The International Human Rights Framework on the Right of Peaceful Assembly
Nicaragua is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Nicaragua is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Nicaragua is a state party to the 1969 Inter-American Convention on Human Rights. Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
Nicaragua has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of Nicaragua that their rights under the 1969 Inter-American Convention on Human Rights have been violated.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 53 of the 1986 Constitution of Nicaragua (as amended) recognises the right to peaceful gathering, the exercise of which "does not require prior permission". Article 54 provides that:
The right to public assembly, demonstration and mobilization in conformity with the law is recognized.
The 1924 Law on Political Demonstrations requires that authorisation be granted for political rallies. In its latest Universal Periodic Review under the Human Rights Council (May 2019), the Nicaragua Government claimed that:
The right of peaceful assembly is fully guaranteed. Its exercise does not require prior authorization. ... The right of public assembly, demonstration and movement in accordance with law is recognized.
In September 2018, however, President Ortega issued a statement through the National Police banning protests that call for a change in the government. It was also threatened to prosecute those who organise new demonstrations. Then in June 2019, the Nicaraguan Parliament approved a controversial amnesty law proposed by the Sandinistas that grants a "broad amnesty to all those who have participated in the events that occurred throughout the national territory from 18 April 2018 to date." The UN High Commissioner for Human Rights, Michelle Bachelet, said that "amnesties for serious violations of human rights are prohibited by international law. They result in impunity, which can lead to more violations."
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Under Nicaraguan domestic law, Article 6(4) of Law 872 of 2014 obligates the police to:
Make use of only the necessary force to avoid serious, immediate and irreparable damage, governed by the principles of congruence, timeliness and proportionality in the use of available means.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
In Nicaragua's domestic regime, however, Article 193 of the Regulation of Law 872 of 2014, which governs the organisation and functions of the National Police, allows a firearm to be used on the basis of a "superior order duly communicated" in a case of "serious disturbance of public order", provided that the order "is not arbitrary". This does not comply with international law.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
A 2018 report by the Office of the UN High Commissioner for Human Rights (OHCHR) found that
The exercise of the right to freedom of peaceful assembly has been progressively undermined through an array of practices that have implied serious violations of other intertwined rights analyzed in sections of this report. OHCHR gathered consistent information that, from the earliest stage of the wake of protests, there was widespread use of excessive force, sometimes resulting in unlawful killings, along with attacks carried out by pro-Government armed elements.
While some of the protesters resorted to violent means,... OHCHR observed that the majority of protesters were peaceful. According to international human rights law, individuals do not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others.Report of Special Rapporteur on the rights to freedom of assembly and peaceful association, UN doc. A/HRC/20/27, 21 May 2012, para. 8.States have the duty to protect participants in peaceful assemblies from groups of individuals, including agents provocateurs and counter-demonstrators, who aim at disrupting or dispersing public assemblies.Report of Special Rapporteur on the rights to freedom of assembly and peaceful association, UN doc. A/HRC/20/27, 21 May 2012, para. 12.
In June 2018, the Inter-American Commission on Human Rights (IACHR) submitted to the Permanent Council of the Organization of American States (OAS) its report, “Serious human rights violations in the context of social protests in Nicaragua.” The report, which is based on IACHR mission to the country in May 2018 and through subsequent monitoring addresses the violence that has surrounded the protests that broke out on 18 April 2018. According to figures collected by the IACHR, the State’s repressive actions had left at least 212 people dead by June 19, 1,337 people injured and 507 people deprived of their freedom by June 6, as well as hundreds of people at risk after being victims of attacks, harassment, threats and other forms of intimidation.
The IACHR has concluded that:
The Nicaraguan authorities have cited maintaining public order and social peace as justification for their actions. Nonetheless, the IACHR notes that, in view of the scope of the State’s violence and the type of strategies implemented by the State, it is obvious that there is coordinated action to control public spaces and repress social protest and not just a few illegal acts perpetrated by a few members of the security forces. In fact, the information received describes a pattern of state agents, mainly members of the National Police of Nicaragua and its anti-riot brigades, parapolice forces, as well as strike groups or mobs, acting in concert with the Police, setting into motion a repressive response aimed at deterring society from participating in the demonstrations.
The Commission found that violence had focused on discouraging participation in demonstrations:
It followed a common pattern, marked by the excessive and arbitrary use of the police force, which included the deliberate, systematic use of lethal force; the use of parapolice groups with the acquiescence and tolerance of State authorities; obstacles to hinder access to emergency medical assistance for the injured, as a form of retaliation for their involvement in demonstrations; a pattern of arbitrary and unlawful detentions of young people and adolescents who were peacefully taking part in protests and passers-by who were in the areas where incidents took place; the use of cruel, inhuman and degrading treatment against most of those who were detained, which in some cases crossed the torture threshold; the use propaganda and stigmatization campaigns, and of direct and indirect forms of censorship; intimidation and threats against social movement leaders; and lack of due diligence to launch investigations into the murders and injuries that happened in this context.
The Nicaraguan government’s repressive response to the protests has led to a serious human rights crisis. The Commission concludes that the State of Nicaragua has violated the rights to life, personal integrity, health, personal liberty, assembly, freedom of expression and access to justice. The Commission is particularly concerned about the murders, likely extrajudicial executions, mistreatment, likely acts of torture and arbitrary detentions perpetrated against the country’s mostly young population. Further, the IACHR expresses its concern over the violation of the right to health and over the denial of medical attention, the retaliation against public officials who refrain from fulfilling orders that violate human rights, the acts of censorship and harassment against human rights defenders and the irregularities in launching investigations into the murders and injuries perpetrated in that context, along with other serious events the Commission has verified. It is demonstrators—including students who sought refuge in university premises, people who held the so-called tranques (road blocks) in different parts of the country, human rights defenders, journalists, victims and church officials—who are worst affected by various forms of repression.
Views of Civil Society
According to Amnesty International, press release issued by the National Police on 14 October 2018 confirmed that 38 people had been detained - eight of them were subsequently released - for participating in “acts of incitement and provocation” because they did not have authorization to stage a demonstration which threatened to disturb “the peace and normal coexistence”. The Government of Nicaragua had issued a warning, via recent official National Police statements, that public demonstrations against President Ortega had been declared illegal and that anyone who sought to organize or call such a protest would be detained and held responsible for any crime or public order disturbance that occurred. Amnesty International declares that: "This is a complete violation of Nicaragua’s international and national human rights obligations."