Jail Without Charges for up to 90 Days in Nicaragua

Put them in jail, then figure it out.  New reforms proposed for Nicaragua’s criminal processing regulations

The initiative violates the Constitution and the presumption of innocence. It means, “they can keep you in jail, without accusing you of anything,” says Attorney Jose Pallais.

By Yader Luna / Arlen Cerda (Confidencial)

HAVANA TIMES – FSLN deputies have presented a bill to reform and amend Law 406, which establishes Nicaragua’s Criminal Procedures Code. The bill proposes extending the time in which a person can be detained without a formal accusation, from 48 hours to 90 days.

“This is equivalent to eliminating the principle of presumed innocence,” denounced Gonzalo Carrion, lawyer and human rights activist. “They put you in jail, they assume you’re guilty, and they don’t investigate you until later.” Carrion works for the Collective “Nicaragua Nunca + Impunidad” [Impunity never more].

The Sandinista Front has already been criticized for holding both common and political prisoners without cause. Many held well after the 48 hours that the Nicaraguan Constitution establishes. Now the Sandinista bench wants to reform Articles 253 and 254 of the Criminal Procedures Code. They propose to broaden the timeline for being held without cause to 15 – 90 days. On January 27, FSLN deputy Maritza Espinales presented this proposal to the National Assembly.

Gonzalo Carrion believes that they’re trying to “give questionable legality” to their arbitrary detentions. The Nicaraguan government began such detentions since the social explosion of April 2018. Carrion himself currently resides in Costa Rica, forced to flee the regime’s political persecution.

“This penal reform strengthens the police state in Nicaragua. It contradicts Nicaragua’s Constitution and citizens’ human rights. They want to legalize what they’ve been doing, which is putting any citizen in prison without evidence,” Carrion sustained.

Currently, Article 33 of the Nicaraguan Constitution establishes a number of protections, Carrion pointed out. “No one can be submitted to arbitrary detention or imprisonment. Nor can they be deprived of liberty, except for causes established by law, and subject to legal proceedings.” That is, there must be a legal order or a flagrant crime. In addition, the article mandates certain rights for all those detained. Prisoners must “be released or placed under the direction of the competent authorities within forty-eight hours following their detention.”

The human rights advocate noted that the government is moving to approve “illegitimate legislation”. The changes are illegal, because they violate the principles of the Constitution. Lawyer Carrion termed the law: “regressive, oppressive and damaging” to human rights. According to Nicaraguan law, no law or code can be above the Constitution, nor contradict the principles established in it. The Magna Carta alone sets forth the rights and responsibilities of Nicaraguans.

Carrion states that this new reform “is part of the combo of repressive laws”. These laws, passed over the past four months, all violate Article 182 of the Constitution, he pointed out. That Article states: “Laws, treaties, decrees, regulations, orders or dispositions that oppose or alter [the Constitution’s] dispositions will have no validity whatsoever.”

Between October and December 2020, the government used its overwhelming majority in the National Assembly to roll out a series of laws. The “Law for the Regulation of Foreign Agents” stigmatizes Nicaraguans whose projects receive foreign funding. It also restricts their political rights. The “Special Cybercrimes Law”, popularly referred to as the “Gag Law”, is aimed at controlling citizens’ use of social media. Next was a reform to the Constitution, in order to allow life imprisonment for undefined “hate crimes”. Finally the “Law for Defending the People’s Right to Independence, Sovereignty and Self-determination for Peace” annuls real political competition in the November 2021 elections.

15 to 90 days at the DAs request

Under the proposal, the prisoner would have to appear before a judge within 48 hours for a preliminary hearing. During the hearing, the prosecutor must state the accusation. These procedures remain unchanged.

However, under the reform, the DA can then immediately request a Special Audience. During this, they can request an extension of the investigation period and ask to keep the prisoner detained during this time. The DA must allege orally or in writing that: “the investigation requires more time to complement the information or evidence”.

The judicial authority will then give a deadline for the additional investigation. This should be no less than fifteen days, nor more than 90.

In presenting the current initiative, FSLN deputy Maritza Espinales’ offered her arguments in favor. According to Espinales, other Latin America countries allow an average of three to six months for the “preparatory investigation” phase. These periods are renewable. Such time frames: “guarantee the protection of the principle of presumed innocence, with a broad and deep investigation.”

“Nicaragua is the only country that restricts the period for presenting the accusation to the short space of 48 hours. (…) That limits the realization of an exhaustive investigation,” the Sandinista deputy alleged. However, she omitted the fact that the government uses the national police and District Attorney’s office as an arm of repression. They then fabricate crimes against citizens who are actually being targeted for their opposition to the government.

“Using the Judicial Power as a tool of repression”

Attorney Jose Pellais believes they want to: “break up the modern model that’s based on accusations and guarantees.” They’d replace it with “the old inquisitorial system that violates rights and doesn’t recognize any citizen guarantees.” Pellais is a constitutional law specialist and a member of the National Coalition. He was formerly a deputy and president of the National Assembly’s Justice and Legal Affairs Commission.

Pallais warned: “They plan to establish provisional prison as an exception to the rule. Now, they don’t need to accuse you of anything. They simply lock you up and have up to ninety days to say: “No, this person is innocent. We made a mistake. And that’s it.”

Pallais insisted that the Sandinista deputies’ proposal aims “to continue using the Judicial Power as a tool of repression.”

Human rights lawyer Gonzalo Carrion noted that members of the opposition would suffer the effects of this law. “They could be locked up for ninety days for no reason, merely to silence them.”

“With this legislation, they can remove opposition leaders from circulation for a period up to 90 days,” he concluded.

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