The following is a memorandum from an NGO in Washington, D.C. Farmers are dying of Chronic Renal Failure due to the exposure of poisonous pesticides while working for the Nicaragua Sugar Estates, owned by Carlos Pellas.
I am hoping someone out there will be able to take on this story and begin an in depth investigation into these allegations.
DATE: January 13, 2005
RE: IJM) 10 step analysis for Nicaragua Case Referral
In this memorandum we analyze the recently received Nicaragua Case Referral, by running the facts of the case through our Ten Step Methodology. Jeff Pankratz also requested a short section detailing what would IJMâ€™s involvement in the case will be once a pro bono law firm is identified. I have included said information at the end of the 10-step analysis.
I. CASE REFERRAL PROPOSITION: Name the abuse, the victim, and the perpetrator.
A. ABUSE: (1) Out of a population of approximately 5,000 harvest workers, due to the wrongful or negligent of different herbicides and pesticides, thousands of workers have died or are dying of Chronic Renal Insufficiency
(2) A significant amount of workers have been wrongfully denied their disability pension benefits.
B. VICTIM: (1) Families and relatives of approximately 800 San Antonio Sugar Mill Workers who have died of kidney failure;
(2) Over 1,500 harvest workers currently afflicted with Chronic Renal Insufficiency.
C. PERPETRATORS: (1) Nicaragua Sugar Estates, owned by Carlos Pellas.
(2) Instituto Nicaraguense de Seguridad Social.
II. PRELIMINARY CASE REFERRAL INVESTIGATION: Can you believe it?
A. ENVIRONMENTAL CONTAMINATION
The story is believable. IJM has established contact with the leaders of the AsociaciÃ³n De Enfermos del Ingenio San Antonio (San Antonio Mill Diseased Persons Association, hereinafter â€œAssociationâ€). The Association, led by diseased former employees, currently represents approximately 1,400 infirmed ex-employees. The Association has compiled copies of employment and medical records for all of their members. Copies of several victim files were shown and provided to IJM. There have also been press publications that corroborate the facts.
The victims are seasonal harvesters for the Ingenio San Antonio, owned by Nicaragua Sugar Estates (hereinafter the â€œCorporationâ€), a Nicaraguan company. Harvest season runs essentially from November to May. At the end of the harvest, the company administered medical exams to its employees. The first company doctor that began diagnosing the victims with CRI was a woman named Dr. Pastora. According to victims interviewed, the company fired Dr. Pastora because of her repeated CRI diagnostics on patients. She continues to live in LeÃ³n with her husband, who reportedly continues to work for Corporation.
The victims have sought legal recourse in the past. In the year 2002, 162 victims retained Attorney AdriÃ¡n Meza and filed a lawsuit against Nicaragua Sugar Estates. It seems that at least 2 lawsuits were filed simultaneously. IJM has a copy of a judgment in case 322-2003, filed at the Juzgado Segundo Civil y Laboral de Chinandega, on behalf of the 162 plaintiffs. This case was dismissed upon plaintiffsâ€™ request, on the basis that a second lawsuit with the same facts had been filed.
The Corporation and the Association signed a settlement agreement to apparently put an end to their claims on August 25, 2003, in Managua, Nicaragua before Notary Public Martha Carolina Alvarez Palazio. This document states that â€œ[t]he negotiating Commission of the Association of sick persons of the San Antonio Mill and Doctor AdriÃ¡n Meza Soza agree to undertake all efforts possible to incorporate inside this agreement and its spirit, those persons that for different reasons have not been represented in the accord and, in the spirit of this accord, those persons that for various reasons are not represented in this accord so that in turn they can benefited by it. Both parties state that no further negotiations over this matter shall be conducted; as such, only those persons contained in the list to be protocolized in Deed Number 23 will be covered. In the event that there are persons in said listing that are currently not represented in the inserted powers but included in said listing in the present clause, they will have the option of benefiting from these accords only and exclusively in accordance to their established terms, conditions and proceedings, through the signing of an adhesion contract in a public deedâ€.
IJM also has a copy of another civil lawsuit dated February 12, 2004. Attorney AdriÃ¡n Meza represented (or represents) 44 plaintiffs in this lawsuit filed before the Juzgado Segundo de Distrito Para lo Civil y Laboral de Chinandega. The status of this case is unknown, however, we would not be surprised if these plaintiffs have signed on to the aforementioned settlement agreement.
According to the victims, there is another lawsuit that was allegedly filed by the victims in the Chichigalpa community. This group is called â€œComitÃ© Chichigalpa Por La Vidaâ€. There are approximately 480 plaintiffs in this case, represented by local attorney Eira Veronica ARGENAL HernÃ¡ndez. She was retained in August, 2003. She meets with the victims every 2 weeks to update them on the case, and charges each victim 10 cordobas per meeting. According to the victims interviewed, every meeting is essentially identical, with her stating, â€œeverything is going fine, the case is moving forwardâ€. However, she has never shown a copy of the lawsuit or pleadings to the meetings, and refuses to hand any files to the victims. One of the persons interviewed stated that he believed that she was ripping them off, and that she probably has not even filed a lawsuit. The President of the Chichigalpa victims group is Luis PICHARDO.
B. WRONGFUL DENIAL OF DISABILITY PENSION BENEFITS
The story is believable. Several persons commented that they have been denied their disability pension from the Instituto Nicaraguense de Seguridad Social (â€œINSSâ€). More questioning and research must be conducted to determine the exact number of victims in this case, and to ascertain whether they do qualify for the pension. This would be done by asking the Association to gather the information needed, or by deploying a lawyer or investigator to gather the necessary information. On December 17, 2004, we asked Rafael CastellÃ³n, President of the Association, to begin gathering this information for IJM. He stated that he has lists of the names of those turned down by Social Security and that he will provide the list to IJM.
This situation is extremely important for the victims. Because of their medical condition, they cannot do any substantial work, and as such, lack the resources and capacity to provide for the families. Even though any disability compensation that they might be entitled to is minimal (it will probably amount to US$50-60 per month), it is their only potential source of income for them and their families. Consequently, it is very important for the victims to secure this entitled benefit.
C. LEGAL ANALYSIS
From our preliminary legal research, relief can be obtained for the victims in this case under the following legal dispositions.
1. GENERAL ENVIRONMENTAL AND NATURAL RESOURCES CODE
(1) Art. 141 – All persons that through an action or omission deteriorate the environment are obligated to repair the damages caused to the natural resources, the equilibrium of the ecosystem, as well as the health and the quality of life of the population.
(2) Art. 143 â€“ When 2 or more persons participate in the commission of the injurious act, they will be held jointly responsible for the totality of the injuries and economic damages caused. In the case of legal persons (ie., corporations), the liability established in this Article will be established after an investigation is conducted to determine the persons that participated in these acts.
In the case of legal persons created ad hoc to cause these damages, the competent authority will investigate the levels of third party responsibility in the contract simulation.
(3) Art. 144 â€“ Tort liability will be avoided only upon establishing that all measures necessary to avoid the act were taken and the injurious event occurred nonetheless.
(4) Art. 145 â€“ Restitution of the damage will consist of the reestablishment of the situation before the damages when it is possible; and/or in economic compensation for all damages caused to the environment, communities or participants.
(5) Art. 146 â€“ In order to ensure the results of the process, the acting party can request at any stage of the case all necessary injunctive remedies. A Judge can impose all legal measures deemed necessary to protect during the process the general interests of environmental preservation.
(6) Art. 147 – In urgent cases, a petitioner can request at any time in the process any measure that is strictly and urgently needed to stop or avoid an act that will produce or will imminently harm the quality of life of the population and human health. A judge is required to grant such measures.
(7) Art. 148 â€“ The following are established as administrative sanctions: retention, intervention, closing, cancellation, suspensions and fines.
(8) Infractions to the present law and regulations will be sanctioned administratively in gradual form with the following sanctions:
- Warning through notification by the competent authority, established after evaluating the magnitude of the environmental impact, establishing all measures that need to be taken to correct the problem and a deadline to correct the problem.
- Fine whose amount will be established by taking into account the gravity of the consequences and recidivism, in a range from 1,000 to 50,000 cordobas, depending on economic capacity and damage caused.
- Temporary suspension or cancellation of permits, authorizations, licenses, concessions and/or any other right to realize the activity.
- Partial, total, temporal or definitive suspension of all activities or the closing of the installations.
(9) Art. 150 â€“ When the gravity of the infraction merits it, the competent authority will suspend, revoke or cancel any concession, permit, licenses and generally all authorizations granted for the realization of business, industrial activities or any services in which the natural resources that have been injured were used.
2. REGULATIONS OF THE ENVIRONMENTAL CODE
(1) Article 105 â€“ The following shall be deemed to be grave violations:
i) The execution of any activities potentially contaminating or destructive that infringe the dispositions of the Environmental Impact Evaluation.
l) Spilling of any contaminating liquid, solid, or gaseous substances in sources or
deposits of water or sewage systems, without obtaining prior permission from
competent authorities and without fulfilling purification or neutralization rocesses prescribed in the technical standards, which negatively impact the environment.
n) Conducting activities that cause effective and irreversible damages to the
environment and natural resources.
(2) Article 106 â€“ The MARENA (Ministry of the Environment and Natural Resources), as
regulator and enforcer of environmental policy for the country, will be the competent
authority to handle, resolve and apply the corresponding administrative sanctions in cases of
(3) Article 107 – When applying sanctions, the MARENA will individually or collectively
consider the following criteria:
a) Damages caused to public health;
b) Value of the damaged goods;
c) Economic and social cost of the project or activity that caused the damage;
d) Economic and social benefit obtained as a result of the infraction;
e) Nature of the infraction.
(4) Article 109 â€“ Serious infractions will be sanctioned with a fine raging from 1,000 to 50,000
cÃ³rdobas, depending on economic capacity, damage caused, and any recidivism form the
infringer. Retention or intervention penalties may also be simultaneously imposed.
(5) Article 110 â€“ Very grave infractions will be sanctioned with temporary or permanent
suspension or cancellation of permits, authorizations, licenses, concessions and/or any other
right that was used to carry out the action. Partial, total, temporary or definitive suspension
of activities or closing of facilities may be ordered, depending on the gravity of the damage.
3. NICARAGUA CIVIL CODE
(1) Article 2509 – Anyone who, by means of fraud, error, negligence, imprudence or malicious acts, causes harm to another person, is subject to repair the damages.
(2) Article 2510 – The obligation to repair the injuries and damages caused by a criminal or a negligent act will be joint and several, to be shared by all persons that participated in the crime or negligent act, regardless of whether they were authors or accomplices.
(2) Article 905 â€“ All rights and their corresponding action have a 10-year statute of limitations.
(3) Article 906 â€“ The statute of limitations to claim a debt ends at 10 years time.
4. NICARAGUA LABOR CODE
(1) Art. 100 â€“ All employers have the duty to adopt all necessary and adequate measures to effectively protect the life and health of their workers, by conditioning all physical installations and providing the equipment necessary to reduce and eliminate all professional risks in the workplace, without prejudice to any norms established by the Executive Branch through the Ministry of Labor.
(2) Art. 101 – Employers must adopt, as a minimum, the following measures:
(a) Hygienic measures ordered by competent authorities;
(b) Indispensable measures to avoid accidents in the handling of instruments or work materials, and maintain an adequate provision of medicines for the immediate attention of any accidents that happen;
© Foment training of employees in the use of machinery and chemicals and the risks these pose, as well as in the handling of instruments and protection attire;
(d) Systematic supervision of the usage of all protective equipment.
(3) Art. 111 â€“ A professional disease is any pathological state derived from the continuous action of a cause that has its origin or motive in the work or medium where the employee provides his services and causes a disability or physical, psychical, or functional perturbation, be it permanent or transitory, even if the disease is detected after the conclusion of the employment relationship. For the effects of this article, injuries caused by work accidents and claims for corresponding compensation shall be the ones in the list annexed to this Code. However, if it is proven that a disease not on the list is of a professional character, the employee will have the right to compensation.
(4) Art. 113 â€“ The employer also has the following obligations:
(a) Notify competent authorities of work accidents and professional diseases occurred in its company or establishment, and investigate its causes;
(b) Collaborate in the investigations that competent organisms launch following the accidents;
© Compensate employees for workplace accidents or diseases that occur while employed, if they are not protected under the social security laws, or if they are not affiliated in the program, whatever the case may be, or for not making the payments in the corresponding time and form;
(g) Provide immediate and gratuitous assistance, medicines and food to those diseased employees as a result of the climatic conditions in the company. The Health Ministry will review the number of diseased persons, diseases they suffer and medicines available in the company facilities, ensuring that all deficiencies are corrected;
(h) Conduct, at its own cost, periodical medical checkups to those workers that because of their working environment are exposed to professional risks, subjecting them to medical evaluations in each case.
(5) Art. 114 – When the worker is not covered by social security or when the employer has not affiliated him to the program, the employer must pay all compensation for death or incapacity caused by the accident or professional risks.
(6) Art. 119 â€“ Employers, even when hiring through intermediaries, are responsible of the risks that their employees suffer.
(7) Art. 121 â€“ If the worker dies or is totally and permanently incapacitated as a consequence of professional risks, the company will pay a compensation equivalent of 620 days of salary that will be counted, depending on the case, from the date of death or the day when the incapacity is determined. This compensation will be paid in sums and periods identical to those agreed for salary per the employment contract. In case of permanent and total disability, the compensation will be given to the person responsible for attending and caring for the employee or to the person determined by the competent authorities.
(8) Art. 125 – The employer is not exempt from liability:
(a) Regardless of whether the employee explicit or implicitly assumes the employment risks;
(b) If the accident was caused by carelessness, negligence or at fault of a third party; in which case the employer can sue the responsible of the costs incurred by the accident; and
© If the accident occurs through professional misconduct when the employee omits certain precautions due to the knowledge and confidence he has acquired in his work.
(9) Art. 129 – The Executive Power is hereby authorized to permanently or temporarily close centers or work areas where there is an imminent risk of accidents or professional diseases.
5. LAW OF THE NATIONAL SOCIAL SECURITY INSTITUTE
(1) Art. 64 â€“ Professional Illnesses are all pathological states derived from the continuous action of a cause that has its origin or basis in the workplace, or in a medium in which the person is obligated to provide services, which causes an incapacity or functional disturbance, be it permanent or temporary.
(2) Art. 66 â€“ The Professional Risks Insurance will provide the following:
(a) Pension for permanent disability, total or partial.
(b) Compensation for partial permanent incapacity or a lesser amount.
(3) Art. 67 â€“ The pension for permanent total disability will be equal to whatever corresponds for a non-professional total disability, and will not require any qualification period, guaranteeing as a minimum 60% of the prescribed salary if he has a wife and 2 children and 50% for the worker without family.
(4) Art. 70 â€“ In case of the insuredâ€™s death, the Institute will make the following economic payments:
(a) Adequate subsidy to cover funeral expenses.
(b) Pension to the incapacitated widow.
© Pension to minor children until at least they turn 15 years of age, to be extended in cases established by Regulations. Disabled children will have a pension for the length of their incapacity.
(d) Pension to other persons that depend from the deceased.
(5) The pensions described in the previous article will be calculated, in the same manner as those originated on a non-professional death, without a qualifying period requirement. In no case shall the widow or the 2 children will earn less than 50% of the average salary that the insured had, or in its case, the one that served as basis to calculate the pension for the permanent disability.
(6) Art. 75 â€“ The Institute, in cases where it is determined that the accident was produced intentionally by the employer, by himself or through a third party, or that the employer incurred in a grave fault or omission that caused the accident, or disobeyed preventive measures ordered by the Inspectors of the Institute or the Labor Ministry, will pay to the insured the payments established by law, but the employer will be obligated to fully restitute to the Institute all payments made by it, or, in its case, inform the Institute the capital equivalent to the present value of the granted pension, calculated in accordance to the norms established by financial regulations.
(7) Art. 112 â€“Legal actions to claim owed pension payments have a 1-year statute of limitations.
(8) Art. 113 â€“ The right to receiving a pension never prescribes, however, said enjoyment should not be retroactive to a period longer than 13 months prior to its request.
6. GENERAL REGULATIONS OF THE SOCIAL SECURITY LAW
(1) Art. 77 â€“ The declaration of permanent incapacity and the subsequent grade of incapacity will
be formed by the Incapacity Commission referred to in Article 48 with its process, in
accordance to the Incapacity Valuation Table for Professional risks that is in the Labor Code
and in accordance to the concepts in Art. 43.
(2) Art. 78 â€“ In case of permanent total incapacity, the pension will equal the one corresponding to
total incapacity, taking into account the same factors, and in no case it will be less than 60% of
the prescribed salary. If the insured does not have the 150 contributions in the period signaled
in Article 52, the monthly payment will be equally determined in accordance with the
contributed weeks and in its default, in base to the employeeâ€™s salary.
(3) Art. 81 â€“ For the economic payments made due to temporal or permanent incapacity or death caused by professional diseases, the following requirements are established:
(a) In the case of anthrax (cattle diseases) or similar diseases contracted during very short periods of time, there will be no qualification period.
(b) If the cause of death is radium, other radioactive substances, or exposure to X-Rays, one needs to previously have credited 26 weekly [social security] contributions in the 52 weeks preceding the beginning of the sanitary rendering of payments granted because of the incapacitating disease and being employed in the insured company or companies, and subject to the exposure to the causes that generated the pathological condition during a 5-year period.
© All other professional diseases shall have the contribution requirement stated in the preceding article and being employed in the insured company or companies, and subjected to the exposure of the causes that generated the pathological condition during a 2-year period. When the requirements established in this article are not met, all payments due to professional diseases shall be the employerâ€™s responsibility, in accordance with the Labor Code.
7. NICARAGUA CRIMINAL CODE
(1) Art. 331 â€“ Punishment of 3 to 10 years imprisonment shall be given to whoever poisons or alters in a way dangerous to health drinkable waters, drinks, foods or medicinal substances destined for public use or for the use of a group of persons. If the act leads to injuries or death of 1 or more individuals, depending on the damage, the penalties established in article 318 shall apply.
(2) Art. 333 â€“ Whomever voluntarily or through any means spreads to people a dangerous or contagious disease or executes acts or realizes operations capable of producing such a spreading, will be punished with 5 to 15 years imprisonment.
(3) Art. 334 â€“ If any of the acts typified in the aforementioned articles were committed through imprudence or negligence, or for misconduct in the art or profession of the actor, or through inobservance of regulations or ordinances, a fine of 300 to 1,500 cÃ³rdobas shall be imposed if no disease or death ensues, and 1 Â½ to 4 years imprisonment and a fine of 1,000 to 5,000 cÃ³rdobas if a disease or death ensues, and, in all cases, the actor will be prohibited from 1 to 4 years from exercising the art, business, industry, profession, work or position in which the act was caused, even if the responsible person does not have this job as his means for subsistence. In case of specific recidivism, the fine penalty shall not be applied.
Comment: Although the texts to these articles seemed to be more geared towards food poisoning, I believe that the text is vague enough to charge the Corporation or its directors for utilizing pesticides that harm the individuals.
8. NICARAGUA CONSTITUTION
(1) Art. 82(4) – All workers have the right to working conditions that guarantee their physical integrity, health, hygiene and the decrease of professional risks in order to make effective the workersâ€™ occupational safety.
D. HERBICIDES AND PESTICIDES ALLEGEDLY USED BY THE PERPETRATORS
According to the victims, the perpetrator uses or has used several pesticides and herbicides in the mill. However, the amounts, quantities and dosages are not known, and no medical study has been done in the region to study the situation. Furthermore, it is not known whether these are all the herbicides and pesticides that have been used, or whether more have been used. The information gathered here comes from United States research and not from Nicaragua. The herbicides and pesticides are:
Manufactured by Monsanto Company, Roundup is a popular herbicide with the active ingredient glyphosate. In its 1993 assessment of the re-registration eligibility of glyphosate, the EPA concluded that all registered uses of glyphosate were eligible for re-registration. It classified glyphosate as a Group E carcinogen, meaning it is not a carcinogen to humans. Since it appears that glyphosate has not come up for re-registration again since 1993, it appears that there are no new safety concerns and that there is no restriction on the use of Roundup.
Velpar is the trade name for Hexazinone, a herbicide manufactured by DuPont Agricultural Products. It is registered by the Environmental Protection Agency for use on sugar cane, alfalfa, blueberries, and other crops. There are currently 20 end-use hexazinone products and one manufacturing-use product registered.
3. Ametrex 50 SC
Ametrex has been used as a product name for Ametryn 80W, a herbicide. Ametryn 80W is manufactured by Aceto Agriculture Chemicals Corporation. The EPA canceled approval for distribution in the U.S. in 1988. It is unclear whether this cancellation was due to possible toxicity of ametryn or if it was due to some other reason.
4. Karmex DF
Karmex DF is a herbicide manufactured by DuPont. According to the Alberta government, it has low acute mammalian toxicity. We have not found anything mentioning significant health risks to humans.
We believe that this is just a misspelling of Gramoxone. Gramoxone is the trade name for paraquat dichloride, which is used as a pre-plant herbicide on sugarcane. The EPA has concluded â€œthere is a reasonable certainty that no harm will result to infants and children or to the general population from aggregate exposure to paraquat dichloride residues.â€ The basic manufacturer of paraquat dichloride is Zeneca.
We were unable to locate information on Terbugran. However, information regarding Terbufos was found, and this could be related, or once again, a misspelling. Terbufos is an insecticide manufactured by Basf Corporation. The EPA stated in October of 2001, â€œProvided that risk mitigation measures are adopted, terbufos fits into its own â€˜risk cupâ€™â€”its individual, aggregate risks are within acceptable levels.â€ It also declared that the interim decision on terbufos could not be considered final until consideration of other risks was complete. At that time, Terbufos was eligible for re-registration, pending a full reassessment of the cumulative risk from all organophosphate pesticides. We were not able to find the conclusion of this reassessment, or any additional information relating to Terbufos dated after October 2001.
It appears that warfarina could be the Spanish trade name for warfarin, a rodenticide. Warfarin was first registered for use in the United States in 1952. The dermal and inhalation toxicity of warfarin is negligible, although its acute oral toxicity is significant and has been placed by the EPA in Toxicity Category I (most toxic category). Nevertheless, none of the materials researched suggested that Warfarin is presently banned in the United States.
Arrivo is an insecticide with the active ingredient cypermethrin and manufactured by FMC Corporation. According to the manufacturer, overexposure from inhaling, swallowing, or coming into contact with the skin or eyes may result in symptoms such as tremors, convulsions, loss of bladder control, and loss of coordination. Additionally, contact with cypermethrin can cause numbing, burning, and tingling of the skin. The manufacturer states â€œthese skin sensations are reversible and usually subside within 12 hours.â€ It appears there are not any noteworthy restrictions on the transport and use of the product in the United States.
E. COMPELLING/DOABLE ANALYSIS.
This case is extremely compelling. Approximately 800 ex-employees have died of CRI in the last 8 years, with over 1,000 currently ill. CRI is a gradual and progressive loss of the ability of the kidneys to excrete wastes, concentrate urine, and conserve electrolytes occurring over a number of years as the internal structures of the kidney are slowly damaged. CRI results in the accumulation of fluid and waste products in the body, causing azotemia (build-up of nitrogen waste products in the blood) and uremia (ill health resulting from renal failure), which in turn can cause many complications, and ultimately, death. These persons have been diagnosed at a stage where it is moot to have a kidney transplant, and, because they are poor, and live in a rural area, have no opportunity to receive dialysis treatment.
Due to their condition, the victims are unable to work, and thus are unable to earn any wages to provide for their family. The only source of income they can aspire to is the social security disability pension, which, although not much (usually around US$55 a month), provides the bare necessities for the family. The unjust denial of this pension by the national Social Security Institute only adds to the sufferings of the victims.
This case is difficult. The issue of casualty will be critical and environmental and medical experts are necessary to substantiate the charges. In addition, prior suits and the settlement agreements signed by several victims could car some claims. Prior publicity of the case could make intervention more difficult. However, we do believe that it is doable.
III. COERCION AND DECEPTION ANALYSIS: DISSECT THE PERPETRATORâ€™S POWER AND LIES
A. NICARAGUA SUGAR ESTATES
Nicaragua Sugar Estates is one of Nicaraguaâ€™s largest companies. Antonio Pellas founded it with the acquisition of the San Antonio mill in 1890. Today, it is one of the largest and most technical sugar mills in all of Central America. The Sandinista Government expropriated the mill in 1988, and was eventually returned to its owners in 1992, when it began a period of significant investment in technology and proceedings, in order to position it as a powerful company. Today, Nicaragua Sugar produces almost 100% of all sugar consumed in Nicaragua, and allegedly exports sugar to other countries, including the USA.
Its current President, Carlos Pellas, a former graduate of Stanford University, is one of the richest and most influential men in Nicaragua. News articles frequently describe him as â€œbusinessman Carlos Pellas, President of the Board of Directors of the Pellas Group, the strongest business and financial emporium in the countryâ€. He regularly meets with Nicaraguan President BolaÃ±os and other political leaders such as Daniel Ortega and Herty Lewites, mayor of Managua.
Pellasâ€™ resume includes:
â€¢ President of the Pellas Group, one of the most influential business interests in the country and which owns Nicaragua Sugar Estates Limited, S.A.
â€¢ The Pellas Group produces, among other things, Flor de CaÃ±a Rum, which is Central Americaâ€™s best selling rum, and among its most sold alcoholic drinks.
â€¢ President of Nicaragua Sugar Estates Limited, S.A.
â€¢ Chairman of the BAC International Corp.
â€¢ President of the National Committee of the INCAE, the premier Business School in Latin America, and one of the best international business schools in the world.
â€¢ Toyota vehicles representative for Nicaragua.
Along with his wife Vivian, whom he married in 1976 and with whom he has 3 children, Pellas is involved in a number of significant philanthropic works in Nicaragua; in fact, his name seems to appear on the list of all Nicaraguan non-profit Boards of Directors or major donors or is involved in some way in almost every significant NGO and philanthropic project in Nicaragua, including the founding of a new metropolitan hospital named â€œVivian Pellasâ€. Nicaraguan President BolaÃ±os dedicated this hospital with Pellas in May, 2004.
Vivian Pellas is a Nicaraguan hero and legend in her own right. Vivian, together with her husband, were the sole survivors of a 1989 plane crash that left her with severe burns and 62 facial and body fractures. From this incident onward, Vivian and her husband have grown to become two of Nicaraguaâ€™s most beloved philanthropists. In 1991 the Pellas brought Interplast, the largest plastic surgeon volunteer organization in the world, to Nicaragua to serve Nicaraguan burn victims. They formed the Association for Burnt Children of Nicaragua, and have donated land for it and rebuilt several burn victim units across the country. These facilities have served more than 58,000 people in Nicaragua. Vivian is a member of Physicians for Peace, organized the Seal Legs program to provide prosthetics for amputees, and has several dance and show events to raise funds for these charitable efforts. In 1998 she organized a telethon to raise funds for the victims of hurricane Mitch in her native Honduras. Vivian recently won the Servitor Pacis Award from the Sendero de Paz Foundation, which is presided by the Permanent Observation Mission of the Holy See to the United Nations.
B. PERPETRATORâ€™S USE OF COERCION
(1) In early 2003, the victims decided to march to the National Assembly in Managua and demand their Government to enact a law that would address their wrongs. The Corporation allegedly learned of this plan, and, according to the victims, paid the police to block the road from Chinandega (where they live) to Managua (where the National Assembly is located). The victims had obtained trucks to drive en masse to Managua, but were stopped and blocked by the police. Eventually, they were able to get to Managua, but only by going individually in public buses.
(2) According to the victims, Dr. AdriÃ¡n Meza (the victimsâ€™ former attorney) now represents the Corporation. He has come to their offices on several occasions asking them to drop their fight against the company, explaining to them that they â€œhave already received all they could (20,000 cordobas)â€, and as such, their arguments are lack merit.
C. PERPETRATORâ€™S USE OF DECEPTION
(1) According to the victims, the Corporation has technically not employed anyone in their last 2
harvests. In what seems to be an attempt to shield itself from liability, the Corporation
apparently subcontracts 8 persons (according to victimsâ€™ testimonies), allegedly ex-employees
(no one could confirm whether they still worked or not with Corporation) who in turn hire
the harvesters. However, these subcontractors do not issue any employment contracts,
apparently doing the hiring very informally. The names of these contractors are:
1. Julio Vega;
2. Oscar MontalbÃ¡n;
3. Carlos Telles;
4. Pedro Gallo;
5. Chema (nickname, no known name);
6. Luis Delgado;
7. Edgar Vargas;
8. Rufino Martinez.
(2) The Corporation now refuses to release the employment records to their former employees
who have contracted the disease. This effectively prevents them from being able to go to
the National Social Security Institute and request a pension.
IV. DEFINING THE INTERVENTION OUTCOME: HOW WILL YOU KNOW YOU HAVE SUCCEEDED?
1. San Antonio Sugar Mill is held financially liable for the injuries caused to its workers and ex-employees, and provides medicines and treatment for them as part of the compensation.
2. San Antonio Sugar Mill changes its herbicides and pesticides to ones that are not harmful to their workers, and provides occupational safety and hygiene measures for them.
3. Social Security Institute provides disability benefits to all victims who have been unjustly denied.
VI. POWER ACTOR INTELLIGENCE AND ANALYSIS: WHO IS MORE POWERFUL THAN THE PERPETRATOR?
In this section, we analyze the potential for a remedy across various sources, first national and then international actors.
A. NICARAGUAN POWER ACTORS
1. EXECUTIVE BRANCH
Carlos Pellas is often considered Nicaraguan President Enrique BolaÃ±osâ€™ right-hand man. They are extremely close, and BolaÃ±os defends Pellas at all times. According to sources interviewed in-country, it appears to be extremely difficult to compel the President to act against his number one supporter.
That being said, President BolaÃ±os is currently going through a turbulent and difficult political period. His promise and decision to crack down on corruption has come at a severe cost, to the point where his 2 main opposition parties have been trying to impeach him, and recently passed a law severely cutting the Executiveâ€™s powers, as they try to turn him into a lame duck figure. BolaÃ±os served as Vice President for Arnoldo AlemÃ¡n in the previous administration, and shortly after BolaÃ±os was elected into office, he had to strip AlemÃ¡n of his immunity so that he could be prosecuted on corruption charges. These accusations proved truthful, and AlemÃ¡n was eventually convicted and imprisoned. However, this has caused severe problems for BolaÃ±os, as AlemÃ¡n is still revered by his supporters, as he is seen as the only man who can defeat a Sandinista (leftist) Presidential candidate. Even though AlemÃ¡n is imprisoned (he currently is on house arrest), he remains extremely powerful and his political party (the Liberal Party) together with the Sandinista Party control both the National Assembly (Legislative Branch) and the Judiciary.
Municipal elections were recently held in Nicaragua, with the Sandinistas winning most of the municipalities. It is believed that AlemÃ¡n and Daniel Ortega struck a deal where the Liberals would not pose a significant challenge to the Municipal Elections in exchange for the Sandinistas persuading their judges to revoke AlemÃ¡nâ€™s conviction. Meanwhile, AlemÃ¡n banks on his release from prison to run for office again, which he believes he can win, because, as general elections draw near and U.S. puts pressure on Nicaraguans to not elect a Sandinista president, he feels he will be the only â€œelectableâ€ candidate, or, in the alternative, appoint a puppet candidate to run for office.
As such, it does not seem that there is no effective power actor in the executive branch to bring relief for the victims.
B. LEGISLATIVE BRANCH
The Association of Diseased People and the victims of CRI scored a notable victory when Nicaraguaâ€™s National Assembly passed Law No. 456 on July 8, 2004. Article 1 of the Law added chronic renal insufficiency to the list of professional diseases established in Article 111 of the Labor Code, and as such, its victims are eligible to qualify for disability pensions. Article 3 of the Law also established that the competent authority to diagnose professional illnesses is the â€œDirecciÃ³n De Seguridad e Higiene Ocupacional del Ministerio del Trabajoâ€ (Directorate of Occupational Health and Hygiene of the Labor Ministry). According to said Article, an Inter-institutional Commission formed by the Health Ministry and the Social Security Institute will support the Directorate. However, no other disposition or regulations were passed to regulate this Directorate. Sandinista Congresspersons Gustavo PORRAS Cortez and Alba PALACIOS Benavides helped the victims in this Congressional initiative, until members of other parties subsequently provided support. The protesters gained notoriety during this time because 1,300 of them were able to leave LeÃ³n and Chinandega, not withstanding police roadblocks impeding their access, and then camped in front of Congress in Managua for weeks.
The initial version of what turned out to be Law No. 456 was presented in 2003, when it was passed by the National Assembly, however, President BolaÃ±os vetoed this law in response to pressure from Nicaraguan businessmen, who stated that said bill would seriously impair Nicaraguan businesses. However, Congress tried again and ended up passing Law No. 456 last July.
Consequently, it seems that legislative power actors and support could be found. The victims provided the names of all the congresspersons that voted in favor of Law 456, which could be used in the future as a power base.
As stated previously, the Sandinista and Liberal parties control the court system. Given the fact that Pellas is a staunch BolaÃ±os supporter. There is, therefore, the possibility that a sympathetic judge will be identified. Furthermore, there are important legal precedents in Nicaragua that show that a favorable verdict can be reached in an environmental lawsuit.
The aforementioned precedents involve men and women who worked in banana plantations and eventually became sterile because of their employers (Dow Chemical, Shell Oil and Standard Fruit) usage of Dibromochloropropane (DBCP), a chemical compound found in the pesticides Nemagon and Fumazone (and possibly other pesticides), that were produced and sold in the United States until the EPA banned them. After the ban, the companies continued to produce (in the USA) and sell the pesticides to Nicaragua until 1981. Plaintiffs filed several Alien Tort Claims Acts in the USA that were dismissed on forum non conveniens grounds, except a claim filed in Texas, which at the time lacked a forum non conveniens law. Meanwhile in Nicaragua, in January 2001, the Nicaraguan National Assembly passed Law 364, specifically designed to enable injured Nicaraguan banana workers to sue and receive compensation from companies that produced or used DBCP. Law 364 established an expedited procedure for injured workers to have their claims tried before a Nicaraguan court, and required defendant corporations to post a $100,000 bond for each worker filing a claim.
Soon after the passing of Law 364, a class action suit was filed in Nicaragua on behalf of more than 580 former banana plantation workers who alleged permanent sterility caused by DBCP exposure. In December 2002, a Nicaraguan judge ordered three US companies â€“ Dow Chemical, Shell Oil, and Standard Fruit (Dole Food Company) â€“ to pay $489.4 million to 583 banana workers injured by Nemagon. In a separate case, a Nicaraguan court in March 2004 ordered Shell Chemical, Dole Food and Standard Fruit to pay a group of 81 female plaintiffs $82.9 million in damages for their injuries suffered from exposure to Nemagon.
Notwithstanding the favorable verdicts, the plaintiffs have failed to receive any compensation. Since the companies no longer have assets in Nicaragua, there is nothing to be seized. The companies refuse to honor the Nicaraguan courtâ€™s judgment, alleging that Law 364 is unconstitutional. It is believed that the US State Department and US trade representatives have pressured the Nicaraguan government over Law 364. Legal arguments center around due process concerns for multinational corporations doing business in Nicaragua and the $100,000 bond requirement which corporate interests find excessive. Dole Foods even filed this year a fraud counter-suit in US court (under the RICO Act) against a group of Nicaraguan workers, claiming that hundreds of them conspired to defraud the company with false DBCP claims. While Law 364 has survived these pressures and legal challenges in Nicaraguan courts, there is no mechanism that can compel the US companies to honor the Nicaraguan courtâ€™s judgment: in 2003, the workers filed for collection of the judgment in a US court, but the case was dismissed. The workers have appealed this dismissal, and the case is still pending.
D. INTERNATIONAL REMEDIES
Nicaragua Sugar Estates Limited allegedly exports sugar to several countries, including the United States. However, it is not known at this time under what brand this sugar is sold in the United States. Once the destiny of exported sugar is identified, financial pressure could be placed in the importing countryâ€™s governments by informing them over the situation of the pesticides and herbicides used, and the harm they are causing to the environment and its workers.
Nicaragua Sugar Estates was certified in the year 2001 to be in compliance with ISO 9002 International Quality Control measures. In doing so, it became the first Latin American sugar mill to obtain this certification in its programs of quality control for the sowing and harvesting of sugar cane and sugar production. As such, the International Organization for Standardization, the organization that issues the ISO 9002 certifications, could become an influential power actor.
Finally, the Inter American Human Rights Commission has a proceeding established in Articles 59 and 60 of its Regulations that could be used to seek relief. Under this proceeding, we would request a group hearing to the Commission to present the facts of the case and the Commission would then do a fact-finding mission and issue a Report. However, these processes are somewhat slow, and, since the Commission cannot issue binding decisions, the decision would lack substantial enforcement power.
E. LEGAL CHALLENGES FACING CURRENT CASE
1. Causality will be the principal issue in this case. There have never been medical or scientific studies done in either the factory or the surrounding. The area where the mill is located as well as its surrounding areas has historically been known as the most agriculturally rich and fertile soil in the country, and as such, has been used extensively for farming, sprayed with pesticides and herbicides for decades. Thus, the company will probably argue that pesticides used by other persons caused the injuries.
Although more studies would have to be done to respond to this argument, it must be noted that Nicaragua Sugar Estates has been in business in the same region in Nicaragua since 1890, and as such, could potentially be held liable if their sole argument is that the pesticides were dumped in the area many years ago.
The second issue regarding causality is that the defendants will probably argue that the victimsâ€™ injuries were caused by other conditions not attributable to the pesticides. At this time, more medical tests would need to be conducted to the victims to refute those claims, but more importantly, we have on our side the fact that there are significant numbers of employees or ex-employees suffering from the disease, and as such, there must be a common cause for it, outside of other medical explanations. We do not know of the admissibility of a res ipsa loquitur argument in a Nicaraguan court at this time, but it could definitely be argued in a future lawsuit.
2. Our case presents several challenges that distinguish it from the Nemagon cases. The perpetrator is a Nicaraguan company, instead of a multinational entity, and second, it seems that there are much more herbicides and pesticides used.
3. Carlos Pellas is a well-respected businessman and philanthropist throughout Nicaragua. He is also a close friend of the President, and a very wealthy and powerful man in its own right, and as such, probably has the resources to delay the case and the contacts to possibly influence judiciary officers.
4. Nicaraguan courts and judges may lack the knowledge and expertise to sort through a complicated case such as the present one.
VI. INVESTIGATION ANALYSIS: WHAT DO WE NEED TO PROVE AND HOW ARE WE GOING TO PROVE IT?
A. INJURIES TO THE WORKERS CAUSED BY THE EXPOSURE TO HERBICIDES AND PESTICIDES USED BY NICARAGUA SUGAR.
This will be proven by:
(1) Conducting scientific studies of the land and waters to establish the dosages used, and their
likelihood of causing the injury.
(2) Conducting further victim interviews, especially ones who have not received any settlement
money from the company.
(3) Gathering victim files and records. This can be done in conjunction with the Association.
(4) Bringing legal pressure, both at the courts and in public. If a legal action is filed, a local
attorney must be identified and retained.
B. Victimâ€™s right to a disability pension.
(1) Gathering information that establishes victimâ€™s claims to compensation. This will be done by obtaining employment documents that establish all of their contributions.
(2) If they do not have reach their contributions quota, then a case could be filed under Art. 78
of the Social Security Law infra, or in the alternative, an action can be brought against the
Institute and Nicaragua Sugar to force the company to pay the pension, according to Article 75
of the Social Security law.
VII. EXECUTE INVESTIGATION: Prove it
VIII. POST INVESTIGATION INTERVENTION ANALYSIS: Did we get what the
Power Actor needs?
IX. EXECUTE INTERVENTION: Move the Power Actor against the perpetrator.
X. POST INTERVENTION ANALYSIS: Did we get a success, a lesson, and a story?
IJM INVOLVEMENT WITH PRO BONO LAW FIRM
IJM Probono Programs provide a Law Firm the opportunity to engage in international casework, and utilizing their skills, abilities and resources in order to obtain much needed justice for victims of human rights abuses.
In this case, IJM will initially be involved with the law firm in passing along all information and contacts obtained. IJMâ€™s Director of Operations for Latin America will travel to Nicaragua with the law firm professional that will direct the work in the case, in order to introduce him/her to the community where the victims live and eliminate any discomfort towards new parties, and gather information. The purpose of this trip then will be to ensure complete trust between the victims and the firmâ€™s representatives.
The law firm involved will require Spanish speakers in order to ensure success. All documents in possession of the victims are in Spanish, and the victims do not speak English. IJM could provide limited translating assistance.
IJM will be willing to provide general information regarding Nicaragua and the case, and will be available to answer any questions the law firm might have. If there is a need to retain a local Nicaraguan counsel to file a lawsuit in Nicaragua, IJM can work with the firm to secure references for him, although the firm will be responsible for his fees. IJM will also work with the firm to determine what power actors in the United States or Nicaragua can advance justice for the victims, and will assist in these meetings as appropriate.