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Twelve years in prison for sharing opinions on Facebook and WhatsApp messages

Judge alleges without evidence that the “publications and posts” of opponent Donald Margarito Alvarenga incited “hatred and violence” and “subversion”.

Donald Margarito Alvarenga Mendoza’s last Facebook post was a video of The Logical Song, by British rock band Supertramp, on Thursday, October 28, 2021. Ten days later, on November 6, he was arrested by the National Police and, on January 13, 2022, an Ortega judge convicted him for allegedly inciting “hatred and violence”, through Facebook posts and WhatsApp messages. 

Alvarenga, 56, is a former FSLN guerilla fighter and was an Interior Ministry official in the 1980’s. He is the first Nicaraguan opposition member convicted under the Special Cybercrime Law or “Gag Law”, and Law 1055 or “Sovereignty Law”, both approved at the end of 2020. He was charged for the alleged crimes of “subversion, disobedience and rebellion at the level of conspiracy to affect national integrity”. 

A review of Alvarenga’s publications in recent months only shows that the citizen is a fan of rock bands of the 70’s and 80’s, as well as protest music. His only publications with political overtones were aimed at demanding the release of political prisoners, and a call not to vote in the November 7 elections in which Daniel Ortega and Rosario Murillo secured one more term, after arresting the main opposition candidates, civic and political leaders and canceling the legal status of opposition parties.

“Everyone in Chichigalpa (municipality of Chinandega) knows that my dad is an opponent of the Government; and they (opponents) share publications among themselves. As my father said at the time: ‘I am not responsible for the publications or messages that are sent to my Facebook, because this is a free medium,” commented Donald Enrique Alvarenga, son of the convicted political prisoner.

Judge’s reasoning 

The trial against Alvarenga lasted more than 12 hours and was held in a single day. It was in the hands of Rosa Velia Baca Cardoza, judge of the Criminal District of Chinandega, in western Nicaragua, who argued that Alvarenga’s “publications, expressions and posts” incited “hatred and violence”. 

She also alleged that the citizen “promoted meetings with the purpose of creating anxiety, instability, anguish and desperation in the population” of Chichigalpa.

The judge initially imposed, on January 18, a sentence of seven and a half years in prison, but a day later, she rectified it and raised it to twelve years. A sentence of eight years “for the crime of undermining national integrity (conspiracy)”  and another of four years “for the crime of spreading false news through information and communication technologies”, according to Baca Cardoza’s rectification order.

“Some messages were found that I honestly don’t see any problem with. In reality, I don’t think that the things my father published on his Facebook page could be psychologically damaging to the population,” said Donald Enrique.

The evidence against Alvarenga was the testimonies of seven police officers, some publications on his Facebook page, and some messages in a WhatsApp group.

Norvin Cruz Ponce, Alvarenga’s defense lawyer, said in an interview with the program Esta Semana – broadcast on  Facebook and YouTube due to the regime’s censorship –  that the judge did not take the inconsistencies in the evidence provided by the National Police and the Public Prosecutor’s Office into account. 

The defense attorney stated that during the trial, he asked the police officers if they had ascertained which victims were frightened by the publication that Alvarenga allegedly made, and if a professional had determined this emotional affectation.

According to Cruz, the police officers justified this by saying that they could not bring in “half of the Nicaraguan population, who were psychologically affected by the publication,” to which the defense attorney explained “it was not necessary to bring half of Nicaragua. It was enough to bring several people and demonstrate that they were emotionally affected through a legal medical opinion, which they did not offer”. 

Illegal detention 

Alvarenga was detained at his home on the night of November 6, 2021, on the eve of the national voting. However, in the indictment of prosecutor Maria Francis Perez Mojica, it was stated that the citizen was arrested in the public street, on November 15.

According to the family, Donald Margarito was in an armchair, in the living room of his house, when three officers entered and told him to accompany them. The opponent got up, walked to a closet about ten steps away from the couch, put on a shirt, and left with the policemen, without resisting. Outside the house were two patrol cars full of riot police.

Alvarenga’s house is half a block from the Chichigalpa City Hall. It is an old construction, with high ceilings. There used to be a cafe, but it was closed in 2020 because the municipality and other state offices, such as the Social Security office, prohibited their employees from buying food there.

“The individual was detained in his home. They did not arrest him, let’s say, ‘infraganti’, in the commission of a crime, therefore, the law has certain limits, I could violate your right to liberty if I really catch you in flagrante delicto,” the defense attorney emphasized.

The trial record indicates that Alvarenga was denounced by commissioner Ramón César Quintana, chief of the Chichigalpa Police. However, on the day of the arrest, officers of that delegation informed the family that they were unaware of the arrest. The citizen was taken directly to the Chinandega police station.

Alvarenga’s son said that on Monday, November 8, he went to the Chinandega police station, where he was met by a captain, who informed him that his father “was detained under investigation”. However, he did not tell him why Donald Margarito was being investigated, arguing that he could not “talk about that subject”. 

Cell phone confiscated

During the illegal arrest, Alvarenga handed his cell phone to one of his sons, while he put on his shirt to accompany the officers. This was observed by one of the policemen, who after taking the opponent out of his house, returned to the house and threatened the young man with arrest, so that he would hand over the cell phone. 

“If Margarito’s (Alvarenga) phone was not withheld with a court order, everything that occurs from that moment on is null and void,” said Cruz.

According to the trial records, a touch screen cell phone, LG K62, light blue in color, and with capacity for a SIM memory card belonging to the defendant was confiscated. The phone was evaluated by a police expert, sub-inspector Wilson Martín Díaz Ríos, who allegedly found “evidence about the crimes.”

“What did they discover on the phone? Police computer experts arrived (at the trial) and state that they found content that is adverse to the government, publications that according to the Special Law on Cybercrimes in Article 30, refer to false or misrepresented news,” the lawyer related.

“First of all, it should have been demonstrated whether they were true or false, and most importantly, to know who published them, because it appeared in a WhatsApp group called Los Pingüinos”, he pointed out.

The judicial file details that, allegedly, on May 19, 2021, in that WhatsApp group, the image of a mortar along with the message “If the people have no peace, neither does the fucking government” was published. 

According to the lawyer, “some critical assertions were made to the Government in a group called ‘Los Pingüinos’, but not precisely from Mr. Margarito’s number. Even he, when he takes the floor (in the trial), tells the judge that ‘I cannot be responsible for publications sent to my phone’”.

Police spying

In his testimony before the judge, Commissioner Quintana revealed that the National Police spied on Alvarenga since July 2019, through “secret sources in Chichigalpa, Intelligence officers, and civilians,” among them the FSLN chief of the area, Ramón Pastora.

“(The police officers) speak in the accusation that they were following him since 2019, but the law with which they condemn him was enacted at the end of 2020. So there is an injury to the principle of retroactivity established in the Political Constitution,” Cruz said.

The Special Law on Cybercrimes, known as “Gag Law”, was approved by the National Assembly in October of 2020. This legislation establishes up to ten years in prison for citizens who, according to the regime, spread false news, through social networks and media.

Law 1055 or “Sovereignty Law” was approved on December 21, 2020. The Prosecutor’s Office has turned that legislation into a repressive tool, through which they justify arrests against opponents of the regime.

The Alvarenga family commented that they never had police presence in their house, as has happened with other opponents of the regime, so they were surprised to learn that Donald Margarito was under surveillance.

Sandinista combatant

The only incident has been some graffiti on the front of his home. This occurred after the 2018 citizen protests in Chichigalpa, in which Alvarenga participated.

“Since there was a cafe in the house, they scratched the wall and wrote ‘Restaurante El Golpeón’” commented Donald Enrique, who also added: “My dad was not intimidated and on the Facebook page of the cafe, he changed the name from Las Delicias to El Golpeón.  It was a way of showing the government that this (the graffiti) did not affect him”. The term El Golpeón is derived from golpe de estado, meaning coup d’etat. 

“He told me: ‘Son, I know where I stand. I know what I’m getting into; maybe, at the right time, some things may happen, but don’t worry. This is going to change, not all this struggle is in vain,” said the son of the political prisoner. 

The Ortega dictatorship is the second against which Donald Margarito is fighting. The Chichigalpa native joined the ranks of the Sandinista Front in 1978, when he was 15 years old. He joined the revolutionary cause after the murder of a cousin at the hands of the Somoza Guard. Alvarenga’s relatives assure that he has never stopped being a Sandinista, but that he does not agree with the current FSLN leadership.

Alvarenga was chief of officers and cadres of the Ministry of the Interior in the early 80’s, but left the police force to study agricultural engineering at the National Agrarian University (UNA). “He decided to leave the Police, but he never abandoned his Sandinista ideals,” assured Donald Enrique.

“There were many things that he did not like within the Sandinista Front, regarding how the positions and candidacies were designated. He has always been one of those people who says: ‘let’s vote, let’s elect, and let’s not say that so-and-so is going to do such-and-such’”, his son described. 

“At the time, he switched from the FSLN to the MRS (Movimiento Renovador Sandinista). He says that what is happening now in the Sandinista Front is not the thinking of Sandino,” he added. 

Last October, Donald Margarito posted three videos on Facebook of The Logical Song, which tells the story of a “simple man” who as a young man lived in a world that seemed “wonderful” and “magical”, but as he grows up he wonders “who he is” and what he is doing in a “bloody marvelous” world. 

This article was originally published in Spanish in Confidencial and translated by our staff

https://mailchi.mp/confidencial.digital/englishnewsletterform


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