27 de septiembre 2021
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Today September 24, the term granted by the Inter-American Court of Human Rights to the Ortega-Murillo regime to authorize an in-situ visit and verify the condition of some political prisoners within the framework of the provisional measures adopted by this judicial body, expires. Political prisoners are not only deprived of their freedom in contravention of international jus cogens norms, but on the regime also befall the accusations of torture. What scenarios should we warn about this situation?
It is important to remember that even before the Ortega-Murillo regime showed the political prisoners, legally we were in the presence of the presumption of forced disappearance. But showing them and initiating a spurious criminal process focused the range of responsibility on the serious denial of freedom. Regarding the accusations of torture, beyond the rhetoric, an effective investigation is necessary.
Although the Ortega-Murillo regime imprisoned opposition leaders to dismantle the civic struggle for the restoration of democracy in Nicaragua and discourage the opposition organization in the country, it may be in their interests to allow the in-situ visit for two reasons: distract the attention towards the electoral process next November; and mitigate the international responsibility in which it has already incurred.
The most concern with the results of the elections is the Ortega-Murillo regime itself, since it will be the watershed of its international repudiation as a legitimate authority. Possibly only Nicolas Maduro and Miguel Diaz-Canel will recognize it and call to congratulate them. This will undoubtedly reframe the opposition struggle and it will be the turn of the Nicaraguans in exile to take political action. Hence, the Ortega-Murillo regime, to avoid actions against its government, can use political prisoners as a distraction.
Returning to torture, it can be defined as the action where an official, or individual with the acquiescence of the latter, causes serious physical or psychological harm to a person in order to obtain information from them or punish them. The verification and documentation of torture according to International Human Rights Law must be based on the Istanbul Protocol and by medical personnel and specialized psychologists.
Torture is certified by conducting a physical examination by medical personnel, which reflects the serious physical injury and its workings. That is, there should be a correlation between the injury and the victim’s story of how and when the injury was produced. Regarding the psychological aspect, although the concept of torture can be understood as physical or psychological harm, the truth is that the Istanbul Protocol in its Chapter V indicates “psychological signs of torture.”
In other words, a causal relationship is established between the physical injury or the torturing environment (environmental conditions aimed to brake the will of the person as a form of punishment or to obtain information) that can reflect the following serious psychological harm: avoidance and mental dullness; hyperarousal; low self-esteem and sense of the future; dissociation and depersonalization; somatic complaints; sexual disfunctions; psychosis, neuropsychological harm; severe depression; and lasting personality disorder, among others. More than psychological torture, there is serious psychological damage resulting from torture or being subjugated to a torturous environment.
Faced with the complaint that political prisoners are being subjected to acts of torture, the international obligation of the State to investigate the facts remains. But let us recall that the Judiciary and Public Ministry have yielded to the interests of the Ortega-Murillo regime, so an impartial investigation on their part cannot be relied upon. Notwithstanding the foregoing, the Istanbul Protocol offers the alternative of creating an Ad Hoc Commission made up of impartial, competent and independent persons under these conditions, in accordance with the provisions of paragraph 82.
In the event that the Ortega-Murillo regime does not allow the in situ visit, nor does it create an Ad Hoc Commission and does not allow a thorough, impartial and independent investigation into the allegations of torture of political prisoners, the Istanbul Protocol itself establishes a legal presumption of torture. Even giving rise to compensation for having denied the right to an effective remedy and not conducting a thorough and effective investigation in accordance with the provisions of paragraph 38.
With the public information available on the conditions of political prisoners and in the absence of exhaustive, impartial and independent medical and psychological reports, we cannot conclusively affirm the existence of torture. But, if an in-situ visit, is not allowed, the Inter-American Court on Human Rights can establish the legal presumption that torture exists, by the refusal of an effective remedy so that the cases are investigated exhaustively, impartially and independently in accordance with the Istambul Protocol.
*Master in Human Rights
This article was originally published in Spanish in Confidencial and translated by Havana Times
