23 de agosto 2018
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On July 16th, after ninety days of a brutal and systematic repression against the “self-convoked” citizen protest—which has generated the most serious crisis of governability suffered by Nicaragua in recent decades—, Daniel Ortega’s regime approved a new Prevention of Money Laundering Law, also known as “Ortega’s Anti-Terrorism Law”, because it reformed the crime of terrorism and the financing of terrorism of the 2008 Penal Code.
Vague Definitions: civic protest as terrorism
The spokesperson of the Office of the UN High Commissioner for Human Rights, Rupert Colville, affirmed the day after its approval: “the text is very vague and allows a broad interpretation that could cause it to include (in the definition of terrorist) people who are simply exercising their right to protest.” He denounced that it could be used to criminalize citizen protest with 20-year prison sentences. The regime immediately responded by accusing the UN High Commissioner’s Office of being an “accomplice” of “terrorist actions” that the government is fighting.
Ortega first presented the bill on April 9, and it was passed favorably nine days later, on April 18th, with only one consultative session.” Only public entities subjected to the regime were listened to: The Army, the Police, the Unit of Financial Analysis, the Treasury Ministry, the Public Prosecutor’s Office, the Attorney General’s Office, the Supreme Court of Justice and the Superintendence of Banks.
The final draft wording of the crimes of terrorism and financing terrorism was the same text sent by Ortega in the April 9th bill, so that the new criminal offense is derived from a governmental vision that is prior to the April civic rebellion and is not the result of improvisation.
But, at the last moment, the dimension of the reform was reduced, given that the original proposal was more far-reaching and included a broad thematic: commercial, financial, notarial, criminal and procedural. However, it focused only on the prevention of money-laundering and in some institutional structuring issues, ensuring two strategic objectives for unspoken purposes: 1) control of non-profit organizations (NGO, associations, foundations, etc.); and 2) increase discretion in its application, by referring everything related to its implementation to a regulation to be drafted by the Executive.
The regulation and arbitrariness of the Executive
To a certain extent, key issues of a Democratic State of Law such as the determination of competent authorities and operating procedures to adopt measures such as freezing the funds of NGOs, associations and citizens in general, under the charges of financing terrorism were included in the regulation, increasing legal uncertainty.
As will be understood, a measure such as freezing funds would reshape or limit fundamental rights and citizen guarantees through an administrative regulation. This by itself will be a contradiction and a violation to the principles of regulated competition by State authorities, and consequently of the general principle of constitutional legality.
The government justifies this law, hiding itself in the fulfillment of its international duties in anti-terrorist matters, but it is clear that terrorism has never been an internal problem of Nicaragua, and this has been recognized by the government’s own officials.
Experts on the field reminded CONFIDENCIAL that in the last report resulting from the visit in-situ to Nicaragua made last year by the Financial Action Task Force in Latin America (GAFILAT), and that this organization presented in October 2017, it concluded that Nicaragua had never investigated, nor ever prosecuted, any case of terrorism or financing of terrorism, crimes that were considered by local authorities as an illicit act that had not directly affected country, but was an “exogenous threat.”
These sources explained that the crime of terrorism as was drafted in 2008 was not constitutional because it was detrimental to the principle of legality. The evaluators of GAFILAT made the following “observations”: a) that it should not be required to demonstrate the purpose of the terrorist act; b) that it should cover individual acts and not only actions by groups; c) that terms like “population” should be changed to a more generic term such as “a population”, or “the country” for “a country”; and finally, the most important, d) that it should be adapted to the content of the International Convention for the Suppression of the Financing of Terrorism.
All the observations presented, continued the experts, were aimed at satisfying the international definition of terrorism, but they were never to repress citizens protest, nor to justify the criminalization in internal social conflicts in the country, much less to offer an examination of constitutionality or of its adaptation to international instruments and commitments in the field of human rights.
Regarding the crime of financing terrorism, sources reported that the evaluators found it too general. They recommended that it should cover specific acts that are included in various international conventions. They recommended precision regarding specific acts pursued in these instruments: unlawful seizure of aircrafts, security of civil aviation and international airports, hostage-taking, safety of maritime navigation, protection of internationally protected persons, non-proliferation of weapons of mass destruction, among others. That is to say, “nothing that justifies the criminalization of citizens’ protest”, they warned.
The criminalization of the April protest
When taking into account the reports of international human rights organizations (IACHR, UN, AI), experts consulted by CONFIDENCIAL explain that “it is evident” that the April social protest cannot even be classified as an “armed rebellion”, punishable with six to ten years in prison sentences. “And, except for very explicit cases that could have been committed by specific “self-convoked” citizens, any other illegal act committed in the context of these social protests would have to be investigated and prosecuted without illegal detentions, without preventive measures of imprisonment and with full guarantees of legitimate defense,” they explained.
Under the Ortega regime, they add, no guarantee is fulfilled, and on the contrary illegal detentions, torture and cruel treatment are recorded. There is also a multiplicity of trials for terrorism, murder, organized crime and financing of terrorism, with 137 processes counted at present. So that “it is evident that these illegal detentions and judicial actions can only be the result of an orchestrated governmental articulation, which further pulverizes the limited independence and impartiality of judicial authorities, generating the greatest crisis in institutional confidence that we have known in recent times,” said one of these experts.
This is a political action, they add, that seeks to intimidate those opposed to the regime. “Hence, the legal proceedings against the “self-convoked” that are tortured, isolated and threatened with sentences of more than 20 years in prison, are clearly political acts to intimidate or crush the citizens protest via an illegal, systematic and coordinated criminalization. This criminalization acts with impunity and has broken with all procedural rules and the system of guarantees in criminal matters, which does not address issues of legality. Instead, it is an illegal and illegitimate repressive action taken by public institutions, which do not act as such, because they have lost their meaning and content.”
“Black lists” to freeze funds
They added that Ortega’s anti-terrorist reform cannot be used to prosecute people who participated in the protests prior to July 20th (the day of its publication), as a consequence of the application of the non-retroactivity principle of the law in criminal matters. “Although it does become his weapon to prosecute future cases, only that now with a better punitive coordination, which will remain illegitimate and illegal, since its legality is only formal and apparent.”
The sources also explained that in a brief examination of the classification of the crimes of terrorism and financial terrorism carried out by Ortega, shows that these are unconstitutional norms that brake with the principles of legality and legal certainty, creating a “catch all” in which any death, injury or damage could be redirected and considered as an act of terrorism.
“From a simple reading, the vagueness of the criminal law on terrorism is notable, with the introduction of undetermined legal concepts that violate the prohibition of inaccuracy in the punitive power of the State, the so-called mandate of legal certainty. This is a clear infringement of the principle of legality (the triple requirements of prior law, written and strict),” they explain.
Ultimately, they add, it is an awkward but not improvised criminal reform, which the regime refuses to discuss with society. So it precipitates its approval because it wants to turn it into an effective instrument to frighten those who oppose it, concealing itself behind the argument that it is fulfilling its international commitments.
Therefore, it is expected that the repressive organs of the State will create “black lists” of people (whether NGOs or organizations) who will be “investigated” for “money laundering and/or financing terrorism,” to freeze their funds, preventing them from receiving aid, and presenting a risk to those that provide support because they could face the same charges.
To maintain the appearance of acting in accordance with the mandates of the international community the “black list” could include two types of sanctions: those derived from the United Nations Security Council, and the list of “local terrorists” decided by the Government. The first to comply with the fight against terrorism that legitimately worries the international community, and the other to criminalize the “self-convoked” citizens who protest or anyone who assists them.
It remains to be seen if the international community will admit an implausible arbitrariness by a State that violates the human rights of its citizens, and uses international commitments on issues of money laundering, against financing of terrorism and the non-proliferation of weapons of mass destruction, as a pretext to repress and criminalize citizen protest.
