817.1051/701
The Minister in Nicaragua (
Hanna
) to the Secretary of State
No. 958
Managua
, November 5,
1932.
[Received November 14.]
Sir: I have the honor to submit for the
Department’s consideration a copy of a letter addressed to me by the
Jefe Director of the Guardia Nacional on November 2, 1932, recommending
that steps be taken, either by treaty arrangement or by legislative
enactment [Page 879] by the Nicaraguan
Congress, to insure that trials by court martial of members of the
Guardia Nacional be considered valid, and that members of the Guardia
Nacional who may be charged with committing military offenses, but who
shall not have been tried prior to the delivery of the Guardia to
Nicaraguan Control, be insured a valid trial by court martial.
There is transmitted also a translation of Article 32 of the Constitution
of Nicaragua, as quoted on page 2 of General Matthews’ letter.
Respectfully yours,
[Enclosure 1]
The Jefe Director of the Guardia Nacional de
Nicaragua (
Matthews
) to
the American Minister (
Hanna
)
Managua
, 2 November,
1932.
My Dear Mr. Hanna
: In view of the fact that the time
for the withdrawing of the personnel of the U. S. Marine Corps and
U. S. Navy from duty with the Guardia Nacional de Nicaragua and from
the Republic of Nicaragua is, under the provisions of the Tipitapa
Agreement of 1927, drawing near, I feel that there are certain
matters which I, in justice to the Nicaraguan officers and men who
have served in the Guardia Nacional de Nicaragua, should bring to
your attention.
The Congress of Nicaragua has never formally ratified the Guardia
Agreement, under the authority of which the Guardia Nacional de
Nicaragua came into existence and has since functioned; nor has it
formally given legislative enactment to the Articles for the
Government and Discipline of the Guardia Nacional de Nicaragua.
These articles have as their sole legal basis the approval of the
President of the Republic.
During the existence of the Guardia Nacional de Nicaragua certain
Nicaraguan officers and enlisted men have been brought to trial by
consejos de guerra under the authority of
the Articles for the Government and Discipline of the Guardia
Nacional de Nicaragua for offenses which were of a military nature
or were committed when in line of duty as members of the Guardia
Nacional de Nicaragua. From time to time Nicaraguan officers and
enlisted men have been discharged and turned over to the civil
authorities for trial when the offenses were not military ones or
were not committed in line of duty as members of the Guardia
Nacional de Nicaragua. However, there have been cases where
jurisdiction has been taken and trials had by [Page 880]
consejos de guerra when the civil courts of
first instance have also claimed jurisdiction. The courts of first
instance have in a number of these cases appealed to higher courts
and these appeals have finally reached the Supreme Court of
Nicaragua. This court has never rendered a decision as to the
validity of the trials by consejos de guerra.
In view of the fact that there exists no authority in the
legislation by the Congress of Nicaragua and, further, that the
Supreme Court of Nicaragua has so far failed to make a decision in
these cases, the question of the validity of the trials so far had
by consejos de guerra of the Guardia Nacional
de Nicaragua as a bar to further trial by the civil and criminal
courts of the Republic of Nicaragua as provided for in Article 32 of
the Constitution of Nicaragua remains open and undetermined.
It is highly probable that the civil and criminal courts may attempt
to bring members or ex-members of the Guardia Nacional de Nicaragua
to trial for offenses for which trial by a consejo
de guerra has already been had. They may, also, attempt to
exercise jurisdiction in cases of some alleged offenses committed in
line of duty as members of the Guardia Nacional de Nicaragua for
which no trial by a consejo de guerra has
been had, as a means of satisfying a personal grudge or from motives
of revenge.
In the Military and Naval services of the United States the authority
for the existence of Military and Naval courts-martial exists in the
legislation by the Congress and accordingly a trial by a
court-martial operates as a bar to further trial in a federal
court.
Article 32 of the Constitution of Nicaragua reads as follows:
“Artículo 32—Ningún poder público
podrá avocar causas pendientes ante autoridad competente, ni
abrir juicios fenecidos.
“En lo criminal podrá admitirse el recurso de revision de
juicios fenecidos, en que se haya impuesto pena más que
correccional. La Ley reglamentará el ejercicio de este
derecho.”
In view of the existing situation and legal status of the Guardia
Nacional de Nicaragua, I submit to your consideration the question
of the securing by means of either treaty or by legislative
enactment by the Congress of Nicaragua the following:
- (1)
- Giving effect and validity to all trials of Nicaraguan
officers and enlisted men of the Guardia Nacional de
Nicaragua by consejos de guerra under
authority of the Articles for the Government and Discipline
of the Guardia Nacional de Nicaragua and providing that such
trials shall constitute a bar to further trial by military,
civil and criminal tribunals of the Republic of Nicaragua as
provided for in Article 32 of the Constitution of
Nicaragua.
- (2)
- Reserving to Nicaraguan officers and enlisted men of the
Guardia Nacional de Nicaragua the right to trial by a consejo de guerra
[Page 881] for offenses
committed in line of duty as members of the Guardia Nacional
de Nicaragua prior to the date the Guardia Nacional de
Nicaragua passes to full control of the Government of
Nicaragua, for which they have not prior thereto been
brought to trial.
Very truly yours,
[Enclosure 2—Translation]
Translation of Article 32 of the Nicaraguan
Constitution
Article 32. No public power may remove
cases pending before competent authority, nor reopen cases which are
terminated.
In criminal matters recourse to revision of cases which have
terminated, in which the penalty imposed is more than correctional,
may be had.
