Criminal Justice in Revolutionary Nicaragua: Intimations of the Adversarial in Socialist and Civil Law Traditions Richard J

University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 1-1-1992 Criminal Justice in Revolutionary Nicaragua: Intimations of the Adversarial in Socialist and Civil Law Traditions Richard J. Wilson Follow this and additional works at: http://repository.law.miami.edu/umialr Part of the Comparative and Foreign Law Commons Recommended Citation Richard J. Wilson, Criminal Justice in Revolutionary Nicaragua: Intimations of the Adversarial in Socialist and Civil Law Traditions, 23 U. Miami Inter-Am. L. Rev. 269 (1992) Available at: http://repository.law.miami.edu/umialr/vol23/iss2/2 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. ARTICLES CRIMINAL JUSTICE IN REVOLUTIONARY NICARAGUA: INTIMATIONS OF THE ADVERSARIAL IN SOCIALIST AND CIVIL LAW TRADITIONS RICHARD J. WILSON* I. INTR OD UCTION ...................................................... 271 II. ANTIQUES INHERITED BY THE REVOLUTION: NINETEENTH CENTURY JUDICIAL STRUCTURES AND CRIMINAL PROCEDURE ................................. 281 A. Politics and Jurisprudencein Late Nineteenth-Century Nicaragua.. 282 B. The Historical Structure of the Police: El Reglamento de Policia de 18 80 . 2 8 4 * Associate Professor of Law and Director, International Human Rights Law Clinic, The American University, Washington College of Law. Support for the research resulting in this Article was provided by CUNY-PSC Research Foundation of the City University of New York and a Summer Research Grant from Dean Elliot Milstein of the Washington College of Law. Without their generous support, this Article would not have been possible. Many students have also helped with the research for this Article over the past four years. At CUNY Law School, I was helped by Phillip Avello, Vilma Camargo, Rachel Sibley and Susan Sharbach. Here at WCL, I was assisted by Jan Albert, David Carlin and Lydia Brashear. Special thanks go to David Gallup, whose persistence and dedication in finding obscure sources was unmatched. I owe much of my sustained enthusiasm for Latin American legal systems to Professor Alejandro Garro at Columbia, who has mentored many North Americans seeking knowledge of the South American context. Finally, I have nothing but gratitude and admiration for those Nicaraguan judges, lawyers, and academics across the full political range who gave unstintingly of their time and energy in explaining their country's struggle to me. A passing invitation from Supreme Court Justice Rafael Chamorro Mora turned into a five-year odyssey of personal and professional growth. 270 INTER-AMERICAN LAW REVIEW [Vol. 23:2 C. The Historical Structure of the Courts: La Ley Orgdnica de Tribunales de 1894 .............................................. 286 D. The Design of Criminal Process: El C6digo de Instrucci6n Criminal de 18 79 .........................:. ................................ 2 8 7 1. T he Instruction ...................... ....... ............... 288 a. Starting the Process: The Key Role of the Court .......... 288 b. The Role of the Defendant-The Right to Counsel, Bail, Con- fession, Search and Seizure, and Identification ............. 290 c. The Role of the Victim: The Private Action ............... 296 d. The Passive Role of the Prosecutor ....................... 298 2. T he P len ary ................................................ 299 3. Ju ry T rial .................................... .............. 30 2 4. Senten cing ................................................. 304 5. Appeals and Extraordinary W rits ............................. 305 6. T im e L im its ................................................ 306 7. Evidence and Burdens of Proof .............................. 307 a. M easured Proof ........................................ 308 b. Burdens of Proof: The Cuerpo del Delito, the Auto de Pri- si6n, and the Determination of Guilt or Innocence ......... 310 E. The Ideological Premises of the Historical Civil Law Criminal Process 313 III. CRIMINAL JUSTICE IN PRACTICE IN THE YEARS PRIOR TO THE 1979 REVOLUTION 317 IV. POST-REVOLUTIONARY REFORMS ........................................ 323 A. Conflicting Conceptual Values in the Evolution of the New Legality: Revolutionary Justice and the Rule of Law ........................ 326 B. " The Devastation of the Contra War and the Need for States of Emer- g e n cy .......................................................... 3 3 1 C. Early Structural Changes in Legal Institutions .................... 334 1. Mass Organizations: The Role of the Sandinista Defense Commit- tees and Women's Organizations in Crime Control ............. 334 2. The Legal Profession and Popular Education in the Law Schools 337 3. State Security and the Military Courts ........................ 341 D. An Abandoned Attempt at Comprehensive Reform of Criminal Proce- dure: The Region IV Pilot Plan of 1984 ........................... 344 E. The Constitution of 1987: An Integrated Structure and Aggravated Conflicts with the Code of Criminal Procedure..................... 346 F. Major Post-RevolutionaryLegal Reforms in Criminal Justice ....... 350 1991-92] NICARAGUAN CRIMINAL JUSTICE 271 1. Reorganization of the Judicial Branch: Normal and Special Crimi- n al Cou rts ................................................. 350 2. Initial Screening by Instructing Police Chiefs of Cases Involving Detained Defendants .................... ............... 355 3. Consolidation of Prosecutorial Screening and Investigation Powers in the Procurator General's Office ............................ 357 4. Abolition of the Jury Trial ....... ......................... 359 5. The Sana Critica Evidentiary Standard and New Burdens of P roo f ...................................................... 3 5 9 6. Protection of the Accused: Procedural Rights and the Remedies of Amparo, Habeas Corpus, and Unconstitutionality.............. 361 7. Reeducation and Forgiveness: Prisons, Amnesties, and Pardons.. 364 V. THE CLASH OF THE CLASSIC AND THE MODERN ........................... 368 A. Pre-Trial Detention of the Defendant ............................. 369 B. Popular Participationin the Criminal Process ..................... 370 C. Reliance on Confessions and the Role of the Defendant in the Crimi- nal Process ............ 371 D. The Role of Defense Counsel ..................................... 373 E. Judicial Powers and the Emerging Authority of Police and Prosecu- tion ......................................... 375 VI. THE IDEOLOGY OF "MIXED" PROCESS: INTIMATIONS OF THE ADVERSARIAL M ODEL IN CIVIL AND SOCIALIST LAW ........................ ........... 377 A. Changes in Latin America: Mexico, Colombia, Argentina, and Guate- m a la ......................................... .... ..... 3 7 7 B. Changes in Europe: Italy and Spain .............................. 379 C. Changes After Perestroika in Eastern Europe and Russia .......... 380 D. The Emerging Dominance of the Adversarial Process............. 380 VII. CONCLUSION: No NEW DIRECTIONS IN THE CHAMORRO ADMINISTRATION ..... 384 I. INTRODUCTION For more than a decade, Nicaragua has been a lightning rod for intense political and legal debate in the United States. The 1979 revolutionary victory and subsequent governmental control by the Frente Sandinista de Liberaci6n Nacional (FSLN or "Sandinistas") preceded Ronald Reagan's election as President of the United States by just over a year. During the Reagan years, Nicaragua was a key component of that administration's campaign 272 INTER-AMERICAN LAW REVIEW [Vol. 23:2 against what it saw as a pure Marxist regime.' When the United States provided funding, at first covertly, to create an armed counterrevolutionary force (the "contras"), both the U.S. Congress and legal scholars questioned the legality of this intervention in Central America.2 Nicaragua received further at- tention in the U.S. legal community when it brought suit against 1. Politically, Nicaragua has assumed less importance, at least overtly, during the administration of U.S. President George Bush. Interest by non-legal academics in the changes affected by the Sandinista revolution has produced an immense literature on post-revolutionary Nicaragua which is remarkably devoid of discussion of law and legal institutions. I have found a number of books particularly helpful in deepening my own understanding of Nicaragua's historical, political, and social developments. For the best analyses of U.S. foreign policy regarding Nicaragua's relationship to the United States, see ROBERT A. PASTOR, CONDEMNED TO REPETITION: THE UNITED STATES AND NICARAGUA (1987); see also KARL BERMANN, UNDER THE BIG STICK: NICARAGUA AND THE UNITED STATES SINCE 1848 (1986)(a distinctly progressive account of history, revolution, and U.S.-Nicaragua relations); GEORGE BLACK, THE GOOD NEIGHBOR: How THE UNITED STATES WROTE THE HISTORY OF CENTRAL AMERICA AND THE CARIBBEAN (1988)(a penetrating and en- tertaining expos6 of the sordid history of U.S. policy in Central America); SHIRLEY CHRIS- TIAN, NICARAGUA: REVOLUTION IN THE FAMILY (1986)(a thorough, though essentially conserva- tive, account of Nicaragua's historic and contemporary experience); RoY GUTMAN, BANANA DIPLOMACY: THE MAKING OF AMERICAN POLICY IN NICARAGUA, 1981-1987 (1988). My personal favorites in politics and society, however, are the powerful personal stories

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