Cablegate: New Criminal Code in the Balance
DE RUEHMU #0544/01 0592217
ZNR UUUUU ZZH
R 282217Z FEB 07
FM AMEMBASSY MANAGUA
TO RUEHC/SECSTATE WASHDC 9284
INFO RUEHME/AMEMBASSY MEXICO 4308
RUEHGT/AMEMBASSY GUATEMALA 2210
RUEHTG/AMEMBASSY TEGUCIGALPA 3596
RUEHSN/AMEMBASSY SAN SALVADOR 3863
RUEHBE/AMEMBASSY BELIZE 0020
RUEHSJ/AMEMBASSY SAN JOSE 4954
RUEHZP/AMEMBASSY PANAMA 1878
UNCLAS MANAGUA 000544
E.O. 12958: N/A
TAGS: EAID PGOV PREL ECON SOCI PINS SNAR NU
SUBJECT: NEW CRIMINAL CODE IN THE BALANCE
REF: MANAGUA 02426 (2006), MANAGUA 01629 (2006), MANAGUA 01530
(2006), MANAGUA 01346 (2006), MANAGUA 01156 (2006), MANAGUA 0742
1. BEGIN SUMMARY: In January 2007, the new leader of the National
Assembly's Justice Commission requested USG help to garner approval
of a draft Criminal Code, created with USAID support, which had
languished since 2001. The Embassy strongly supports passage as it
is critical to Nicaragua's investment climate, implementation of
DR-CAFTA, and its anti-trafficking in persons (TIP) efforts. In an
uncertain, new political environment, the Code would provide
improved legal infrastructure to protect trade, investment, property
and commerce for investors, both national and international. The
Mission considers the time is now to push for passage, especially
given the changed political context. If passed as drafted, the
Criminal Code would give Nicaragua one of the best substantive
criminal law structures in the region. END SUMMARY.
2. BACKGROUND: Starting in 1998, through USAID, the Embassy
facilitated a process to enlist all relevant Nicaraguan
stakeholders, including police, prosecutors, academics, and civil
society representatives to draft a new Criminal Code for Nicaragua.
Since 2001, that document has been under review by the National
Assembly. The draft Criminal Code was unanimously approved in the
Justice Commission of the National Assembly in 2003, and referred to
the plenary for a final article-by-article discussion and vote. In
2004, the Assembly passed Articles 1 to 137. In 2005, because of the
"pact," the work in the Assembly was blocked. On Feb. 23, 2006, the
Assembly unanimously passed Articles 138 to 142, and from 150 to 162
(which correspond to homicides and assaults).
3. RECENT SUPPORT FOR THE DRAFT CODE: In January 2006, the
government set up a final consultation process and asked for help.
Based on guidance from the Ambassador, USAID proposed a revalidation
process with the National Assembly, as it had been two years since
the Code had been vetted by all justice sector actors, church
groups, NGO community, law schools, etc. Nicaraguan President
Enrique Bolaos made passage of the Code a priority for 2006,
highlighting the legislation in his State of the Republic
presentation. With the Code's obvious linkages to trade and
investment, in an August 11, 2006 team meeting, the Ambassador made
support for the Code, and its passage this legislative session, a
U.S. Mission priority.
3.1. VALIDATION OF THE DRAFT CODE: Prior to 2005, there were
extensive, exhaustive consultations on the draft Code with all
relevant ministries, civil society, parties and religious
organizations. In the interim, international commitments such as the
Inter-American Convention Against Corruption and a range of
international anti-money laundering standards (such as the "40
Recommendations" and "25 money-laundering criteria" from the G-7
Financial Action Task Force - FATF), as well as U.S. legislation on
trafficking in persons, came into force. In this light, USAID
assisted the Justice Commission to validate the Code. The Commission
drafted more than 40 motions to improve and update the Criminal
Code. Twenty- five of the motions have been approved by the
National Assembly, covering critical issues such as money
laundering, anti-corruption, sex crimes and trafficking in persons.
The 2006 participatory consultation process included representatives
of the Public Ministry, the Attorney General's Office, the National
Police and the Banking Superintendent and robust lobbying by civil
society groups helped ensure adequate sentences for these crimes.
3.2 ABORTION DEBATE DERAILED PASSAGE IN 2006: Despite unanimous
bipartisan support in the National Assembly's Justice Commission, a
single provision became a hot potato during the national election
period. The proposed Code did not touch the abortion issue, leaving
prior law in place. Prior law criminalized all abortion, except
where the life of the mother was at risk. Anti-abortion activists,
supported in particular by the Catholic Church, wanted Nicaraguan
law to take a strong stand against all abortion, a stand which then
candidate Daniel Ortega adopted. This debate held up the entire
Code. In the end, the Code languished, while an amendment to
existing law passed the Assembly to criminalize all abortion.
Tragically, the debate about abortion and the politicized process on
both sides of the issue meant that crimes such as human trafficking
and money laundering did not get addressed. In the meantime, since
the elections, according to local press reports, investor confidence
has been shaken. It is time to get this legislation back on the
4. KEY PROVISIONS: The Code would criminalize theft of intellectual
property. It would improve prosecutors' ability to deal with alien
smuggling, trafficking in persons and sex crimes. The Code overhauls
and upgrades environmental crime law. It clearly sets forth
conditions for fraud, misuse of funds and other elements of the
criminal justice system prerequisite to a functioning market
economy. It fills the void on illicit campaign contributions.
Perhaps most importantly, the draft unambiguously proscribes money
laungering as an autonomous, separate crimes, regardless of whether
the source of the funds laundered arise from narcotics or other
crimes. (Loyalists to former president Arnoldo Aleman, serving a
20-year sentence for embezzlement and money laundering, tried
unsuccessfully to negotiate a draft whereby money laundering was
limited only to narcotics - that position continues to be Aleman's
defense to the charges to date).
5. NEXT STEPS: Remaining concerns include extradition to and from
Nicaragua (since this proposed Code, consistent with the
Constitution and the Criminal Procedure Code, forbids extradition of
nationals); punishment for conspiracy to engage in terrorism-related
offenses; and tolling the statute of limitations in certain cases
involving public figures who hide behind their official immunity.
These additional issues will be addressed over the coming year,
assuming the Code is passed, as complementary measures.
6. THE STAKES: CAFTA-DR is a major step toward improving the
investment climate. However, trade law requires adequate commercial
law, which in turn needs a solid civil law base. Civil law relies
very fundamentally on a criminal code responsive to modern needs.
The current Nicaraguan Code has been largely unchanged for a hundred
years. Missing this opportunity could mean a setback for addressing
the investment climate, an opportunity that may not return for
another decade, as happened in Honduras. There have been years of
investment in this Code by the Embassy country team.
The Mission considers the time is now to push for passage,
especially given the changed political context. If passed as
drafted, the Criminal Code would give Nicaragua one of the best
substantive criminal law structures in the region.
7. CONCLUSIONS: Various justice institutions have adopted the draft
Code and identify themselves with the product. In doing so, the
institutions have shown responsibility and a capacity to incorporate
practical solutions to technical proposals. At their request, USAID
provided technical assistance to the authorities entrusted with the
approval of the proposed Criminal Code. Incredibly, despite deep
political divisions in Nicaragua, the draft Code enjoys near
unanimous, multipartisan support in the Assembly. The earlier
drafting and validation processes have involved criminal justice
system actors, providing from the start an environment for the
correct implementation of the new legislation, if and when passed.
The Code would be an outstanding complement to CAFTA-DR, and could
help Nicaragua maintain its tier 2 status in the annual trafficking
in persons report.