U.S. Department of State Country Report on Human Rights Practices 1999 - Nicaragua
|Publisher||United States Department of State|
|Publication Date||25 February 2000|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1999 - Nicaragua , 25 February 2000, available at: http://www.refworld.org/docid/3ae6aa7330.html [accessed 31 May 2016]|
Nicaragua is a constitutional democracy, with a directly elected president, vice president, and unicameral legislature. President Arnoldo Aleman was elected in a free and fair election in 1996, defeating his closest competitor, Daniel Ortega of the Sandinista National Liberation Front (FSLN). The Supreme Electoral Council is an independent fourth branch of government. The Constitution provides for an independent judiciary; however, the judiciary is at times susceptible to political influence.
The President is the supreme chief of the national defense and security forces. President Aleman established the first-ever civilian Defense Ministry upon his inauguration. The Ministry of Government oversees the National Police, which is charged formally with internal security. However, the police share this responsibility with the army in rural areas. The civilian authorities generally maintained effective control of the security forces. Some members of the security forces committed human rights abuses.
Nicaragua is an extremely poor country, with an estimated per capita gross domestic product of $454. The economy is predominantly agricultural, dependent on sugar, beef, coffee, and seafood exports, with some light manufacturing. In late 1998, Hurricane Mitch had a devastating effect on the economic infrastructure, reducing the annual growth rate for 1998 from a pre-hurricane estimate of 6 percent to 4 percent. Despite this setback, the economy grew 6.3 percent in 1999. The inflation rate dropped to 11.5 percent from 18.5 percent in 1998. The unemployment rate was estimated officially at 11 percent; however, some nongovernmental organizations (NGO's) estimated the rate of unemployment and underemployment combined at 40 to 50 percent. Private foreign investment continued to increase; however, economic growth continued to be hindered by unresolved property disputes and unclear land titles stemming from massive confiscations by the Sandinista government of the 1980's. The country continued to have a precarious balance of payments position and remained heavily dependent on foreign assistance, which also increased significantly in the wake of Hurricane Mitch.
The Government generally respected many of its citizens' human rights; however, serious problems remained in some areas. Members of the security forces committed several extrajudicial killings, and police continued to beat and otherwise abuse detainees. There were allegations of torture by the authorities. Prison and police holding cell conditions remain harsh, although prison conditions improved slightly. Security forces arbitrarily arrested and detained citizens, although apparently less frequently than in the previous year. The Government effectively punished some of those who committed abuses; however, a degree of impunity persisted. Most of the human rights abusers cited by the Tripartite Commission in well-documented reports remain unpunished. The Government followed few of the Commission's recommendations, and the political will to reopen these cases is virtually nonexistent. In March the Government forced Colonel Lenin Cerna, an egregious human rights abuser and former head of state security under the Sandinistas, to retire from the army, along with some of his top deputies; however, despite Cerna's admissions in newspaper interviews that he committed abuses, the Government has not prosecuted him. Lengthy pretrial detention and long delays in trials remain problems, and the judiciary suffers from a large case backlog. The judiciary also is subject at times to political influence and corruption. The Supreme Court continued its structural reform program for the judicial system. A new Judicial Organic Law, intended to address many of these problems, came into effect in January; however, the weak judiciary continued to hamper prosecution of human rights abusers in some cases. In June the National Assembly elected Benjamin Perez, President of the Assembly's Human Rights Commission, as the country's first Human Rights Ombudsman. Discrimination against women is a problem. Violence against women and children, including domestic abuse and rape, remained a problem. Child prostitution increased. Discrimination against indigenous people is a problem. Child labor also remained a problem. There were some cases of trafficking for forced labor and trafficking in women and girls for the purpose of forced prostitution.
FSLN leaders continued to threaten, in speeches and public statements, the use of violence for political ends.
The civil war formally concluded in June 1990 with the demobilization of the Nicaraguan Resistance (RN, or "Contras"). However, the rule of law and basic infrastructure do not extend to all rural areas. Despite the Government's disarmament campaigns, many citizens, especially in rural areas, are heavily armed. Marauding criminal gangs, some of which claimed political agendas, continued to be a problem in the mountainous regions of the north, as well as on the Atlantic Coast.
Section 1. Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were no reports of political killings by government officials; however, there were several reports of extrajudicial killings by police attempting to arrest suspects, of suspects while in detention, and by army members in rural areas.
During the year, the Inspector General's office (IG) of the National Police reported 18 instances in which police officers killed alleged criminals and 2 instances in which police seriously wounded criminal suspects, while attempting to arrest them. The IG automatically remands to the court system for review cases in which police use deadly force; however, the cases often take considerable time to process. Of the 20 cases that the IG remanded to the courts during the year, 3 were adjudicated. In those cases, one officer was found innocent of wrongdoing and released; one officer was discharged dishonorably; and one voluntary police officer was found guilty of homicide and received a prison sentence. Police Inspector General Eva Sacasa has stated that the police themselves are often in great danger when apprehending heavily armed members of criminal gangs.
On January 12, Hilario Briones Arostegui and Santos Arostegui Torres, reportedly wanted by the police for multiple crimes, were collecting discarded cans from a trash dump in Esteli when four police officers in civilian clothes and two civilians identified as Pablo Andino and "Cesar" approached them. The civilian known as Cesar shot Briones repeatedly in the head, killing him. Arostegui attempted to flee, but the four police officers prevented him from doing so. Cesar then reportedly killed Arostegui in a manner similar to the killing of Briones. According to the Nicaraguan Association for Human Rights (ANPDH), the police could have arrested the unarmed suspects without difficulty. Late in the year, the ANPDH filed a formal complaint in the case with the police Internal Affairs Unit; action by the Internal Affairs Unit was pending at year's end. On February 14, in Puerto de Hierro, Matagalpa department, voluntary police officer Juan Thomas Lopez Guerrero killed Juan Adolfo Mejia Leon following an argument between Mejia and Lopez's brother while they both were attending a baseball game. According to an investigation by the Nicaraguan Center for Human Rights (CENIDH), after the argument, the Lopez brothers left the stadium and waited outside for Mejia to leave; Juan Lopez then killed him. The CENIDH assisted the victim's sister in filing a complaint with the District Court in Matagalpa. On February 23, a District Court judge found Lopez guilty of first degree homicide and sentenced him to 7 years' imprisonment. However, according to the CENIDH, despite the judge's guilty verdict and issuance of an arrest warrant, the authorities reportedly did not take Lopez into custody to serve his sentence by year's end, and he continued to serve as a voluntary police officer.
On February 23, in Belen, Boaco department, Martin Canales Suarez was playing baseball with friends when army member Marcos Antonio Chavarria arrived in a drunken state and shot Canales approximately 40 times with an assault rifle. The crime appeared to have roots in personal animosity between the two men. Chavarria fled; however, the case was remanded to the civilian courts, and in March a court tried Chavarria in absentia, found him guilty of the murder, and sentenced him to 30 years' imprisonment. In April the authorities took Chavarria into custody; he was serving his sentence at year's end.
On April 20, Lieutenant Enrique Flores of the National Police antiriot unit shot and killed Roberto Jose Gonzalez, a student demonstrating in support of the "6 Percent Rule" (see Section 2.b.), with a rubber bullet. On April 27, a police investigative panel released a report indicating that Gonzalez was shot at a range of approximately 3 meters. Correct police procedure calls for such bullets to be fired from at least 20 to 30 meters. Police witnesses to the incident said Flores acted in self-defense after Gonzalez pointed a homemade mortar – a potentially lethal type of device, which had caused Flores to lose an ear in a previous riot – at him. Student witnesses disputed this account. The authorities remanded Flores's case to the courts following the police investigation; in June a jury found him innocent of wrongdoing in Gonzalez's death and he was reinstated in the police force.
On May 10, police killed Pedro Gonzalez Talavera near Villa Sandino in Chontales department after Talavera had arrived in the area on horseback to attend a local festival. A group of police officers recognized Talavera, who was wanted for aggravated assault, and chased him; six officers then shot at him with assault rifles. A subsequent investigation indicated that a shot fired from a distance of about 1,000 feet knocked Talavera off his horse; police officer Donald de Jesus Lanzas then allegedly approached Talavara as he lay on the ground, kicked him, and shot him twice, killing him. The authorities charged Lanzas and several other police officers with premeditated homicide; however, despite evidence presented by the CENIDH in the case, in June the presiding judge released the officers without charges. At year's end, the case was pending in the Appellate Court of Juigalpa.
On August 20, in the town of Jicaro, police shot brothers William and Roger Chavarria Garcia, killing William and wounding Roger. According to the CENIDH, the victims were wanted for cattle rustling; however, according to the police IG's office and the ANPDH, the incident began when the victims, who were inebriated and on horseback, deliberately knocked over officer Juan Arguijo's motorcycle. There also reportedly was personal animosity between William and voluntary police officer Dimas Pasos Centeno, one of the officers involved in the incident. In September a court convicted Pasos of William Chavarria's murder and sentenced him to a prison term; the court found three other officers innocent in the case.
On November 17 in La Libertad, Chontales department, police shot and killed Armando Roberto Perez Ocana, who was wanted in Juigalpa on robbery charges, after they arrived to expel a group of squatters at the house where Perez was living. According to family members, after four officers entered the house and found Perez lying down complaining of stomach pain, Lieutenant Victor Galeano hit Perez with the butt of his rifle. Moments later, Galeano shot Perez; Perez died of his wounds on the way to a local medical facility. The police claimed that Galeano shot Perez in self-defense; however, the CENIDH concluded after looking into the case that the police account lacked credibility. In December the Criminal Circuit Court of Juigalpa accepted the argument of self-defense and opted not to pursue charges against Galeano or the other officers involved in the incident.
In August Wilmer Antonio Gonzalez Rojas, age 16, committed suicide in Modelo prison near Managua; a subsequent investigation indicated that Gonzalez was subjected to abusive treatment by prison personnel prior to his death (see Section 1.c.).
On December 24, 1998, police officer Nicasio Martin Jiron killed 14-year-old Everet Alexander Gonzalez Gaitan in the German Pomares neighborhood of Managua. Jiron and other police officers reportedly were attempting to apprehend an armed robbery suspect when a group of neighborhood residents attempted to prevent the suspect's arrest; in the ensuing clash between residents and police, Jiron shot Gonzalez. A lower court released Jiron without charges, but in January an appellate court found him guilty of involuntary homicide.
On December 25, 1998, Douglas Enrique Toruno was leaving the Enamores discotheque in Condega when two soldiers in a state of severe inebriation arrived and began firing automatic weapons indiscriminately in the direction of Toruno and his friends. One of the bullets hit Toruno in the back, and he died shortly thereafter. In February the District Criminal Court found one of the soldiers, Sergeant Mario Garcia Perez, guilty of murder and sentenced him to 7 years in prison. The court absolved the second soldier, Francisco Bello Oporta, of wrongdoing. There were no further developments in the 1997 Wamblan case in which 16-year-old Irma Lopez was killed, after allegedly being raped, by an army patrol.
There were no further developments in the 1997 La Patriota case, in which members of the army killed five members of a criminal band as they slept.
There were no further developments in the case of former army officer Frank Ibarra, who in 1993 was sentenced in absentia to 20 years' imprisonment for the November 1992 murder of Dr. Arges Sequeira Mangas, president of the Association of Nicaraguan Confiscated Property Owners. (The killing occurred when Ibarra was still a member of the army.)
There were no further developments in cases cited by the Tripartite Commission. The Commission, established by then-President Violeta Chamorro in 1992 to address the issue of unresolved deaths of former Contras and others, was composed of representatives from the Government, the Catholic Church, and the OAS International Support and Verification Commission (CIAV). It concluded its review in October 1996 and turned over 83 human rights cases involving 164 allegedly murdered former combatants, as well as 181 specific recommendations, to the Government for followup. However, only one soldier and five policemen cited by the Commission ever served a partial or whole sentence.
In March the Government forced Colonel Lenin Cerna, an egregious human rights abuser and former head of state security under the Sandinistas, to retire from the army, along with some of his top deputies; however, despite Cerna's admissions in newspaper interviews that he committed abuses, the Government did not prosecute him.
In 1997 the Government negotiated the disbandment and disarmament of over 1,200 members, a majority of them former Contras, of the "Northern Front 3-80" and promised them food, clothing, seeds, and small plots of land. It also disarmed 423 members of the pro-Sandinista "Andres Castro United Front" (FUAC). Despite these successful disarmaments, armed bands, including former members of the 3-80 front and FUAC engaged in murder, kidnaping for ransom, and armed robbery in the north and north-central regions. FUAC members have alleged that they were acting in opposition to the Aleman administration, and FSLN leaders have made positive reference to the FUAC activities in public statements. Law enforcement groups and political analysts described the political motivations as tenuous and stated that most of these actions were purely criminal in nature.
In 1998 members of a Sandinista-affiliated agricultural cooperative attacked a group of squatters at the Las Plazuelas Ranch in Chontales department, leaving three persons dead and seven wounded. The ANPDH alleged the involvement of voluntary police officers in the killings. Although in December 1998, a jury found five voluntary police officers innocent of murder charges in the case, IG Sacasa's office expelled them from the police force. The ANPDH asserted that the authorities failed to take any action against the persons who had planned the attack. At year's end, the ranch remained in the hands of the cooperative members allegedly responsible for the killings. There were no new developments related to the February 1991 killing of former Contra commander Enrique Bermudez.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law makes the use of torture a punishable crime; however, there were credible reports that police beat or otherwise physically mistreated detainees, often to obtain confessions. During the year, the ANPDH received 70 complaints of torture or degrading treatment by the authorities. The ANDPH and other human rights groups forwarded complaints of human rights abuses directly to police Inspector General Sacasa, who proved willing to prosecute abusers. During the year, her office recorded 94 complaints of physical abuse by police, including those submitted by the ANPDH, and found 26 to have merit. The Inspector General sanctioned 51 officers in these cases.
While the Inspector General's office investigated allegations of abuse and sanctioned the offenders in many cases, a degree of impunity persisted. Inadequate budget support for the National Police also hampered efforts to improve police performance and resulted in a continuing shortage of officers. However, the police were provided with some training during the year, much of it through international assistance programs.
The Office of Civil Inspection for Professional Responsibility is responsible for monitoring allegations of illegal detention and police abuse and forwarding complaints received to the police Inspector General for followup action. A small budget and a small staff limited its effectiveness. Police Inspector General Sacasa received a total of 529 complaints of human rights abuses by police officers during the year, including complaints forwarded by the Office of Civil Inspection for Professional Responsibility, and found 155 of these cases to have merit. She sanctioned a total of 232 officers for violations of human rights. Of those sanctioned, 11 officers were discharged dishonorably, and 54 were remanded to the courts; the rest received lesser punishments, including demotion, suspension and loss of pay.
In April a number of persons were injured in a series of violent clashes between police and students demonstrating in support of additional government funding for universities (see Sections 2.a. and 2.b.). During one of the demonstrations on April 9, police injured some demonstrators when they shot rubber bullets at a group of protesters after some protesters threw homemade grenades at police officers. There were media reports that police beat a student whom they detained. After conducting an investigation, the Chief of Police announced that six police officers would be remanded to the courts on charges of destruction of property (a sound system being used by students) and using unnecessary force in dealing with students during the demonstration. In May a court found the six officers innocent of the charges. On April 20, when further student demonstrations took place, the police killed one student (see Section 1.a.), and four police officers and several students were wounded, in violent confrontations between demonstrators and police. In addition, Luis Chavez, age 12, was severely wounded by the explosion of a homemade grenade apparently left behind by a demonstrator. Prison conditions remained harsh, although they improved slightly. The prison system is overcrowded and underfunded, with medical attention virtually nonexistent. There was some improvement in prison food, but malnutrition remained a widespread problem in local jails and police holding cells. A series of uprisings at the Modelo Prison in Tipitapa, just outside Managua, coincided with a change in the leadership of the prison system. In February William Frech, the first civilian prison director in more than 20 years, replaced the quasi-military prison administration that had been in place since the 1980's. Frech, a lawyer and a sociologist, attempted to provide more humane treatment for prisoners, but soon faced the threat of a walkout by prison guards after he fired the Modelo Prison director and three deputies in May. The conflict was resolved on May 11 after high-level mediation and concessions by both sides. After Frech's appointment, prison conditions improved slightly due to the arrival of 1,200 donated beds and to small improvements in medical care. In October Frech resigned, and the Government appointed another civilian, Carlos Quintana, to replace him. According to government statistics, prisons had a total inmate population of 5,298 in September, down from 5,570 in September 1998.
In August 16-year-old Wilmer Antonio Gonzalez Rojas committed suicide in Modelo Prison. In letters he wrote before taking his life, Gonzalez described severe beatings by a prison official called "Rocky" and solitary confinement in a small "punishment cell" for months. At the time of his death, Gonzalez, who had served 15 months in prison, believed that he had to serve another 21 months; he had not been informed yet that his sentence had been reduced, requiring him to serve only 3 more months before being released. Then-Director of Prisons William Frech initiated an investigation into Gonzalez's death; as a result of the investigation, the prison psychologist, the prison official responsible for Gonzalez's transfer to a punishment cell, and the prison guard known as Rocky all were fired. An additional six prison officials were reprimanded and demoted. However, the authorities did not file criminal charges against any of those involved.
Prison officials calculated that the daily expenditure per prisoner for food was about $0.58 (7 cordobas) and reported that the annual budget for food remained constant. However, food distribution improved after Frech's appointment as Director of Prisons. Many prisoners also received additional food from visiting family and friends. Medical care available to prisoners fell far short of basic needs. Some prisons and many police holding cells were dark, poorly ventilated, and unhygienic. At the Bluefields jail, there were only 4 showers and 4 toilets for more than 150 prisoners.
As of September, 4 percent of the prison population were between the ages of 15 and 18, compared with 8.5 percent in 1998 and 10.4 percent in 1997. Youths generally are housed in separate prison wings from those housing adults; however, at year's end, some prisons outside the Managua area had not completed the process of establishing separate facilities for juveniles or converting part of their existing prison space into separate youth wings. In the Managua area, juveniles are housed in the youth wing of the Modelo Prison. Only Managua has a separate prison for women; outside the Managua area, women were housed in separate wings in prison facilities and were guarded by female custodians. As of September, females made up 4.5 percent of the prison population. The Public Defender's office assigned two full-time employees to work with the women's prison system to help ensure its proper functioning in such areas as timely release of inmates granted parole.
Conditions in jails and holding cells also remained harsh. Police station holding cells were severely overcrowded. Suspects often were left in these cells during their trials, since budgetary shortfalls often restricted the use of fuel for frequent transfers to distant courtrooms. At the Corn Island jail, six cells holding six detainees each frequently were filled to capacity. At the Bluefields jail, over 150 prisoners were crowded into 4 cells originally designed to hold 8 prisoners apiece. The authorities occasionally released detainees when they no longer could feed them.
Several churches and national and international NGO's donate foodstuffs, beds, and medicine to the prison system to help alleviate shortfalls, which remain severe. The ANPDH worked with the Director of Prisons in an effort to ensure that prisoners were released in a timely fashion when their sentence had been served or they were granted parole (see Section 1.e.). Prison guards received human rights training from NGO's and the Catholic Church and generally treated prisoners well, although there were some reports of abuses.
The Government permits prison visits by independent human rights monitors.
d. Arbitrary Arrest, Detention, or Exile
Arbitrary arrest and detention by the police remains a problem, but apparently occurred less frequently than in the previous year. The Police Functions Law requires police to obtain a warrant prior to detaining a suspect and to notify family members within 24 hours of the detainee's whereabouts. Compliance with this law increased significantly in 1999, largely because of pressure applied by the police internal affairs office and support for compliance from Chief of Police Franco Montealegre. Detainees do not have the right to an attorney until they have been charged formally with a crime. Local human rights groups are critical of the law for providing inadequate judicial oversight of police arrests.
The 1995 constitutional reforms reduced from 72 to 48 hours the time police may hold a suspect legally before they must bring the person before a judge to decide if charges should be brought. The judge must then either order the accused released or transferred to prison. Although cumbersome, this law was more closely observed than in past years, and few prisoners were held illegally beyond the 48-hour deadline.
Lengthy pretrial detention remained a problem. It is estimated that, contrary to law, as many as one-third of prisoners had been jailed for 6 months or more without a trial. Some prisoners spend more than a year in jail without a trial.
During the year, the ANPDH forwarded 113 complaints of illegal detention to the police IG's office. That office deemed 13 complaints to merit investigation. Of these, nine were determined to be without merit and four remained under investigation at year's end. Some complaints came to the IG's office directly, while others were made via human rights organizations such as the ANPDH and the Permanent Commission for Human Rights (CPDH). As in past years, incidents of arbitrary detention were most common in Managua and in the rural northern and north-central regions, where much of the civil war was fought.
Exile is not practiced. There were no reports of political violence against any citizens returning from civil war era self-imposed exile.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, the judiciary is susceptible at times to political influence. The judiciary is hampered by arcane legal codes, prosecutors who play a passive role, a hitherto nonexistent public defender's office, judges and lawyers who often lack sufficient training or education, and corruption. In the past, many judges were not lawyers. Judges' political sympathies or acceptance of bribes reportedly often influenced judicial actions and findings.
The judicial system comprises both civil and military courts. The 12-member Supreme Court is the system's highest court, and in addition to administering the judicial system, is also responsible for nominating all appellate and lower court judges. The Court is divided into specialized chambers on administrative, criminal, constitutional, and civil matters. Under the Law of the Child and Family, which took effect in 1998, the Attorney General's office rather than the police investigates crimes committed by and against juveniles. The 1994 Military Code requires the civilian court system to try members of the military charged with common crimes.
A 5-year administration of justice reform program, begun in 1997, continued during the year. A new Judicial Organic Law, passed by the National Assembly in 1997 to overhaul the archaic structure of the court system, finally was signed by President Aleman in 1998 and took effect in January. The new law contains a provision establishing minimum professional standards for judicial appointees. The Supreme Court commission supervising the revision of the country's outdated criminal codes and procedures continued its work, in coordination with the National Assembly's Judicial Commission. Reform of these codes is intended to reduce judicial delays and resulting excessive pretrial detention. By year's end, the Assembly's Judicial Commission approved a new draft Criminal Code, which was scheduled for consideration by the full Assembly in 2000. At year's end, a special subcommission of the Judicial Commission was reviewing a new draft Criminal Procedures Code. A draft of an important reform of the Attorney General's office and functions was made public in May and was under review by a special commission of the Assembly at year's end.
All legal actions on property-related lawsuits in district courts were suspended in December 1997 in anticipation of the establishment of new mediation and arbitration services referred to as "new property courts" (see Section 1.f.). By year's end, the delay in establishing the new courts had deprived property claimants of due process in the judicial system for 24 months.
Human rights and lawyers' groups complained about the delay of justice, sometimes for years, caused by judicial inaction. Among the steps the judiciary took to address such delays were an increase in the number of courts, the creation of a Public Defender's office in Managua, the designation of trained lawyers as judges, the creation of an appeals court on the Atlantic Coast, and a separation of juvenile courts from adult courts in Managua.
Judges appear susceptible to corruption. For example, in June the president of Banco del Sur was accused of corruption and fled the country. The National Police tracked him for several weeks; he eventually turned himself over to the authorities, after which he came to Managua to stand trial. Under suspicious circumstances, the judge handling his case absolved him of all wrongdoing.
In an ongoing campaign to reduce incompetence and corruption in the judiciary, the Supreme Court removed an additional 10 judges during the first half of the year, bringing the total removed since the campaign began in 1997 to 104 – more than one-third of the 300 judges in the system. The Judicial Inspector's office received 238 official complaints against lawyers, judges and judicial functionaries in the first half of the year.
Judges at times appeared to be susceptible to political influence. On November 8, a criminal court judge handed down a "provisional sentence" (similar to an indictment) against Controller General Agustin Jarquin and two codefendants, journalist Danilo Lacayo and Nestor Abaunza, a former employee of the Comptroller General's office, for fraud against the State in connection with payments of official funds Jarquin made to Lacayo with Abaunza's involvement (see Section 2.a.). The same day, Jarquin relinquished his position as Comptroller General. However, contrary to normal practice, the judge did not issue a warrant for the arrest or detention of Jarquin or his codefendants prior to making her ruling. Following criticism by jurists and the press of this departure from normal procedure, the judge issued a warrant and police arrested Jarquin and his codefendants on November 10. Jarquin and his codefendants appealed the court's ruling, as provided for in the law; in December an appeals court overturned the provisional sentencing on the fraud charge; all three defendants were released from custody and Jarquin resumed his position as Controller General.
In criminal cases, the accused has the right to legal counsel, and defendants are presumed innocent until proven guilty. The new Judicial Organic Law provided for the establishment of a Public Defender's office to represent indigent defendants. At year's end, the office was operational in Managua and had 13 appointed public defenders; however, more are needed. Elsewhere in the country where public defenders were not available, the system in effect before the passage of the new law continued in use. Under that system, the presiding judge appoints attorneys from a standard list to represent indigent defendants, but, because they are not paid by the State, many attorneys have paid a fine of about $8.30 (100 cordobas) rather than represent such clients. According to the ANPDH, despite difficulties in implementing fully the provisions of the new law, the number of indigent defendants who went to trial without an attorney to represent them decreased significantly. Under the Napoleonic legal system, a trial does not consist of a public hearing. Rather, there is a desk review by a magistrate of the accused's file. An initial hearing usually is held within the constitutionally mandated 10 days. Although very simple cases or those with high profile or outside interest may be resolved quickly, many languish for months. Due to a lack of administrative coordination between judges and the penal system, many prisoners have remained in prison after their scheduled release date. The ANPDH worked with the Director of Prisons during the year in an effort to ensure that prisoners were released in a timely manner after serving their sentence or being granted parole.
Despite improvements to the criminal law system, the country still lacks an effective civil law system. As a result, cases more properly handled in a civil proceeding often are transmuted into criminal proceedings. One party then effectively is blackmailed, being jailed due to action by the party wielding greater influence with the judge. In addition, this heavy civil-based criminal caseload claims attention from an overburdened public prosecutor's office and diverts resources that otherwise could be directed toward genuine criminal matters.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution provides for protection against these abuses, and the Government generally respected these provisions in practice. The Constitution stipulates that all persons have the right to privacy of their family and to the inviolability of their home, correspondence, and communications; requires warrants for searches of private homes; and excludes from legal proceedings illegally seized letters, documents, and private papers.
In November 1997, the National Assembly passed a law intended to resolve longstanding property disputes that stemmed from massive confiscations by the Sandinista government in the 1980's. The law's purpose is to implement President Aleman's 1996 campaign promise that the poor would receive titles to properties received during Sandinista-era land redistributions, and that wealthier beneficiaries either would have to pay for such properties or return them. The law suspended judicial actions on property claims until new property courts offering mediation and arbitration procedures are established to expedite settlement of property disputes. By year's end, the Supreme Court had established the physical locations for the new courts and had begun identifying personnel to train mediators and arbitrators; however, the courts were not operational yet at year's end, and property claims, some of which had been pending for over 2 years, remained suspended.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press, and the Government respects these rights in practice. However, freedom of the press is potentially qualified by several constitutional provisions. The 1987 Constitution stipulates that citizens have the right to "accurate information," thereby providing an exception by which the freedom to publish information that the Government deems inaccurate could be abridged. Although the right to information cannot be subject to censorship, there is retroactive liability established by law, defined as a "social responsibility," implying the potential for sanctions against irresponsibility by the press. Although the legislature did not modify these provisions in the 1995 constitutional reforms, the Government has not invoked these provisions to suppress the media.
The Inter-American Press Association (IAPA) reported that during the year, members of the pro-Sandinista Nicaraguan Journalists Union and leaders and members of the Nicaraguan Journalists' Association attempted to revive legislation to establish a professional journalist's guild. Although in 1996 the National Assembly passed a bill that would have established such a guild, the bill never was signed into law. The journalistic community was divided sharply over whether such a law would improve the quality of journalism or merely restrict freedom of speech and of the press. The IAPA expressed concern about any attempts to revive this proposal and also about the possible effect on press freedom of a provision in the new draft Criminal Code approved by the Judicial Commission of the National Assembly (see Section 1.e.) that would increase the possible penalties for libel and slander.
The privately owned print media, the broadcast media, and academic circles freely and openly discussed diverse viewpoints in public discourse without government interference. However, the IAPA reported that the Government directed a disproportionate amount of total government advertising in the print media to publications favorable to the Government and denied to a newspaper critical of the government certain tax benefits provided to other media businesses.
The news medium with the largest national audience is radio, but polls show that television is the primary source of news in the cities. There are 117 chartered radio stations in the country; listeners receive a wide variety of political viewpoints, especially on the 67 stations based in Managua. There are seven Managua-based television stations, six of which carry news programming, often with noticeable partisan political content. In addition, there are 60 cable television franchises that offer services in most large and medium-sized cities.
In March a presidential adviser publicly asserted that Controller General Agustin Jarquin, a political rival of President Aleman who previously had raised questions about the President's financial holdings, had made payments from official funds to numerous political allies and journalists through contracts for "public relations consulting." The next day, a major daily newspaper identified one of the beneficiaries, who used a false identity to receive payments, as a well-known journalist and host of a popular television interview program. There were allegations that the payments were made in return for media coverage favorable to Jarquin in his ongoing dispute with the Aleman administration about alleged government corruption. Jarquin and the journalist, Danilo Lacayo, both acknowledged the payments, but claimed that Lacayo had provided unspecified investigative support in return and denied that the purpose was to influence media coverage of Jarquin. Following public disclosure of the payments, Lacayo resigned from his television show. In November a judge in Managua charged Jarquin, Lacayo, and a third individual with fraud against the State in connection with the payments. The defendants appealed the judge's finding; in December the appeals tribunal overturned the lower court's ruling and dismissed the fraud charge (see Section 1.e.). However, the tribunal did not rule out the possibility of further judicial action against the defendants on lesser charges, including falsification of documents, mismanagement of funds and use of a false name.
The IAPA reported that in June Mario Mariena Martinez, a reporter for a major daily newspaper, was prevented from covering a presidential news conference. The presidential communications secretariat issued a statement that it suspended Mariena's credentials due to his improper attitude. A presidential advisor stated that he asked the newspaper's managing editor to assign another reporter to cover the President; the newspaper subsequently published an editorial protesting the government action regarding Mariena.
The Government does not restrict academic freedom. In April student demonstrations organized by the FSLN to demand increased government funding for universities under the so-called "6 Percent Rule," a Sandinista-supported constitutional provision that allocates funding for universities at 6 percent of the national budget, led to violent confrontations between police and university students, which resulted in one death and several injuries (see Sections 1.a., 1.c., and 2.b.). On May 5, the situation finally was defused when the National Assembly reached a compromise agreement on university funding following government talks with university and student representatives.
b. Freedom of Peaceful Assembly and Association
The Constitution recognizes the right to peaceful assembly without prior permission, and the Government generally respects this right in practice. However, the Constitution also recognizes the right to public assembly, demonstration, and mobilization "in conformity with the law," and the law requires demonstrators to obtain permission for a rally or march by registering its planned size and location with the police. The authorities routinely granted such permission, but many groups chose not to register because, they claimed, the process was too cumbersome.
In April there were violent confrontations between police and university students during a series of student demonstrations (see Section 2.a.). On April 9, several hundred students confronted police outside the National Assembly building in Managua while the Assembly was debating the budget. Some students threw homemade grenades at police, who responded by shooting rubber bullets, wounding some students (see Section 1.c.). In another demonstration on April 20, a student was killed by a rubber bullet fired by a police officer as antiriot police were attempting to dislodge a group of 80 to 100 masked students who had taken over the Central Bank building (see Section 1.a.). Following this incident, a 12-year-old boy was maimed by the explosion of a homemade grenade apparently left behind by a demonstrator (see Section 1.c.). Later the same day, students and others, apparently including youth gang members and older agitators, attacked police headquarters in Managua with rocks and homemade grenades and vandalized and looted the headquarters of the governing Liberal Constitutionalist Party. Four police officers and several students reportedly were injured in the incidents (see Section 1.c.). On April 22, a large group of pro-Sandinista students tried to assault Managua police headquarters with rocks and homemade explosive devices; they withdrew after antiriot police responded with rubber bullets and tear gas.
The Constitution provides for the right to organize or affiliate with political parties, and the Government respects this right in practice. Opposition and independent associations functioned freely without government interference or restriction. Private associations do not have legal status to conduct private fund raising or receive public financial support until they receive this authorization from the National Assembly, which it routinely confers.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this right in practice.
d. Freedom of Movement within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for the right to travel and reside anywhere in the country and to enter and exit the country freely, and the Government respects these rights in practice. In December 1998, the Government abolished a requirement that citizens and residents obtain an exit visa to leave the country. The right of citizens to return to the country is not established in the Constitution, but in practice the Government has not restricted anyone's return.
The Government cooperates with the office of the U.N. High Commissioner for Refugees and other humanitarian organizations in assisting refugees. The Constitution provides for asylum, and refugees cannot be expelled to the country that persecuted them. The issue of the provision of first asylum did not arise. There were no reports of the forced return of persons to a country where they feared persecution.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens exercised their right peacefully to change their government in free and fair national elections in 1996 held under the auspices of the Supreme Electoral Council (CSE), an independent branch of government. Over 90 percent of eligible voters registered, and 76 percent of eligible voters voted in 1996. Over 3,000 national and international observers declared the elections free and fair, despite some logistical and organizational problems.
The 1995 reforms to the 1987 Constitution established a more equal distribution of power and authority among the four coequal branches of government. The executive branch is headed by the President and a cabinet appointed by the President, who is both head of state and head of government, as well as supreme chief of the defense and security forces. The Vice President has no constitutionally mandated duties or powers. Both the President and Vice President are elected to 5-year terms by direct popular vote, with the possibility of a runoff election between the top two candidates if one does not obtain at least 45 percent of the vote on the first ballot. The Constitution does not permit reelection of the President.
A single-chamber National Assembly exercises legislative power. In October 1996, voters chose 93 members, including 20 deputies from nationwide lists, 70 from lists presented in each of the 15 departments and the 2 autonomous regions, and 3 defeated presidential candidates who obtained a minimum percentage of the national vote. Members elected concurrently with the President and Vice President in 1996 are to serve 5-year terms.
On December 10, the National Assembly voted to approve a package of proposed constitutional amendments supported by the leadership of both the governing Liberal Constitutionalist Party and the opposition FSLN. The proposed amendments require a second favorable vote in the subsequent National Assembly session, scheduled to begin in January 2000, in order to take effect. Key elements of the legislation include a change in the requirements that a presidential candidate must meet to avoid a second-round runoff election; expansion of the Supreme Court from 12 to 16 judges; expansion of the CSE from 5 to 7 magistrates; an automatic assembly seat for the outgoing President and Vice President; a requirement for a two-thirds majority vote in the Assembly, rather than the current "qualified majority" vote, to remove presidential immunity from prosecution; and the replacement of the current single Controller with a 5-person collegial body. The proposed amendments provide for election of the President and the Vice President in the first round of voting if one political party wins at least 40 percent of the vote, or if one party wins at least 35 percent of the vote and the party in second place is more than 5 percentage points behind the front-runner. In addition, a party would lose its legal status if it obtained less than 4 percent of the vote in a general election. The latter provision, if enacted, is expected greatly to reduce the number of parties eligible to field candidates in general elections; over 20 parties ran candidates in the 1996 elections.
There are no restrictions in law or practice against women, indigenous groups, or other minorities voting or participating in politics; however, they are underrepresented. Women served as President and Vice President until January 1997, and a woman serves as president of the CSE. Additionally, 3 of 12 Supreme Court justices are women; women hold ministerial, vice ministerial, and other senior positions in government; and voters elected 10 women to the National Assembly in October 1996. Two members of the National Assembly claim indigenous heritage.
Section 4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
With the exception of some peace commissions, human rights groups operated without government interference. Major organizations included the Permanent Commission for Human Rights (CPDH), the Nicaraguan Association for Human Rights (ANPDH), and the Nicaraguan Center for Human Rights (CENIDH). During the year, the CENIDH demonstrated increased independence from the FSLN by supporting Zoilamerica Narvaez in a complaint that she filed with the IACHR against her stepfather – FSLN leader, former President, and National Assembly Deputy Daniel Ortega – for sexually abusing her (see Section 5). However, the CENIDH maintained sufficient allegiance to the FSLN to limit the objectivity and impact of much of its reporting. The ANPDH, the CENIDH, the CPDH, and the Catholic Relief Services continued to conduct human rights workshops at the police training academy, at various police headquarters, and with army units throughout the country. Some military officers received internationally sponsored human rights training.
In July 1997, a small successor organization to the OAS/CIAV, the OAS Technical Cooperation Mission (TCM), opened at the request of the Government and continues to operate. The TCM's presence was focused on the 13 municipalities that were affected most adversely by the decade-long civil war, where the TCM worked on conflict resolution, reconciliation, improving local government, and extending legal infrastructure.
The OAS/CIAV and Catholic Relief Services helped maintain more than 200 peace commissions in the northern and central parts of the country, intended to give inhabitants of the area a means of dispute resolution, a means of monitoring human rights abuses, and a vehicle for expressing their concerns to government authorities. Many of the commissions operate in areas that are without any governmental presence, and serve as surrogates for absent police and courts. The Government granted legal standing to additional such grassroots organizations during the year. Some peace commission members initially reported that soldiers, rural police, and local residents sometimes misunderstood their efforts at advocacy on behalf of jailed criminals, interpreting them as challenges to law enforcement officials' authority. However, during the year, the commissions continued to report increased support from all elements of the societies they serve, including law enforcement.
In 1995 the National Assembly passed a law creating a Human Rights Ombudsman's office, with the Ombudsman to be elected by the Assembly. In June, after a delay of nearly 5 years, the National Assembly elected Benjamin Perez, formerly the head of the Assembly's Human Rights Commission, as the country's first Ombudsman. The Assembly also elected Julian Corrales as Deputy Ombudsman.
Section 5. Discrimination Based on Race, Sex, Religion, Disability, Language, or Social StatusThe Constitution prohibits discrimination on the basis of birth, nationality, political belief, race, gender, language, religion, opinion, national origin, economic condition, or social condition. In practice the Government made little or no effort to combat discrimination. However, few, if any, discrimination suits or formal complaints were filed with government officials.
The most prevalent violations of women's rights involved domestic and sexual violence, which were widespread and under-reported. The Nicaraguan Demography and Census office reported that in a 1998 poll of 13,600 women, more than 3,900 women stated that they had been physically or sexually abused by their husbands or boyfriends; 1,400 stated that they were abused while pregnant, and 2,800 reported that they had suffered severe physical abuse during the previous year.
The National Police confirmed local human rights groups' charges that while police sometimes intervene to prevent injury in cases of domestic violence, they rarely prosecute perpetrators because victims often refuse to press charges. Those cases that actually reached the courts usually resulted in a not guilty verdict due to judicial inexperience with, and lack of legal training related to, proper judicial handling of such violence.
The National Police reported 1,253 instances of rape during 1998, up very slightly from 1,249 cases in 1997. Many women are reluctant to report abuse or file charges due to social stigmas attached to victims of rape. However, police stated that the apparent rise in rapes from previous years is at least partially due to the increased willingness of rape victims to report the crime.
On October 24, with the help of the CENIDH, Zoilamerica Narvaez filed a complaint with the IACHR against her stepfather, FSLN leader, National Assembly Deputy, and former President Daniel Ortega. Narvaez asserted that Ortega sexually molested and harassed her from the time she was 11 years old until she filed charges against him in 1997. The case publicized the problems of incest, rape, and women's rights and also highlighted the issue of immunity from prosecution for parliamentary deputies. In 1998 Narvaez championed an effort to persuade the National Assembly to withdraw Ortega's immunity so that she could bring a lawsuit against him; however, the Assembly did not take up the issue of Ortega's immunity by year's end. On November 8, the IACHR officially opened a case in response to Narvaez's complaint and advised the Government that it would be required to respond to the charges. The Government did not do so by year's end.
The police manage 14 "women's commissariats" in 11 cities. Each commissariat is located adjacent to a police station and is staffed by six police officers, two social workers, one psychologist, and one lawyer. The commissariats provide both social and legal help to women and mediate spousal conflicts. The 1996 Law against Aggression against Women reformed the Criminal Code to make domestic violence a crime and to provide for up to 6 years' imprisonment for those found guilty of such violence. The law also provided for the issuance of restraining orders in cases in which women fear for their safety.
Prostitution is common, and there were credible reports that some women were trafficked and forced into prostitution (see Sections 6.c. and 6.f.). Modes of prostitution vary. In Managua most prostitutes work on the streets or clandestinely in nightclubs. In towns along the Pan American Highway, women and girls sell sexual services to truck drivers and other travelers, often foreigners driving north from Costa Rica. In port cities such as Corinto, the primary clientele are sailors. Corinto is unusual in that prostitutes receive medical examinations and the town provides those who are free of disease with cards certifying this. In addition, prostitutes in Corinto reportedly often worked together to maintain a rudimentary price-setting structure that enabled them to earn much more than prostitutes generally earn in other areas. However, in most areas, prostitutes do not have access to medical screening or treatment.
Although the Constitution provides for equality between the sexes, reports of discrimination against women are persistent and widely believed. A 1998 poll on women and discrimination showed that 70 percent of women believe that they suffer from discrimination and showed the most prevalent form of discrimination to be lower pay for similar work. Women are well represented in the public sector, more so than in the private sector, but women's groups claim that they are losing ground in both. Women are underrepresented in management positions in the private sector. Women constitute the majority of workers in the traditionally low-paid education, textile, and health service sectors. Women have equal or somewhat better access to education than men, especially in urban areas. Primary school enrollment rates for boys and girls are estimated at 73 and 75 percent, respectively; secondary school enrollment rates are 39 and 47 percent.
Children 18 years of age and younger make up approximately 53 percent of the population. Education is compulsory through the sixth grade, but this provision is not enforced. The Government expresses its commitment to children's human rights and welfare publicly, but does not commit adequate funding levels for children's programs or primary education. A constitutional provision known as the "6 Percent Rule" automatically allots 6 percent of the annual budget to a higher education consortium, often at the expense of funding for primary and secondary education programs.
Children were increasingly involved in crime, both as victims and as perpetrators. From January to July, 39 minors (younger than age 17) died as a result of violent crime. During the same period, victims of rape included 239 children under the age of 13, and 482 between the ages of 13 and l7. Children, especially boys in street gangs, contributed to an ongoing rise in the crime rate, which resulted in a police crackdown on youth gangs in August that involved over 500 juvenile arrests.
As a result of the Child and Family Law, which took effect in late 1998, juvenile prisoners could no longer be held in adult facilities, nor could they be held for more than 24 hours without being charged. However, implementation of the new law proved problematic. In August 17-year-old Modesto Perez ambushed and killed his former employer, National Assembly deputy Jose Cuadra, after Cuadra fired Perez. Public outrage at the inability of the system to punish Perez effectively was directed primarily at the new law, in particular the provision that minors charged with crimes be prosecuted in new juvenile courts, where the possible penalties for serious crimes are more limited than the penalties that could be imposed on an adult convicted of the same crime. In addition, by year's end the juvenile courts were operational only in the Managua area; consequently, minors charged with crimes elsewhere in the country often avoided prosecution entirely. The National Assembly, the Catholic Church, and other organizations spoke out in favor of reforming the law to allow prosecution as adults of minors who commit serious crimes. At year's end, Perez was still in custody and the investigation in his case was continuing.
In 1998 the U.N. Children's Fund (UNICEF) reported that 65 percent of children are literate, and that 20 percent of children between the ages of 6 and 9 work. A study published in 1998 by the National Commission Against Child Labor concluded that over 160,000 children under 17 years of age work, including approximately 140,000 employed in rural activities such as the annual harvests. Others are forced by their parents to work in the streets of Managua as vendors or beggars (see Section 6.d.). According to local media and the Ministry of the Family, the incidence of child prostitution increased, especially in Managua and near borders with Honduras and Costa Rica. According to press reports, UNICEF noted significant growth in prostitution among children between the ages of 12 and 16 in towns where taxi drivers were said to serve as middlemen. OAS personnel in the country also noted growth in prostitution among girls as young as 10 years of age; in rural areas, clientele are often truck drivers and other travelers, including foreigners, who patronize prostitutes in towns along the Pan American Highway. From December 1998 to May 1999, the Ministry of the Family sponsored an investigation into child prostitution in five municipalities. Of the more than 300 children surveyed, 82 percent reported that they had started engaging in prostitution within the past year, leading investigators to believe that the practice of child prostitution is growing rapidly, particularly in border towns, port cities, and the Managua area. Many of those surveyed said that they engaged in prostitution to buy basic necessities such as food and clothing, or to support a drug habit. There were cases of trafficking in girls for the purpose of forced prostitution. In July the local media reported the arrest in Guatemala of three Guatemalan citizens for trafficking in girls and young women, including Nicaraguan citizens, for the purpose of forced prostitution (see Section 6.f.).
People with Disabilities
The Government has not legislated or otherwise mandated accessibility to buildings for the disabled. In 1998 the Ministry of Health created a National Council for Rehabilitation to address the needs of the 559,000 citizens with some type of disability, only 3 percent of whom receive medical treatment. Through its clinics and hospitals, the Government provides care to war veterans and other disabled persons, but the quality of care is generally poor. However, with assistance from international NGO's, foreign governments, and the public health care system, the Government has procured thousands of prostheses and other medical equipment for veterans and former resistance members.
Indigenous people constitute about 5 percent of the country's population and live primarily in the Northern Autonomous Atlantic Region (RAAN) and Southern Autonomous Atlantic Region (RAAS). The RAAN and the RAAS, which were created in 1987 out of the former department of Zelaya and which border the Caribbean Sea, constitute 47 percent of the national territory. Based on 1998 information from the Center for Investigation and Documentation of the Atlantic Coast and other sources, the four major identifiable tribes are the Miskito (with approximately 100,000 members), the Sumo (10,000), the Garifuna (3,000), and the Rama (1,000). In an effort to encourage indigenous participation in Atlantic coast regional elections held in 1998, the CSE distributed electoral and civic education materials in four languages, including Miskito and Sumo.
The indigenous people of the RAAN, primarily the Miskito and the Sumo, have a political organization known as Yatama, which has representation in regional and municipal councils, and there is also an armed faction of the same name. The extent to which the two groups are linked is not clear. Like many armed groups operating since the end of the civil war, the Yatama groups mix banditry with a genuine desire to force the Government to devote more resources to their underdeveloped region. However, two factors differentiate the armed groups in the RAAN from those that have operated elsewhere in the country. First, most participants in these groups are Amerindians who long have seen themselves as having a separate culture. Second, drug trafficking and drug money on the Atlantic coast have become far more pervasive than elsewhere in the country. Total strength of Yatama armed groups was estimated at 210 men.
In 1998 President Aleman signed a disarmament agreement with representatives of the Yatama armed groups. In return, the Government made a number of promises to the Miskitos including land to fighters who turned in their arms, support for housing for Yatama-affiliated families, agricultural credits, protection of traditional Amerindian fishing rights, and resolution of long-standing disputes about the boundaries of communal Miskito land. These provisions had not been implemented fully by year's end.
The 1987 Autonomy Law requires the Government to consult indigenous people regarding the exploitation of their areas' resources. Indigenous people claim that the central Government often made decisions without adequate community consultation. As in previous years, some indigenous groups complained that central government authorities excluded the indigenous people of the Atlantic coast from meaningful participation in decisions affecting their lands, cultures, traditions, and the allocation of natural resources. Government health care exists in the Atlantic towns of Puerto Cabezas, Siuna, and Bluefields, but a majority of indigenous people in rural areas has no access to modern health care. Critics of government policy cited extremely high unemployment rates, but calculation of reliable employment statistics was complicated by the fact that most of the working indigenous population on the Atlantic coast is engaged in subsistence fishing, farming, and mining.
The Awas Tingni, an Amerindian tribe in the RAAN, sued the Government in 1996, claiming that the Government's decision to award a long-term lumber concession to a Korean firm on a portion of the land it claims as its own was a violation of the American Convention on Human Rights. In 1997 the Supreme Court declared the Government's concession to the Korean firm unconstitutional. The case eventually went before the IACHR, where it remains. In 1998 a court decree shut down the Korean firm's operations on the land, but a domestic company purchased the enterprise and reopened it not long afterward.
Most citizens are of mixed background, and ethnicity is not a barrier to political or economic success. However, various indigenous groups from both the RAAN and the RAAS sometimes linked the Government's failure to expend resources in support of the Atlantic coast population to the existence of ethnic, racial, and religious (principally members of the Moravian church) minorities that predominate in that region.
Section 6. Worker Rights
a. The Right of Association
The Constitution provides for the right of workers to organize voluntarily in unions, and this right was reaffirmed in the new Labor Code that entered into effect in 1996 and replaced the antiquated 1944 code. All public and private sector workers, except those in the military and the police, may form and join unions of their own choosing, and they exercise this right extensively. New unions must register with the Ministry of Labor and be granted legal status before they may engage in collective bargaining. The new code legally recognizes cooperatives, into which many transportation and agricultural workers are organized. Less than half of the formal sector work force, including agricultural workers, is unionized, according to labor leaders. Union membership continued to fall during the year. The unions are independent of the Government, although many are affiliated with political parties.
The Constitution recognizes the right to strike. The Labor Code requires a majority vote of all the workers in an enterprise to call a strike. Workers may strike legally only after they have demonstrated that they have just cause to strike and have exhausted other methods of dispute resolution, including mediation by the Ministry of Labor and compulsory arbitration.
The Labor Code prohibits retribution against strikers and union leaders for legal strikes. However, this protection may be withdrawn in the case of an illegal strike. Only two strikes have ever been declared legal, one in the 1970's and another in 1990. At the beginning of May, the national construction workers' union was about to begin a legal strike after having spent 2 years following all the necessary measures. However, a strike was avoided when the construction branch of the Private Enterprise Council finally agreed to negotiate with the union.
On April 29, bus and taxi owners and employees went on strike to protest the Government's tax on diesel fuel. There were a number of violent incidents as strikers blocked streets, burned tires, shot off homemade mortars, and damaged buses and taxis that continued to operate. The police initially avoided confrontations with the strikers, but on April 30 moved to remove strikers who were blocking traffic. The strikers were joined in some areas by members of neighborhood street gangs, who took advantage of the situation to engage in criminal activity; in other areas, street gang members attacked strikers who were blocking access to their neighborhood. In the course of the protests, 2 persons were killed and at least 12 were injured. One of those killed apparently was shot by a street gang member; the other was a street gang member shot by an individual whose car the gang member apparently was vandalizing. On May 4, the strike ended when the Government and the strikers reached a settlement in which the Government agreed to reduce diesel fuel prices, drop a proposal to deregulate bus transit, and release detained strikers who faced charges of "minor crimes."
The Labor Code provides protected status to union leaders, requiring that companies receive permission from the Ministry of Labor after having shown just cause in order to fire union executive board members. Such protection is limited to nine individuals per union. However, the Labor Code allows businesses to fire any employee, including union organizers, provided the business pays the employee double the normal severance pay. This practice is used routinely by business leaders to stymie unionization attempts.
Unions freely form or join federations or confederations and affiliate with and participate in international bodies.
b. The Right to Organize and Bargain Collectively
The Constitution provides for the right to bargain collectively, and this right was reaffirmed in the 1996 Labor Code. The Government generally sought to foster resolution of pressing labor conflicts (usually in the public sector) through informal negotiations rather than through formal administrative or judicial processes. According to the reformed code, companies engaged in disputes with employees must negotiate with the employees' union if the employees have thus organized themselves.
There are 29 enterprises operating in the government-run export processing zone (EPZ), employing approximately 18,000 workers. In addition, there are five authorized private export processing zones, four of which were operational at year's end; the 14 enterprises in these zones employ some 2,400 workers. Approximately half the workers in the government-run EPZ are represented by a union organization; however, only about 10 percent of them are actual union members. While some of these unions have real collective bargaining power, others are primarily symbolic. In response to longstanding complaints by union representatives that the Ministry of Labor did a poor job of enforcing the Labor Code in the EPZ's, the Ministry opened an office in the Managua free trade zone in 1997 to ensure that the code was being enforced. EPZ officials claim that, due to memories of the corrupt and ineffective unions of the 1980's, many workers in the EPZ enterprises simply have no interest in unionizing. They also claim that wages and working conditions in EPZ enterprises are better than the national average.
c. Prohibition of Forced or Compulsory Labor
The Constitution prohibits forced or compulsory labor; however, it does not specifically address forced or bonded labor by children, and such practices occur. The Ministry of Labor reported that some child mendicants were forced to beg by their parents, and that some were "rented" by their parents to organizers of child beggars (see Sections 6.d. and 6.f.). There were cases of trafficking in persons for forced labor, and trafficking in women and girls for the purpose of forced prostitution (see Section 6.f.).
d. Status of Child Labor Practices and Minimum Age for Employment
The Constitution prohibits child labor that can affect normal childhood development or interfere with the obligatory school year. The 1996 Labor Code raised the age at which children may begin working with parental permission from 12 to 14 years. Parental permission to work also is required for 15- and 16-year-olds. The law limits the workday for such children to 6 hours and prohibits night work. However, because of the economic needs of many families, a cultural legacy of child work among peasants, and lack of effective government enforcement mechanisms, child labor rules rarely are enforced except in the small formal sector of the economy.
A study published in 1998 by the National Commission against Child Labor concluded that over 160,000 children under 17 years of age work, 140,000 of them in rural activities, including the annual harvest of crops such as coffee, cotton, bananas, tobacco, and rice. Most of the children working in rural areas are age 14 or younger. In Managua 4,000 to 5,000 children work on city streets, selling merchandise, cleaning automobile windows, or begging. The Labor Ministry reported that many child mendicants are forced to beg by their parents, and that many are "rented" by their parents to organizers of child beggars. Children age 10 or older often worked for less than $1.00 per day on the same banana and coffee plantations as their parents. The Constitution prohibits forced and bonded labor, but does not specifically prohibit forced or bonded labor by children (see Section 6.c.).
e. Acceptable Conditions of Work
The minimum wage is set through tripartite (business, government, and labor) negotiations, and must be approved by the Legislative Assembly. A new minimum wage scale took effect in August. Minimum wages vary by sector. For example, monthly rates that went into effect on August 1 included: Agriculture, $37.50 (450 cordobas plus food); fisheries, $58 (700 cordobas); mining, $71 (850 cordobas); industrial manufacture, $50 (600 cordobas); electric, gas and water utilities, $75 (900 cordobas); construction, $100 (1,200 cordobas); restaurants and hotels, $75 (900 cordobas); transportation, $75 (900 cordobas); banking, $83 (1,000 cordobas); community and social services, $58 (700 cordobas), central and municipal government (includes health and education employees), $46 (550 cordobas). The minimum wage does not provide a decent standard of living for a worker and family. It falls below the government estimate of what an urban family must spend each month for a basic basket of goods ($133, or 1,600 cordobas). The majority of urban workers earn well above the minimum rates.
The Labor Code incorporates the constitutionally mandated 8-hour workday; the standard legal workweek is a maximum of 48 hours, with 1 day of rest weekly. The 1996 code established severance pay at from 1 to 5 months' duration, depending on the duration of employment and the circumstances of firing. However, persons fired for cause may be denied severance pay through a process that requires employers to demonstrate proof of worker misconduct. The code also established an obligation of an employer to provide housing to employees who are assigned temporarily to areas beyond commuting distance.
The Labor Code seeks to bring the country into compliance with international standards and norms of workplace hygiene and safety, but the Ministry of Labor's Office of Hygiene and Occupational Security lacks adequate staff and resources to enforce these provisions. The code gives workers the right to remove themselves from dangerous workplace situations without jeopardy to continued employment.
f. Trafficking in Persons
The law prohibits trafficking in persons; however, the Government does not enforce the law adequately, and there were some cases of trafficking in women and girls for the purpose of forced prostitution. Effective enforcement of the law is hampered by corruption, low salaries, and lack of technical skills among Migration Office officials. The country is a major transit point for alien trafficking (generally to the United States) from other countries in the region and elsewhere, including China and the Middle East; however, not all such trafficking is for the purpose of providing forced labor or services. On occasions when Migration Office officials detain alien traffickers, the judicial system often releases them. The Government does not have special programs to provide assistance to victims of trafficking.
The Labor Ministry reported that the parents of many child mendicants "rented" their children to organizers of child beggars (see Section 6.c.). In July the local media reported that Guatemalan authorities arrested three Guatemalan citizens in Guatemala on charges of white slavery. The Guatemalans allegedly actively recruited Nicaraguan girls and young women, aged 15 to 21, ostensibly to work as dancers and waitresses in clubs in Guatemala; however, upon arrival in Guatemala, the victims were forced into prostitution. The extensive high-profile media coverage of this scheme served as an educational campaign, with newspapers and radio stations urging young women not to fall victim to "recruiters" for foreign brothels.