Whether Eugene Hasenfus is guilty as charged will scarcely be an issue when the captured US flyer comes before a special court here today. Caught red-handed after parachuting from a stricken contra supply plane, Mr. Hasenfus's real problem will be how to avoid a maximum 30-year sentence, lawyers here say.
``The fact of the crime is not in question,'' says veteran advocate Orlando Bendana d'Arbells. ``He will have to try to plead mitigating circumstances.'' Alternatively, Dr. Bendana suggests, Hasenfus's legal team may seek to have the case taken out of the hands of the ``People's Anti-Somocista Tribunals,'' the controversial special, political court that is to try the American.
``The question of overwhelming evidence of guilt does not matter,'' a US Embassy official said. ``We would be satisfied if he [Hasenfus] received a fair trial. He will not receive a fair trial [before the tribunal],'' the official charged.
Set up in 1983 to try people accused of national security crimes, the tribunals have drawn consistent criticism from international human rights groups and local lawyers. The US Embassy last week called them ``kangaroo courts,'' and even Nicaragua's justice minister, Rodrigo Antonio Reyes Portocarrero, once indicated that he regrets their existence.
Protesters, ranging from the Organization of American States to Nicaraguan Supreme Court President Alejandro Serrano Caldera, point out that the tribunal lies outside the normal judicial system, which has no control over tribunal decisions.
With one formally trained laywer and two lay judges named by Sandinista block committees, the tribunals have come under fire for being political bodies rather than independent organs of the judiciary.
``They are administrative tribunals that are subject to the Ministry of Justice and are composed of . . . militants or supporters of the Sandinista Liberation Front, in other words political enemies of the accused,'' concluded the ``Inter-American Commission on Human Rights.''
Hasenfus's real problem, though, will be the speed with which the tribunal operates, according to Sonia Munoz, a law professor at Managua's Catholic University and an expert in international human rights law.
While the public prosecutor has been gathering evidence ever since Hasenfus was captured on Oct. 3, the American's right to retain a lawyer began only when charges were formally brought yesterday. He now has two days in which to make his plea, then an eight-day period during which both sides present their evidence. Hasenfus's lawyers are expected to ask for the maximum four-day extension to the eight-day phase. Finally, the judges have three days in which to pass sentence.
``Even a team of experts will need more time'' to prepare a defense against the prosecution's expected welter of documents, Dr. Munoz says. ``The system works in favor of the prosecutor.''
Friday, the US Embassy here requested -- and was denied -- a two-week delay in the trial so former US Attorney General Griffin Bell could help prepare the Hasenfus case. The Nicaraguan Justice Ministry said that, under Nicaraguan law, Hasenfus could be represented only by a resident of Nicaragua who is registered with the Supreme Court. The ministry said Mr. Bell thus would not be permitted to lead the defense but could act as an unofficial adviser.
Given the tribunal's record -- 79 convictions against 12 acquittals in the first half of this year, according to official figures -- Hasenfus's lawyers are likely to try to take the case out of the tribunal's hands, observers here expect.
One route could be to argue that Hasenfus is a prisoner of war and thus protected by the Geneva Convention against trial. ``The key question is his status,'' Munoz says. ``Is he a prisoner of war, or is he a mercenary?''
``But to be a prisoner of war, he must be claimed by his state,'' Munoz adds. ``And the United States government is not doing this. Hasenfus is up in the air.''
Alternatively, some Nicaraguan lawyers have suggested that Hasenfus might claim that his case does not fall under the tribunal's jurisdiction because the law creating the People's Tribunals refers only to Nicaraguan nationals. Other foreigners have been tried by the tribunals, however, ``and a body of jurisprudence has built up under which both foreigners and nationals are subject [to the tribunal],'' Bendana says.
Conceivably, Hasenfus may argue that the special court is illegal under international conventions, since it does not guarantee him a fair trial.
The UN Convention on Human Rights allows Nicaragua to suspend the right to a fair trial through its current state of emergency if that emergency ``threatens the life of the nation.'' The Nicaraguan public prosecutor would doubtless argue that Managua's war against the US-backed contra rebels constitutes just such a threat.
But the right to a fair trial may be suspended only to the extent ``strictly required by the exigencies of the situation,'' such as when regular courts are unable to function, the UN convention says.
``This threshold has not yet been crossed in Nicaragua,'' argues a 1985 report by the New York-based Lawyers Committee for International Human Rights.
``The [tribunals] appear to deviate impermissibly from Nicaragua's international obligations,'' the committee says.
Such erudite lines of argument are unlikely to be uppermost in Hasenfus's mind, however, when he is read the charges against him in court today.
``My advice to him would be to keep quiet: Say nothing, just listen [to the charges],'' says Bendana, who says he has represented hundreds of defendents before the tribunals.
``They [the prosecution] will put in lots of charges that are not true, because they will be asking for 30 years,'' Bendana predicts. Then, he says, the defense will have to get to work whittling down the list of accusations as far as they can.