The Law in Nicaragua—Seeing Justice Done
This article by US lawyer Jerry Pyle won second prize in envío’s First Annual Writers' Contest.
Such constant charges are leveled at this court system that its fundamental fairness and effectiveness are called into question. The President, feeling a clear mandate from his landslide 1984 election victory, has proceeded to fill the court with partisan political appointments. Judges claim, accurately, that they are paid far less than many private sector lawyers, thus rendering the court system often unable to attract the best legal talent.
In the criminal courts, people can be held without bail even when there’s every reason to believe they would appear for trial. Trials themselves are often either so delayed or set to come up so quickly that defense lawyers claim they cannot adequately prepare their cases. The public defender system is frequently criticized as providing only token defense to poor defendants. Many judges came to the bench directly from their prior positions as government prosecutors, and this is said to bring their fairness and objectivity into question. Private lawyers concentrate their efforts on serving the wealthiest of clients and basically leave the poor to fend for themselves. There’s a 90-97% conviction rate for those charged with crimes, even when they have lawyers. Those sent to prison make constant claims of cruel punishment in overcrowded conditions.
In the area of "administrative" law a claimant against a government agency frequently finds that the "administrative law judge" and the government lawyer representing the agency work under the same executive, essentially as co-workers. And these judges are too easily swayed into ruling less on the basis of facts presented than on the policy preferences of the partisan President.
When one adds to these charges the fact that the executive branch has a history of spying on political opponents, often with tacit court approval, it is small wonder that many court officials feel under siege as they try to construct a better justice system.
Most of these criticisms of the US court system are not new and all have varying degrees of merit. But they are helpful to keep in mind when evaluating a judicial system such as that of the nine-year-old Nicaraguan government.
Beware of biasAs is the case in nearly all countries, the structuring and management of Nicaragua's legal system has often, and quite properly, raised challenging and contentious political issues, but context and reasonable analogies have often been lacking when the bright lights of international scrutiny are focused on this fledgling democracy. The solution is not to rail against the scrutiny. Like all reputable legal systems, Nicaragua's must be continually reexamined so it can remain in pursuit of improvement and on guard against disrepute. But pitfalls and analytical biases should be guarded against.
It is a truism, for example, that the losers in a legal dispute seldom consider justice to have been done. In all but the most outrageous of cases, trying to root out the "truth" about a justice system is a murky and subjective business, which can easily degenerate into merely expounding on what one expected or hoped to see.
"Justice" generally defies statistical assessment, for example, because the range of legitimate interpretation from court or sentencing statistics is so broad. Take the 90-97% criminal conviction rate mentioned above: does this mean that criminal defendants in US courts have no chance against a stacked deck or that the system works so well that only the guilty are ever charged with crimes? Does the fact that the United States has more people in jail per capita than nearly any country in the world mean it is a repressive legal system or merely an effective one that apprehends and punishes a relatively lawless populace?
Revolutionizing the court systemOf all the challenges facing the Nicaraguan revolution, the institutionalization of a fundamentally just legal system has symbolic as well as practical importance. The glaring injustice of the predecessor Somoza regime was the central galvanizing force of the revolution.
The legal system the Nicaraguan revolution inherited when the Somoza dictatorship was overthrown in 1979 could be charitably described as a disgrace. Somoza's notorious National Guard had nearly unfettered discretion to serve as judge, jury and executioner in criminal matters and in dealing with political opponents. The courts were rubber stamps for Somoza as he and his family amassed and maintained ownership of some 20% of the country's productive resources and commerce. The country's lawyers devoted themselves almost exclusively to real estate and contract matters for the wealthier families. The legal codes in place were antiquated legacies from early 19th century Spanish traditions htat were ill-suited to serve the majority of people, particularly in a legal system lacking even a glimmer of egalitarian motives.
The construction of a justice system that retains the trust and confidence of the people is thus a centerpiece of the revolution, and all the more so because the Sandinista revolution has defined itself as one based on a mixed economy and political pluralism. Attaining the goals of rapid and just economic development and assuring the promise of political pluralism depend in large measure on fair dispute resolution mechanisms being in place.
The availability of nonviolent means of dispute resolution within the body politic is the essence of the "social contract" and a precondition for both peace and justice in a society. The drafting and passage of the new Constitution in Nicaragua over the past few years established a framework for peaceful dispute resolution in "political" matters, i.e., the general laws and broader issues that are the province of political debate and contested elections between differing interests. But fair trial procedures and reasonable interplay between the courts and the "political" arena are also vital components of an integrated system of justice.
The day following the overthrow of Somoza, July 20, 1979, the new government promulgated a lengthy decree known as the Fundamental Statute, which set the framework for governmental functions pending elections and the drafting of a new Constitution. Included in this statute were the establishment of a new court system and recognition of the independence of the judiciary. The old Somoza-appointed Supreme Court members were sacked and the next day seven new members were appointed to become the new Supreme Court. In keeping with the coalition nature of the early Junta, three members of that Court were Sandinistas, three were from other parties and one was a "neutral." (US-style court packing by the party in power, a clear sign of a maturing democracy, did not begin until 1987.)
The new Supreme Court proceeded to appoint all the lower court judges in the new system. These appointments included the creation of 6 regional appeals courts, 134 district court judges and some 150 municipal court judges. This new structure was envisioned as "unitary" with an orderly system of appeals and distribution of responsibilities: municipal courts would handle small misdemeanor cases and relatively small financial disputes. District courts would try felony cases and the larger financial disputes. The appeals courts would handle appeals from both municipal and district courts. The Supreme Court would be a court of last resort to resolve inconsistencies in the rulings of the lower appeals courts and provide the last word on cases of significant importance.
The new government moved quickly to ratify a series of international human and civil rights pacts, which were given the force of law. In addition to assuring the right to a fair trial and various fundamental criminal procedure rights, these pacts acknowledged the independence of the judiciary from excessive executive interference.
Four recent events are significant in evaluating the evolution of Nicaragua's new justice system. They are: 1) the January 1987 ratification of Nicaragua’s new Constitution; 2) the January 19, 1988 lifting of the State of Emergency, which had limited the availability of important legal rights; 3) the January 19, 1988 closing down of the Popular Anti-Somocista Tribunals (TPAs); and 4) the February 1988 economic reforms, which included government restructuring and spending cutbacks but a strengthening of the court system.
The new tribunals: Unitary or parallel?Given the widespread longing for justice that so motivated the revolution, the new government quite naturally did not hesitate to commit itself to the highest standards of both social and legal justice. Perhaps not surprisingly, however, the development of this "unitary" judicial system did not go as smoothly as planned.
The government's efforts to simultaneously put the revolution’s economic and social goals in place, solve the problem of what to do with the captured ex-National Guardsmen and deal with a war launched by the US-sponsored contras led to the creation of additional tribunals independent of the regular court system. The government viewed the fledgling regular court system as too overworked, too cumbersome and, perhaps, too conservative to take on all the adjudicating required by these three processes. Though these separate tribunals may have remained theoretically linked to the "unified" court system headed by the Supreme Court, they were intentionally created to be, as a practical matter, a parallel system.
The Special TribunalsThe first of these creations was the "Special Tribunals" that operated from November 1979 to February 1981. They were expressly charged with judging cases brought against former Somoza officials and National Guardsmen through application of the existing Penal Code for crimes alleged to have been committed before the revolution. The nine three-judge panels and three appeals panels were all appointed by the interim Junta and included lay non-lawyers. This concept of involving the lay population in the direct administration of justice was widely supported in Nicaragua. (The idea is not unknown in some US populist circles, where it is felt that lawyers quickly become immersed in esoteric procedural technicalities and lose their ability to see justice as the objective.)
These Special Tribunals handled 6,310 cases, releasing 1,760 prisoners with pretrial pardons or for lack of evidence. Of the 5,550 cases tried, 1,229 were acquitted. This is a very high acquittal percentage by the standards of any US court. The 4,331 who were convicted—many for murder—received sentences ranging from zero to 30 years, the maximum allowed under post-Somoza Nicaraguan law.
The late Nora Astorga, an attorney who went on to serve as Nicaragua’s ambassador to the United Nations from 1985 to 1987, headed up the prosecution in the Special Tribunals. She reported that the largest percentage of those convicted received 1-5 year sentences, 11% received 5-10 year sentences and 12-15% percent received the maximum 30 year sentence. Through the serving out of their sentences, pardons and various amnesties, only about 1,800 of these Somocistas are still serving time in Nicaragua.
International human rights organizations criticized the Nicaraguan government for the expedited procedures used in these tribunals, the lack of "independent" appellate review and frequent references to the political context by the Special Prosecutors in the trials. In an interview with envío shortly before her death in February 1988, (Vol. 7, No. 82, April 1988) , Nora Astorga said of the tribunals, "This revolution has not done what has been done in other cases: a bloodbath by the people on their own.... There was never a spirit of revenge among [the prosecutors], only a desire to make fair decisions. We had a group of compañeros who would go to where the Guard member had lived to get information, to investigate why he joined the Guard, how he had behaved, what he had done.... I am not saying we were never unjust. It's difficult to be fair 100% of the time, but we made a tremendous effort."
Although there were few serious claims that those convicted were "innocent," the release of the remaining 1,800 in jail has been a continuing demand by the contras. Given the strong sentiment in the country that these "Guardia" are getting off relatively easily, pardoning those remaining in prison is a difficult move for the Sandinistas to make.*
*The March 23, 1988 Sapoá accords between the government and the contras provided for the release of many of these prisoners as part of a general amnesty, subject to a case-by-case review by OAS officials and compliance by the contras with other aspects of the accords. That independent OAS review to assess which prisoners merit amnesty has been completed, but its release is being held up pending resumption of negotiations.)
Although, in theory, the Supreme Court may have been able to assert review of these cases under the Law of Amparo (similar to the US habeas corpus), it never did. Had it done so it may well have caused a governmental crisis at that time on the issue of judicial authority. The decree creating the Special Tribunals expressly tried to preclude appellate review by the Supreme Court. Some members of the Court expressed disagreement with the decision to set up this separate system of tribunals as an undermining of their authority and independence. But there was also widespread recognition, even on the Supreme Court, that the regular courts simply did not have the capacity to deal with the workload the cases entailed without a massive increase in staff. This would arguably have been inefficient since the cases were a one-time-only block of cases. Nor would the regular court system have been able to put that chapter in the nation's history to rest in the 16 months the task was accomplished by the Special Tribunals.
One should not lightly excuse any shortcuts that limit due process rights. But, given the treatment generally afforded dictators and their henchmen following defeat, and compared with the justice system in the so-called democracies of neighboring El Salvador, Honduras, and Guatemala, the system used by the Nicaraguan revolution in these cases demonstrated both moderation and restraint. One does not hear calls from the former Guardsmen that they would have preferred a post-revolution jury trial. One can imagine they fared far better under the Special Tribunals than if their fate had been left to juries composed of their former victims.
Popular Anti-Somocista TribunalsThe second, and most roundly criticized, venture of the government in setting up an "extra-judicial" set of tribunals coincided with the growth of the war being waged by the contras. The Popular Anti-Somocista Tribunals (TPAs) were established in April 1983 to try cases related to the war, including captured contras and related security cases.
The TPAs consisted of two panels appointed by the government, both of which sat in Managua. One was a trial court, the other an appellate court. Each panel had three members, two of whom were not lawyers, with the lawyer serving as chair of the panel.
The rationale for their existence was the need to provide expedited trials to those arrested or taken prisoner. In addition to trying captured contras, the TPAs tried many cases of persons accused of collaboration with them. The government again felt the existing court system was ill-equipped for this influx of cases, in part because these prisoners did not think of themselves as common criminals and in part to expedite handling of the cases.
These expedited war-related trials left something to be desired from a procedural standpoint in their limitation on defense preparation time, occasional reliance on questionable confessions and a recurring problem of low-quality defenses by appointed, and unpaid, public defenders (some 65% of those charged and brought before the TPAs hired private attorneys, while the others were appointed a public defender).
The TPAs were also criticized for their often highly charged political overtones. A frequent criticism was that the panels were largely composed of the defendant's "political enemies." But one needs to question whether a defendant in the US would be granted a request to be tried by a panel of judges neutral on the issue of treason, which was essentially the charge in most of these cases.
Despite the fact that the law creating the TPAs precluded judicial review, the regular appellate court several times heard Habeas Corpus petitions by defendants who claimed they were being tortured. The government complied with this assertion of judicial authority and brought the prisoners before the court. None were found to have been abused. The regular courts did not intervene in the procedural questions raised by the work of the TPAs.
The TPAs were abolished in January 1988 and their caseload was transferred to the regular court system. Many of those awaiting trial before the TPAs had their cases dismissed by the regular courts since they had been waiting longer than the rules of the regular courts allowed. In these security cases, the regular courts now apply a set of expedited procedures that was first adopted by the TPAs.
The abolition of the TPAs did away with the last extra-judicial tribunal beyond the review of the Supreme Court. There does exist a series of executive branch administrative tribunals that handle the initial stages of cases involving such things as labor issues and issues arising under the land reform program. They are not unlike the numerous administrative law courts run by the executive branch in the US such as the Immigration Service, Workers Compensation boards or Social Security claims. In Nicaragua, like in the US, appeals from these administrative law hearings are to the regular court system.
State of Emergency ends; TPAs close up shopOf all the developments in Nicaragua in the past 18 months, the ratification of the Constitution on January 9, 1987 clearly has the most profound long-range positive impact on the justice system. But the January 1988 lifting of the long-standing State of Emergency and concurrent closing of the TPAs deserve mention first. Both the State of Emergency and the continued functioning of the TPAs during 1987 somewhat tarnished the initial luster of the Constitution.
Both international law and Nicaragua's new Constitution provide for the imposition of a State of Emergency limiting certain rights during a wartime situation. Nevertheless, the succession of various State of Emergency decrees in effect in Nicaragua since 1982 had served as a basis for US claims that Nicaragua was a "totalitarian state." (US critics, including the White House, were often put in the anomalous position of giving an upbeat assessment of the tremendous fighting effectiveness of the contras while asserting that the war they fought was not a serious enough threat to Nicaragua to justify the State of Emergency.)
The State of Emergency decree in effect before its abolition on January 19, 1988 provided for the suspension of all or part of 12 of the 202 articles in the new Constitution. Though the decree was not fully enforced and had only moderate impact on the daily lives of most people in the country, the rights suspended or subject to suspension were significant. Due process for those accused of violating the Security and Public Order Law, limitation on the government's right to search a home, time limits for notification of charges against a prisoner, and the Writ of Habeas Corpus to challenge a detention were the key rights limited by the State of Emergency that impacted on the legal system. Habeas Corpus to challenge cruel treatment remained available.
(Other important rights limited in theory or in practice by the decree that did not directly bear on the judicial process included freedom of speech and publication, freedom to travel and the rights to strike and to demonstrate without a permit.)
As a practical matter, the State of Emergency allowed the TPAs to continue operating during a time when full application of the suspended rights for defendants would have greatly limited their ability to function as envisioned. It would have brought Supreme Court supervision to the TPAs through Habeas Corpus petitions, release of some prisoners where the TPAs were slow to file formal charges and some expansion of the due process provisions of the trials themselves.
Thus it was not surprising, and indeed as the government had promised, that the end of the State of Emergency coincided with the closing of the TPAs. The government ordered that they be shut down the same day the State of Emergency was lifted. The backdrop to the announcement was Nicaragua's steps to comply with Esquipulas II (the Central American Peace Plan) and a pending request for more contra funds in US Congress.
Though the problem that gave rise to the TPAs—the contra war—had not measurably lessened in intensity, several factors came together to make abolition of the TPAs both possible and wise.
The TPAs, like the State of Emergency, had become an international embarrassment to some extent. They had been widely criticized by international human rights groups. Any human rights "abuse" in Nicaragua, given the political hostility from the United States, has a tendency to take on holocaust proportions once it has been translated though the US State Department and White House. A legitimate and measured criticism that may have been intended as constructive by an apolitical human rights observer becomes a weapon in a propaganda war almost overnight.
The liability that the TPAs had become to the government thus far outweighed their practical usefulness. Their abolition, like the ending of the State of Emergency, took away an excuse used by the contras and the White House to avoid serious peace talks and continue contra funding requests. The elimination of the TPAs also served as another dramatic demonstration of the difference in the commitment to justice between Nicaragua and the death squad-prone US allies in El Salvador, Honduras and Guatemala.
There were domestic political reasons for the decision on the TPAs as well. Many in Nicaraguan legal and political circles felt that, with the ratification of the Constitution completed, the continued existence of the TPAs constituted an ongoing insult to the regular judiciary. To perpetuate the TPAs was to suggest to the public that the regular courts weren’t up to the task of handling important matters, which the TPA cases clearly were. There was also legitimate reason to believe that the several years of experience gained by the regular courts since their creation enhanced their capability to handle these cases. The Supreme Court has been making a concerted effort to restore the credibility and dignity of the courts that was so devastated under Somoza.
Finally, if one is not too cynical, there is the distinct suggestion that the government was sincerely uncomfortable with having in place a set of tribunals that offered less than the full range of due process protections promised in the Constitution, even if only to try contras and their collaborators. Many in the government spent years of sacrifice fighting Somoza's brutal injustices, and saw comrades fall to them. Seeing the government they created being compared to justice under Somoza was something that likely did not sit well with them.
Both the State of Emergency and the TPAs had impacted negatively on "objective" measures of fairness in the courts in Nicaragua. There is an inevitable tendency in evaluating the workings of tribunals to look at structure and process—the presence of counsel, time to prepare a defense, the accused knowing the charges, the right to present rebuttal evidence, the availability of appeal and protection against the use of coercive interrogations are all quite properly considered indicators of a fair trial system. But their presence does not assure a fair outcome nor does their absence assure an unjust one. Just as with contracts, the good will of those involved in a tribunal is usually far more important than what is written down. Unfortunately, whether the lawyers involved see the process as just so many "hoops to jump through" or a written reflection of an internalized commitment to justice is too unknowable and subjective for external evaluators to assess. We can only hope the various checks on abuse are sufficient to prevent the railroading of defendants.
Supporters of the government and many neutral observers saw in the TPAs a sincere commitment to justice despite procedural defects and tense wartime circumstances. Supporters of the old regime and many government opponents saw in them a reenactment of the old Western movie motif where the sheriff announces to the assembled mob that, "First we're going to give him a fair trial. Then we're going to hang him."
When all these realities are taken into account, the abolition of the State of Emergency and the TPAs was clearly a wise step for the government to have taken.
The new ConstitutionThe new Nicaraguan Constitution, signed by President Ortega on January 9, 1987, is a document that grew out of a long period of national debate. The process included consultation among 15 political parties and input by some 100,000 people who attended various town meetings around the country. The debate in the Constituent National Assembly was often stormy as the political give and take went on. Numerous issues stirred passionate debate, much as the drafting of the US Constitution did two hundred years earlier, though in Nicaragua's case the debate was open to all levels of society. References to God, abortion rights and the separation of powers were but a few of the many sensitive issues dealt with on the road to a final document.
Though the Sandinistas held enough National Assembly votes to ram their own draft through had they wished, the article-by-article debate in fact led to numerous modifications and compromises. The Sandinistas sought broad participation from the opposition so that the final product would be embraced as essentially a consensus document, and this they appear to have achieved in large measure. But the Constitution gives the party in power great control to shape the government. For now, that party is the Sandinistas.
Most of the 202 Articles in the Constitution commit the government to individual liberty or benefits to the advantage of the populace. Not the least of these are the commitments that assure an independent judiciary and broad due process rights in the courts. Other provisions spell out additional legal protections in civil law and protection from governmental abuse in daily life.
Separation of powers: An independent judiciaryThe value to a democracy of an "independent" judiciary lies in its ability to serve both as a check on the power of the other branches of government and as a credible independent arbiter of the society's non-political disputes. The Nicaraguan Constitution does an admirable job of assuring judicial independence on both counts.
The new Constitution establishes four branches of government: the judicial, legislative, executive and electoral. The executive branch is headed by the President, currently Daniel Ortega, who serves for six years and is elected by popular vote. The candidate getting the most votes in the nationwide election wins. The next election is set for 1990.
The 90-member legislative body (the National Assembly) consists of legislators elected from the country’s nine different political-administrative regions, in numbers proportionate to the population of each region. Unsuccessful presidential and vice presidential candidates become part of the Assembly as well, if they receive a certain minimum number of votes. Members of the Assembly serve six-year terms.
The electoral branch exists to supervise elections. The National Assembly selects the five members of the Supreme Electoral Council, the highest body of this branch, from five lists of three candidates submitted by the President. There are also Regional Electoral Councils in each of the nine regions.
The entire judicial branch is headed and managed by the seven-member Supreme Court, which itself is selected by the National Assembly according to the same system used for the Supreme Electoral Council. Once the seven seats are filled, the President designates one of those seven to be president of the Supreme Court, comparable to chief justice in the US Supreme Court.
The Constitution refers to the courts as a "unitary system" and "independent" and to judges as "subject only to the Constitution and the law." There are at least three clear grants of authority to the Court to rule on the constitutionality of laws and a clear reference to the obligation of government officials to obey the orders of the courts. These are all strong signs of a commitment to full separation of powers and respect for judicial autonomy.
In addition, the Supreme Court appoints all the lower appellate court and trial court judges. Consequently, these judges are more apt to owe their appointment to someone within this unified court system than to a political benefactor in the executive or legislative branch.
One potentially negative aspect of this structure, in terms of judicial independence, involves the six-year terms of office for Supreme Court Justices and the consequent dependence on the executive and legislative branches for continued service on the Court.
The age-old argument about whether judges should serve for life, and thus be freed from the often whimsical pressures of public opinion, or serve for fixed terms to prevent the construction of impregnable judicial fiefdoms unresponsive to the needs of the society, was a difficult one for the framers. It always is. The Constituent National Assembly came down on the side of six-year terms with no apparent limitation on how many times a justice could be re-nominated by the President and reelected by the Assembly. Judges will need to stay on the good side of the party in power to assure reappointment.
Then again, the lust for reappointment may not be that prevalent. As of June, Supreme Court justices earned something under $150 per month in salary. Though these are some of the highest salaries in government, and a sign of commitment to quality in the judiciary, they are well below what good attorneys can earn in the private sector.
The law spelling out the basis on which a judge may be removed from office before the expiration of his or her term has yet to be written. But given the political climate in the country, removing a judge will likely be a difficult process. The opposition parties see the courts as a protection against potential abuse of the opposition by the controlling Sandinistas. The Sandinistas, having controlled the appointments to the court through the President, do not want to see that majority taken away without awfully good evidence against the judge in question.
One additional feature of the new Constitution that indicates a respect for the judiciary is the provision that it can introduce bills relevant to its jurisdiction in the National Assembly. Though such a provision may risk undue injection of the judiciary into the political arena, one can imagine important input into the legislative process when matters of court reform and improved procedures are before the Assembly.
Despite the generally strong protections built into the Constitution, the real test of the independence and authority of the judiciary will come when it is faced with a challenge to an unconstitutional law it feels compelled to void. That bridge has yet to be crossed, but signs are positive that the other government branches would respect such a finding.
Due process and criminal procedureThe new Constitution sets a high standard of due process to be followed in criminal trials. Most of the rights of criminal defendants provided for in the Constitution existed in pre-Constitution decrees and laws governing the country after the revolution, but their codification in the Constitution clearly enhances their status as fundamental rights.
The police in Nicaragua serve under the Ministry of the Interior. When they make an arrest, they must advise defendants "without delay" of why they are being held, in a language they understand (an acknowledgement of the different languages on the Atlantic Coast), and their families are to be notified. Several articles in the Constitution require prisoners to be treated with "dignity" both before and after trials. (Reports of police brutality are rare.)
The Constitution provides that from the time of arrest a defendant is protected by the right against
self-incrimination, a presumption of innocence and the rights to participate in the defense, to not be tried a second time for the same offense, to a speedy trial and to not have his or her home searched without a warrant. Evidence seized contrary to law may not be used against the defendant. In these respects, the Nicaraguan constitutional protections are quite similar to those in the United States. The arresting officer is not yet required to give the full warning used in the US to advise people of their rights, but a brief recitation of rights is required soon after the arrest. The police must bring a defendant before a "competent legal authority," which may be a judge but more often is an Interior Ministry official, not unlike a precinct police captain in the US. The defendants are again to be advised of why they are being held at this hearing.
Given the financial circumstances of most defendants, a monetary bail system does not exist and there is no provision for such in the Constitution. The police and the courts have discretion to allow a release while the investigation continues and often do in smaller cases. For serious charges, there is essentially no pretrial release.
The defendant has a right to an attorney and to consult with that attorney in private. An attorney will be appointed if a defendant has not hired one by the time of this "first hearing." There remains confusion as to just when the attorney must get involved but the time when counsel is appointed seems clear. There is no question that the efforts of these unpaid public defenders are frequently less than zealous. This is a legitimate criticism that is difficult to overcome, even in a system such as that of the United States where massive funds are appropriated in some jurisdictions to maintain full time Public Defender offices. Limited Nicaraguan resources, both financial and legal, make such a huge commitment unlikely in the near future.
Following this first hearing, the police have another six days to complete their preliminary investigation. They then may release the defendant or ask the prosecutor to file formal charges. The prosecutor has three days to file charges once the recommendation to do so comes from the police. If charges are filed, a long, and often arduous, judicial investigation process begins that culminates in a trial.
Police Courts—Nicaragua’s safety valveDuring those nine days of police investigation, the Nicaraguan legal system's "safety valve"—known as the Police Courts—often kicks into place. All criminal justice systems have a "safety valve" that allows the system not to become overloaded and grind to a halt. It is a truism that if every criminal defendant exercised all of their rights to counsel, trial and appeals, the system could not survive without securing quantum leaps in the number of judges and support staff. In the United States, the safety valve is the plea-bargaining system where defendants are induced to plead guilty to lesser charges and shorter sentences than they would face at trial. Defendants, regardless of their innocence or guilt, quite rationally often choose the known over the unknown and take the plea bargain. Some 95% of criminal charges in the US are resolved, without trial, in this fashion, saving the courts and taxpayers millions of dollars.
The Police Courts were inherited from the Somoza era and have remained functional, though curbed, since the revolution. These courts allow the police to sentence people for up to six months in jail with essentially no trial (previously it was two years). Though they have, on occasion, been used to jail political opponents of the government for such things as disturbing the peace and parading without a permit, their existence is not yet a priority political issue, even among opposition parties. They are essentially seen as a crime-fighting tool the police consider crucial to their work. But given the progress in other areas in the past two years, their continued existence may be the thorniest of the justice system's remaining weaknesses.
Both the US plea-bargaining system and Nicaragua's Police Courts are the subject of frequent criticism as a short-circuiting of justice in which innocent people are apt to end up in jail. And both systems also have their supporters, who claim that not only are these safety valves an accommodation to reality, they are effective crime-fighting tools for swift and relatively certain justice.
The Police Courts still conduct their "trials" in summary fashion with few apparent procedural protections. The "judge" is a ranking police official who can essentially find the defendant guilty based on the police investigation. There is an appeal process, but it requires prompt action by the defendant and is to one of the sentencing officer's superiors in the police department. The Ministry of the Interior is said to have shortened sentences or released prisoners in many cases when the facts indicated mistakes at the "trial." But such a system is clearly ripe for abuse if left without aggressive judicial supervision.
The new Constitution allows those convicted in the Police Courts judicial review through an Amparo petition. But, like in the US, appeals from convictions resulting in short sentences usually result in prisoners having served their time before the appeal can be ruled on. The procedural protections outlined in the Constitution that apply to criminal trials also apply to the Police Courts. But there is no consensus yet as to how these will be manifested in the Police Courts. Presumably, the Supreme Court would have authority to order adherence to a strict set of constitutionally mandated procedures. Such an order has yet to come down and the Court would perhaps prefer to let the elected Assembly take the first shot at this sensitive political issue.
The Police Courts represent a difficult political issue because they leave the government open to charges of denying due process protections. But in addition to serving as the safety valve the system relies on, they are widely seen as being fair in their results. The police strongly feel they need this tool to jail petty criminals, particularly repeat offenders. The widespread perception that petty crime is on the rise due to hard economic times will work in favor of the police in this debate. In addition, the generally good training the police receive and the resulting good will they have built up with the people in most neighborhoods lessens the population’s concern that these courts will turn into vehicles for arbitrary abuse and trumped-up charges.
One specific case that may be illustrative of how the Police Courts work, though hardly decisive as to their overall merits, is the case of Rafael. Rafael was arrested on a bus and shortly afterward was sentenced by a Police Court to six months in prison for theft. Rafael's mother went to the Commission for the Protection and Promotion of Human Rights some three months after the arrest to complain that she did not know why her son was in jail. She said he had been on a bus when a fight broke out between some passengers unknown to her son, who tried to protect an elderly woman he felt was exposed to danger near the fisticuffs. When the police finally boarded the bus they took the participants in the fight to jail and he was taken along just because he was close to the fighting.
The human rights commission looked into the matter, and found that Rafael had twelve prior pick pocketing convictions. The fight appeared to be a diversion that allowed him to try to steal money from the old lady, who testified that Rafael had almost made off with her money when the police arrived. In addition, the mother had been involved in the appeal of the conviction. The appeal was denied.
If the Police Courts are shut down, or brought more closely under judicial branch control, with a resulting application of more elaborate trial procedures, a new safety valve in the system would have to be found. Perhaps plea-bargaining?
Where there is a serious crime and the prosecutor files formal charges with the regular court system, an "investigating judge" starts to work on the case.
The Constitution provides for criminal proceedings to be open to the public and press, except when moral, public order or security considerations preclude it, about the same standard used in the United States. In Nicaragua, this openness does not generally translate into the sensationalist public dramas so familiar to US court observers, because, for now, there are no jury trials. The trials consist almost entirely of written evidence provided to the judge, who is also an active player in finding the evidence that will ultimately have to be evaluated. This may be through written affidavits or interviews of witnesses by the judge.
This tradition of trials as essentially a long-running process of investigation by a judge has deep roots in Nicaragua's Spanish legal tradition. Though it differs markedly from the US concept of what a trial is, the Nicaraguan system is not unlike many well-respected systems in use around the world. The heart of the difference stems from different perceptions of how a judge should behave. In a system heavily reliant on adversarial proceedings, as in the United States, the judge and jury are relatively passive, relying heavily on the opposing attorneys to get the relevant facts before the court. It is felt that the presentation of opposing views of reality by each side will somehow paint a whole and accurate picture for the court. In the less adversarial systems, such as Nicaragua's, the judge takes far more initiative to see that all the facts are before the court. Then he or she applies to the evidence what weight is deemed proper in arriving at a decision.
Which system leads to more justice has been a raging debate in legal circles around the world for generations. The Nicaraguan Constitution does not address this issue and the rights granted apply equally to either system. Though there are proposals to move to more adversarial "oral" trials, the issue is yet to be resolved by the National Assembly. The Constitution clearly permits the continuation of the current system by not providing a right to "confront your accuser."
One consequence of there being no jury trials is that the judge who determines the verdict also hears all of the irrelevant, inadmissible and hearsay evidence that gets presented. As in US judge-only trials (where a defendant waives a jury trial to avoid anticipated prejudice or irrationality by non-lawyer jurors), the Nicaraguan judge is expected to rely on experience and training to make a fair appraisal of the evidence, honestly disregarding the evidence that may not properly be considered. But the burden of proof for finding guilt by a Nicaraguan judge is not the "beyond a reasonable doubt" standard required for a US conviction. Rather, it is a standard called "Sana Crítica," which obliges the judge to make a finding of guilt or innocence based upon "the correct human understanding, in which the rules of logic interplay with the experiences of the judge." It is a difficult concept to translate but this standard of proof might fairly be called the "best judgment" standard.
Standards of proof required for a criminal conviction are usually debated on the assumption that a court finds varying but quantifiable degrees of certainty of guilt depending on the case. A high burden of proof to convict will let many guilty people free but will prevent almost all innocent people from being convicted. A lower burden of proof is thought to insure that more of the guilty are convicted while running a greater risk that some innocent people will be as well. For better or worse, the Nicaraguan standard of proof for criminal convictions is lower than the "beyond a reasonable doubt" standard.
Once the judge renders a verdict, the trial is over. For those convicted, there is an appeal process to the Court of Appeals and then to the Supreme Court.
Regarding sentencing, the new Constitution carries on the tradition of the revolution by precluding the death penalty and establishing a maximum sentence of 30 years in prison. The Constitution also articulates the prevailing concept in the Nicaraguan penal system that the purpose of prison is to rehabilitate.
A number of reforms to modernize the legal system were under serious consideration in 1986 but did not make their way into the Constitution. The old Penal Code, which the country has lived under with piecemeal amendments from time to time, is now being completely rewritten by the National Assembly in light of the new Constitution. The reforms under discussion would not be in conflict with the Constitution but are likely to be hotly debated when the new Code comes to the Assembly floor in the coming year. Certain to be included in the proposals are a changeover to oral trials, procedures to govern the police courts and pretrial release procedures.
One potential cloud hanging over the generally admirable legal structure envisioned by the new Constitution is the possibility of a new State of Emergency being declared in the future. Article 185 of the Constitution authorizes the President to declare a State of Emergency in the case of war, national catastrophe or economic crisis. Some protection is found in Article 186, which states that the only right protecting criminal defendants that can be limited by the emergency decree is that of speedy trial. However, this right is no small matter and the government's ability to allow someone to languish in pretrial detention can make most other rights quite moot.
The February 1988 economic reformsIn February 1988, the Nicaraguan government announced a series of economic reforms designed to increase economic production and slow the pace of inflation, which had reached quadruple digits in the preceding year. The reforms included a reduction in various subsidies that had grown up, the issuance of a new currency and a major restructuring of government agencies.
The restructuring, known in Nicaragua as the "compacting," was intended to consolidate a sprawling collection of agencies into seven or eight ministries where their functions made the most sense. It was hoped that this compacting would also alleviate duplication of services and allow for a 10% cutback in government spending.
Because the Judiciary was already severely understaffed before the reforms, the legal system was in fact strengthened in the restructuring. A number of new judges were added to the court system. In Managua, for instance, the number of district court judges went from five to nine with corresponding increases in support staff. This increase was designed, in part, to respond to Supreme Court requests for more personnel to handle the cases they took over from the TPAs. The separation of powers principle was maintained in the restructuring and there was no apparent attempt to use the cutbacks to infringe on the Court as an independent branch of government.
In the executive branch, the former Ministry of Justice was broken up and abolished. Over the years, this ministry had taken on a number of unrelated licensing and registration functions that have now been transferred to the agencies whose subject matter they concern. A new office, the Attorney General, was created to handle the role of lawyer for the government and supervising prosecutors, a collection of functions essentially the same as in the US.
This expansion and restructuring was widely supported by the judiciary and was not seen as a contentious issue in the National Assembly.
The sentiment in some quarters to have lay non-lawyers participate in the judiciary was not fulfilled in this restructuring; the death of the TPAs in January may well mark the end of this practice for the foreseeable future. Lay participation on some administrative tribunals, where there is appellate review to the regular courts composed solely of lawyer judges, will probably continue, as it does in some cases in the United States.
One interesting but dormant feature of Nicaraguan law that may have been revived by the reforms involves a process known as "private claims." The concept is that an individual citizen has a right to bring an essentially criminal claim against another person by presenting it to a judge. The judge, in theory, is to pursue this claim with the same process as though a prosecutor brought a charge. One feature of the reform law not yet in effect would have prosecutors leave more of the petty disputes to this private claim process so they would be free to spend their time on more serious cases. A doomsayer might say this has the markings of the first step toward full-blown personal injury law.
ConclusionThe events of the past 18 months have moved the Nicaraguan justice system a long way on the road toward the revolution's goal of effective, fair, accessible justice for the whole population. The new Constitution, abolition of the State of Emergency, and the closing of the TPAs are positive achievements of both symbolic and practical significance for the country. That they occurred in a time of war and severe financial hardship makes them all the more commendable. The institutionalization of a strong and independent judicial branch and the attainment of constitutional standing for a whole array of individual liberties are clearly benchmarks on the road to insuring the preservation of a free society. Though there are challenges ahead and clearly problems to be overcome, this period in Nicaraguan history will be looked back on as one to be proud of.