Legal background to arrests of people involved in treasonous actions against Nicaragua

Enviado por tortilla el Mié, 08/09/2021 - 10:08

Stephen Sefton, Tortilla con Sal, September 8th 2021

Notes on the arrests of individuals accused of offenses related to organized crime and possible treason against Nicaragua and its people


General background

Over the last few months a number of individuals associated with elements of Nicaragua's right-wing opposition have been arrested accused of various criminal charges. Some relate to treasonous collaboration with foreign powers to damage Nicaragua's economic and social stability, some in relation to money laundering and other financial malfeasance, for example breaking the law regulating the activities of non profits, and some have to do with violating the terms of the 2018 Amnesty Law.

 

In most cases the formal criminal indictments have been made known during the relevant court proceedings and in many cases the Public Prosecutor's Office has asked for an extension of the period of criminal investigation in accordance with Nicaragua's legal code. The request for an extension of the period of investigation is based on the complexity of many of the charges faced by those accused individuals, in particular, but not exclusively, to the charges relating to fraud and financial malfeasance, especially in the cases involving the Fundación Violeta Barrios de Chamorro and the Fundación Nicaragüense para el Desarrollo Económico y Social.

 

Apart from the complexity involved in tracing financial transactions, the investigations face the deliberate concealment of relationships sometimes referred to as a “veil of tiers” whereby individuals engaged in serious crime seek to distance and disguise their involvement and responsibility. So it is entirely reasonable on the part of the prosecuting authorities to seek more time to investigate fully and impartially the offenses with which the people accused have been charged. This is common practice in practically all jurisdictions in North America and Europe.

 

Relevant criminal law
 

In terms of the relevant offenses under the criminal code, the individuals under investigation face charges either

 

  • for financial crimes and fraud - apropiación y retención indebida (Codigo Penal article 238), lavado de dinero, bienes y activos (Codigo Penal article 282), gestión abusiva (Codigo Penal article 278) y falsedad ideológica (Codigo Penal article 285)"
     

  • or else for treasonous criminal conduct (Código Penal Articles 410 and 412)
     

The Criminal Code was passed by an opposition controlled legislature in November 2007.

 

This interview with Office of the Public Prosecutor official Javier Morazán is required reading to understand the role of the Ministerio Público. The Ministerio Publico (Public Prosecutor's Office) is an independent institution representing Nicaraguan society and victims of crime and aims to ensure effective criminal prosecution so as to contribute to social peace and security in accordance with Law 346. By contrast, the role of the Procuraduría General de la Republica (Attorney General) is to be the legal representative of the Nicaraguan State in accordance with Law 411. The two institutions are completely separate.

Legal context of recent arrests

In terms of domestic law, Nicaragua's Constitution explicitly obliges its citizens in Article One:

"Independence, sovereignty and national self-determination are inalienable rights of the people and foundations of the Nicaraguan nation. Any foreign interference in the internal affairs of Nicaragua or any attempt to undermine these rights is an attempt against the life of the people. It is the duty of all Nicaraguans to preserve and defend these rights."

 

Likewise, the Constitution's Article 24 establishes the duty of all citizens to respect not only their obligations to the nation but the rights of others in Nicaragua and among humanity in general:

"Every person has duties to the family, the community, the nation and humanity. The rights of each person are limited by the rights of others, by the security of all, and by just demands for the common good."

 

Those fundamental provisions in the Constitution of the Republic of Nicaragua have been elaborated and expressed more strongly and in more detail in subsequent national legislation and also via the ratification by the Nicaraguan State of numerous international legal instruments. Among many others, the international measures relevant to the recent arrests of people involved in organized crime in Nicaragua include the UN Convention against Transnational Organized Crime, which came into force in 2002 the same year it was ratified by Nicaragua, the 1999 International Convention for the Suppression of the Financing of Terrorism  and other instruments related to specific forms of terrorist crime such as the 1979 International Convention against the Taking of Hostages.

 

Among Nicaragua's domestic legislation relevant to false accusations of lack of legality in the actions of Nicaragua's authorities are :
 


The UN Convention Against Financing Terrorism dates from 1999. The late President Enrique Bolaños decreed Nicaragua's ratification in 2002  via Decree 3287, thus committing the country to adopting the recommendations generated by the operation of that convention. As explained by Javier Morazán, then Director of the Special Unit against Organized Crime of Nicaragua’s Public Prosecutor’s Office in a 2018 interview, Law 977 was passed in July 2018 precisely so as to enable Nicaragua to comply with the demands under the convention of international organizations like the Latin American Financial Action Group (GAFILAT) to control money laundering and associated criminal activities.

 

 

Critics of the Nicraguan authorities also omit the highly relevant Amnesty Law 996. Article 3 of that law states "The persons benefited by this Law must refrain from perpetrating any new action that may result in repetitive behavior generating the crimes contemplated herein. The non-observance of the principle of Non Repetition will result in the revocation of the benefit established by this Law." Several of the people currently arrested and being investigated by Nicaragua's authorities benefited from that Amnesty Law and may be found to have violated the law's condition of non-repetition.

 

Many recent reports have falsely claimed the arrests were related to to the electoral process currently under way leading up to Nicaragua's general elections scheduled for November of this year. Among other completely false accusations, it has been claimed incorrectly that two political parties were arbitrarily denied permission to participate in the elections, when in fact those two parties had explicitly and flagrantly violated long standing electoral law.

 

Such egregious falsehoods are abused as context to be able to claim, also falsely, that the recent arrests of people involved in money laundering, treasonous collusion with foreign powers to destabilize Nicaragua's economic and social well being and breach of regulations relating to non profits, are an unlawful abuse related to the electoral process. In fact, a glance at the provisions of both the relevant Nicaraguan domestic law and the international instruments to which it is a signatory show that the claim is at once grossly misleading and ultimately extremely sinister. Five of the various people recently arrested, Cristiana Chamorro, Arturo Cruz, Felix Maradiaga, Juan Sebastian Chamorro and Miguel Mora had expressed their aspirations to run as presidential candidates but none of them are members of any of the seventeen political parties eligible to take part in the elections. Among those detained, only two minor figures are members of legitimate political parties.

 

Some of the five individuals mentioned represent marginal opposition movements in Nicaragua like the National White and Blue Unity movement or the Civic Alliance movement both of which are funded and supported by foreign governments, agencies and foundations, principally, but by no means only, of the United States. None of them have their own autochthonous national popular base in extremely marked contrast to genuine “civil society” organizations like those of the country's massive labor union and cooperative sector. All of the individuals concerned have a long record of collaboration with US and European governments and agencies funded by those governments and by foreign corporations. Their relationship with foreign governments and agencies de facto rendered their aspirations to be presidential candidates moot, as Nicaragua's Supreme Electoral Council explained in a communiqué on the issue on June 3rd this year.
 

Thus the arrests of those individuals have nothing to do with any putative presidential aspirations on their part. Rather their detentions are entirely motivated by these people's involvement in organized crime activities and other activities involving possible treason against Nicaragua and its people. Even if the individuals concerned had not been arrested, no political party could have presented them as candidates either for the presidency or for the legislature.

 

In relation to the accusations against the opposition owned newspaper, La Prensa one basic fact to grasp is that the newspaper Diario La Prensa is a separate business to the Editorial La Prensa and that second business for years has been abusing the tax and customs exonerations of Diario la Prensa so as to access inputs on the cheap and thus out-price its competitors. Even so, also for years, they have accused the government of denying them the ability to import paper for the daily newspaper which has been dying on its feet since before 2018 and all the time they were abusing their customs exonerations to guarantee inputs for the other business (as well as in one notorious case importing a private yacht as a business purchase)

 

Relevant international law

 

It should also be noted in the case of Nicaragua that critics of the Nicaraguan authorities are trying to defend several individuals responsible for promoting the following actions in 2018 which the UN office on Drugs and Organized Crime define as terrorism and organized crime:
 

  • the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims.

  • the conduct of premeditated violent acts or the threat of violence perpetrated by members of an organized group, designed to create fear in an adversary or specific segment of society

  • the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change

  • the threatened or actual use of illegal force and violence to attain a political, economic, religious, or social goal through fear, coercion or intimidation.

  • illegitimate use of force to achieve a political objective by targeting innocent people


Furthermore, the 2018 attempted opposition coup activists, organized and financed by various of the individuals currently under arrest, routinely took hostages in violation of 1979 International Convention against the Taking of Hostages which is a terrorist act. The convention defines a hostage taker as “any person who seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage”.

Similarly, in relation to the organization and financing of the 2018 coup, the UN Convention against Transnational Organized Crime defines organized crime as "A structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit." Among the Convention's definitions of transnational organized crime is any offence committed in one State but when a substantial part of its preparation, planning, direction or control takes place in another State. All these definitions apply to the violent crimes of the US funded Nicaraguan opposition in 2018, which the Office of the Public Prosecutor official Javier Morazán also described in this interview in 2018.

 

Likewise, within the framework of the International Convention for the Suppression of the Financing of Terrorism, a person commits a criminal offence if they: [B]y any means, directly or indirectly, unlawfully and wilfully, provide or collect funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: [...] (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”

 

All of these considerations are of the utmost relevance to the activities encouraged, supported and funded in 2018 by almost all the individuals now under arrest. All the individuals concerned are implicated in the planning of similar kinds of offenses aimed at destabilizing Nicaragua prior to and subsequent to the forthcoming elections on Sunday November 7th 2021.