arrest; nor was his family notified. After
the arrest, Mr. Montoya Vivas was taken to the Jinotega police station where his personal
effects were confiscated. The arrest report states that Mr. Montoya Vivas was captured at his
home in flagrante delicto. According to the source, Mr. Montoya Vivas’s room was searched
on the same day, 3 April 2023, at around 11 a.m., in his absence and without a warrant. The
police claimed to have found a 9 mm pistol, among other things.
13.
After his arrest on 3 April 2023, Mr. Montoya Vivas was brought before the judicial
authority of Jinotega on 6 April 2023. The authorities did not issue any official notification
regarding the convening of the special hearing for the protection of constitutional guarantees
in relation to his detention. The source alleges that when the relatives of Mr. Montoya Vivas
attempted to visit him for the first time at the Legal Cooperation Directorate, the authorities
prevented the visit on the grounds that he was under investigation and indicated that they
would have to wait for 90 days; it can therefore be assumed that this hearing was held and
that Mr. Montoya Vivas was automatically remanded in custody.
2 See https://www.oas.org/en/iachr/media_center/PReleases/2019/145.asp.
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14.
On 11 April 2023, it was learned that Mr. Montoya Vivas had been secretly transferred
to Managua on 8 April 2023, where he was subjected to new proceedings in secret.
15.
According to the information received, Mr. Montoya Vivas was notified of both the
indictment and the conviction by a video call to a room in La Modelo prison, without the
presence of a legal representative.
16.
The source states that two parallel prosecutions were brought against Mr. Montoya
Vivas. The first was brought in Jinotega for the alleged offence of illegal possession of
weapons. However, he was later tried in secret by a court in Managua and sentenced to
23 years’ imprisonment for the offences of terrorism, treason and spreading fake news –
charges which, according to the source, were fabricated. This is the longest prison sentence
handed down for political reasons in Nicaragua to date. The source adds that the judicial
system has published no official information about the case and that the family and the
defence have been denied access to the case file.
17.
In the proceedings for illegal possession of weapons before the Local Criminal Court
of Jinotega, the preliminary hearing was convened three times during a period of more than
three months. However, the case did not prosper because Mr. Montoya Vivas was imprisoned
in Managua and the police refused to transfer him to Jinotega or have him appear by
videoconference.
18.
The source states that while the proceedings in Jinotega were public, the prosecution
and trial in Managua were secret. The State has not provided access to the case file of this
second prosecution, but it was learned that the case is being heard by the judge of the Tenth
District Criminal Court of Managua, who allegedly has a history of persecuting political
prisoners. Mr. Montoya Vivas was convicted in this second case.
19.
Regarding the imposition of pretrial detention in these secret proceedings, the Code
of Criminal Procedure was amended to increase to 90 days the period of judicial detention
before the charges are formulated at the so-called hearing for the protection of constitutional
guarantees – a practice that has been applied generally and systematically in criminal
proceedings against persons identified as or perceived to be dissidents or political opponents.
Given that Mr. Montoya Vivas was transferred to Managua on 8 April 2023 and the sentence
was not known until 23 September, the source claims that, in the absence of official
information from the State, it can be assumed that the aforementioned hearing was held and
that Mr. Montoya Vivas was automatically remanded in custody.
20.
Following the second arrest, the public defender presented himself on 8 May 2023 at
the request of the family. However, this request has been ignored and, to date, the family has
received no response. Mr. Montoya Vivas does not have a legal representative, since his
defence counsel has not been formally appointed. It is alleged that the hearings were held in
secret and without a professional defence, and it is not known what evidence the Public
Prosecution Service presented against Mr. Montoya Vivas.
21.
This situation reflects a pattern in the country in which the authorities conduct trials
by videoconference in order to prevent political prisoners from leaving prison or having
contact with their defence. This practice heightens the vulnerability of detainees, especially
those in solitary confinement. The authorities also limit access to the case file, with the result
that defence lawyers are unaware of the actions of the Public Prosecution Service, hindering
their work.
22.
According to the source, Mr. Montoya Vivas has been detained in several facilities.
After his second arrest, in 2023, he was held incommunicado for 70 days: first in Jinotega
(from 3 to 8 April), then in District III of Managua (8 April to 9 June), where he was placed
in solitary confinement and subjected to daily interrogation. Finally, he was transferred to La
Modelo, to a cell block (“galería 16”) with other political prisoners.
23.
According to the source, after this period of being held completely incommunicado,
Mr. Montoya Vivas was allowed six visits: on 12 June, 11 July, 10 August, 11 September,
10 October and 14 November 2023.
24.
The first of these visits lasted 30 minutes, during which a serious deterioration in
Mr. Montoya Vivas’s health was observed. In addition to being an older person, Mr. Montoya
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Vivas suffers from chronic ailments such as hypertension and diabetes, and a neuropathy
developed during his first arbitrary deprivation of liberty.
25.
Visits to Mr. Montoya Vivas are brief, arbitrary and do not follow the legally
established periodicity. During visits, he has been seen to be very thin and emaciated owing
to his deficient diet. He suffers from skin problems caused by the lack of sunlight, the heat
and insufficient hygiene conditions and access to water, and he has the symptoms of a fungal
infection, aggravated by his diabetes. His relatives have taken him medicine.
26.
The source indicates that, in December 2023, political prisoners on the same cell block
began a hunger strike to demand better conditions. In retaliation, the authorities transferred
seven prisoners to maximum security cells, and others were beaten. Among them was
Mr. Montoya Vivas, who was placed in solitary confinement on 1 December 2023 for
allegedly planning the protest. During this time, he was placed in an unsanitary cell without
a toilet and with no ventilation, light, water or access to hygiene products.
27.
According to the source, after the last visit, on 13 June 2024, Mr. Montoya Vivas was
searched for no reason, stripped naked and forced to perform five squats. Between 13 and
27 February 2024, he was separated from the other political prisoners and transferred to a
cell block (“galería 11”) with ordinary prisoners, where he had limited access to the yard
(10 minutes every 15 days) and was placed in a cell with basic conditions.
28.
The source expresses concern that Mr. Montoya Vivas is living with dangerous
inmates who prevent him from moving about within the cell, force him to remain in one
corner and verbally abuse him. On at least four occasions they attempted to physically attack
him, which has affected his physical and emotional health.
(iii)
Legal analysis
29.
The source submits that Mr. Montoya Vivas’s detention constitutes arbitrary
deprivation of liberty under categories I, II, III and V of the Working Group.
a.
Category I
30.
The source argues that the National Police did not show an arrest warrant before
making either of the two arrests. Neither Mr. Montoya Vivas nor his family were informed
at the time of the arrests of the reasons for his detention, the judicial remedies for contesting
the legality of his deprivation of liberty or his right to a lawyer of his choosing. In addition,
the detainee’s family was not informed of the location to which he was going to be transferred.
After his second arrest, on 3 April 2023, the police proceeded to search Mr. Montoya Vivas’s
room in his absence and without showing a warrant.
31.
Mr. Montoya Vivas was not presented before the competent judge within the 48 hours
foreseen in the Constitution in either of the two arrests. On the contrary, after his second
arrest, the police refused to present Mr. Montoya Vivas before the judge hearing the case,
thus arbitrarily delaying the preliminary hearing. Even more seriously, it was discovered that
Mr. Montoya Vivas was being prosecuted, in secret parallel proceedings, on charges that he
was not even aware of.
32.
The conduct of the Nicaraguan authorities violated article 9 (2) of the Covenant and
principles 7 and 9 of the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before
a Court. Moreover, the lack of judicial oversight of the conduct of the police contravened
article 9 (3) of the Covenant and principle 16 (1) of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.
33.
According to the information received, the source assumes that, in the proceedings
instituted in 2023, Mr. Montoya Vivas was automatically remanded in custody.
34.
The source claims that it became known, ex post facto, that Mr. Montoya Vivas had
been subjected to two parallel prosecutions. In the first, for the illegal possession of weapons,
the police, by failing to transfer Mr. Montoya Vivas or to have him appear by
videoconference, created obstacles which arbitrarily delayed the holding of the preliminary
hearing, keeping him in pretrial detention beyond any reasonable period of time. The second
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prosecution was conducted secretly in Managua, with the formal charge not known until the
moment of conviction. Access to the case file was not provided.
35.
The source recalls that the Working Group has established that automatically ordering
pretrial detention, without a case-by-case examination of its necessity, is contrary to
article 9 (3) of the Covenant and demonstrates the lack of a legal basis for the detention.3
Even when a person is detained in conformity with national legislation, the detention must
also be consistent with the relevant provisions of international law.4 According to the source,
this situation amounts to a pre-emptive punishment, in violation of the principle of the
presumption of innocence enshrined in article 11 of the Universal Declaration of Human
Rights, article 14 (2) of the Covenant and principle 36 (1) of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
36.
Regarding international standards related to the prohibition of secret trials, the Inter-
American Court of Human Rights has established that State authorities are obliged to abstain
from actions that obstruct the progress of the proceedings.5 It has also pointed out that States
are required to respect the right to a public hearing, enshrined in article 8 (5) of the American
Convention on Human Rights.6 The Inter-American Court has also observed that trials for
alleged crimes of treason conducted by “faceless” judges and prosecutors, in proceedings to
which the public did not have access, did not respect the right to the public nature of the
proceeding embodied in the American Convention on Human Rights.7
b.
Category II
37.
The source argues that the Government used a legal framework created to criminalize
dissent and the exercise of fundamental rights and manipulated other laws in order to secure
the conviction of Mr. Montoya Vivas. Act No. 1055 on the Defence of the People’s Rights
to Independence, Sovereignty and Self-Determination for Peace allows charges to be brought
for offences such as treason or attacks against peace or the Constitution. According to the
United Nations High Commissioner for Human Rights, this law imposes restrictions that are
incompatible with international standards and may undermine the rights to political
participation and freedom of expression.8
38.
The authorities arrested Mr. Montoya Vivas for exercising his rights to freedom of
expression and peaceful demonstration. Mr. Montoya Vivas is a well-known former
Sandinista guerrilla fighter. However, with the onset of the 2018 social and political crisis,
he became a critic of the Government’s record of alleged human rights violations. As a result
of his participation in the marches and protests of 2018, Mr. Montoya Vivas was criminalized
and prosecuted, initially on fabricated charges of terrorism, murder and exposure and
abandonment of persons. The source indicates that, in 2023, Mr. Montoya Vivas was again
convicted of fabricated charges, merely for having exercised his rights.
39.
By its actions, Nicaragua violated Mr. Montoya Vivas’s rights to freedom of
expression and to peaceful assembly. In paragraph 9 of its general comment No. 34 (2011),
the Human Rights Committee established that no person may be subject to the impairment
of any rights under the Covenant on the basis of his or her actual, perceived or supposed
opinions, thereby protecting all forms of opinion, including opinions of a political nature.
c.
Category III
40.
According to the source, both detentions involved severe restrictions on Mr. Montoya
Vivas’s communication with his family. In 2023, Mr. Montoya Vivas was held completely
incommunicado for 70 days. He was later allowed six discretionary family visits, which did
3 Opinions No. 79/2017, para. 50; and No. 1/2018, paras. 59 and 60.
4 Opinion No. 79/2017, para. 51.
5 Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala, judgment of 20 November 2012, para. 251.
6 Castillo Petruzzi et al. v. Peru, judgment of 30 May 1999, para. 172; and Cantoral Benavides v. Peru,
judgment of 18 August 2000, paras. 146 and 147.
7 Lori Berenson Mejía v. Peru, judgment of 25 November 2004, para. 198.
8 See https://www.ohchr.org/en/statements-and-speeches/2021/06/47th-session-human-rights-council-
oral-update-situation-human.
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not meet minimum standards, as they lasted between 30 and 45 minutes and took place under
intimidating surveillance. He has not been allowed to visit his minor son, which has prevented
the continuity of the paternal relationship and caused him distress. Nor has he been allowed
to receive correspondence or telephone calls.
41.
The source recalls that the Working Group has stated that holding persons
incommunicado violates the right to challenge the lawfulness of detention before a court
under article 9 (4) of the Covenant.9 Moreover, when such treatment is continuous, it amounts
to a violation of the right to have contact with the outside world under rules 43 (3) and 58 of
the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules) and principles 15, 19 and 20 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.10
42.
The source notes that, after his release from prison in 2019, Mr. Montoya Vivas
complained of ill-treatment that could amount to torture. During his first detention he
developed a neuropathy due to lack of medical care and he is not receiving the treatment he
needs for diabetes and hypertension. These conditions violate international principles on
detention and the right to a fair trial.
43.
In none of the proceedings to which Mr. Montoya Vivas has been subjected have the
State authorities provided him with adequate, clear and timely information on the reasons for
his detention. In 2023, it is alleged that communication with his lawyer was restricted, with
the result that he was eventually convicted in secret proceedings. His defence counsel had no
knowledge of what was occurring and did not have access to the case file, in violation of
domestic laws. Mr. Montoya Vivas was not guaranteed private communication with his
lawyer, and no timely access to the criminal case file was provided.
44.
Until 2022, communiqués issued by the police and the Public Prosecution Service
were the sole source of information on the legal action taken against detained persons. In
2023, the authorities ceased issuing these communiqués, with the result that the proceedings
against Mr. Montoya Vivas were completely opaque. The fact that the proceedings were not
public, contrary to the Constitution and Nicaraguan criminal law, prevented him from
preparing his defence and violated his rights under articles 10 and 11 (1) of the Universal
Declaration of Human Rights and article 14 (3) (b) of the Covenant.
45.
After the first arrest, the National Police presented the victim as guilty of murder and
terrorism, before his trial. In their statements the authorities stigmatize detained persons,
including those referred to in this opinion, as opponents. This violates the right to be
presumed innocent, which prohibits the public affirmation of guilt prior to judgment,
according to article 11 (1) of the Universal Declaration of Human Rights and article 14 (2)
of the Covenant.11
d.
Category V
46.
The source alleges that the two instances of arbitrary detention of Mr. Montoya Vivas
fit into a pattern of systematic and widespread political persecution of members of political
opposition parties, human rights defenders and, in short, anyone who criticizes the actions of
the State authorities.
47.
The source also recalls a statement by the United Nations Deputy High Commissioner
for Human Rights on the human rights situation in Nicaragua, in which it is recognized that
persecuting and depriving people of their liberty for their political opinions has become an
established practice in Nicaragua since the crisis of 2018.12 The use of incommunicado
detention, the harassment of family members and the irregularities that have occurred since
the arrests should serve as evidence that the authorities are doing everything in their power
9 Opinion No. 79/2017, para. 49.
10 Ibid., para. 65.
11 Human Rights Committee, general comment No. 32 (2007), para. 30; and opinion No. 19/2019,
para. 45.
12 See https://www.ohchr.org/en/statements/2023/06/nicaragua-update.
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to completely eliminate any hint of political opposition, make an example of the detainees
and send a message to their opponents.
48.
The detention of Mr. Montoya Vivas on two occasions is part of a systematic and
widespread pattern of political persecution, is discriminatory and is directly related to his
status as an opponent of the Government. This course of action by the State is contrary to
articles 2 and 26 of the Covenant and articles 1 and 7 of the Universal Declaration of Human
Rights. 13 According to the source, the detentions could also constitute crimes against
humanity, since they occurred in a systematic and generalized context identified by human
rights protection organizations such as the Group of Human Rights Experts on Nicaragua.
(b)
Response from the Government
49.
On 19 July 2024, the Working Group transmitted the allegations from the source to
the Government in accordance with its methods of work. The Working Group requested the
Government to provide, by 17 September 2024, detailed information on the situation of
Mr. Montoya Vivas, clarifying the legal and factual grounds for his detention and explaining
how it is compatible with the obligations of Nicaragua under international human rights law
and, in particular, the treaties ratified by the State.
50.
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.14
(c)
Additional comments from the source
51.
On 29 October 2024, the Working Group received information from the source that,
on 5 September 2024, the Nicaraguan courts had ordered the release and exile to Guatemala
of 135 persons who had been arbitrarily deprived of their liberty for political reasons. On
10 September, they were stripped of their nationality. On that date, the Supreme Court issued
a press release15 announcing that the First Chamber of the Managua Court of Appeal had
passed a judgment ordering “the loss of Nicaraguan nationality of 135 persons convicted of
criminal acts against the sovereignty, independence and self-determination of the Nicaraguan
people”.16 The same judgment ordered the seizure of all assets of the convicted persons.
Mr. Montoya Vivas is among these 135 people who have been exiled and deprived of their
nationality and property.
52.
The release, exile and loss of nationality of Mr. Montoya Vivas have left him in a
highly vulnerable situation. He is disoriented, has lost weight and suffers from dental
problems that are being treated in Guatemala. He is seeking refugee status in that country,
but his application has not yet been approved. His psychological condition is delicate owing
to the arbitrary imprisonment and ill-treatment he has experienced.
53.
In addition, having been stripped of his Nicaraguan nationality, he is now in a situation
of statelessness and legal uncertainty. The loss of his property means that he cannot receive
pensions, inheritance or other income from Nicaragua, jeopardizing his human rights and his
life project.
2.
Discussion
54.
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.
55.
In determining whether Mr. Montoya Vivas’s detention is arbitrary, the Working
Group has regard to the principles established in its jurisprudence to deal with evidentiary
issues. If the source has established a prima facie case for breach of international human
rights law constituting arbitrary detention, the burden of proof should be understood to rest
13 Opinion No. 41/2018, para. 28.
14 A/HRC/36/38.
15 See https://www.poderjudicial.gob.ni/prensa/notas_prensa_detalle.asp?id_noticia=12812.
16 Ibid.
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upon the Government if it wishes to refute the allegations. 17 In the present case, the
Government has chosen not to challenge the allegations made by the source.
56.
The Working Group notes that Mr. Montoya Vivas was released from prison on
5 September 2024 and exiled to Guatemala. According to the source, the Nicaraguan
authorities deprived him of his nationality and confiscated his assets. Under these
circumstances, and in accordance with paragraph 17 (a) of its methods of work, the Working
Group reserves the right to render an opinion on whether the deprivation of liberty was
arbitrary, notwithstanding the release of the person concerned.
57.
In the present case, the Working Group is of the view that the allegations made by the
source are extremely serious and has therefore decided to render this opinion.
(a)
Category I
58.
According to the source, the National Police did not show an arrest warrant before
either of the two arrests and or adequately justify the detention. Neither Mr. Montoya Vivas
nor his family were informed at the time of the arrests of the reasons for his detention, the
judicial remedies for contesting the legality of his deprivation of liberty or his right to a
lawyer of his choosing. The Working Group notes that, while the Government had the
opportunity to refute these allegations, it has chosen not to do so.
59.
As a preliminary matter, the Working Group notes that in its communication the
source has linked two distinct sets of legal proceedings. However, these cases concerned
independent events. The first detention cannot be legally combined with the second, which
occurred five years after Mr. Montoya Vivas benefited from the Amnesty Act.
60.
As a consequence of that law, the detention in connection with the 2018 protests is
deemed to have been extinguished. In availing himself of the amnesty, Mr. Montoya Vivas
was released and the criminal proceedings and penalties against him were annulled, as if the
charges had never existed. The deprivation of liberty that occurred five years later constitutes
an autonomous event, which will be analysed separately.
61.
Consequently, this opinion is limited exclusively to the examination of whether the
detention of Mr. Montoya Vivas on 3 April 2023 was arbitrary. This assessment does not
entail any determination of guilt or innocence, as the Working Group’s mandate is strictly
limited to assessing the lawfulness of the deprivation of liberty. The Working Group points
out that its role is not to take the place of the national judicial authorities or to act as a
supranational tribunal when reviewing the application of domestic law. Reassessing the
sufficiency of the evidence or addressing errors of law allegedly committed by the domestic
courts is beyond the scope of the Working Group’s mandate.18
62.
The Working Group recalls that, under international law, 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.19 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.
63.
Under article 9 (1) of the Covenant, no one may be deprived of his or her liberty except
on such grounds and in accordance with such procedure as are established by law. The
Working Group has previously stated that in order for a deprivation of liberty to have a legal
basis, it is not sufficient that there is a law that may authorize the arrest. The authorities must
invoke that legal basis and apply it to the circumstances of the case. This is typically done
through an arrest warrant or arrest order (or equivalent document).20 Furthermore, article 9 (2)
of the Covenant provides that anyone who is arrested must be informed, at the time of arrest,
17 A/HRC/19/57, para. 68.
18 See opinion No. 40/2005.
19 S/2004/616, para. 6.
20 Opinion No. 4/2023, para. 64.
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of the reasons for his or her arrest and must be promptly informed of any charges against him
or her. Respect for these rights is essential to the fulfilment of the other rights enshrined in
article 9 of the Covenant, since the person concerned must know the reasons for the detention
so that he or she may challenge it effectively. He or she must be brought before a court or
judge in order to be able to seek a formal remedy.
64.
The ability to bring proceedings before a court to challenge the arbitrariness and
lawfulness of detention and to obtain without delay appropriate and accessible remedies is a
non-derogable right under international law.21 According to article 9 (3) of the Covenant,
anyone arrested or detained on a criminal charge must be brought promptly before a judge or
other officer authorized by law to exercise judicial power. As the Human Rights Committee
has noted, 48 hours is normally sufficient to satisfy this requirement; any longer delay must
remain absolutely exceptional and be justified under the circumstances.22 Article 9 (4) of the
Covenant guarantees the right to challenge the lawfulness of detention before a court.23
Judicial oversight of detention is a fundamental safeguard of personal liberty24 and is essential
in ensuring that detention has a legal basis.
65.
It is clear to the Working Group that Mr. Montoya Vivas was arrested on 3 April 2023,
while taking a bus on his way to buy medicine, after which he was taken to the Jinotega
police station where his personal effects were confiscated. The source alleges, and the
Government has not refuted, that the arrest report states that Mr. Montoya Vivas was captured
at his home in flagrante delicto, which the sources insists is not true.
66.
The source has informed the Working Group that Mr. Montoya Vivas’s room was
searched on 3 April 2023 at around 11 a.m., in his absence and without a warrant. Again,
these claims have not been refuted by the Government. The police claimed that, during the
search, they found a 9 mm pistol, among other things, which the source denies.
67.
In view of the Government’s silence regarding the source’s claims, it is evident to the
Working Group that the deprivation of liberty of Mr. Montoya Vivas has an arbitrary
character. As noted above, his arrest was made without a warrant and without informing him
of the reasons for the arrest or notifying his relatives of his whereabouts. Subsequently, it
was claimed that the reason for his detention was the illegal possession of weapons.
68.
The Working Group notes that, according to the information provided by the source,
Mr. Montoya Vivas was not brought before a competent judicial authority within the 48 hours
established by the Constitution. Consequently, there was no judicial oversight prior to the
imposition of pretrial detention. In addition, the police refused to present him before the judge
hearing the case, arbitrarily delaying the preliminary hearing.
69.
Even more serious is the source’s claim that Mr. Montoya Vivas was subjected to a
parallel secret prosecution on charges that were not even known, which will be analysed in
relation to category III.
70.
The Working Group notes that the Government has not responded to or denied any of
the source’s contentions related to category I. The Working Group reiterates that the actions
of the Nicaraguan authorities are in violation of article 9 (1)–(3) of the Covenant and of
principles 7, 9 and 16 of the United Nations Basic Principles and Guidelines on Remedies
and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings
Before a Court.
71.
Although it was stated during the proceedings against Mr. Montoya Vivas that he was
arrested in flagrante delicto, the Working Group recalls that the Inter-American Court of
Human Rights has ruled on several occasions that the requirements for in flagrante arrest
21 A/HRC/30/37, annex, principle 4, paras. 4 and 5. See also E/CN.4/2005/6/Add.4, paras. 28 and 52;
and opinion No. 15/2019, para. 28.
22 Human Rights Committee, general comment No. 35 (2014), paras. 32 and 33.
23 Opinions No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019 and No. 25/2021.
24 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
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cannot simply be assumed to have been met but must be proved by the authorities, which
they were not in this case.25
72.
In view of the information received from the source, and in the absence of any
response from the Government, the Working Group is persuaded that Mr. Montoya Vivas’s
rights were violated when he was detained without any legal basis and without being shown
an arrest warrant, despite the fact that he was not in flagrante delicto.26
73.
The source has reported that, after his arrest on 3 April 2023, Mr. Montoya Vivas was
held incommunicado for 70 days. His first contact with the outside world did not occur until
12 June 2023. The Working Group has consistently found that holding persons
incommunicado violates their right to be brought before a court under article 9 (3) of the
Covenant and to challenge the lawfulness of their detention before a court under
article 9 (4).27 This view is consistent with that of the Human Rights Committee, which in its
general comment No. 35 (2014) stated that incommunicado detention that prevents prompt
presentation before a judge inherently violates article 9 (3). The Working Group reiterates
that judicial oversight of detention is a fundamental safeguard of personal liberty and is
essential in ensuring that detention has a legal basis.28 Moreover, the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment has consistently
argued that the use of incommunicado detention is unlawful.29
74.
Given that Mr. Montoya Vivas was unable to contact anyone and especially his lawyer,
which is an essential safeguard to ensure the ability of detainees to challenge their detention,
his right to an effective remedy under article 8 of the Universal Declaration of Human Rights
and article 2 (3) of the Covenant was also violated.
75.
The source has informed the Working Group that, in the proceedings initiated in 2023,
Mr. Montoya Vivas was automatically remanded in custody in accordance with Act No. 1060,
under which the investigation period before charges are formulated was increased to 90 days.
76.
Regarding the pretrial detention of Mr. Montoya Vivas, article 9 (3) of the Covenant
provides that it must not be the general rule that persons awaiting trial are detained in custody.
The Working Group recalls the view of the Human Rights Committee – also expressed in its
own jurisprudence – that pretrial detention must be the exception and not the rule, should be
ordered for as short a time as possible30 and 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. The
courts must examine whether alternatives to pretrial detention, such as release on bail or with
electronic monitoring or other conditions, would render detention unnecessary in the case in
question. 31 The Working Group reiterates that automatically ordering pretrial detention,
without a case-by-case examination of its necessity, is contrary to article 9 (3) of the
Covenant and demonstrates the lack of a legal basis for the detention.32
77.
As the Government has remained silent by not refuting any charge against it, even
though it has the burden of proof, the Working Group accepts the validity of the source’s
theory as to why Mr. Montoya Vivas’s detention was extended, especially considering that
the detention was not subject to any kind of real or effective judicial oversight.
78.
The Working Group considers that the seriousness of the circumstances described
above renders Mr. Montoya Vivas’s detention arbitrary under category I.
25 Guerrero, Molina et al. v. Venezuela, judgment of 3 June 2021, para. 108; Fernández Prieto and
Tumbeiro v. Argentina, judgment of 1 September 2020, paras. 88–101; and opinions No. 35/2021 and
No. 43/2021.
26 Opinion No. 9/2018, para. 38.
27 Opinions No. 45/2017, No. 46/2017, No. 79/2017, No. 11/2018 and No. 35/2018.
28 A/HRC/30/37, para. 3.
29 A/54/426, para. 42; and A/HRC/13/39/Add.5, para. 156.
30 Opinion No. 57/2021, para. 56. See also Human Rights Committee, general comment No. 35 (2014),
para. 38; and A/HRC/19/57, paras. 48–58.
31 A/HRC/19/57, paras. 48–58.
32 Opinions No. 79/2017, para. 50; and No. 1/2018, paras. 59 and 60.
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(b)
Category II
79.
The source has portrayed Mr. Montoya Vivas’s detention as the result of a constant
struggle, as a political opponent and human rights activist, against the abuses and continued
violations that, as the international community has recognized, the Government of Nicaragua
has committed against its people. However, the Working Group has not detected any
substantial activity to prove that he is a human rights defender or is engaged in political
activism against the current Government.
80.
The Working Group reiterates that two unrelated cases that occurred five years apart
cannot be combined, especially when the legal consequences of the first case have been
extinguished through an amnesty law.
81.
For these reasons, the Working Group considers that Mr. Montoya Vivas’s detention
cannot be deemed arbitrary under category II in accordance with its methods of work.
(c)
Category III
82.
The Working Group must consider whether Mr. Montoya Vivas’s detention is
arbitrary under category III, taking into account, among other legal aspects, that he is in an
extremely fragile situation, having lost his nationality. Regarding the criminal proceedings
brought against him, and in view of the claims made by the source, the Working Group will
proceed to analyse whether the fundamental components of a fair, independent and impartial
trial have been respected.
83.
The Working Group recalls that, according to article 14 (1) of the Covenant, everyone
is entitled to a fair and public hearing by a competent, independent and impartial tribunal in
the determination of any criminal charge brought against him or her. The Working Group
agrees that judges must not allow their judgment to be influenced by personal bias or
prejudice, nor harbour preconceptions about the particular case before them, nor act in ways
that improperly promote the interests of one of the parties.33
84.
Furthermore, 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.34 Article 14 of the Covenant aims at ensuring the proper administration of justice.
85.
The source has reported that, in the case of Mr. Montoya Vivas, two trials took place
in parallel, which became known to the source ex post facto. In the first trial (regarding the
illegal possession of weapons), the police, by not transferring Mr. Montoya or having him
appear by videoconference, created obstacles which arbitrarily delayed the preliminary
hearing, keeping him in pretrial detention beyond any reasonable period of time.
86.
As for the second trial, it is known only that this was conducted in secret in Managua
and that the formal charge against Mr. Montoya Vivas was not known until the moment of
his conviction. Access to the case file was not provided.
87.
With regard to secret trials, the Human Rights Council, in its resolution on the
integrity of the judicial system,35 states that, in accordance with articles 5, 6, 7, 8, 10 and 11
of the Universal Declaration of Human Rights and articles 2, 4, 6, 7, 10, 14, 15, 16 and 26 of
the Covenant, every person is entitled, in full equality, to a fair and public hearing by a
competent, independent and impartial tribunal duly established by law in the determination
of his or her rights and obligations and of any criminal charge against him or her, and that he
or she is entitled to the presumption of innocence until proved guilty according to law.
88.
The Working Group notes that the secret judicial proceedings to which Mr. Montoya
Vivas was subjected, without the minimum legal safeguards, constitute a blatant violation of
the right to a fair trial and due process.
89.
The Working Group reiterates that all persons deprived of their liberty have the right
to legal assistance by counsel of their choice, at any time during their detention, including
33 Human Rights Committee, general comment No. 32 (2007), para. 21.
34 Ibid., para. 2.
35 Resolution 31/2.
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immediately after the moment of apprehension, and that such access must be provided
without delay.36
90.
The Working Group notes that Mr. Montoya Vivas was denied access to counsel of
his choice, was held incommunicado and was not guaranteed private communication with his
defence. His lawyer did not have full access to the case file or knowledge of the proceedings,
which were conducted partly in parallel and in secret in Managua. These irregularities
violated his right to adequate time and facilities for the preparation of his defence and to
communicate freely with counsel,37 in violation of article 14 (3) (b) of the Covenant.
91.
Regarding lack of access to the case file, the Working Group recalls that, in principle,
such access must be provided from the outset. 38 In the absence of a rebuttal from the
Government, the Working Group concludes that the rights of Mr. Montoya Vivas were also
violated under article 14 (1) and (3) (b) of the Covenant.
92.
The seriousness of these circumstances renders Mr. Montoya Vivas’s detention
arbitrary under category III. In view of the events described, the Working Group is obliged
to refer the present case to the Special Rapporteur on the independence of judges and lawyers
for appropriate action.
(d)
Category V
93.
The source asserts that Mr. Montoya Vivas’s detention stems from his active political
opposition to and public criticism of the Government and is therefore arbitrary under
category V. The Government has not refuted the prima facie credible allegations made by the
source.
94.
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 detention, acts of violence
or threats. According to the source’s statements, which have not been refuted by the
Government, the detention described in the present case was arbitrary. However, the Working
Group does not consider that this was due to Mr. Montoya Vivas’s participation in protest
marches against the Government or his active exercise of civil and political rights.
95.
Although international human rights institutions have observed that the Nicaraguan
regime is uncompromising in dealing with those who protest against its actions, the source
has not demonstrated that Mr. Montoya Vivas was active in the struggle for or the defence
of human rights. The Working Group does not consider it credible that his rearrest after five
years while travelling on public transport, and still less his expulsion from the country, were
carried out for “political reasons”, when he has not engaged in any notable political activity.
96.
Under these circumstances, the Working Group considers that the deprivation of
liberty of Mr. Montoya Vivas does not fall under category V.
(e)
Concluding remarks
97.
The Working Group takes note of the extremely poor conditions of detention in which
Mr. Montoya Vivas was held, as reported by the source. Accordingly, it takes this opportunity
to remind the Government of Nicaragua of its obligations under article 10 of the Covenant to
treat all persons deprived of their liberty with humanity and with respect for the inherent
dignity of the human person, as well as under rules 12–27 and 58 of the Nelson Mandela
Rules. Prisoners’ medical care and contact with the outside world must be ensured by the
State, which did not happen in the case of Mr. Montoya Vivas.
98.
The Working Group notes with alarm the removal of Mr. Montoya Vivas’s nationality
and the seizure of all his assets. It notes the judgment of the First Chamber of the Managua
Court of Appeal, by which the court ordered the removal of Nicaraguan nationality from
36 A/HRC/30/37, annex, principle 9 and guideline 8; and Human Rights Committee, general comment
No. 35 (2014), para. 35.
37 Human Rights Committee, general comment No. 32 (2007), para. 34; and Khomidova v. Tajikistan
(CCPR/C/81/D/1117/2002), para. 6.4.
38 See opinions No. 78/2019, No. 29/2020, No. 67/2020 and No. 77/2020.
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135 persons who had been convicted of “criminal acts against the sovereignty, independence
and self-determination of the Nicaraguan people” and the seizure of all assets of the convicted
persons. This places Mr. Montoya Vivas in an extremely vulnerable situation. He is currently
applying for refugee status in Guatemala, which has not yet been approved.
99.
The Working Group stresses that the right to nationality is a fundamental human
right.39 While States have the power to decide who are their nationals, this power is not
absolute and is limited by their international obligations.40 As a result of an evolution in
international human rights law,41 the legitimate interests of both States and individuals must
be taken into account in matters of nationality.42 This approach has been reiterated in the
practice of regional human rights courts. It is particularly serious that the deprivation of
Nicaraguan nationality has placed Mr. Montoya Vivas in a situation of statelessness and
complete uncertainty regarding his legal status. The source reports that, as a result of the
Government’s decision, Mr. Montoya Vivas has lost his nationality, his property, the
possibility of drawing an old-age pension and the ability to inherit from his relatives, and he
faces obstacles to travel. All of the above violates articles 1, 2, 3, 6, 9, 13, 15 and 17 of the
Universal Declaration of Human Rights.
100.
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
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.
101.
Moreover, the Working Group recalls that, on 26 April 2006, the Government of
Nicaragua extended an open invitation to the special procedures of the Human Rights Council
and that the Working Group’s most recent visit to Nicaragua was from 15 to 23 May 2006.
3.
Disposition
102.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abdul Montoya Vivas, being in contravention of
articles 2, 3, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles
2, 9 and 14 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I and III.
103.
The Working Group requests the Government of Nicaragua to take the steps necessary
to remedy the situation of Mr. Montoya Vivas 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.
104.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Montoya Vivas an enforceable right to
compensation and other reparations, in accordance with international law.
105.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Montoya Vivas and to take appropriate measures against those responsible for the
violation of his rights.
106.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the independence of judges and lawyers.
107.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
39 See the conference room paper containing the detailed conclusions of the Group of Human Rights
Experts on Nicaragua, available on the web page of the mandate, https://www.ohchr.org/en/hr-
bodies/hrc/ghre-nicaragua/index, A/HRC/52/CRP.5, paras. 481 ff.
40 A/54/10(SUPP), para. 48, comment No. 3, p. 26.
41 Ibid., para. 48, comment No. 5, p. 27.
42 Ibid. See also https://www.refworld.org/policy/legalguidance/unhcr/2020/en/123216, para. 11.
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4.
Follow-up procedure
108.
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 compensation or other reparations have been made to Mr. Montoya
Vivas;
(b)
Whether an investigation has been conducted into the violation of
Mr. Montoya Vivas’s rights;
(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
109.
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.
110.
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.
111.
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.43
[Adopted on 3 April 2025]
43 Human Rights Council resolution 51/8, paras. 6 and 9.