I/A Court H.R., Case of Acosta et al. v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 25, 2017. Series C No. 334.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2017-1-e.pdf

 

Headnotes:

 

The decisive criteria for determining if a person is acting as a human rights defender is not whether he or she considers herself as such, but in the identification of the activities he or she performs. The defense of human rights can only be freely achieved if the defenders are not subject to threats or to any kind of physical, psychological or moral aggression, or any other kind of harassment. Therefore, in cases of threats or aggression to human rights defenders or their family members, States must provide the resources necessary for them to be protected, as well as access to impartial, timely and ex officio justice. States shall investigate in a serious and effective manner, taking into account the context and the activities of the defender, in order to determine the lines of investigation (possible interests affected) and to identify those responsible.

 

The system of proceedings is a means for achieving justice and justice cannot be sacrificed by mere formalities. A formality has no reason for being when it is demonstrated that judicial remedies and appeals are dismissed without examining their validity, or based on futile reasons, with the effect of hindering certain complaints from being effectively decided, to the detriment of certain individuals. Even though States may and should establish criteria of admissibility for such remedies, they must provide legal security as to the correct and functionally fit administration of justice, as well as the effective protection of the rights of individuals.

 

Judges, in their role of directors of the proceedings, have a duty to set forth the judicial process without sacrificing justice and fair trial against formalities and impunity.

 

The right of presumption of innocence obliges the State to not informally condemn a person, nor shape public opinion about any person, while his or her criminal responsibility has not yet been determined by a legal process. This right can be violated either by the judges in charge of the case or by other state authorities; thus, judges and other authorities should be discreet and prudent when giving public declarations concerning an ongoing criminal proceeding.

 

Summary:

 

I. María Luisa Acosta Castellón is a renowned lawyer and human rights defender, specifically of indigenous peoples inhabiting the Nicaraguan coast. Between October 2000 and January 2002, she provided legal advice to indigenous communities from la Cuenca de Laguna de Perlas, who lodged several administrative and judicial complaints, in order to vindicate their right to use and possess ancestral indigenous lands located in the “Cayos Perlas” (Perlas Keys). Seven out of twenty-two of these Keys were purchased by “PT,” a US-American/Greek real estate investor, and his partner “PMF,” a Nicaraguan lawyer who further sold the properties to foreign buyers, by means of alleged illegal transactions. The complaints lodged by the indigenous communities represented by María Luisa Acosta were directed at “PT” and “PMF” (identity reserved on the basis of their right to presumption of innocence).

 

On 8 April 2002, María Luisa Acosta found her husband, Francisco José García Valle, lying dead in their family home. Between 19:00 and 20:00 he was shot in the chest area, his hands and feet were tied and his mouth was bound. The homicide was perpetrated by Iván Argüello and Wilberth Ochoa, two Nicaraguans who had rented the ground floor of the house the day before.

 

As a result, authorities began a police investigation which involved several proceedings over the following months. Some days after that, the Criminal Court of Bluefields initiated pre-trial proceedings and received the declarations of María Luisa Acosta, PT and PMF. In her declarations, María Luisa Acosta insisted that PT and PMF were the masterminds or intellectual authors of the homicide. She reasoned that they were actually trying to kill her, instead of her husband, as her legal advice of the indigenous peoples was against the businessmen’s personal interests on the indigenous lands. PT and PMF plead not guilty and requested that María Luisa Acosta be investigated as a possible masking agent. This request was immediately accepted by the presiding judge.

 

María Luisa Acosta and her children moved away from Bluefields out of fear. She also requested that the presiding judge allow her declarations to be taken in her new place of residence, instead of Bluefields. The request was rejected. Therefore, in April 2002, María Luisa’s lawyer presented a general power of attorney (“poder generalísimo”) so as to intervene in the proceedings in the name of his client and to submit accusations. Nevertheless, the judge decided that the acts of the lawyer were not legally valid, as he needed a special power of attorney (“poder especialísimo”). María Luisa’s lawyer submitted the new power of attorney, but it was not accepted until 13 May 2002, the same day that the judge decided to definitively dismiss the case against those signaled as masterminds of the crime. María Luisa’s lawyer appealed the decision three days later, but the appeal was rejected on the basis of non-compliance with a rule of civil procedure establishing that the appeal had to be presented along with extra blank paper.

 

Thus, the judge resolved that the legal dismissal should be made final and binding. This decision was appealed several times by Acosta’s layer before superior Courts, but each appeal was dismissed, either for formal reasons or because those superior judges agreed with the decision.

 

In May 2002, “PT” and “PMF” lodged a complaint before the Civil Court of Bluefields against María Luisa Acosta requesting compensation for damages, as well as the preventive seizure of María Luisa’s goods. The seizure was ordered by the judge, but it was subsequently cancelled, after María Luisa’s lawyer presented several appeals against the decision. Later on, they also submitted complaints against María Luisa for the crimes of false testimony and false report. The proceedings ended after more than eight months without any of the parties taking part therein.

 

As to the continuation of the criminal procedure against Ivan Argüello and Wilberth Ochoa, in September and October 2002 - after the legal dismissal of PT and PMF as masterminds ? the National Police determined that the gun used in the homicide of María Luisa’s husband was property of PMF, and also that Iván Argüello had previously worked for PT. Throughout 2003, María Luisa Acosta lodged several disciplinary complaints against the judges and court members hearing the case, but the relevant judicial authority showed no activity in that regard. Therefore, on 9 April 2003 Acosta submitted a complaint before the office of the Ombudsperson (“Procuraduría para la Defensa de los Derechos Humanos”), in which she claimed the violation of her right to proper access to timely justice by the Commissioners of the Disciplinary Regime of the Supreme Court of Justice. The Head of the office of the ombudsperson declared that the Commissioners did indeed violate María Luisa’s right and that the President of the Supreme Court of Justice disregarded this.

 

In April 2004, Iván Argüello and Wilberth Ochoa were sentenced to prison as authors of the homicide of María Luisa Acosta’s husband. Additionally, the Supreme Court also confirmed the dismissal of PT and PMT as possible intellectual authors of the crime. Acosta’s lawyer presented two appeals, which were dismissed by the domestic Court.

 

On 7 August 2015, the Inter American Commission of Human Rights submitted the case before the Inter American Court, alleging violations to Articles 1.1, 5, 5.1, 8.1, 8.2 and 25 ACHR.

 

The State submitted three pleadings as “preliminary objections”. The first referred to the scope of the facts of the case; the second referred to the admissibility of certain evidence, and the third referred to Nicaragua’s disagreement with the Inter-American Commission’s characterisation of the facts and with the recommendations contained in its report on the merits.

 

II. The Court dismissed all the pleadings, as it considered that they were not preliminary objections in nature.

 

On the merits, the Court found the State internationally responsible for the violation of the rights to a fair trial, access to justice, the right to know the truth and judicial protection, in accordance with Articles 8.1 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of María Luisa Acosta and other family members of her husband, because it did not diligently and seriously investigate the hypothesis that the homicide was masterminded by persons whose interests were compromised by Acosta’s defense of human rights of the indigenous peoples of the Nicaraguan coastal areas. The presiding judge declared the definitive legal dismissal of the suspects one month after the beginning of the proceedings. This course of action by the judge was against basic rational rules of criminal investigation, as the pre-trial phase had not been concluded and certain relevant evidence (such as the forensic analysis of the gun used in the homicide) was still being gathered by the police. The decision of legally dismissing the suspects was not duly explained or justified. The Court reiterated that the obligations of the State under Articles 8 and 25 ACHR must take into account the context surrounding the facts and the activities of human rights defenders, in order to identify any possible interests that could be affected and to identify the possible authors.

 

Additionally, the Court found the violation of the aforementioned rights protected in the American Convention of Human Rights because the State denied the victim’s access to criminal justice based on mere formalities such as the providing of blank paper, in application of civil procedural rules, without a reasonable justification as to its necessity for the administration of justice. The State did not give proper attention to the appeals concerning possible irregular proceeding by the national courts and, when the Ombudsperson determined disciplinary responsibility for the existence of a violation of Acosta’s rights, the courts did not correct or rectify them. Finally, in changing the status of Acosta in the proceedings from victim to possible suspect, as well as hindering the participation of her legal counselor, the State violated Acosta’s right to be heard and to a defense.

 

The Court also found that the judge acted in a partial manner, as his public declarations would leave no doubt as to his motivations in hindering the proceedings. This is especially serious, given the pretrial proceedings in which the judge was presiding. Additionally, the Court resolved that the appeal and superior judges did not properly guarantee the right to be heard by an impartial judge.

 

The Court also established that the State violated Articles 8.2 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of María Luisa Acosta, because her right to be presumed innocent was violated, as certain public declarations made by the presiding judge revealed possible prejudices against María Luisa Acosta.

 

The Court also found the State responsible for the violation of the right to personal integrity, contained in Article 5.1 ACHR. In the case of María Luisa Acosta, her personal integrity was seriously affected not only because of the suffering caused by her husband’s murder, but as a consequence of the lack of an adequate investigation; the investigations against her for the crimes of false report and false testimony; the stigmatisation resulting from unfounded legal procedures; and the frustration of the partial impunity she had to confront.

 

Finally, the Inter-American Court established that the judgment constituted per se a form of reparation and ordered, among other things, that the State:

 

  1. adopt the measures necessary so that the homicide not to be left in impunity and for the victims’ rights to access to justice and to truth to be adequately restituted;
  2. publish the judgment of the Inter-American Court, as well as its summary;
  3. create mechanisms of protection and investigation protocols for cases concerning risks, threats or aggression against human rights defenders; and
  4.  pay pecuniary and non-pecuniary damages, as well as costs and expenses.