UPDATE: Guide to Legal Research in Nicaragua
By Magda Violeta Blandino
Update by Andrea M. Vidaurre
Magda Violeta Blandino holds Law and Notary Public degrees from Universidad Nacional Autónoma de Nicaragua. She also obtained an LL.M. degree from The George Washington University, Washington, D.C. Currently she is a professor of Commercial Law at Universidad Nacional Autónoma de Nicaragua and Attorney at Law at Consortium Centroamérica – Taboada & Asociados in Nicaragua.
Andrea M. Vidaurre is a Nicaraguan lawyer who holds a law degree from the Pontificia Universidad Católica de Chile. She is currently a student at New York University School of Law, in the process of completing an LL.M. in corporate law. Once the program is finished, she will return to Nicaragua to continue working as a corporate attorney in the firm of Munguía, Vidaurre, Zúniga.
Published March 2012
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Table of Contents
2.1. Constitutional Law
3.1. The Executive Branch
3.2. Legislative Branch
3.3. The Judicial Branch
3.4. The Electoral Branch
3.5. Administrative Law
3.6. Other State Organs
3.6.1. Public Prosecutor’s Office
3.6.2. Attorney General’s Office
4.4. Customs and Usages
7.2. Legal Associations
7.3. Law Schools
Nicaragua is located in the heart of Central America. It borders with Honduras to the North, Costa Rica to the South, the Pacific Ocean to the West and the Caribbean Sea to the East. Its surface area is of 130,373.47 sq. km. It has a population of approximately 5 and a half million people. Managua is the capital of the country. Spanish is the official language, although diverse dialects are spoken in the Atlantic Coast.
The Political Constitution of Nicaragua is the supreme law of the country. It was enacted by the National Constitutional Assembly on November 19, 1986 and entered into force on January 9, 1987.
Its framework contains titles, chapters and each provision is numbered as an article. There are 202 articles in total.
The Constitution of Nicaragua has suffered three main partial reforms:
It was made through the Law Nº 192 of Partial Reforms of June 15, 1995 and published in the official gazette[] Nº 124 of July 4, 1995. There were modified 62 of the 202 articles of the constitutional text in diverse topics, among them: individual rights, political rights, social rights, family rights, national defence, national economy, agrarian reform, public finances, education and culture, structure of the government and municipal and community matters.
The main purpose of this reform was to balance the State Powers, allocating functions to the Legislative Power which contributed to the lessening of the attributions of the President to control the political system.
It was made through the Law Nº 330 of Partial Reforms of January 18, 2000 and published in the official gazette Nº 13 of January 19, 2000. This reform modified 19 articles of the Constitution covering diverse ambits of the national political system: territorial rights and national sovereignty, double nationality, exercise of political rights (modifying dispositions of requirements and impediments to become a candidate or to be appointed in ministerial positions or in other Branches or State Institutions if the person had acquired another nationality, dispositions about the percentage needed to win an presidential election, enlargement of the Supreme Court of Justice and Electoral Supreme Council and Creation of the Superior Council of the National Comptroller’s Office.
It was made through the Law Nº 520 of Partial Reforms of January 13, 2005 and published in the official gazette Nº 35 of February 18, 2005. This reform basically gives more powers to the National Assembly. The main change is that the National Assembly has the faculty to ask for informs to the Ministers and Vice-Ministers of State, Attorney General and Directors of autonomous entities (among others) and to ratify the appointments of Ministers, Vice-Ministers of State, Attorney General (among others) made by the President of the Republic. The reform of 2005 is not yet effective through a political accord enacted as Law (Ley Marco para la estabilidad y gobernabilidad del país), published in the official gazette Nº 203 of October 20, 2005.
The constitutional control is exercised by the Supreme Court of Justice. The Constitution establishes the three procedures of control:
The Amparo Law (Ley de Amparo) published in the official gazette Nº 241 of December 20, 1998 is the law that regulates the procedures stated in the Constitution.
Nicaragua is a democratic, participative and representative Republic whereby the President of Nicaragua is both head of state and head of government. Its State organs are: Legislative branch, executive branch, judicial branch and electoral branch.
The municipality is the basic unit of the political–administrative division of the country. [] The municipality has political, administrative and financial autonomy and its administration belongs to the municipal authorities. [] These authorities are formed by a Municipal Council presided over by a Mayor. The authorities are elected by popular vote every four years. The Law of Municipalities, (Ley de Municipios), Law Nº40 of July 2, 1988, published in the official gazette Nº 155 of August 17, 1988 and its regulations sets forth in detail the competences of the municipalities.
The Executive Branch is headed by the President of the Republic, who is Head of the State, Head of Government, and Commander in Chief of the Nicaraguan Army.[]
President and Vice-President are elected by universal suffrage for a term of five years.[] To be elected as President and Vice-President, the candidates should obtain a relative majority of at least forty percent of the valid votes, unless the candidate who obtains a minimum of 35% of the valid votes overcomes the candidate who obtains the second position by a minimum difference of five percent.[] If none of the candidates obtains this percentage to be elected, it will take place a second round of election in which only the first and second place candidates participate, with the winner decided on number of votes.[]
The Vice-President will fulfil the functions appointed by the Constitution, delegated by the President directly or through law. [] Also, he will stand in for the President, in cases of temporary or permanent absence. []
The President of the Republic nominates and discharges the Ministers of the State, the Attorney General, and Directors of autonomous entities and Ambassadors. However, in order to become effective, this nomination should be ratified by the National Assembly. [] There are twelve Ministries in the current structure of the government.
In addition to the provisions contained in the Constitution, the Law of Organization, competences and procedures of the Executive Branch (Ley de Organización, Competencias y Procedimientos del Poder Ejecutivo) of March 29, 1998 and published in the official gazette Nº 102 of June 3, 1998, is the specific law governing the Executive Branch.
The Legislative Branch is composed of the National Assembly. This state power is formed by ninety members elected by universal suffrage for a term of five years with their respective substitutes. [] Twenty congressmen have represent the nation and the rest represent the municipality where they were elected.
Also part of the National Assembly are the former President and Vice- President) and the runner-up candidates to President and Vice-President
The National Assembly has the primary duty of elaborating and enacting laws and decrees, and to amend and derogate them. []
The legislative branch is governed by the General Statute of the National Assembly of 2006, which repealed the previous Statute of 1987 and its reforms.
The Judicial Branch’s primary function is to oversee and decide all of the nation’s trials along with the execution of all judicial sentences.
The Constitution states that the justices and judges in their judicial activity are independent and must obey only to the Constitution and the law; they are governed, among others, by the principles of equality, publicity and right to defence. []
The Organic Law of the Judicial Branch (Ley orgánica del poder judicial) and its reforms is the specific law regulating this State power. It was enacted in July 7, 1998 and published in the official gazette Nº 137 of July 23, 1998.
The Organic Law of the Judicial Branch establishes a two-tier system not allowing more than two opportunities for judicial review.[] The action of cassation is decided by the Supreme Court who has the power to modify or revoke a sentence and even dictate an entirely new sentence if the case calls for it.
The Nicaraguan legal system is formed by: local judges, district judges, Court of Appeals and the Supreme Court of Justice.
Local judges exercise their duty in the municipalities. A local judge has a specific competence over a matter: civil, labor, family or criminal, except in small municipalities where just one judge could be competent for all the matters mentioned before.
District judges exercise their duty in the departments and autonomous regions. They judge cases in civil, labor, family or criminal matters. However, it is possible that just one judge could be competent for all the matters mentioned before. To distinguish which case will be judged by whom (local or district judge) is used the criterion of the monetary amount of the lawsuit.
The Courts of Appeals review the appeals of the sentences dictated by the district judges. They are formed by no less than five justices. They also have exclusive jurisdiction over some matters.
The Supreme Court of Justice is formed by sixteen justices elected by the National Assembly for a term of five years. It is the highest court in the Republic. It is divided in four chambers: civil, criminal, constitutional and contentious-administrative. The decision of some matters, including the constitutionality of a law or decree, requires decision from the plenary of the court.
The electoral branch is in charge of the organization, direction and pronouncement of the elections (whether national or municipal), plebiscites, and referendums. []
Elections of the President, Vice-President and congress take place every five years in the same election; the election of municipal authorities takes place every four years.
The electoral branch is formed by the Electoral Supreme Council and other subordinated electoral organisms. []
The Electoral Supreme Council is formed by seven members and three substitutes elected by the National Assembly. []
The Civil Service and Administrative Career Law is the specific law that regulates the rights, duties, faults and disciplinary procedures of the public servants. This law was enacted November 19, 2003 and published in the official gazette Nº 235 of December 11, 2003. Other laws regulating specific relations between the government and the public servants are the Judicial Career Law and the Foreign Service Law.
At some moment the claims of the citizens against the acts or resolutions made by the public administration are regulated by the Law of the Contentious-Administrative Jurisdiction. Currently, there are several trials pending against the Government.
Other state organs that play an important role in the Nicaraguan legal system are:
It is an independent institution with organic, administrative and functional autonomy in charge of the prosecution of public offences and the representation of the victim through the criminal process. The public Prosecutor is appointed by the National Assembly for a term of five years.[] The public prosecutor’s office is governed by its Organic Law (Ley Orgánica del Ministerio Público) of May 2, 2000, published in the official gazette Nº 196 of October 17, 2000.
Unlike the public prosecutor’s office, this institution only has functional autonomy. Basically, its function is to represent the State and to defend its rights and interests and act as a legal advisor. The Attorney General is appointed by the President (no specific term exists, given that this authority has rank of Ministry of State).[] The attorney general’s office is governed by its Organic Law (Ley Orgánica de la Procuraduría General de la Republica) of December 4, 2001, published in the official gazette Nº 244 of December 24, 2001.
The formal sources of law recognized in any civil law country are also recognized in Nicaragua, namely: legislation, treaties, jurisprudence and doctrine.
Nicaragua is a civil law country in which legislation is the primary source of law. The legislative process is found in Articles 140 to 143 of the Constitution.
The projects of law, decree or regulation require for its approval the vote of simple majority of the congressmen adopted in a meeting in which the quorum is formed by absolute majority of them, except when the Constitution states another type of majority, like the amendment of the Constitution or the amendment of the so-called constitutional laws.[]
Every project of law must be presented to the Secretary of the National Assembly with its respective exposition of motives. []
The National Assembly reads the project and passes it to a specific commission, which is in charge of elaborating a report.[] This report is read by the National Assembly and it is debated in general, if approved, then it has to be debated in particular.[]
Once the project of law is approved by the National Assembly, it is passed to the Executive Branch for signature and publication in the official gazette. If after fifteen days the President does not exercise his right to veto and does not sign and publish the law, the project is final and the President of the National Assembly sends it for publication in any newspaper, without prejudice to its subsequent publication in the official gazette. If the President exercises the right to veto (partial or total) the project of law returns to the National Assembly. The National Assembly can overturn the veto by absolute majority of votes. []
New laws, decrees or regulations are published in the official gazette. [] This is basically the only publication in which they can be found in paper. However, sporadically some compilations are published by Nicaraguan publishing houses.
Most of the Nicaraguan Codes were written in the late 19th century and early 20th century, under the influence of the Napoleonic Code and the Roman Law.
The codes can be viewed at the National Assembly website. They are also available in print form from publishing companies like Editorial Bitecsa and Editorial Juridica. Codes are sold at specialized bookstores.
Article 182 of the Constitution contains the principle of constitutional supremacy which establishes that the Constitution is above any law, treaty, order or disposition.
In Nicaragua, the President of the Republic is the representative of the nation before the international community. In this sense, according to Article 150, section 8, he is in charge of directing the international relations of the Republic, and of negotiating and signing treaties.
Once the President has signed a treaty, to become law, the National Assembly has to approve it. [] However, the treaty can only be debated, approved or denied in general, and no changes can be introduced or made. []
According to article 443 of the Civil Procedure Code the judges or tribunals have the duty to resolve the petitions of the parties and it establishes that if there is no law regulating the matter, they should follow at first the general principles of law and then the legal doctrine or jurisprudence. However, there is no a specific number of uniforms judgments mentioned. The same statement is found in article 18 of the Organic Law of the Judicial Branch.
Customs and usages is an important source of law in commercial law.
In an effort to improve the economic and social development of the country, the Nicaraguan government engaged in negotiations with United States to participate, together with the rest of the Central American countries and the Dominican Republic, in the biggest free trade agreement in the history of the region: the Dominican Republic – Central America Free Trade Agreement (DR-CAFTA).
The DR-CAFTA removes barriers to trade with and investment in the region and furthers regional economic integration. [] Under the Agreement, more than 80% of U.S. consumer and industrial exports and over half of U.S. farms exports to Central America would become duty-free immediately.[] For the DR-CAFTA countries, 100% of non-textile and non-agricultural goods would enter the United States duty free immediately.
In addition to its economic regulations, the DR-CAFTA includes an “Intellectual Property Rights” section – chapter 15 – which includes general provisions governing the whole chapter and specific provisions dealing with trademarks, geographical indications, domain names, copyrights and related rights, patents and regulated products and enforcement.
CAFTA negotiation was completed on a very short timeline (one calendar year January – December 2003 / 10 rounds).
The Bush Administration pursued the CAFTA negotiations based on a bill approved by the U.S. Congress to confer Trade Promotion Authority (or “Fast Track”) to the White House; under “Fast Track,” Congress is limited to an up or down vote and cannot amend a trade agreement.
CAFTA was signed on May 28, 2004 in Washington D.C. Bilateral negotiations between United States and Dominican Republic were held on January – July 2004 (4 rounds). The Dominican Republic signed CAFTA on August 8, 2004 becoming then DR - CAFTA.
So far, CAFTA has been already approved by the US Congress and by the National Assemblies of Honduras, El Salvador, Nicaragua (October 2005), Guatemala and Dominican Republic. It is still waiting to be approved by Costa Rica. Its entry into force in Nicaragua was April 1, 2006.
The Constitution establishes that all companies organized under any of the type of properties protected by it (private, public, cooperative, associative and communitarian) enjoy equality before the law and economic policies of the State. This statement implies a general principle of equality between national and foreign investors.
In 2000 the Promotion of Foreign Investments Law (Ley de Promoción de Inversiones Extranjeras) was enacted. [] This law basically enunciates the principle established by the Constitution and extends it. The Law states specifically that the foreign investor is subject to all the legal rules of general observance in the Nicaraguan territory and that the foreign investor enjoys the same rights and enforcement mechanisms that the law grants to Nicaraguan investors.[]
As an additional effort to attract foreign investment in 2006 the President of the Republic enacted the Executive Decree Nº 55- 2006 of creation of a single window of investment for the facilitation of procedures in the organization of business enterprises (Creación de la ventanilla única de inversiones para la facilitación de trámites en la formación de empresas). [] This office expects to speed up the procedures that involve the participation of the public administration.
Also in this matter, the DR-CAFTA dedicates Chapter 10 to Foreign Direct Investment. The Agreement represents a detailed set of rules regulating the topic. In the text, definitions of investors, investment and covered investment are found.
The principles of National Treatment, Most Favoured Nation and Minimum Standard Treatment apply to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.[]
With regard to restitution or compensation, the Agreement states that each Party shall accord to investors of another Party, and to covered investments, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory due to armed conflict or civil strife. If an investor of a Party, suffers a loss in the territory of another Party resulting from a) requisitioning of its covered investment or part thereof by the latter’s forces or authorities; or b) destruction of its covered investment or part thereof by the latter’s forces or authorities, which was not required by the necessity of the situation, the latter Party shall provide to the investor, restitution or compensation, which in either case shall be in accordance with customary international law and compensation shall be paid with no delay, and it shall be equivalent to the fair market value, fully realizable and freely transferable.
In the event of an investment dispute, the claimant and the respondent should at first seek to resolve the dispute through consultation and negotiation, which may include the use of non-binding, third-party procedures such as conciliation and mediation. If dispute is not resolved, the proceeding of the chapter concerning Dispute Settlements shall be applied.
The Law of Tax-Free Zones (Ley de Zona Franca) gives investors certain benefits in order to promote exportations, such as exoneration of the income tax for up to 10 years, exoneration of the import tax on all raw materials that are necessary for operations, exoneration of the import tax on all machinery needed for production.
Under the Law for the Promotion of Tourism (Ley de Incentivo a la Industria Turistica) all touristic organizations or attractions have the benefit of an income tax exoneration for up to ten years and the exoneration of the municipal tax and import tax on all machinery and necessary equipment.
In principle the Constitution guarantees the right of private property (movable or real estate). []
However, the Constitution contemplates expropriation in cases of social interest or public utility. Any taking is subject to previous fair compensation in legal currency. []
The DR-CAFTA also provides that no Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization, except for a public purpose, in a non-discriminatory manner, subject to payment of a prompt, adequate and effective compensation. Compensation shall be paid with no delay, and it shall be equivalent to the fair market value, fully usable and freely transferable.
Other State Organs
· VLex --Legislación From July 06, 1808. IP access. (Fee-based)
· The National Law Center for Inter-American Free Trade’s InterAmSM Database contains primary and secondary materials. IP access. (Fee-based)
The Supreme Court of Justice publishes its opinions in Judicial Bulletins (Boletines Judiciales). [] Online access to jurisprudence is possible throughout the webpage of Supreme Court. However, the jurisprudence posted is limited to periods from 1913 to 1922 and from 1990 to 1997. CD-ROMs with this case-law are also available. The Supreme Court of Justice Library is also a resource to research case-law. In addition, the law libraries of the Law Schools offer a complete collection of the Judicial Bulletins.
[] Office of the United States Trade Representative Press Release, 2006 National Trade Estimate Report on Foreign Trade Barriers (March 30, 2005) available at http://www.ustr.gov (last viewed March 2, 2006).
[] CRS Report for Congress, The Dominican Republic – Central America – United States Free Trade Agreement (DR-CAFTA) (January 3, 2005) available at http://fpc.state.gov/documents/organization/40852.pdf (last viewed March 2, 2006).