\ I ! I I I I I \ I I I I I : I 11 RCC Impact Evaluation USAID/Nicaragua Rule of Law Programs 1998 - 2009 and Future Program Recommendations Purchase Order No. 524-0-00-10-07082-00 THIS EVALUATION REPRESENTS THE OPINIONS OF THE AUTHORS ONLY AND DOES NOT REPRESENT THE OPINION OF USAID OR THE US EMBASSY IN NICARAGUA. TABLE OF CONTENTS LIST OF ACRONYMS LIST OF FIGURES (MAPS, GRAPHS AND TABLES) EXECUTIVES~RY I. INTRODUCTION (BACKGROUND, SCOPE, OBJECTIVES) . II. DESCRIPTIONS OF PAST RULE OF LAW PROJECTS III. IMP ACT - MAIN FINDINGS !.Drafting, enactment and implementation of a new Code of Criminal Procedure. 2.Drafting and implementation of a modernized Criminal Code. 3.Creation of the Public Prosecutors Office (Public Ministry- PM). 4.Creation of the Public Defense (PDO). 5 .Strengthening of the Forensic Medicine Institute. 6.Promotion and establishment of alternative dispute resolution mechanisms. 7.Civil society advocacy and institutional strengthening. 8.Areas of assistance where impact was not achieved. IV. LESSONS LEARNED V. RECOMMENDATIONS FOR FUTURE PROGRAMING 1. Expansion and Promotion of alternative dispute mechanisms at community level 1.1. Revival, consolidation and expansion ofUSAID Support to Mediation Centers 1.2. Establishment of school mediation and conflict prevention programs 2. Support and assistance to victims of violence and crime. 2.1. Establishment ofCenters for Attention to Victims ofViolent Crimes (VACs) 2.2. Establishment of shelters for victims of domestic and sexual violence and continue support to the Forensic Medicine Institute 2.3. Promotion of better conditions for children as crime victims and witnesses 3. Expansion of Legal Assistance for the poor and disfranchised. 3.1. Strengthening and establishment of Legal Clinics at Universities (Bufetes Juridicos) and articulation of a legal assistance network to support the Public Defense. 4. Monitoring access to justice to generate future justice reforms. 4.1. Support to Law Faculty Empirical, Practical and Applied Criminal Justice Research 4.2. Support to citizens oversight projects carried out by Universities and NGOS iv vi I 1 2 3 3 8 8 10 13 15 20 21 21 23 24 24 24 25 25 26 27 28 28 28 28 28 ii 5. Development Legal Education programs and campaigns to promote access to justice. 6. Support for the upgrade of the Legal Profession (Optional) ANNEX 1. List of persons interviewed ANNEX 2. Bibliography ANNEX 3. Survey of Mediation Centers with results ANNEX 4. Universities members of CO NADER iii 29 29 32 35 37 42 LIST OF ACRONYMS ADR: Alternative Dispute Resolution AJDN: Nicaraguan Democratic Jurists Association (Asociaci6n de Juristas Democraticos de Nicaragua) BICU: Bluefields Indian and Caribbean University. CACONIC: Nicaraguan Chamber of Commerce CCP: Code of Criminal Procedures CEPLAES: Center for Planning and Social Studies CINCO: Communication Research Center (Centro de Investigaciones de Ia Comunicaci6n) CMNA: National Police Offices for Attention to Women and Children (Comisarias de Ia Mujer, Ia Niiiez y Ia Adolescencia) CONADER: National Commission ofLaw School Deans. CPC: Citizens' Participation Committees. CPDH: Human Rights Permanent Commission. CRMP: Nicaraguan Code Reform and Modernization Project CSOs: Civil Society Organizations DIRAC: Alternative Dispute Resolution Directorate at the Nicaraguan Judiciary. FIU/CAJ: Florida International University, Center for the Administration of Justice. FMI: Forensic Medicine Institute FSLN: Sandinista Front for National Liberation GON: Government of Nicaragua IADB: Inter-American Development Bank. ICNL: International Center for Non-Profit Law. IP ADE: Institute for Development and Democracy (lnstituto para el Desarrollo y Ia Democracia). ISP: Institutional Strengthening Project. JF: Justice Facilitator. JUDENIC: Nicaraguan Democratic Youth (Juventud Democratica Nicaraguense). LAPOP: Latin American Public Opinion Project. MSI: Management Sciences International. NITC: National Inter-Institutional Technical Criminal Justice Commission. OPJ: Permanent Organization for Justice (Organizaci6n Permanente porIa Justicia). PDA: Public Defense Auxiliaries Program. PDO: Public Defense Office. PM: Public Prosecutors Office, (Public Ministry). RAAN: North Atlantic Autonomous Region. RAAS: South Atlantic Autonomous Region. RCC: Rivera-Cira Consulting, Inc. ROL: Rule of Law. ROLHR: Strengthened Rule of Law and Respect for Human Rights Project. TA: Technical assistance VAOs: Victims' Assistance Offices. V ACs: Victims' Attention Centers. UAM: American University ( Universidad Americana). UAP: Public Defense Customers Attention Office in Managua. iv UCAN: Autonomous Christian University ofNicaragua (Universidad Cristiana Aut6noma de Nicaragua). UCC: Commercial Sciences University (Universidad de Ciencias Comerciales). UCN: Central University ofNicaragua (Universidad Central de Nicaragua) UENIC: Evangelical University ofNicaragua (Universidad Evangelica de Nicaragua) UNAN: National Autonomous University ofNicaragua (Universidad Nacional Aut6noma de Nicaragua) UNICA: Catholic University of Nicaragua (Universidad Cat6/ica de Nicaragua) UNICEF: United Nation International Children's Emergency Fund. UNDP: United Nations Development Program. UPOLI: Polytechnic University of Nicaragua (Universidad Politecnica de Nicaragua). USAID: United States Agency for International Development. v LIST OF FIGURES (MAPS, GRAPHS AND TABLES) Figure 1. Population perception of Citizens Participation Committees Figure 2. Clearance Rates Comparison- Criminal Instruction Code and Criminal 5 Procedures Code Figure 3. Backlogs - Criminal Instruction Code 2000-2004 and Criminal Procedures 5 Code 2003-2009 Figure 4. Annual New Cases and Comparative Averages: Criminal Instruction Code 6 (2000-2004) and Criminal Procedures Code (2003-2009) Figure 5. Confidence that justice system will punish the criminal 7 Figure 6. Percentage of Pre-Trial Detainees and Prison Population in Central America 7 (2008) Figure 7. Prosecutors per 100,000 Persons in Latin America (2008-2010) Figure 8. Comparison of Public Defenders and Prosecutors in Latin America (2008- 2010) Figure 9. Distribution of family law cases received by PDO in Managua by subject (2009) 9 10 12 Figure 10. Distribution ofPDO Cases by Area (1999-2009) 12 Figure 11. FMI Offices in Nicaragua 13 Figure 12. Forensic Medicine Institute Caseload 1999-2009 14 Figure 13. FMI Categories- Violent Crime Victim Examinations (2009) 14 Figure 14. FMI Domestic Violence Examinations and Numbers per 100,000 (2009) 15 Figure 15. Community Mediation Center Locations (2009) 16 Figure 16. Mediators and Auxiliary Personnel per Mediation Center (July 2010) 17 Figure 17. Cases Received and Agreements Signed at Mediation Centers (2007 -201 0) 18 Figure 18. Average Cases Received by Month and Average with Agreements Reached 19 vi EXECUTIVE SUMMARY Rivera-Cira Consulting Inc. has carried out an evaluation of the Rule of Law (ROL) Programs implemented in Nicaragua between 1998 and 2009 by the United States Agency for International Development (USAID). Three ROL projects, with US$23,886,320 total funding were implemented from January 1999 to July 2009. •Nicaraguan Code Reform and Modernization Project (CRMP) (January 1999 - July 2005), $6,551,002, implemented by the Center for the Administration of Justice of Florida International University (FIU/CAJ). The central task of CRMP was to assist Nicaragua to draft, enact and implement laws to modernize the criminal justice system. • Institutional Strengthening Project (ISP) (March 1999- January 2005), $5,535,000, implemented by Checchi and Company Consulting, Inc. This project parallel to CRMP sought to establish and strengthen two completely new justice organizations; a nationwide public defense system to provide indigent accused the right to counsel, and to strengthen the Attorney General's Office to ensure more effective criminal investigation and prosecution. The structuring and effective operation of these two entities was vitally important for the success of the new accusatorial criminal investigation and trial system. • Strengthened Rule of Law and Respect for Human Rights (ROLHR) (April2005-July 2009), $11,805,318, implemented by Checchi and Company Consulting, Inc. This project continued criminal procedures reform implementation support. It sought to strengthen justice and related institutions to implement reforms (Judiciary, Prosecutors, Public Defense, Forensic Medicine Institute, and the National Inter-Institutional Technical Criminal Justice Commission- NITC), and to increase access to justice and foster greater civil society involvement in justice reform. Throughout implementation of the USAID ROL projects, persistent difficulties due to political influence in the Judiciary were evident, causing the termination of direct US AID assistance to the Judiciary since 2003. Political interference with the Public Ministry (Prosecutors) also forced termination of assistance to this organization. In 2008 all assistance to public sector justice entities was cut and all assistance directed to civil society organizations. This impact evaluation has taken into consideration the continuing difficult political environment in which the ROL projects were implemented, as well as the general lack of reliable statistics. I. IMPACTS- MAIN FINDINGS All persons interviewed, regardless of political affiliation, recognized the magnitude and pivotal importance of the USAID contribution to Rule of Law in the past decade. US AID increased respect for human rights and created effective new criminal justice legal structures and agencies whose operational methods have inspired movements for modernization and justice reform in civil and labor law. 1. Enactment and Implementation of the Nicaraguan Code of Criminal Procedure (CCP). All persons interviewed see this achievement as the most significant success of the US AID ROL assistance. This is a very radical reform that replaced a rigid and archaic written inquisitorial criminal procedure from 1879 with a modem accusatorial system based on oral hearings and a range of discretional remedies. For CCP drafting and implementation, USAID applied best implementation practices and drew on highly experienced and respected regional experts. USAID promoted intensive justice operators training prior to the entry into force of the new Code. A proven key to successful CCP implementation was the creation of a high level commission to promote and facilitate the reforms. The National Inter-Institutional Technical Criminal Justice Commission (NITC) supported all project related activities towards enacting the CCP and later, the Criminal Code. USAID ROL projects also drew law faculties and civil society into the reform effort. I I I The clearance rate (number of resolved cases as a percentage of the incoming cases), a measure of how courts are handle the incoming caseload, has increased by 14%, comparing 2000-2004 numbers under the Criminal Instruction Code, and 2003-2009 numbers under the Criminal Procedures Code. The case backlog percentage (cases pending disposition) under the CCP appears less than under the old Code. From 2000- 2004, cases pending at year's end were 43% of incoming cases. From 2003 to 2009, this percentage decreased to 28%. Another important aspect is the small number of pre-trial detainees (21% of those persons in prison). There has been a significant reduction of incoming cases in the Judiciary. From 2000 to 2004 under the old code, an annual average of74,713 came to the Judiciary, but from 2004 to 2009, under the CCP only an annual average of31,302 came before judges, a 58% decline. These numbers require further analysis to determine if they reflect a positive or a negative impact on criminal justice. This decline could mean that prosecutors now resolve many cases via CCP alternative measures; on the other hand, it could mean that many cases are improperly investigated or that the National Police and Public Prosecutors have accumulated large backlogs. Inconsistencies in 2009 statistics from Police, PM and Judiciary do not allow adequate interpretation, nevertheless, an enormous number of crimes ( 65%) in 2009 stayed pending in the Police. In all RCC consultant interviews, there was general consensus that criminal justice under the new CCP has some problems, but works substantially better under the new criminal procedures, except when politicians or the wealthy are the accused, when the Judicial lack of political independence affects the outcomes. 2. Drafting and implementation of a Criminal Code. After the CCP approval, the drafting and implementation of a new Criminal Code was fundamental to complete the criminal reform. The new code incorporated important provisions affecting women, financial crimes, sexual crimes, terrorism, trafficking in persons and environmental crimes, among others. Importantly, it modernizes the concept of conspiracy under Nicaraguan law, which will greatly facilitate the trial of organized crime cases. For Criminal Code implementation, USAID, through the NITC, assisted in the design of a "training of trainers" methodology, and in development of training materials. 3. Creation of the Public Prosecutors Office (Public Ministry- PM). The Public Prosecutors Office, (Public Ministry - PM) began in 2002 as the primary criminal prosecution entity, leading to a realignment of roles and responsibilities. USAID assisted the PM to become an autonomous institution and helped create specialized crime units: Anti-Corruption; Environmental; Women and Gender Violence; and Juvenile; and a strengthened Organized Crime Unit. These, the PM's only specialized units, continue to work, but with very limited personnel. USAID also assisted the PM to open two Victims' Assistance Offices (VAOs) in Managua and Juigalpa, Chontales. Budget shortages limit each VAO to a single staff person, and they lack the planned multidisciplinary teams to assist crime victims. Another very important result ofUSAID assistance was the 2006 passage of the Prosecutor Career Law. Currently, there are five prosecutors for each 100,000 persons in Nicaragua, slightly below the regional average of six per 100,000. The PM Secretary General asserts that most have been selected by merit. This was one of the conditions of the USAID assistance. In 2009, according to the PM statistics, the institution received 47,123 cases from the Police and resolved 75% ofthem. Building PM personnel's prosecutorial skills was a key USAID strategy element. ROLHR's 70 courses for prosecutors, auxiliary prosecutors and assistant prosecutors in basic criminal law, money laundering, the oral system, and preparation of accusations benefited over 275 persons. The PM has not been supported by other donors and the Secretary General expressed gratitude for USAID support, stating, "USAID helped us very much; its assistance was critical to establish this organization and its training has been the best we ever had". II 4. Creation of the Public Defense (PDO). An adversarial balance between the institutions advocating for the State's interests and those of the accused is essential to a new accusatory criminal trial system's success. Toward this goal, USAID supported national expansion of the Nicaraguan PDO. From a pilot project in Managua with 12 public defenders, it has grown to 201, who are in 17 Department capitals, the RAAS and 84 municipalities, leaving 67 municipalities still unserved. There are three (3) public defenders per 100,000 people, slightly under the Latin American average of four (4). USAID created an incentive of a training and equipment package to the PDQ for each defender position or office, spurring the Court to carry out merit based competition. Today, most USAID trained public defenders remain in the organization. USAID-donated equipment and infrastructure boosted PDQ operations, including a pilot Users Attention Office (UAP) in Managua that has greatly improved PDQ case reception, distribution, and processing capacities. Until2009, USAID supported PDO automated case tracking system expansion (SEGEX) to increase PDQ efficiency and improve statistics. USAID also backed the PDQ to create the Public Defense Auxiliaries (PDAs ). Agreements with eight law schools allow students to support defenders in Managua, Leon, Esteli, Chinandega, Rivas and Boaco. The PDA Program currently has 70 student auxiliaries. As of December 2009, the PDQ had received 117,366 cases. PDQ intake increased from 783 in 1999 to 23,216 cases in 2009. 80% are criminal matters, but since 2003, family cases (17%) have notably increased. In Managua, per the Spanish Cooperation Agency, most family law cases are requests for assistance in child support ( 61%) and divorce matters (22% ). PDO handling of so many family cases highlights the general vacuum of legal assistance for the poor in Nicaragua, but is cause for concern, since public defender numbers are still low and 67 municipalities still have none. Public defenders' priority should be criminal defense of indigent or poor accused, especially if the person is imprisoned awaiting trial or other disposition. Expansion ofPDO services beyond criminal cases is part of current PDQ strategy. Implications should be considered to avoid PDO criminal defense services dilution by slow transformation into a general legal assistance clinic. During the RCC consultants' visit, the PDO Deputy Director several times expressed her gratitude for USAID assistance and for how much it helped to organize and sustain the PDO. She also praised the infrastructure, the equipment, the training and the high quality technical assistance provided. 5. Strengthening the Forensic Medicine Institute. When USAID support began, only two of the forty Supreme Court-appointed forensic doctors held forensic medicine degrees. In 2007, USAID completed Nicaragua's first forensic medicine graduate degree program. Fifty-three doctors were trained and accredited in forensic medicine. USAID also conducted extensive training for FMI medical professionals and 100 Ministry of Health doctors, who perform forensic exams absent FMI units. All were trained in forensic medicine, forensic anthropology, and domestic violence and sexual crime evidence presentation. · USAID donated extensive forensic investigation and information technology equipment, including a vehicle, computers, and equipment that facilitates examination of women sexual crime victims. Training in new investigation techniques, in particular DNA analysis and new scientific analysis methods in forensic investigations of sexual abuse cases accompanied the equipment donation. The FMI Director highly praised USAID assistance in training, technical assistance and materials. The FMI caseload has increased dramatically (89%) from 34,800 cases in 1999 to 65,552 cases in 2009, for a total of 595,892 in the decade. Most cases (89%) are examinations of living victims. Postmortem exams are only 3o/o of cases. The numbers confirm FMI deals overwhelmingly with living crime victims. In 2009 of 59,300 such examinations, 83.4% were of violence victims. Domestic violence examination numbers are worrisome, steadily increasing at 3% per year since 2005. The 11,313 domestic violence exams that FMI performed in 2009, divided by Nicaraguan population, yield 197 exams per 100,000 people. More Ill .I frighteningly, reported cases are estimated to be only 10% ofthe real numbers. FMI is alarmed and considers this an extremely problem for Nicaragua that requires urgent attention and more serious studies. 6. Promotion of Alternative Dispute Resolution (ADR) Mechanisms. Principal objectives for the USAID ROLHR mediation component were to increase mediation centers, trained and certified mediators and increase ADR use in creating a culture of peace. In 2006, USAID inaugurated Nicaragua's first commercial arbitration center with CACONIC. A second arbitration center at the American Chamber of Commerce merged with the CACONIC center (through July 2010, this center had conducted only four (4) mediations and received 20 requests). To promote community mediation services and ADR use, USAID also assisted CSOs and DIRAC to establish and accredit 20 community mediation centers nationwide. In July 2010, RCC conducted a focus group and a survey of the community mediation centers. The main findings were: • Those centers backed by established entities (universities, church) have survived better. The best and most established were at the UCA in Managua and the UNAN in Leon that were already established before the US AID assistance, and are attached to university legal clinics ( bufetes jurtdicos). • The centers in Bonanza, San Carlos-Rio San Juan and UNICA Managua have disappeared and those in Carazo and Pueblo Indigena de Sebaco are nearly non-operational. • Some centers (Estell, and three DIRAC centers in Managua) at the end ofUSAID support, were only able to maintain a single permanent staff person and had to let the project supported secretary go. • At ROLHR end in July 2009, most centers had only operated for a year or less and were not ready to be sustainable. The user fee payment system has not given good results in centers that installed the policy. Though small, fees are very high for the clientele, and cases handled have dramatically declined. Sustainability by fee collection alone is not feasible at this moment. The CACONIC/ AmCham is the only center that has obtained resources from other international donors (lAD B). • In spite of the problems, since 2007, the 16 USAID supported centers that returned the RCC survey received 33,225 cases and obtained 20,761 agreements (62% of received cases). In descending order, cases were: family, misdemeanors, small commercial matters, debts, and property and land disputes. Their monitoring systems indicated 70-75% compliance averages for agreements reached. Currently the surveyed centers receive a monthly average of 48 cases. Centers with more clients do not charge fees. • From 2005-2009, USAID funded training of 489 Justice Facilitators recruited by 20 CSOs, led by the Human Rights Permanent Committee (CPDH), to be legal educators; provide community justice orientation; accompany disadvantaged persons in judicial matters; and promote ADR by conducting mediation in rural or marginal urban communities. These JFs were to link with USAID supported mediation centers, which were to review and register JF mediation agreements. After ROLHR ended, JFs were not monitored and their current status and activities could not be learned. Recovery of these hundreds of trained JFs as mediation extension agents should be examined in any future ROL project. 7. Civil Society Advocacy and Institutional Strengthening. From 2005-2009 USAID provided resources to increase the CSO capacity to advocate for justice reform and respect for human rights. In July 2010, despite past support ofUSAID and other donors, Nicaraguan CSO's are weak and have serious funding limitations, with exception of some old and well-established universities. Very few CSOs work in the justice sector and those that do have little capacity to undertake technical analysis and performance monitoring. USAID ROLHR technical assistance and grants provided to strengthen CSOs and form coalitions has been IV seriously derailed by the present GON attacks against CSOs that criticize or oppose government policies. If CSOs publicly oppose the GON, it retaliates. Since ROLHR closure in July 2009, CSOs have had no grants available for justice advocacy activities. All CSOs interviewed highly praised the USAID ROLHR technical and financial support, but agreed that their active justice advocacy efforts have ended for lack of financing. II. RECOMMENDATIONS FOR FUTURE PROGRAMING The increasing politicization and polarization of some justice sector institutions; mainly the Judiciary and the current US-Nicaraguan relationship may not permit implementation of a traditional ROL of Law project. Nevertheless, since USAID has invested $23,886,320 in the last decade in mostly successful ROL projects that have produced a significant impact, it is important to consider new support to programmatic areas that preserve and continue justice reform. Accordingly, RCC recommends that USAID to define a strategy directed to preserve and expand access to justice for the poor and disenfranchised, accompanied by a strong monitoring and evaluation plan to measure results, that will require intensive work with universities, church organizations and NGOs and very limited coordination with the Judiciary. The proposed strategy has five lines of action to promote access and one additional option to upgrade the nation's legal profession. 1. EXPANSION AND PROMOTION OF COMMUNITY LEVEL ALTERNATIVE DISPUTE MECHANISMS. 1.1. Revival, consolidation and expansion of USAID Support to Mediation Centers. It is strongly recommended that USAID immediately re-establish and renew support for the strongest of the twenty mediation centers begun and supported under ROLHR in 2007-2009. Mediation Centers were a recognized and significant success of the prior USAID ROL program. They provided a new and important community service and diverted 33,000 cases from entering the courts. Those best able to benefit from renewed support and attain eventual full sustainability are connected to a larger supporting organization, such as a university law faculty legal clinic, a Catholic Church institution, or other entity that has embraced mediation services to the public as part of its larger mission. With US$1500 a month, these Centers can effectively function in their communities and can provide free services. Of the existing Centers, early support should go to the fourteen (14) that have retained important service levels despite difficult financial circumstances (UNAN-Leon, the three BICU Centers, the three DIRAC centers, UCA, Esteli, Caritas Granada, UNIV ALLE, Chinandega, Chontales (Juigalpa) and Mozonte). The situation of the minimally operating Centers in Jinotega, Sebaco and Carazo must be carefully analyzed. RCC's preliminary impression is these will require restructuring, new election of directors and in the cases of Jinotega and Carazo, linking to a university or church institution. The commercial center (CACONIC/AmCham) does not need further support because it has financing by the IADB. 1.2. Establishment of School Mediation and Conflict Prevention Programs. The persistently high levels of violence that exist in Nicaragua should make violence prevention and promotion of a culture of peace a primary target of intervention. USAID' s new Municipal Development Project could begin to apply the extensive experience in this field. The logic of an early start with children in community and school settings to create habits and train in methods of conflict prevention, avoidance and resolution is compelling. The near term opportunity to begin pilot conflict prevention projects via the Municipal Development Project should not be missed. Leadership training in conciliation and mediation for youth, coupled with the creation of formal conflict resolution by students in middle and secondary schools has paid dividends in many other countries. Argentina, Colombia, Puerto Rico and others in the region have carried out successful programs. v 2. SUPPORT AND ASSISTANCE TO VICTIMS OF VIOLENCE AND CRIME. 2.1. Establishment of Centers for Attention to Violent Crime Victims (V ACs). All information gathered confrrms that violence, and particularly violence against women and children is an enormous, endemic, and growing problem in Nicaragua. There are no integrated crime victim attention centers in Nicaragua and the Public Ministry Victims' Assistance Offices (V AOs) in Managua and Juigalpa have only one staff person each. Victims of domestic violent crimes, according to the FMI, are mostly women. The alarming levels of violence against women and children must be forcefully counteracted and the victims provided personal assistance and legal aid and protection from further harm. USAID and other donors should support the systematic establishment of centers for attention to crime victims throughout Nicaragua. An ideal V AC positioning would be as a specialized unit attached to the legal assistance clinic of a university law faculty (Bufetes Juridicos). The V ACs should be multi-disciplinary and provide legal, medical, psychological and protective services to crime victims. VACs set up in universities could draw on medicine, psychology, social work and law faculties for staff, and could draw on students of all these disciplines who could perform their required six months of social service by working the required hours in the VAC. RCC recommends starting these VACs in three pilot projects, one at the UNAN-Leon, one at UCA-Managua and one in BICU-Bluefields, to assess how they function for further implementation elsewhere. Officials of these three universities indicated that pilot V ACs could work in these places with USAID initial financing. 2.2. Establishment of shelters for domestic and sexual violence victims and renewed support to the Forensic Medicine Institute. In addition to the Victims Attention Centers recommended above, RCC recommends additional program support for shelters for women victims of violence and intimidation. Such places of refuge and protection are urgently needed and almost entirely absent in Nicaragua. Some donors have supported these. Need is great and the supply is very small. RCC suggests that USAID and other donors place heavy emphasis and major investments in alternative ways to respond to family, sexual and gender based violence. A network of non-government Victims Attention Centers and Women's Shelters is an option that would fill an important need and is unlikely to be opposed. As a key part of the effort for domestic violence victims, US AID should consider revival of support to FMI. This entity plays a vital part providing evidence in all domestic cases and conducts the only serious statistical analysis. FMI needs to improve services in areas out of the main cities and basic equipment to evaluate victims of domestic violence and sexual crimes in private is required in several locations. 2.3. Promotion of Better conditions for children as crime victims and witnesses. To impact another major societal problem, USAID should consider support for specialized services to treat minors as victims and witnesses. Prosecuting cases involving minors as victims or witnesses is a major Nicaraguan justice system problem. Children usually are being interviewed by prosecutors and testifying before judges untrained in dealing with the emotional needs of minor children or their fears in such situations. The lack of such specialized attention to victimized children contributes to justice system failure to respond adequately and correctly to cases where a child is a crime victim or witness. Police, prosecutors and judges need specific training in this area. RCC highly recommends USAID explore the establishment of a pilot program in this area working with universities and NGOs focused on children's needs such as Casa Alianza. VI 3. EXPANSION OF LEGAL ASSISTANCE FOR THE POOR AND DISENFRANCHISED. 3.1. Strengthening and Establishment of University Legal Clinics (Bufetes Juridicos) and articulation of a legal assistance network in support of the Public Defense. During interviews, RCC found that few law faculties have legal clinics. The best and most established seem to be UNAN-Leon and UCA but they could do much more with donor funding. Other universities indicated their wish and readiness to open legal clinics, but financial limitations have stopped them. USAID should explore support to universities that with an initial financial push could open these clinics and offer legal assistance to poor and low-income persons. Legal clinics, mediation centers and the PDQ should form an access to justice network or clearinghouse uniting efforts in their communities. Increasing demand on the PDO for non￾criminal legal services implies a large unmet legal assistance need for poor people that cannot pay a lawyer. Further training assistance to the PDQ should also be considered, as well as institutional strengthening to operate the network. 4. MONITORING ACCESS TO JUSTICE TO GENERATE FUTURE JUSTICE REFORMS. 4.1. Support to Law Faculty Empirical, Practical and Applied Criminal Justice Research. University law faculties afford the central opportunity to provide motivated human resources for practical research in justice system functions, and for assessment and development of programs and proposals for reform. USAID should explore the funding of a variety of law faculty based research projects that would focus on criminal case tracking and empirical analysis of criminal judicial decisions to produce reform recommendations. Several assessments based on practical information are necessary to build a true measure of criminal system performance. Surveys of judges, prosecutors, police, public defenders, defendants, victims and lawyers are necessary to detect problematic areas and provide remedies. Statistics must be better collected and analyzed. Case studies on the implementation of alternative mechanisms by prosecutors are urgent, as well as analysis of criminal case disposition methods used by the police. Universities can establish alliances with NITC to determine areas where research is necessary to identify the real causes of problems. In RCC meetings with individual law deans, and in the RCC universities focus group, they assured they can and want to conduct these studies, have the necessary human resources, but lack only the funds. 4.2. Support To Citizens Oversight Projects Carried Out By Universities And NGOs. Vigilant citizens are the best monitors for justice systems. In other countries, observatories and oversight projects focusing on specific aspects of justice system operations have proven a useful vehicle for detecting operational problems and motivating and pressuring justice operators for improvement. Established observatories in UNAN-Leon and BICU-Bluefields are ongoing efforts ready to be strengthened. CSO Justice Oversight projects in other countries have been a successful way to involve civil society in normal monitoring of justice agency performance, building citizen trust injustice institutions, and achieving improvements. A guide to CSOs to carry out such projects should be developed. 5. DEVELOPMENT OF LEGAL EDUCATION PROGRAMS AND CAMPAIGNS TO PROMOTE ACCESS TO JUSTICE Mediation Center services, poor defendant assistance by PDQ and legal assistance at Bufetes Juridicos must be widely advertised. It is important to develop key messages to guide the public on these services and on the institutional and legal framework for access to justice. This work should be closely coordinated with NGO's, universities, and local communities and governments. Colloquial language and songs (recorded VII using popular musical styles) can be composed to describe justice institutions, mediation centers and Bufetes Jurfdicos and how to access services. Besides songs, posters and brochures, 30-minute pre￾recorded radio programs for replay have been effective. Campaign products must be distributed among all the universities, NGOS, and local governments supported by USAID and made available to the GON and the entire donor community. 6. LIMITED AND TARGETED SUPPORT TO UPGRADE THE LEGAL PROFESSION (OPTIONAL). The Nicaraguan legal profession is plainly at a low point in terms of public confidence and respect. A draft law pending National Assembly consideration since 2005 would create the College of Lawyers and Notaries of Nicaragua. The NACJ will take it up on the August legislative session agenda. Unfortunately, a review of the draft leaves a clear impression that the proposed entity would quickly mirror the country's polarization. While the present legislative option is of doubtful utility, there is an urgent need to begin to address issues of lawyer competence and ethical standards. To establish a beachhead, RCC recommends USAID consider support for establishment of a voluntary lawyers association that would provide the equivalent of "board certification" for qualifying attorneys, with annual continuing requirements to retain membership and certification. The group composition would be based upon: 1) A minimum five years of practice, 2) proven professional competence and clean personal record, 2) adherence to a code of professional ethics and conduct, 3) successful completion of an examination of professional knowledge and skills regularly administered by the association, akin to a bar exam or specialization exam, and, 4) annual required continuing legal education hours. The organization could begin with a small founding committee and eventually be sustained by the annual member dues and examination fees. Initial funds would be for start up and organizing efforts, preparation of membership exams, and development of a code of professional ethics and conduct. Members would be authorized to display the association's annual certification and publicize their membership. The idea was raised in the RCC law deans' focus group and generally met with approval and interest. VIII I. INTRODUCTION (BACKGROUND, SCOPE, OBJECTIVES) On June 20, 2010, Rivera-Cira Consulting, Inc. (RCC) signed a purchase order with the United States Agency for International Development (USAID) to carry out an impact evaluation of the Rule of Law (ROL) Programs implemented in Nicaragua between 1998 and 2009. RCC' s consultants, Tirza Rivera-Cira and Carl A. Cira were assigned to this task. There were three projects for a total ofUS$23,886,320 that ran from January 1999 to July 2009. The projects and their implementers were: •Nicaraguan Code Reform and Modernization Project (CRMP) (January 1999- July 2005), $6,551,002, implemented by the Center for the Administration of Justice of Florida International University (FIU/CAJ). •Institutional Strengthening Project (ISP) (March 1999- January 2005), $5,535,000, implemented by Checchi and Company Consulting, Inc. •Strengthened Rule of Law and Respect for Human Rights (ROLHR) (April 2005-July 2009), $11,805,318, implemented by Checchi and Company Consulting, Inc. During this period Nicaragua went through three administrations, Arnoldo Aleman (Jan. 1997-Jan. 2002), . Enrique Bolanos (Jan. 2002- Jan. 2007) and Daniel Ortega (Jan. 2007 to date). Since the election of Ortega and the Sandinista National Liberation Front (FSLN) there has been a radical and insistent shift to anti-neoliberal, populist policies along the lines of the Hugo Chavez "populist revolution" in Venezuela. The influence of significant "off the books" Venezuelan funding 1 to Daniel Ortega (via the resale ofVenezuelan oil) that is channeled to the FSLN for political organization through "Comites de Participaci6n Ciudadana" (CPC) has fueled an ongoing Sandinista effort to gain full control of the country through manipulation and intimidation of political opponents and civil society organizations. The CPCs and their "shock forces" are a recreation of the first Ortega Administration's "Turbas Sandinistas". The apparent widespread and open fraud in the November 2008 municipal elections, accompanied by an upsurge of FSLN violence against opponents and the persistent Sandinista effort to legitimize the potential reelection of Ortega in 2011 have created constant political turmoil and seriously affected the political balance. The CPCs, according to the 2008 Report on the Political Culture of Democracy in Nicaragua by the Latin American Public Opinion Project (LAPOP) are visualized by 38% of those interviewed as a mechanism to keep an eye on the citizens and to promote FSLN control. Figure 1: Perception of Citizens Participation Committees Mechanism to keep an eye on cittzens; 17" Promote clttzens parttdpatlon; 34% Facilitate decentralization of power; 7" Source: Americas Barometer - Latin American Public Opinion Project (LAPOP), www.LapopSurveys.org, Political Culture ofDemocracy in Nicaragua, 2008 Throughout implementation of the USAID ROL projects, persistent difficulties due to Sandinista influence in the Judiciary were evident, causing the termination of direct USAID assistance to the Judiciary since 2003. Political polarization in the Supreme Court has worsened in the Ortega administration. In April 2010, three Supreme Court members' terms expired, with the National Assembly having neither renamed nor replaced them. These vacancies are part of a larger problem of 25 vacant positions, including openings on the highly politicized Supreme Electoral Council. In response, Ortega issued a presidential decree purporting to 1 Annual total alleged to be US$300,000,000. Chamorro, Carlos F., Nicaragua after the electoral fraud: The future outlook, Inter￾American Dialogue, Washington DC, June 3, 2009. p.3 http://www.thedialogue.org/ 1 reappoint the judges whose terms expired. Government opponents denounced the presidential decree as unconstitutional since the power to appoint these authorities can only be exercised by the National Assembly. In the 2008 LAPOP report cited above, 72.9% ofNicaraguans polled supported democracy, but only 38.6% believed in the political legitimacy of institutions, and the courts were the institution where most perceived the need to pay bribes (13.3o/o/. Nevertheless, the general perception of corruption (74%) places Nicaragua in the middle range in the region. Lowest is Uruguay (63.1 o/o) and the highest, Jamaica (85.6%). In accordance with the USAID assignment, the RCC consultants have completed an impact evaluation of the ROL USAID projects from 1998 to 2009. RCC observations, conclusions and recommendations to US AID for possible future programming in the area follow below. This impact evaluation has considered the continuing difficult political environment in which the ROL projects had to be implemented, as well as the lack of available and reliable statistical information. Due to the current political environment, RCC consultants could not meet with the provisional President of the Supreme Court and the Prosecutor General. Contacts with the Judiciary and Prosecutors were limited to officials in middle level positions. The findings ofthis report are based on the opinions of more than 50 persons with whom the consultants met (Annex 1 ). The consultants, Carl A. Cira and Tirza Rivera-Cira, also drew upon two focus groups, one with nine (9) deans of law faculties and the other with thirteen (13) mediation center representatives. A survey (Annex 3) was also applied to the community mediation centers established with USAID funding. II. DESCRIPTIONS OF PAST ROL PROJECTS The central task of the US AID CRMP was to assist Nicaragua to draft, enact and implement laws to modernize the criminal justice system. These were the Code of Criminal Procedures (CCP), the ~riminal Code, the Administrative Code, the Public Ministry Organization Law (Public Prosecutors), and the Judicial Organization Law that authorized Nicaragua's first national Public Defender's Office (PDQ). By October 2003 the CRMP had fully met its legislative objectives in enactment of the Administrative Code3 , the Judicial Organization Law and the Criminal Procedure Code. The CCP was enacted in 2002, and the CRMP then lent extensive support to ensure effective implementation in the courts handling serious crimes. FIU developed a strategy to generate support for the reform and to overcome strong opposition, relying on transparency, consensus building and educational campaigns. Following enactment of this seminal legislation, the CRMP provided extensive training in the specific application of the new system and developed a "training of trainers" multiplier approach, with law professors receiving intensive training in the theoretical bases and specific provisions of the new system. Unfortunately, on December 1, 2003, US AID issued a Partial Stop Work Order, abruptly prohibiting FIU/CAJ from working with the National Assembly and the Supreme Court. FIU and the CRMP were ejected from offices at the Supreme Court. Thus, from 2003 to 2004, FIU/CAJ worked only with CSOs (law schools, bar associations, justice and peace commissions, women's organizations) providing training and disseminating information on justice reform issues (CCP, Criminal Code, ADR and new law curricula). While limited assistance to the National Assembly was authorized to work on the Criminal Code, the Stop Work Order for the Judiciary was not lifted; thus FIU/CAJ was unable to provide assistance or training to judges on the CCP. During the same period, starting from zero, the USAID ISP tasked Checchi to help to establish and strengthen two completely new justice organizations; a nationwide public defense system to provide indigent accused the right to counsel, promoting greater equity in the justice system; and to strengthen the Attorney General's Office to ensure more effective criminal investigations and prosecutions, thus improving justice system efficiency. The structuring and effective operation of these two new organizations was vitally important to successful implementation of the new CCP's accusatorial criminal investigation and trial system. 2 Municipalities followed with 9.8%, police with 8.9%, hospitals 5.4% and government officials 5.3%. 3 The Administrative Code did not take effect. It was vetoed by the President of Nicaragua. 2 At various times during ISP implementation, USAID suspended assistance to counterpart institutions for political reasons. From July 2001 until October 2002, assistance to the Public Defender's Office was suspended. From December 2003 to April 2004, assistance to all justice sector institutions was suspended by a Partial Stop Work Order. In this period Checchi worked exclusively with civil society to promote reform. The ban was lifted in April 2004 and assistance was restored to official justice sector institutions, except for the Supreme Court. From April2005 to July 2009, Checchi implemented the USAID ROLHR that continued criminal procedures reform implementation support. This second Checchi effort sought results in four areas: 1) strengthening of justice and related institutions to implement criminal justice reforms (Judiciary, Prosecutors, Public Defense, Forensic Medicine Institute, and the National Inter-Institutional Technical Criminal Justice Commission￾NITC), 2) assistance to the Judiciary to implement Judicial Career Law; 3) increasing access to justice for women, youth, and minorities; and, 4) greater civil society involvement injustice reform. In May 2008, USAID amended the ROLHR contract to reduce technical assistance to public sector institutions for political reasons, and to add more civil society strengthening activities. Throughout the ROLHR project, USAID limited TA activities and ultimately suspended assistance to all public sector justice institutions in 2008. III. IMPACT - MAIN FINDINGS All persons interviewed, regardless of political affiliation, recognized the magnitude and pivotal importance of the US AID contribution to Rule of Law in the past decade. US foreign aid has increased respect for human rights and created effective new legal structures now inspiring modernization movements in other legal areas. 1. Enactment and Implementation of the Nicaraguan Code of Criminal Procedure. This achievement is seen without reserve by all persons interviewed as the most significant success of the USAID ROL assistance. This is a solid and far reaching success and a very radical reform that replaces an archaic inquisitorial criminal procedure with a modem accusatorial system. A criminal process closed to the public and based only on written submissions to a judge with sole authority to investigate and decide the case has been replaced with oral and public hearings and participation of police, prosecutors, judges and public or private defenders, with time limitations for the stages of the process. Very importantly, prosecutors now have discretionary power to bring criminal charges before a judge or to resolve the case using alternative mechanisms for disposition of misdemeanors and minor crimes. Under the Criminal Instruction Code of 1879, the only institutional actors in the criminal process were the police and the judges. There were no separate prosecutorial or public defense functions. The entire process was based on the submission of written pleadings and evidence documents, with no public hearings or opportunity to argue positions in oral hearings. The judge's investigation and deliberative process was conducted in secret, with no time limits for a final decision. Several lawyers asserted that cases under the old system could last six years. With no limitations on pre-trial detention times, prisoners often served longer than the maximum final sentence. The criminal procedures reform has had a major impact in other areas of law, sparking reform movements and efforts to introduce oral and public procedures. Current draft proposals would introduce oral proceedings to codes of civil and labor procedures. The Spanish Cooperation Agency is financing the civil procedures reform. From 1999 to 2005, in the progressively more politicized national context, FIU/CAJ and Checchi coordinated their efforts, with both using integral approaches based on lessons and best practices of the prior 15 years of Latin American CCP reforms. Nicaragua's criminal procedures reform began much later than elsewhere, and thus benefitted from other regional experiences. Both USAID contractors applied best implementation practices and drew on highly experienced and respected regional experts. In RCC interviews, there was repeated recognition of the outstanding technical leadership of Cesar Barrientos, FIU/CAJ Chief of Party, now a Guatemalan Supreme Court justice, and Jose Maria Tijerino, FIU/CAJ Deputy COP, former Chief Prosecutor of Costa Rica, now that country's Public Security Minister. Interviewees also recognized the crucial participation 3 of Costa Rican public defenders and prosecutors in helping to organize the Nicaraguan Public Ministry and Public Defense. Discussions and consensus for CCP passage were advanced in hearings in all department capitals with over 800 persons participating. Between 1999 and 2003, FIU/CAJ worked closely with the Supreme Court to train all judges affected by the change and to design a transition plan. It also worked with the newly created Prosecutors Office, the Public Defenders Office, the National Police, NGOs, Bar Associations and over 19 public and private universities to train prosecutors, public defenders, police, law professors, law students and practicing attorneys on the new CCP's principles and procedures. More than 12,850 were trained, as well as over 279 private attorneys in 10 regions (Matagalpa, Granada, Rivas, Leon, Chinandega, Esteli, Jinotega, Juigalpa, Jinotepe and Masaya). Major efforts were made to reach Atlantic Coast lawyers and paraprofessionals. The RAAN and RAAS effort was coordinated with the Swedish Development Agency. In that often neglected region, an initial course was offered to 147 attorneys, law students and faculty. The USAID "training of trainers" approach produced several postgraduate programs to train law faculty in the new procedures. In addition, numerous events targeting ordinary Nicaraguan citizens (with over 580 attending) promoted discussion on the new CCP. Overall, these ROL programs afforded extensive training and orientation on the new system before the entry into force of the CCP. The projects produced, printed, and massively distributed code texts and manuals that are still in use by all criminal justice system operators and are used as basic teaching materials in law faculties. A proven key to successful CCP implementation was the creation of a high level commission to promote and facilitate the reforms. The National Inter-Institutional Technical Criminal Justice Commission (NITC) supported all project related activities towards enacting the CCP and later, the Criminal Code. The NITC anticipated and overcame many difficulties encountered in other countries and helped integrate judges, public defenders, police and prosecutors. One of the first important NITC results was an official decision by Public Ministry authorities to establish ongoing coordination with the National Police in case handling. To consolidate its implementation strategy, the NITC established regional counterpart committees. This effective interagency cooperation continues to the present. The NITC has played an essential change promotion role throughout the process. To unify and standardize CCP implementation technical criteria and policies, USAID provided full support to the NITC to strengthen its municipal and departmental committees. The USAID program held ten regional workshops with more than 1,100 justice sector operators to detect local CCP application problems and to collect inputs for the definition of national level policies. In addition, the Program supported NITC efforts to standardize criteria on key legal issues arising around CCP implementation. In 2006, in coordination with NITC, Checchi developed a technical assistance and training initiative for the National Police to strengthen investigative capacity and enhance inter-institutional coordination with the National Prosecutors Office and the Forensic Medicine Institute. However, ROLHR could not carry out any activities with the National Police until May 2008 for lack of a USG political authorization (waiver) to work with this GON institution. Shortly thereafter, authorization again was suspended, but meanwhile, ROLHR had provided limited personnel training and equipment purchases. The ROLHR trained 33 police officials from the investigations unit, Police Academy and the Legal Advisor in the new Criminal Code. This training better prepared the police investigators, normally at the crime scene and responsible for classifying the crime at the first instance. As well, ROLHR provided equipment to both the Central Criminal Laboratory and the Auxiliary Judicial Directorate (AJD). The equipment improved laboratory capacity to provide timely and reliable fmdings for use in prosecutions, and the AID ability to perform crime scene investigations. Currently, the NITC has eleven members: 1) Coordinator (a Supreme Court member), 2) President of the Supreme Court Criminal Chamber, 3) President, National Assembly Justice Commission, 4) Prosecutor General (Public Ministry), 5) Attorney General, 6) Minister of Government, 7) Human Rights Defender (Procurador para Ia Defensa de los Derechos Humanos), 8) National Police Director, 9) Forensic Medical Institute Director, 1 0) Penitentiary System Director, 11) Public Defense and, 12) Military Justice Director. Current Coordinator, 4 Supreme Court Judge Marvin Aguilar, stated to the RCC consultants, "USAID taught us how to work well and systematically." As mentioned, USAID ROL projects also drew law faculties into the reform effort. CAJ/FIU facilitated creation ofthe National Commission of Law School Deans (CONADER) and Checchi continued support until2009. This law faculties4 association promoted important curriculum reforms to support introduction of oral trial techniques and uniform course content on.criminal procedure. Through CONADER a model curriculum was designed with 8 criminal procedures subjects accepted by all Nicaraguan law faculties. This achievement is all the more important, since there is no national accreditation system for law faculties or universities. Current public and private law school rivalries affect CONADER, whose administrative structure is weak. Its President and Vice-President primarily direct it, and activities after USAID financial assistance ended have been limited. There is no serious and systematic practical research done on the impact of the new CCP by universities or Justice Sector institutions. The RCC consultants could not meet with the Acting Supreme Court President for political reasons and thus had no direct access to judicial statistics. Fortunately, the UCA Law Dean was preparing a report for UNDP and had obtained numbers from the Judiciary's Information and Statistics Office. This information allowed RCC consultants to prepare the following analysis, showing impacts of the new CCP. Figure 2: Clearance Rates Comparison - Criminal Instruction Code and Criminal Procedures Code 100 80 60 40 20 0 2000 2001 • Criminal Instruction Code 2002 2003 2004 • Criminal Procedures Code 2005 2006 2007 2008 2009 Average Source: Universidad Centroamericana Law Faculty, data from Judiciary Information and Statistics Office, July 2010. The clearance rate ( number of outgoing cases as a percentage of incoming cases), a measure of how courts are keeping up with the incoming caseload, has increased by 14%, comparing 2000- 2004 Criminal Instruction Code numbers and 2003 - 2009 Criminal Procedures Code numbers. The best annual percentage for the Criminal Instruction Code was 66o/o in 2000 as compared to an 83% Criminal Procedures Code rate in 2008. Radical procedural reforms such as those instituted by the CCP, changing from written procedures to oral hearings, usually take some years to obtain clearly positive results. Nevertheless, in Nicaragua, change appears to have begun to be felt almost since implementation, probably in large part Figure 3: Backlogs- Criminal Instruction Code 2000- 2004 and Criminal Procedures Code 2003-2009 • Criminal Instruction Code 2000·2004 • Criminal Procedures Code 2003-2009 400,000 350,000 300,000 250,000 200,000 150,000 100,000 50,000 Total Incoming cases Backlog-43% decreases to 28% Source: Universidad Centroamericana Law Faculty, data from 4 National Commission of Law School Deans (CONADER) composed dfl~w~a&®nmamwv ~~kti~ Rlifilbt;rJlil;y iWA@l.nex 4. 5 because USAID promoted intensive justice operator training prior to the entry into force of the new Code. Case backlog percentage (cases pending disposition) under the CCP appears less than under the Criminal Instruction Code. From 2000-2004, cases pending at year's end were 43% of the incoming cases. From 2003 to 2009, this percentage dropped to 28%. The most worrisome aspect of the Criminal Instruction Code backlog is that, six years after the new CCP became effective, a significant number of cases still await resolution under the old procedures. Under the old Code, an average of 40,155 cases was pending at the end of the year. Under the CCP the average is down to 13,280 cases. Nevertheless, this backlog requires attention because it is growing rapidly. At the end of2009 there was a total backlog of 563,819 criminal cases. According to information provided by the judicial school, Nicaragua has 419 sitting judges, approximately 276 of whom deal with criminal cases 5 • The average annual number of incoming cases (36,990) divided by the number of criminal judges (276) gives an annual caseload of 134 new incoming cases per judge, which according to Latin American standards is manageable.6 Therefore, the current caseload per judge does not seem to justify the current growth of criminal case backlog. The curtailed Nicaraguan public sector workday (8:00am - 1 :00 pm) likely has exacerbated the problem. There has been a significant reduction of incoming cases in the Judiciary, whose causes are unclear. Comparing incoming cases per year from 2000-2004 with those from 2004 -2009, shows fewer cases came before judges. From 2000 to 2004 under the old code, an annual average of 74,713 came to the Judiciary, but from 2004 to 2009, under the CCP only an annual average of 31,302 came before judges, a 58% decline. These numbers require further analysis to determine if they reflect a positive or a negative impact on access to justice. Under the new CCP, prosecutors have discretionary authority to decide which cases merit submission to judges. The decline could mean that prosecutors now resolve many cases via CCP alternative measures; on the other hand, it could mean that many cases are improperly investigated or that the National Police and Public Prosecutors have accumulated large backlogs. OJ 0 0 c: - 0 , ·.c .S u ~ E ::l ·c t; u u c: Figure 4: Annual New Cases and Comparative Averages: Criminal Instruction Code (2000-2004) and Criminal Procedures Code (2003-2009) - Average per year 31,3 03 ~ 5,867 2008 33 122 43 168 2006 36,990 27,98~ _2_0Q_4 ~~ 10,6 BO ~ 7,608 7 ,713 2004 67,490 ~ -= 59,6-::2 2002 ~ ~- 9 ~~ ,074 1 8l - 2000 67 67C 4,697 10,000 20,000 30,00040,000 50,000 60,000 70,000 80,000 90,000100,000 Source: UCA Law Faculty, data from Information and Statistics Office at the Judiciary, July 2010. 5 127 local judges covering all matters, 36 local judges specialized in criminal law, 21 district judges for judgment enforcement, 33 district criminal trial judges, 35 criminal judges for oral hearings, 20 appellate judges, and 4 Supreme Court Criminal Law Chamber members. 6 Sources: Unidos par Ia Justici~ 2006 (Latin America and USA), CEPEJ, 2006 (Europa), World Bank country data and UNDP Institutional and Governance Review: Justice and Citizen Security in Honduras (2008) 6 It was not possible to obtain National Police statistics to better understand the mix of criminal cases reported. Nevertheless according to the NITC President, in 2009 the National Police reported receiving 164,000 cases, 61,000 (37%) of which were misdemeanors (subject to alternative disposition) and 103,000 (63%) were crimes. The Police reported sending 42,000 cases (minor or serious crimes) to the Prosecutors (PM) to be considered for prosecution (only 45% of the number the Police reported as criminal matters received). However, the Public Prosecutors reported receiving 47,123 cases from the Police (5,123 more than the Police reported). Prosecutors claimed they resolved 34,696 cases (clearance rate of74% of cases sent by Police) and the Secretary General of the Public Prosecutors Office estimated that 35% (12,143 cases) were resolved via CCP alternative mechanisms, but there were no exact statistics on this claim. The PM Secretary General also .Ngure o: Confidence that Justice System Will Punish the Criminal Source: Americas Barometer - Latin American Public Opinion Project (LAPOP), www.LapopSurveys.org, Political Culture of Democracy in Nicaragua, 2008 reported only 12,427 (36% of those received from Police) were left pending at the end of2009. Thus, the prosecutors brought 34,980 cases to judges, a number slightly under that from Judiciary statistics (35,867). Police, Prosecutors and Judicial statistics differ and have unexplained information gaps. The NITC has set up a statistical subcommittee to study the subject to see if numbers can be better explained and justified. The current inconsistencies do not allow an interpretation of these numbers; nevertheless, the high percentage of crimes (65%) that in 2009 stayed pending with the Police is very worrisome and requires immediate attention. RCC believes it vital that universities and other CSOs undertake research on Criminal Justice Sector statistical data and organize citizen oversight projects to monitor correct CCP implementation to avoid serious cases of denial of justice. Another important aspect to consider in analyzing the new CCP impact is the small number of pre-trial detainees. According to the International Center for Prison Studies (2008), Nicaragua has Central America's lowest pre￾trial detainee percentage. Nonetheless, Nicaraguan prisons' occupancy is 132.7% of capacity. Figure 5: Percentage of Pre-Trial Detainees and Prison Population in Central America (2008) Panama (2008) l61 .70''o I I Costa Rica (2008) J22.5C% I I Nicaragua (2006) 121% I I Honduras (2005) 163.50 % I I El Salvador (2007) 132.6% I I Guatemala (2006) 143% 0% 10% 20% 30% 40% 50% 60% 70% Source: International Center for Prison Studies (2008) Occupancy level (based on Prison official Country/year population capacity) Guatemala 7,477 107.2% El Salvador (2007) 14,682 199.2% Honduras (2005} 11,589 140.0% Nicaragua (2006} 6,060 132.7% Costa Rica (2008) 8,654 108.9% Panama (2008) 11,369 160.3% The 2008 LAPOP report found Nicaraguans relatively confident that the justice system will punish criminals. Almost 40% of those interviewed had some, or high confidence. 37% had low confidence and 23% none. In all RCC consultant interviews, there was general consensus that criminal justice under the new CCP works well. It has some problems, but it works substantially better under the new criminal procedures, except when politicians 7 or the wealthy are the accused. Manuel Arauz, UCA Law Faculty Dean, clearly stated, "One cannot judge a system by the resolution of its political cases." 2. Drafting and implementation of a Criminal Code. In Nicaragua, the criminal justice reforms were undertaken sequentially, unlike other countries where procedural and substantive reforms were approved in an integral and parallel fashion. After the CCP approval, the drafting and implementation of a new Criminal Code was essential to complete the criminal reform. The 1974 Criminal Code in effect was largely outdated and out of compliance with current international human rights and rule of law standards. The Criminal Code reform task started with FIU/CAJ and was completed by Checchi. The new code incorporated important provisions affecting women, financial crimes, sexual crimes, terrorism, trafficking in persons and environmental crimes, among others. Importantly, it modernizes the concept of conspiracy under Nicaraguan law, which will greatly facilitate the trial of organized crime cases. Thirteen workshops and conferences for 2,600 attorneys, law students and professors were offered. These training events also sought to foster attitudinal change among participants and to generate public feedback on the draft legislation. FIU/CAJ also developed a criminal law postgraduate program for law faculty (53 law teachers have participated) in conjunction with a prestigious Spanish university (Jaume I University in Valencia). To facilitate Code approval, Checchi assisted the National Assembly Justice Commission (NACJ). With extensive ROLHR assistance, the NACJ finished a draft, reached broad public consensus, and passed a modem Criminal Code in November 2007. USAID presented legislators with best international models in criminal legislation, facilitated technical discussions and analysis, and backed the NACJ drafting and approval process. The new Criminal Code significantly advances the rule of law in Nicaragua. It aligns the national legal structure with United Nations and Organization of American States treaty obligations, including criminalization of state corruption and the offering of bribes. It offers other protections against government abuse, such as limiting immunity for officials accused of corruption. The active involvement of legislators from all parties was critical to pass the new Criminal Code, and USAID' s careful selection of experts built trust with legislators and advisors. For Criminal Code implementation, USAID, through the NITC, again assisted in the design of a ''training of trainers" methodology, and in training materials development. The 250-plus trainers replicated Criminal Code trainings to over 2,330 justice operators in all Departments over ten months in 2008. Importantly, the NITC marshaled the resources, marking Nicaragua's first such large-scale legal training effort using primarily national resources. Additionally, via CONADER, ROLHR trained 23law professors, 461 private lawyers and 133 CSO members in the new Criminal Code. NITC, with USAID assistance, designed and taught three specialized criminal law courses on socio-economic crimes for 31 prosecutors, 30 public defenders and 25 representatives from the Nicaraguan Chamber of Commerce. It also assisted with the design and implementation of two courses for criminal judges, to increase case handling skills within the judiciary: 1) a post-graduate program in coordination with the Universidad Americana (UAM) for 30 criminal judges; and, 2) a course in oral trial management and judgment drafting for 121 criminal judges through the Judicial Training School. 3. Creation of the Public Prosecutors Office (Public Ministry- PM). The Public Prosecutors Office, (Public Ministry - PM) began functioning in 2002 as the primary entity charged with prosecution of criminal activity. Its creation led to a new defmition of roles and responsibilities, and ISP supported the hiring of approximately 65 prosecutors through merit-based selection. Again under ROLHR, USAID assisted the MP in 2006 and 2007 to carry out merit-based prosecutor selection processes7 • USAID's 7 The merit-based selection process generally involved these steps: call for candidates' resumes; review and evaluation of resumes, and initial selection; written examinations on technical skills and theoretical knowledge; scoring of exams and ranking of candidates; psychological and aptitude tests; final selection of eligible candidates; appointment of prosecutors. 8 2007 suspension of technical assistance to the PM barred ROLHR from accompanying another selection process. Currently there are 290 prosecutors, and, according to the PM Secretary General, the PM has continued to select its personnel through open competition. Nonetheless, the prevailing opinion among persons interviewed by RCC was that open competition and merit-based selection continued only while USAID supported the process, and thereafter, PM hiring selection has been influenced by political connections. There are five prosecutors for each 100,000 persons in Nicaragua, slightly below the regional average of six per 100,000. Another very important result of Figure 7: Prosecutors per 100,000 Persons in Latin America (2008-201 0) - - , ... :1 :1 :1 -;I "" 0 0 7 ~ USAID assistance was the 2006 passage of the Prosecutor Career Law. USAID assisted in drafting the law, providing public education, mobilizing civil society to lobby for its passage, and holding journalists workshops to raise awareness of the law. USAID also assisted the PM with an action plan for institutional strengthening and creation of specialized crime units: Anti￾Corruption; Environmental Crimes; Women and Gender Violence; and Juvenile Crimes; and a strengthened Organized Crime Unit. The Juvenile Crimes and Gender Violence Units were helped to defme and implement investigation and prosecution procedures. The Environmental Crimes Unit was helped to defme and implement 10 9 8 7 6 5 4 3 2 1 0 u v r- - ~ - 4 ~ 3 ~ ~ I I I I • Source: Source: Judicial Studies Center of the Americas, Report on the Justice Situation in the Americas 2008- 2009 and MP information July 20 10 environmental crime policies. Finally, USAID helped restructure the Organized Crime Unit, which merged with the Anti-Corruption Unit and assisted to develop prosecution policies and legal training in narcotics trafficking cases. These are the PM's only specialized units and they continue to work, but with very limited personnel. The PM has not been supported by other donors and during the RCC interview, the Secretary General expressed gratitude for USAID support, stating, "USAID helped us very much and its assistance was critical for the establishment of this organization". USAID also assisted the PM to open two Victims' Assistance Offices (VAOs) in Managua and Juigalpa, Chontales. These offices served approximately 2,077 victims during 2008-2009, including crisis resolution and case referral (501 in Managua and 1,630 in Juigalpa). In 2009, the PM inaugurated an additional VAO in Somoto based on the ROLHR pilot model developed by Checchi. Nonetheless, budget shortages have limited each V AO to a single staff person, and they lack the planned multidisciplinary teams to assist crime victims and aid the prosecutors to reach alternative outcomes. Improving PM personnel's prosecutorial skills was a key element in the USAID strategy, and an integral part of the PM 2007-2009 Strategic Plan developed with Checchi support. ROLHR conducted 70 courses for prosecutors, auxiliary prosecutors and assistant prosecutors, many of whom had never received any training in the recent criminal law reforms. More than 275 PM personnel benefited from courses in basic criminal law for prosecutors, money laundering, the oral system, and the preparing of accusations. In addition, ROLHR designed and carried out a post-graduate program in criminal law for prosecutors that focused on legal issues like assessment of proof, financial crimes investigation, forensic evidence, and trial examination and cross￾9 examination. UPOLI certified the graduate program and 43 prosecutors completed it. At the RCC interview, the PM Secretary General said the US AID training had been "the best the prosecutors had received to date". In 2009, according to the PM statistics, the institution received 47,123 cases from the Police and resolved 75o/o of them. 4. Creation of the Public Defense (PDO) An adversarial balance between the institutions advocating for the State's interests and those of the accused is essential to the success of any new accusatory criminal trial system. To further this goal, USAID supported the growth and national expansion of the Nicaraguan Public Defense Office (PDO). The PDO was begun as a Supreme Court dependency to offer free legal services to accused persons unable to afford an attorney. Currently it also offers assistance in family matters and in all matters in Masaya and Matagalpa. PDO services to poor defendants are based on indicators such as: woman head of household, numerous family members, unemployed, earning minimum salary, etc. For those able to pay, the payment goes to the Judiciary Pension and Retirement Figure 8: Comparison of Public Defenders and Prosecutors in Latin America (2008-2010) Prosecutors Public Defenders 10 ~------------~~---- ------------&---------~ 9 8 7 +-11!,.------ 6 5 4 3 2 !+--... .. 1 0 Source: Judicial Studies Center of the Americas, Report on the Justice Situation in the Americas 2008- 2009 & PM and PDO information, July 2010. Fund. However, the PDO Deputy Director confirmed most PDO clients are very poor and payments infrequent. The PDO has experienced exceptional growth in its first 10 years. From a pilot project in Managua with 12 public defenders, the PDO has grown to 201 defenders. In the decade of USAID assistance, all new defenders received intensive training. The PDO Deputy Director affirmed that because of this assistance the PDO was ready for the new CCP before its entry into force. Checchi incentivized the PDO with a training and equipment package for each defender position or office established, spurring the Court to create new PDO positions. Most defenders were named by merit based competition and most have remained. The Deputy Director said there have been few non-competitive hires, mainly transfers within the Judiciary. USAID and the Spanish Cooperation Agency made competitive appointments a prerequisite to receive donor assistance. The present 201 public defenders are in 17 Department capitals, the RAAS and 84 municipalities, leaving 67 municipalities still unserved. There are 3 public defenders per 100,000 people, slightly under the Latin American average of 4. The PDO average is below that of available prosecutors (5 per 100,000) and seems plainly insufficient for a country where UNICEF reports 48.3% of the population lives in poverty and 17% in extreme 10 poverty8 • The number is also diluted, since some defenders are currently providing assistance in non-criminal legal matters. In most of Latin America they are devoted almost exclusively to indigent criminal defense. Another lasting impact of USAID assistance to the PDO was to accompany and support institutional evolution and restructuring due to rapid personnel growth and geographic expansion. At first, the PDO had only one national level position (besides the Director and Deputy Director) for management control over the public defenders' work. With Checchi assistance in drafting a new PDO Operational Regulation and a Manual of Jobs and Profiles, 5 new supervisory positions and 8 new regional coordinator positions were created and filled. The new supervisory structures greatly facilitated the delegation of authority and increased quality control and supervision of PDO services. Similarly, Checchi assisted the PDO to defme and partially implement a broad based long-term strategic plan (2008-2013), including extensive activities to effectively implement the new PDO Operational Regulation and the new supervisory and management systems. The PDO is executing the strategic plan and the Supreme Court observes it in its separately organized planning activities. USAID provided equipment and infrastructure bolstered PDO operations, including a pilot Users Attention Office (UAP) in Managua. The UAP greatly improved PDO case reception, distribution, and processing capacities. Through workshops, operational processes were refined for later UAP staff implementation. The Court created 5 new UAP administrative positions. Besides monitoring the number of clients in initial interviews in civil and family cases and entering information into the case tracking system, the UAP maintains an electronic calendar (client meetings, hearings, trials, trainings, etc.) of all Managua-based defenders, and alerts on scheduling conflicts to allow timely substitutions. The UAP is the heart of PDO Managua operations and though Judiciary hours are now reduced to 8:00a.m. to 1:00 p.m. (purportedly to save electricity), the UAP stays open until4:00 p.m. During the RCC consultants' late afternoon visit, the UAP was open and had several people waiting to be served. At the same time, the PDO Deputy Director, in the same position from the start, several times expressed her gratitude for USAID assistance and remarked how much it helped to organize and sustain the PDO. She also praised the infrastructure, equipment, and the high quality training and technical assistance provided mainly by Costa Rican Public Defenders. Until2009, USAID also continued to support automated case tracking system (SEGEX) implementation to increase PDO efficiency and improve statistical information quality. The system was introduced initially (under USAID's ISP) into the Managua Pilot Office to generate statistics for planning and budgeting and to provide instant access to individual case information. Between 2005 and 2009, the system was installed in most of the 75 PDO offices. While there were challenges in getting the public defenders to keep the system up to date, a key factor, at least in Managua, in achieving full use of the system was the advent of the UAP, described above, and sanctions imposed on public defenders who failed to keep their system files current. US AID also backed the PDO in the design, creation and implementation of the Public Defense Auxiliaries (PDAs) Program. Through agreements with eight law schools, 152 students over the two years of this activity were selected and logistically supported by ROLHR to act as PDAs, providing administrative and legal support to defenders in Managua, Leon, Esteli, Chinandega, Rivas and Boaco. Students committed to a six month minimum as a PDA and were trained by ROLHR. The PDA Program frees public defenders' time for defending clients. The PDA Program has continued and the PDO now has 70 students working as auxiliaries. From inception to December 2009, the PDO received 117,366 cases. PDO demand has increased from 783 in 1999 to 23,216 cases in 2009. 80% are criminal matters, but since 2003, family law cases ( 17%) have notably increased. In Managua, per information from the Spanish Cooperation Agency, most family law cases are requests for legal assistance in child support ( 61%) and divorce matters (22% ). 8 For more information see Chttp/::www.unicef.org:spanish:infobycountry:nicaragua.html) 11 Figure 9: Family law cases received by PDO in Managua by subject (2009) • Child support • Divorce • Birth & other cerftcate legalization • custody • Paternity recognition & investigation Judgment inforcement That the PDQ is receiving so many family cases highlights the general vacuum of legal assistance for the poor and disenfranchised in Nicaragua. Such non-criminal matters should be referred to university Bufetes Juridicos and NGQ legal clinics properly organized in a PDQ support network. Because public defender numbers are still low and courts in 67 municipalities still have none, priority for defenders should be criminal defense of indigent or poor accused, especially when a person is imprisoned awaiting trial or other disposition. A specific part of current PDQ strategy is the expansion of their services beyond criminal cases. The implications should be considered carefully to avoid dilution of PDQ criminal defense services by the slow transformation of the PDQ into a legal assistance clinic, devoted to non-criminal cases. Figure 10: Distribution ofPDO Cases by area (1999-2009) - - - -- - ... ~ ·- ... --~ -- ----- Criminal Family • civil • Others 20000 17f94l 7454- 16648 I I I 13526 : 15000 -· I r-- 10773 I 10000 1- : 4255 4509 1 ii a 18 96 5000 :256 2958 "'"""' - LL- u.. · I 78~ •v•• 1 ~ 0 I 0 ~ --r -r -r T T I I 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 I I Year Criminal Family Civil Labor Administrative Land TOTAL 1999 783 0 0 0 0 0 783 2000 2,567 0 0 0 0 0 2567 2001 2,958 0 0 0 0 0 2958 2002 2,812 0 0 0 0 0 2812 2003 4,255 301 111 80 1 0 4748 2004 4,509 530 257 189 0 0 5485 2005 10,773 1,047 372 113 0 0 12,305 2006 13,526 3,091 159 82 30 1 16,195 2007 16,648 5,354 682 188 52 0 22,924 2008 17,194 5,018 830 305 0 26 23373 2009 17,454 4,696 637 386 42 1 23,216 TOTAL 93,479 20,037 3,048 1,343 125 28 117,366 Percentage 79.65 17.07 2.6 1.14 0.11 0.02 100 Source: PDO, July 2010. 12 5. Strengthening the Forensic Medicine Institute. In 1999, the Forensic Medicine Institute (FMI) was created as a dependency of the Supreme Court, with "functional autonomy." It Figure 11: FMI Offices in Nicaragua Hondlna • -4· 0...0 performs forensic examinations and provides expert forensic testimony and evidence at criminal trials. When USAID assistance began, only two of the forty forensic medical doctors appointed by the Supreme Court had degrees in forensic medicine. The lack of professional training and forensic expertise reduced the quality of FMI medical reports. As well, the lack of specialized forensic medical knowledge impacted negatively on the performance of forensic doctors at trials, because investigations failed to follow universal scientific standards. The impact of USAID assistance on the FMI is substantial and impressive. In 2005, technical assistance was provided to develop an action plan to strengthen and expand forensic services nationwide. The plan helped FMI leverage additional funds from the Judiciary and other donors to hire more personnel and establish new clinics. USAID supported services expansion in three regional offices in the departments of Rio San Juan, Chon tales and Jinotega. FMI offices are in Managua and 23 other sites (see map). • --- ~ ~ c...- In 2007, the ROLHR completed the first forensic medicine graduate degree program in Nicaragua. Fifty-three doctors from all departments were trained and accredited in forensic medicine. The medical accreditation program was carried out by the Universidad Cat6/ica de Nicaragua (UNICA). The Colombian Institute of Forensic Science and Medicine provided teaching and technical assistance to the 18 month academic program, which included 14 modules covering traumatology, pathology, dental forensics, genetic forensics, forensic anthropology, epidemiology, investigation of sexual crimes, and autopsies. As part of the graduate program, a forensics manual (Manual del Medico Forense en el Juicio Oral Nicaragiiense) was prepared and distributed to all participants. All of the USAID trained doctors continue to be part of FMI. Currently FMI has 7 4 doctors, the original 53 trained by USAID and 20 new doctors appointed by the Supreme Court (without competition). According to the FMI Director, these 20 new doctors require urgent training. US AID also carried out an extensive training program for FMI medical professionals and 100 doctors from the Ministry of Health, who perform forensic exams where no FMI units exist. All received training in forensic medicine, forensic anthropology, and presentation of evidence at trials, domestic violence and sexual crimes. This effort helped improve inter-institutional coordination with the Ministry of Health and the National Police9 • In addition to helping improve FMI technical abilities, USAID strengthened FMI investigative capacity by donation of extensive forensic investigation and information technology equipment, including a vehicle, computers, stethoscopes, medical stretchers, examination lamps, privacy screens, surgery kits, etc. that facilitate, among others, the examination of women victims of sexual crimes. The forensic equipment donation was accompanied by observational tours to Colombia and El Salvador to learn about new investigation techniques. In particular, the FMI was able to enhance its use of DNA analysis techniques and implement new scientific analysis methodologies in the forensic investigations of sexual abuse cases. The current FMI Director highly praised USAID assistance in training, technical assistance and materials. He mentioned that FMI currently has only very limited international donor assistance for very limited training10 and 9 FMI is not present outside most departmental capitals; thus Health Ministry doctors must perform forensic examinations. 10 The Spanish Cooperation Agency donated $70,000 for a Postgraduate Diploma in Psycho-traumatology; UNDP has given $30,000 from Norway and the UNFPA (UN Population Fund) and $20,000 from France, both sums for limited training. 13 serious problems. FMI's only vehicle is the one donated by USAID. FMI has only a few morgues and often the corpses decompose before examination can be performed. There is only one morgue vehicle for the whole country with frequent air conditioning problems. Equipment outside Managua is limited and in several cases, the FMI doctors use their own homes for examinations. In the FMI, the caseload has increased dramatically (89%) from 34,800 cases in 1999 to 65,552 cases in 2009, for a total of 595, 892 in the decade. Most cases (89%) are examinations of living victims. Postmortem examinations are only 3% of the cases. F' 1gure 12 : F orens1c . M e d' lCIDe . I OS ft I U t e C ase I oa d 1999 -2009 Examinations 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Total Living victims (89%) 33057 40502 42288 40196 47071 50356 51171 51052 57732 59979 59300 532,704 Postmortem (3%) 1419 1572 1133 1006 1393 1542 1684 1565 1675 1765 1852 16,606 Toxicology (4%) 0 1054 3299 2746 2835 2705 3497 4082 2886 1174 1695 25,973 DNA&body fluids tests (0.6%) 0 0 0 0 211 326 238 697 761 513 1044 3,790 Radiology (X￾rays) (2%) 245 579 708 934 978 944 1099 2184 2456 1029 1471 12,627 Pathology (tissues) (0.7%) 79 409 507 495 491 565 515 574 207 160 190 4,192 Total 34800 44116 47935 45377 52979 56438 58204 60154 65717 64620 65552 595,892 Source: Forensic Medicine Institute, July 2010. As the numbers show, the FMI is an organization specialized in dealing with living victims of crimes. In 2009 of Figure No. 13. Distribution of victims of violence Traffic accidents; 11% Sexual violence; 10% Domestic violence; 23% Source: FMI, data from 2009. Psychological violence; 8% rsonal ;48% 59,300 examinations of living victims, 83.4% were victims of different types of violence. 48% were victims of interpersonal violence, 20% of domestic violence, 10% sexual violence, 7% psychological violence and 11% were victims of accidents. The number of examinations of domestic violence is worrisome, showing a steady increase of 3% per year since 2005. In 2009, FMI performed 11,313 examinations of domestic violence victims that; divided by Nicaraguan population, give 197 such exams per 100,000 people. According to FMI Director, international standards to measure violence consider that more than 10 cases reported per 100,000 implies endemic domestic violence in the region. The concern has been so serious in the FMI that they have carefully examined the data on these cases in Managua from 2005 to 2009. FMI has found that 70% of victims were women; that housewives and labor workers were the most affected, and most victims 14 were between 26 and 35 years old, without university education (primary and secondary only). More frighteningly, the cases reported are estimated to be only IOo/o ofthe real numbers. The FMI has made several presentations on its domestic violence findings to different civil society and government groups, because FMI considers it a very serious problem for Nicaragua that requires immediate attention and more serious studies. Figure 14: FMI Domestic Violence Examinations and Numbers per 100,000 (2009) 11400 200 11200 195 11000 10800 190 10600 185 Numero de Periclas 10400 Tasa 10200 180 10000 175 9800 9600 170 2005 2006 2007 2008 2009 Source: Forensic Medicine Institute, July 2010. 6. Promotion of Alternative Dispute Resolution (ADR) Mechanisms Prior to USAID ADR assistance, Nicaragua had no defined legal framework for alternative dispute resolution (ADR) activities, and it was little used. The public knew little about availability of ADR mechanisms. The Alternate Dispute Resolution Directorate (DIRAC) of the Supreme Court was established in 2000, but was only handling mediation and arbitration cases concerning property issues. At the community level, the Catholic Church Justice and Peace Commissions were working on conflict resolution and conducting informal mediations, mainly to solve family and neighborhood disputes. The UCA and the UNAN-Le6n were providing mediation services in coordination with their law clinics, but resulting agreements were not recognized by the legal system. The Nicaraguan Chamber of Commerce (CACONIC) had worked in drafting new ADR legislation introduced in the National Assembly in 2004. In 2005, Checchi supported CACONIC outreach workshops to promote passage of the Mediation and Arbitration Law (Law 540), which became effective in August 2005. The principal objectives for the ROLHR mediation component from 2005-2009 were to increase the number of mediation centers and mediators, train and certify mediators under DIRAC and increase ADR use in creating a culture of peace. After Law 540 passed, the USAID program conducted publication and outreach activities to disseminate the new ADR legal framework, designing all ADR trainings to conform to Law 540. This effort resulted in DIRAC accreditation of395 mediators and 29 arbitrators who were to work at all centers established with ROLHR support. In 2006, USAID inaugurated Nicaragua's first commercial arbitration center in collaboration with CACONIC. A second USAID supported arbitration center established at the American Chamber of Commerce (AmCham) in 2007 eventually merged with CACONIC to provide a broader range of commercial mediation and arbitration services to national and international businesses. Through July 2010, this center had conducted only 4 mediations and received 20 requests for services. 15 To promote colnmunity me~liation~ servic€s and build confidence in ADR, USAID also assisted civil society organizations and the DIRAC in the establishment and legal accreditation of 20 community mediation centers nationwide. Centers established by ROLHR used a variety of models for location and management of the centers' operations, working with universities, NGOs, indigenous groups, and the National Police. Each center received technical assistance to develop operating procedures and ethics codes, approved by DIRAC as the ADR regulatory body. As the ROLHR program wound down, during 2008-2009, Checchi proposed three sustainability options to the centers, whose services had been provided at no charge. Options were: 1) charge 250 -300 cordobas(+/- US$10) per mediation, 2) charge on a sliding scale from the minimum wage upward, 3) ask a voluntary contribution. Most centers decided not to charge (UNAN-Leon, UCA, BICU's centers, DIRAC's three centers, Estell among others), for policy or legal reasons, and since mediations in the courts are free of charge. Those that have attempted to institute payment have seen their case loads decline precipitously. Ull-doiV.Iao UII_M __ DIU£ -~ ... 1 DIUI: ... VI DIUI: ... vt• -·""- -~-.. -~. Figure 15: Community Mediation Center Locations- Situation in 2009 Atllintlao Norto Source: Checchi, ROLHR Final Report, September 2009. In July 2010, the RCC consultants conducted a focus group and a survey of the mediation centers and found that several of the 20 community mediation centers established under the ROLDR have serious sustainability and functioning problems. Nevertheless, some centers have continued to work after the termination ofUSAID assistance and they are doing their best to continue offering their services. The main findings are: • Those centers backed by established entities have survived better (UCA, UNAN-Le6n, UNIV ALLE, Pueblo Indigena de Mozonte, Caritas Granada, Comisi6n Justicia y Paz in Estell, BICU Bluefields, BICU Laguna de Perlas, BICU Puerto Cabezas). Currently these organizations provided for basic functioning of 85% of the currently existing mediation centers. • The best-established and more solid centers were the UCA in Managua and the UNAN in Leon that were already established before the USAID assistance, and attached to university legal clinics (bufetes juridicos). • The centers in Bonanza, San Carlos/Rio San Juan and UNICA Managua have disappeared and those in Carazo and Pueblo Indigena de Sebaco are nearly non-operational. 16 • Some centers (Esteli, and three DIRAC centers in Managua) at the end ofUSAID support, were able to maintain a single permanent staff person and had to fire the secretary. In Esteli, for example, only the Director is permanent staff, but there is a group of 10 volunteer mediators on call according to needs. In Sebaco, where the Center is almost closed, the Director of the Center is the President of the Indigenous Town and the assistant is the person for all the town needs. In Carazo, the Center functions at the law office of its director, and the assistant is the lawyer's secretary. He mentioned that the Center once had 14 more affiliated mediators, but he does not call them because he does not get any cases. Possible users prefer to go to other places where mediation is done free. • Mediad ores • Auxiliares 12 10 +---~--~~----------------------------~-------------------------- 8 6 ~~- 4 ........ R-- 2 ...._.._.._ 0 -+--- ....- c 0 ~ z <( z ::J "' -cio -g ~ u:E u 0 ~ .5 -"C Q c ~ ~~ "'u.~ a Q,l ,!Q ·~ E "' ~ 0 E """u z Q