Rapport intérimaire - Rapport No. 234, Juin 1984

1. 418. The Committee has examined this case on various occasions [see 208th Report of the Committee, paras. 371-391 and 218th Report, paras. 437-466, approved by the Governing Body at its 216th and 221st Sessions in May-June 1981 and November 1982, respectively]; it last examined this case at its February-March meeting in 1984 [see 233rd Report of the Committee, paras. 214-317, approved by the Governing Body at its 225th Session in February-March 1984] at which time it submitted an interim report. The Government submitted some information in a communication dated 27 February 1984, received by the Office after the Committee's February-March 1984 meeting.
2. 419. Nicaragua has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 420. In the Committee's most recent examination of the case, the allegation concerning the death of Mr. Jorge Salazar Argüello, Vice-President of the Managing Board of Private Enterprises (COSEP) remained pending. The Committee made the following recommendation on this matter to the Governing Body: "The Committee deeply regrets that the Government has not yet supplied the text of the judgment handed down by the military court on the military personnel responsible for the death of the employer leader, Salazar Argüello, which was handed down some time ago; it urges the Government to transmit its judgment at an early date." (See 233rd Report of the Committee, para. 317.

B. The Government's reply

1. 421. In its communication of 27 February 1984, the Government encloses the text of the judgment handed down by the Military Court of First Instance of the Sandinista Armed Forces on 1 March 1982, concerning the death of Mr. Jorge Salazar Argüello.
2. 422. In its judgment, the above-mentioned Court ruled the following:
   • The present case concerning the alleged offence of homicide against Jorge Salazar Argüello about whom no details are provided in the present proceedings, with which Javier del Carmen González, Garcia, Francisco Javier Rodriguez Díaz and Pedro José Andino Villalobos are charged, is stayed - all three persons concerned are of age, soldiers in active service, of whom the first is unmarried and the second married, all living in this same locality - since it has been proved that they were fulfilling their duty and acting in observance of a right, authority or duty and, furthermore, acting in legitimate self-defence; it is therefore ruled that these said persons shall be immediately released.
3. 423. Amongst the grounds for the judgment were the following:
   • ... It would seem from evidence that on 17 November 1980, at El Crucero, the deceased Salazar Argüello met Néstor Omar Moncada Lau with a view to supervising the handing over of some weapons that Salazar was transporting in a Cherokee truck, allegedly his own, so that he might assist criminal actions against the Revolutionary State; it was for this reason that the truck had two sets of number plates, one on top of the other; Salazar Argüello and Moncada Lau were involved in this handing over of weapons when they suddenly saw a patrol drawing up in front of the Esso petrol station in El Crucero, where they were carrying out this operation; this patrol was made up of the above-mentioned persons striving to maintain the integrity of our struggle on behalf of the population; immediately fire was opened against the vehicle transporting the said patrol, which was forced to repulse the attack to which it was subjected and, in the exchange of fire, Mr. Jorge Salazar Argüello was killed. We have not come upon any evidence whatsoever in this case which might lead this Court to doubt that Moncada Lau and Salazar Argüello were the first to start firing against the police patrol; the same Néstor Moncada Lau, who assisted Salazar in his illegal activities, gave added credence to this supposition in his statement to the Military Examining Magistrate, made at 8.40 a.m. Friday, 24 July 1981; his version of the facts was spontaneously and voluntarily given. He adds that when they were discovered, they were in the process of transferring six M-16 firearms and an unspecified number of magazines from Salazar Argüellos's vehicle to the one that he himself, Moncada Lau, was driving; at the time and place decided upon with Salazar, the latter arrived, parking his Cherokee truck alongside Moncada Lau's Toyota car, behind the ESSO petrol station in the above-mentioned locality, so that their criminal actions might be concealed from the eyes of any onlookers who might discover what was happening. Moncada Lau continues by saying that he had just started transferring the weapons to the Cherokee truck, which Salazar was driving, when a vehicle arrived transporting soldiers, presumably members of the State Security Services; at this moment, Salazar was at the wheel of the Cherokee truck, ready to return to the farm on his estate, which is in the neighbourhood of El Crucero, as soon as the arms had been handed over; his instinct of self-preservation prompted him to pull out the firearm he was carrying, duly loaded, and he started to fire against the state security patrol. The latter, finding itself attacked, was obliged to respond and, in the ensuing exchange of fire, Salazar Argüello was killed. This incident, highly regrettable for the suffering it has caused to his family and friends, can only be attributed to the desperate action taken by Moncada Lau and Salazar in their attempt to escape unharmed from the counter-revolutionary activities in which they were involved to try and destroy the Revolutionary State, so that they might regain their lost privileges; this had even led them to try and destroy our system by dealing illegally in weapons and in giving instruction on their use; consequently, the accused Javier del Carmen Rodriguez García, Francisco Javier Rodriguez Diaz and Pedro José Andino Villalobos were only fulfilling their duty as members of the state security forces and were legally exercising their right as soldiers entrusted with protecting and maintaining law and order both inside and outside the Republic; viewed from this standpoint, their action was perfectly within the provisions pertaining to the exoneration of criminal responsibility laid down in clause 9 of section 28 of the Criminal Code, thus making the charge of criminal responsibility inadmissible, since all their actions took place within a justifiable framework.
   • Even supposing that the accused were not fulfilling their duty in repulsing the attacks made upon them by Salazar Argüello and Moncada Lau and supposing that they were not exercising any right of authority, even under these circumstances, the fact that they were acting in legitimate self-defence would exonerate them from criminal responsibility; indeed, our Criminal Code stipulates that there should be three requirements, simultaneously concurrent, to qualify for this exoneration and these were all present in the events under consideration. As is well known, in order to have the principle of legitimate defence accepted, it is necessary to prove that there was an illegal assault, that there were reasonable grounds for the means used to prevent or repulse this attack and that there was no provocation on the part of the person defending himself; the statements made by Néstor Omar Moncada Lau himself and Jessi Rojas Sánchez prove that these requirements were duly met in the present proceedings and the evidence leaves no doubt that the State Security Services did not attack Salazar and Moncada Lau, but that they merely repulsed the attack to which they were subjected ...

C. The Committee's conclusions

1. 424. The Committee notes the contents of the judgment handed down by the Military Court of First Instance of the Sandinista Armed Forces of 1 March 1982, concerning the death of Jorge Salazar Argüello, Vice-President of COSEP. The Committee points out that in its previous report on this case, it noted that a military court was dealing with this case under section 18 of the Act concerning the organisation of military courts and provisional military penal proceedings, which reads as follows. "The Military Courts shall be responsible for conducting penal proceedings in connection with any punishable act in which a number of the military personnel is implicated, even if one or more of the participants or the victims are civilians". [See 233rd Report, para. 232.]
2. 425. In the judgment in question, the Committee notes the staying of the case "concerning the alleged offence of homicide against Jorge Salazar Argüello ... with which Javier del Carmen González García, Francisco Javier Rodírguez Díaza and Pedro José Andino Villalobos, soldiers in active service, are charged ... since it has been proved that they were fulfilling their duty and acting in observance of a right, authority or duty and, furthermore, acting in legitimate self-defence."
3. 426. The Committee notes that it appears from the judgment that Mr. Salazar, in order to conceal criminal actions against the Revolutionary State, fired against the patrol vehicle of the state security forces which arrived when Mr. Salazar was transferring firearms (six M-16 rifles) from his truck to Mr. Moncada Lau's car; the members of the patrol repulsed this attack, killing Mr. Salazar in the exchange of fire which ensued. These events occurred on 17 November 1980, in front of the Esso petrol station at El Crucero.
4. 427. The Committee notes that the judicial military authorities concluded that there were grounds justifying the soldiers' action in killing Mr. Salazar, especially in view of the fact that the latter has started the exchange of fire, and that this was corroborated by the version of the events given by Mr. Moncada Lau, the person accompanying Mr. Salazar at the time of his death.
5. 428. Nevertheless, the Committee would point out that, in its communication of 3 December 1981, the Government stated that "it is not certain that Mr. Salazar died as a result of an ambush set by the police. He was killed when he was about to be captured with his companion, who shot first with a firearm at the authorities who were proceeding to arrest him; thus an exchange of fire was started resulting, unfortunately, in the death of Mr. Salazar Argüello ...".
   • It also notes that, in its communication of 7 September 1982 (received by the ILO on 12 October 1982), the Government stated that "even if it was certain that Jorge Salazar was unarmed at the time of the events - as was admitted by Commander Tomás Borge - the truth is that six M-16 automatic weapons were in his truck which were intended for Moncada Lau ...".
6. 429. In view of the contradiction between the judgment of the Military Court of First Instance of the Sandinista Armed Forces of 1 March 1982 (according to which Mr. Salazar opened the exchange of fire) and the above-mentioned communications from the Government (in which it both implicitly and explicitly recognised that Mr. Salazar was unarmed at the time of the events) one of which is dated before and the other after the judgment, the Committee must express its surprise at this discrepancy and urge the Government to explain this. The Committee considers that this is all the more important in view of the fact that the judgment of 1 March 1982 was only transmitted with a communication dated 27 February 1984, i.e. almost two years after being handed down.
7. 430. So as to be in a position to reach conclusions on the outstanding allegation in full knowledge of the facts, the Committee requests the Government to indicate whether the judgment of 1 March 1982 is considered as final and whether there was a possibility to appeal this decision, or whether it was subject to automatic review