Attorneys specializing in criminal law explain: “During all stages of detention, visits by family members should be permitted, as is covered in the current legal framework: The Constitution and the Code of Criminal Procedures.”
HAVANA TIMES – A new time limit begins for some of the 34 government opponents “intially detained under investigation” for a maximum of 90 days. According to the latest reform of the Criminal Procedures Code, approved on February 2, 2021, another judicial process begins, but they remain in prison.
The Public Ministry’s charges have been divided into two different cases, depending on the alleged crimes being charged.
The first case is against the now defunct Violeta Barrios de Chamorro Foundation, in which there are 5 defendants already detained, in addition to four other persons being charged. The Public Ministry reported on Tuesday, August 4, that it asked for an extension of the charges against Cristiana Chamorro, former director of the Foundation, incommunicado under house arrest since June 2nd.
Since May 20, the Violeta Barrios de Chamorro Foundation is under investigation for the alleged crime of laundering money, property and assets. Now Cristiana Chamorro is also accused of the also fabricated unexplained crimes of “appropriation and undue retention”, according to the latest communiqué about this case from the Prosecution.
There are 9 other people accused of a slew of fabricated crimes in this same case. Among them are Marcos Antonio Fletes Casco and Walter Antonio Gómez Silva, charged with laundering money, property and assets, etc. Their period of “judicial detention” (a 90-day period of detention while under investigation) is due to expire on Thursday. However, they will remain incommunicado in some prison.
The second case involves presidential hopefuls Félix Maradiaga, Juan Sebastian Chamorro and Arturo Cruz Sequiera, as well as government opponents, Jose Bernard Pallais, Jose Adán Aguerri, Violeta Granera, Tamara Davila and Salvador Orozco Ramírez, all of whom are detained except for Orozco Ramírez. In a statement released by the Public Ministry on August 26, they are accused of the [catch-all] crime of “conspiracy to commit the undermining of national integrity.”
What does the accusation process mean?
An attorney specializing in criminal law who spoke to LA PRENSA on the condition of anonymity, explained that “accusation” means that a criminal procedure has formally begun against them,” after having been investigated, even if they haven’t completed the maximum period of 90 days of initial detention, imposed upon them during the investigatory process. “Ostensibly the phase of ‘investigation under detention’ is over with and they are now being sent to trial.”
Yonarqui Martínez, the attorney for several of the political prisoners, added that the accused now “begin a normal criminal process,” in accordance with the Criminal Procedures Code (Law 1016) and the Criminal Code because with the last reform of the Law, the only thing that changed is the extension of the term of investigations. In this case they applied the 90 days strictly so that the Police and the Public Ministry could complete their due diligence to be able to accuse.” She also pointed out that if the judicial authority moves on to the accusation phase, it is because the Prosecutor’s Office supposedly has evidence of the crime.
Another attorney specializing in both constitutional and criminal law, said that according to the provisions of the Criminal Procedures Code, once charges have been presented in a preliminary hearing and “preventive detention” (imprisonment while awaiting trial) of the defendants has been ordered, the initial hearing must be scheduled within 10 days.
The purpose of the initial hearing is to determine whether there is cause to proceed to a public trial. Its purpose is also to initiate the procedure for the exchange of information regarding evidence, review the measures applied in the preliminary hearing, and determine the procedures that will be carried out prior to the trial. The accused, their attorneys and the Public Prosecutor must be present during the initial hearing.
The judge will examine the charges and if he or she considers it is sufficient, they will issue an order of “referral to trial.” Otherwise, the judge could order the release of the person who had been accused without a legal foundation.
The trial must be conducted based on the charges, and it must be public. The right of the accused to a defense must be guaranteed or the process can be considered null and void.
Will they still be imprisoned?
The Public Prosecutor’s Office reported that it had ordered the precautionary measure of “preventive detention” for the defendants who had been under initial detention, which means that the government opponents, held incommunicado, will remain incarcerated.
Yonarqui Martinez clarified that detention while under investigation is technically called “judicial detention,” and detention during the process of prosecution is called “preventive detention.” “Preventive detention is a step in a process that has already started, while judicial detention is a measure taken under extraordinary circumstances. In other words, judicial detention is not a measure of restricting someone’s freedom because they are guilty. It is a measure taken so the authorities can look for evidence to see if they will press charges or not. They are two different things,” she explained.
The constitutional law specialist consulted pointed out that according to current legislation, preventive detention is applicable in cases of serious crimes, and defendants are sent to prison.
“The criminal proceedings being carried out against the political prisoners have no legal basis, but rather, they are part of the strategy of criminalization and political persecution against the Government’s opponents. This makes it difficult to analyze these procedures from a legal perspective, since they are plagued by illegalities,” the attorney added.
Where are the prisoners now?
The most important question now is where they will be held in preventive detention.
“Usually, once the initial hearing is held, meaning, once a trial is ordered, the defendants are transferred to the penitentiary system. But right now, with so much disinformation, secrecy, and uncertainty, we really don’t know where they will continue their imprisonment,” said the anonymous criminal attorney.
He added that to be transferred from the jail known as the New El Chipote to the Penitentiary System –known as La Modelo in Tipitapa for men, or to the La Esperanza Women’s Prison-, is a provision of the penitentiary system. It is not mandated by law.”
“Generally, that provision is made by way of memorandums or the rules of the penitentiary system. But as I’ve said, this is not in any of the Codes, nor will you find it in the Criminal Procedures,” said the anonymous source.
Defense attorney Yonarqui Martínez further noted “there is a general belief that once the prisoners are sent to La Modelo it is because they are convicted. However, that is not the case.”
She explained: “When the defendants are in ‘preventive detention’ [during or awaiting trial] they are routinely sent to the Penitentiary System. Moreover, in many instances the same judges, when they preside over the initial hearing or the preliminary hearing, tell the authorities at El Chipote that the prisoner must be sent to the National Penitentiary System. However, in other cases, they spend the entire process in the police stations and aren’t sent to the Prison System until they are convicted,” explained Martínez.
The lawyers and family members of the detainees have repeatedly complained about the total isolation their relatives have been subjected to during their initial 90-day detention. “During all stages of detention relatives should be allowed to visit, as is covered in the current legal framework, the Constitution, the Code of Criminal Procedures: Principle of Human Dignity,” explained Martinez .
How long does the formal criminal process take?
It is different for each indictment, the two lawyers explained. The criminal and constitutional specialist said that the criminal prosecution for the charges of “conspiracy to commit undermining of national integrity” should last a maximum of three months, according to the law.
But Martínez added that the Prosecution can request what is called “complex processing” for this case, arguing the plurality of the defendants (there are 7) and for the combination of crimes the proceedings can be doubled, that is, that the process would be extended by 180 days. The opposition members accused of conspiracy were initially accused of “treason against the homeland,” as established in the “Law in Defense of the People’s Rights to Independence, Sovereignty and Self-Determination for Peace (Law 1055).
In the case of the accusations against the Violeta Barrios de Chamorro Foundation, the crime of money laundering is the most serious. The Prosecution already requested “complex processing” on June 2 when Crisitiana Chamorro was arrested, which means that the process could be extended by 180 days, and up to a year for rescheduling, said Martinez.
The string of fabricated changes against Chamorro includes abusive management, ideological falsehood, as well as laundering money, property and assets, to the detriment of the State of Nicaragua and Nicaraguan society. Added to that are accusations of the crimes of misappropriation and undue retention. In this same case, the Prosecutor’s Office is charging nine other people, so the accusation complies with the plurality of defendants and several crimes.
The constitutional law specialist confirmed that “the criminal process begins with the presentation of the charges and can have a maximum duration of one year when complex processing is decreed.”