VZCZCXYZ0023
OO RUEHWEB
DE RUEHMU #1040/01 2271442
ZNY CCCCC ZZH
O 141442Z AUG 08
FM AMEMBASSY MANAGUA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3024
INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC PRIORITY
RUMIAAA/CDR USSOUTHCOM MIAMI FL PRIORITY
RUEABND/DEA HQS WASHINGTON DC PRIORITY
RUEAIIA/CIA WASHDC PRIORITY
RHEFDIA/DIA WASHINGTON DC PRIORITY
RUEKJCS/JOINT STAFF WASHINGTON DC PRIORITY
RHEHNSC/NSC WASHINGTON DC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
C O N F I D E N T I A L MANAGUA 001040
SIPDIS
STATE FOR WHA/CEN, INL/LP
NSC FOR FISK
E.O. 12958: DECL: 08/07/2013
TAGS: NU PGOV PREL SNAR
SUBJECT: JUDICIAL DAZE IN NICARAGUA: ALEMAN'S GET OUT OF
JAIL FREE CARD
Classified By: CDA Richard Sanders, Reasons 1.4 (b) and (d)
1. (C) Summary: On July 8, Liberal Constitutional Party
(PLC) National Assembly Deputy and Justice Committee head
Jose Pallais proposed legislation that would give Nicaraguan
courts a one month deadline to resolve the 9,040 criminal
cases that have languished in the Nicaraguan justice system
without resolution for over five years. Under the proposed
law, any case that is not resolved after the deadline can be
dismissed with all relevant criminal records wiped clean.
Many justice sector observers, including Vamos con Eduardo
(VCE) Deputy and legal expert Augusto Valle, expressed
concern that the law, if passed, would result in the release
from prison of thousands of accused rapists, murderers, and
narcotics-traffickers, as well as former President and
convicted felon Arnoldo Aleman. End Summary.
Aleman's "Get Out of Jail Free" Card
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2. (C) During a criminal justice forum on July 8, PLC
legislator and National Assembly Justice Committee head Jose
Pallais proposed a "law to fix a reasonable time period to
resolve pending criminal cases," pointing out that there were
9,040 cases that have been stuck in Nicaragua's notoriously
slow court system for over five years - a clear violation of
the Nicaraguan constitutional right to a speedy trial
(Article 34, Paragraphs 2-3 of the Nicaraguan Constitution).
Under the proposed law, Nicaraguan courts would have 10 days
from the passage of the law to provide final rulings on less
serious cases (those with possible sentences of five or less
years) and 30 days from the passage of the law to provide
final rulings on serious crimes (those with possible
sentences that exceed five years). Should the courts fail to
meet these deadlines, the accused citizens would then be able
to demand complete dismissal of their case, thereby expunging
their records of any trace of the crime they were accused of.
Many justice sector observers, including VCE legislator and
legal expert Augusto Valle, expressed concern that the law,
if passed, would result in the release from prison of
thousands of accused rapists, murderers, and
narcotics-traffickers.
3. (C) Although Pallais characterized his proposal as a
simple attempt to rectify the "violation" of the rights of
accused criminal suspects to a speedy trial, judicial sector
observers such as former Nicaraguan Attorney General Alberto
Novoa decried the proposal as an audaciously "obvious
attempt" not only to release convicted felon and ex-President
Arnoldo Aleman (whose case is still on appeal) from his
current "house arrest" but to also expunge his record and
enable him to return to the political stage. Novoa pointed
out, though, that the law had not even passed the full
Justice Committee (two Ortega loyalists in the committee were
absent during the initial proposal) and said that Aleman's
criminal record was too convenient of an "ankle-chain" for
Ortega to give up. He speculated that the only way Ortega
would allow the passage of the proposed law and the
inevitable subsequent return of his most powerful potential
rival to the Nicaraguan political stage is if Aleman first
gives him his dearest wish: constitutional reform allowing
Ortega to remain in power indefinitely either as President
for life or as Prime Minister under a new parliamentary
system.
4. (C) Apart from this proposed "pending criminal cases
law", Aleman does not have any other apparent legal recourse
to overturn his sentence (either in physical jail or out).
Although the passage of the new Nicaraguan Penal Code in 2007
reduced Aleman's previous 20 year prison sentence for money
laundering to a mere 5 to 7 years, in December of the same
year a Nicaraguan appeals court imposed a new, combined 20
year sentence for the crimes of money laundering, fraud,
embezzlement, and misuse of public funds. Had the appeals
court not recast Aleman's sentence, it is possible that the
ex-President could have been released on "time served" as
early as December 2007. Novoa said that if the "pending
criminal cases law" passes, the courts would likely only have
10 days to resolve Aleman's case as each of the four crimes
he is currently charged with would be considered a less
serious crime.
Judicial Careers: New Rules, No Real Change
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5. (C) Novoa also strongly criticized a judicial career law,
that was passed by the National Assembly in 2004 and is only
now being implemented by new regulations, as nothing more
than a measure to legalize and perpetuate the corrupt status
quo of the Nicaraguan judicial system. Although the law was
intended to modernize, professionalize, and provide the
Nicaraguan judicial system with a degree of political
independence, the version of the law that finally passed
after much acrimonious debate in the National Assembly
formally left the reins of power firmly in the grasp of
Nicaragua's highly politicized and corrupt Supreme Court.
The Spanish Agency for International Cooperation (AECI)
supported the development of the law, but expressed
frustration that the law was passed without incorporating any
suggestions from donor countries and organizations.
Nevertheless, AECI expressed satisfaction that at least the
law exists to provide a legal basis for making further
improvements to the Nicaraguan judicial sector.
6. (C) Under the Judicial Career Law, Nicaraguan Supreme
Court justices have the power to nominate and elect members
of many of the groups intended to act as a "check" against
corruption, including the Council of National Administration
of Judicial Careers. This Council in turn is able to
nominate magistrates for appellate courts, district courts,
and local courts. Several donor countries noted inherent
weaknesses in the law. There are no specific procedures for
entry into a judicial career or for how judicial career
candidates should be promoted. Judicial inspectors who are
responsible for investigating disciplinary cases have no
established procedures and their functions are not defined.
These weaknesses allow Supreme Court justices to create their
own set of procedures or ignore them entirely. In a separate
meeting, VCE Deputy Valle asserted that the judicial career
law has only served to provide the Nicaraguan Supreme Court
another powerful tool to "punish and reward" individuals for
their obeisance to or defiance of the Court's political
agenda. Novoa concluded that there are no checks and
balances in the Nicaraguan judicial system, as all of the
main judicial principals are "like monkeys on the same
branch; they only know how to sit there and scratch each
other's behinds."
Comment
- - - -
7. (C) Comment: Aleman's latest attempt to escape his legal
and judicial difficulties and fully return to the political
scene seems unlikely to succeed. As Novoa points out, Ortega
would only allow Aleman's freedom if Ortega himself attains
an unassailable level of political power, such as he would
achieve with a successful constitutional reform. We do not
think this is likely at this point. However, the fact that
this law was proposed by PLC deputy Jose Pallais as head of
the National Assembly's Justice Committee does not bode well
for the prospect of true judicial reform. Without true
judicial reform and the advent of a strong, independent
Nicaraguan judiciary, the preservation of Nicaragua's already
tenuous democracy will remain an arduous task.
SANDERS