GERÓNIMO PINHEIRO AND
VíCTOR DOS SANTOS
On May 11, 1995, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission” or “the IACHR”)
received a petition lodged by two Brazilian citizens, José Víctor Dos
Santos and Waldemar Gerónimo Pinheiro (hereinafter “the
petitioners”), in which they charge that the Republic of Paraguay
(“the State”) has international responsibility for the delay in the
legal action brought against them in 1985, and for the prolonged
The petition states that Waldemar Gerónimo Pinheiro was
imprisoned in Tacumbú National Penitentiary in Paraguay for over 10
years, in pretrial detention on suspicion of homicide, without ever
being sentenced. It further alleges that his case file was lost on three
occasions, that he was never granted parole, and that he did not have
the economic resources needed to cover the cost of his defense.
José Víctor Dos Santos in turn reported that he had been the
victim of torture and that he was imprisoned in Tacumbú National
Penitentiary in Paraguay for over 10 years, in pretrial detention on
suspicion of homicide, without ever being sentenced, that he was never
granted parole, and that he did not have the economic resources for his
defense. He further alleged
that he was tortured at the time of his arrest and that, as a result, he
was hospitalized for five months.
In its responses, the State denied the allegations of torture by
Mr. Dos Santos. As far as
the rest of the allegations were concerned, it confined its response to
providing information on the relevant judicial proceedings.
Inter-American Commission declared the present case admissible, finding
that charges were made of possible violations of the rights embodied in
the American Declaration on the Rights and Duties of Man (hereinafter
the "American Declaration" and the American Convention on
Human Rights (hereinafter "the American Convention" and that,
owing to the unjustified delay in the processing of the case under
domestic law, it was not necessary for the petitioners to exhaust
After having examined the case, the IACHR concludes in this
report that the prolonged pretrial detention and the delay in settlement
of the cases against José Víctor Dos Santos and Waldemar Gerónimo
Pinheiro cause the State of Paraguay to incur responsibility for the
violation of the following rights protected by the American Declaration
with respect to the acts that occurred prior to August 24, 1989:
the right to protection from arbitrary arrest (Article XXV); and,
the right to due process of law (Article XXVI).
In addition, with regard to the acts which occurred subsequent to
the entry into force of the American Convention, the State incurs
responsibility for violation of the following rights:
right to personal liberty (Article 7), and the right to a fair
trial (Article 8), all in accordance with the obligation stipulated in
Article 1(1) of that international instrument.
PROCESSING BY THE COMMISSION
On June 29, 1995, the IACHR sent to the State the pertinent parts
of the petition. On
September 14, 1995, it received the State’s response, the pertinent
parts of which were forwarded to the petitioners on November 3, 1995.
On November 29, 1995 and on April 9, 1996, the IACHR requested
additional information of the State, which was provided on May 23, 1996.
On September 27, 1999, during its 104th regular
session, the Inter-American Commission declared that the present case
was admissible. It found
that it was not necessary for the petitioners to exhaust domestic
remedies in view of the unjustified delay in processing the matter in
the domestic courts. This
report was transmitted to the parties on October 13, 1999.
On October 13, 1999, the IACHR placed itself at the disposal of
the parties to initiate proceedings for a friendly settlement of this
The State’s response was received on February 4, 2000, and it
was transmitted to the petitioner.
In that communication, the State indicated its willingness to
initiate a friendly settlement process in this case.
The petitioners never responded to the proposal.
On March 15, 2001, the IACHR requested the State to provide
additional information. Paraguay
sent the additional information on September 7, 2001.
The petitioners were informed of this communication.
POSITIONS OF THE PARTIES
Position of the Petitioners
The petitioners, Brazilian nationals, maintain that their rights
were violated by the Paraguayan authorities, who arrested them in 1985
on suspicion of homicide, without any evidence against them.
They further state that on the date that the petition was lodged,
ten years had lapsed without settlement of their legal situation, since
they had never been convicted of any crime whatsoever.
Mr. Dos Santos found himself in detention since 1988 because of
suspicions that he had participated in a homicide somewhere in the
hinterland of the country, where one of the individuals charged had the
same surname. Mr. Dos
Santos reported in his letter of April 4, 1995 that he did not
understand the reasons for his detention, that he did not know if there
was a criminal proceeding against him, and that he had no means for
defending himself, since he had neither family nor economic resources to
cover the cost of his defense. In
addition, he reported that as a result of the torture he had received at
the time he was arrested, he was seriously ill, and for that reason he
had spent five months in a hospital.
In a letter of the same date, Waldemar Gerónimo Pinheiro stated
for his part that he was a prisoner awaiting trial for ten years, on
suspicion of having participated in a homicide, but that there was no
evidence against him. He
further alleged that his case file had been lost three times and that he
did not have the economic resources to defray the cost of defense.
He also denounced the poor prison conditions, and reported that
he had not been granted parole.
Position of the State
As far as the reported events are concerned, the State of
Paraguay responded as follows in its various communications:
That it was not aware of the supposed mistreatment and torture,
and it categorically denied the statements to that effect contained in
the petition filed by José Víctor Dos Santos. With regard to Waldemar
Pinheiro, the State maintained that he has been imprisoned since June 6,
1985 in the national penitentiary of Tacumbú, charged with the crime of
homicide related to robbery, that his trial was located in the judicial
district of Ciudad del Este and that on March 17, 1995, he was convicted
to 30 years in prison in a judgment issued by the court presided over by
Dr. Doctor Justo Salvador Reyes. The State also maintained that since the case was pending
appeal, the matter was still being litigated, so that domestic remedies
had not been exhausted.
In the case against José Víctor Dos Santos, the State also
reported that he had been in pretrial detention at Tacumbú National
Penitentiary since 1988 on charges of double homicide.
By virtue of a corrective habeas corpus motion filed with the
Supreme Court of Justice, the Supreme Court ordered his release.
That order was executed in July 1995.
In addition, the State indicated that although there is a card on
prisoner José Víctor Dos Santos in the Tacumbú National Penitentiary,
there is no case file on him there, or in the judicial district of
Ciudad del Este, or in any other court.
The State also provided various documents related to the
detention and later processing of the petitioners.
EXAMINATION OF THE MERITS
Analysis of the facts
The following acts and events are considered as proven by the
information provided by the State and the petitioners:
Waldemar Gerónimo Pinheiro
On July 1, 1985, the police chief [Alcalde
Policial] of General Patricio Colmán Town Hall prepared a police
report in which he reported that on June 6, 1985, Cledirio Teleken, his
wife, Alice de Teleken, and their children Nelci and Nerio Teleken were
murdered. In that report he
stated that the investigations showed that the perpetrators of the
homicide were Waldemar Gerónimo Pinheiro,
José Mairoso Dos Santos, and a third person known as
"Joasinho", and that the first two were being detained at the
On July 5, 1985, the Chief of Police referred the police report
to the judge of the lower criminal court of Presidente Strossner City,
along with information to the effect that Waldemar Gerónimo Pinheiro
and José Mairoso Dos Santos were being held in preventive detention.
On November 10, 1987, the lower criminal court of Presidente
Strossner City, with Dr. Artemio Benitez Vásquez presiding, ordered
that the file labeled "Waldemar Pinheiro and José Mairoso Dos
Santos S/Homicide in Santa Lucía" be reconstructed, since it had
been lost, and decided to advise a court in the capital to take the
signed statement [declaración
indagatoria] of the two defendants.
On February 29, 1988, that same court converted the preventive
detention of Mr. Pinheiro and Mr. Dos Santos into pretrial imprisonment
[prisión preventiva], and
ordered that they continue to be confined at the General Penitentiary of
On July 10, 1988, that court issued a decision in which it
resolved to allow the incidental plea for revocation of the imprisonment
order presented by José Mairoso Dos Santos, and to notify the General
Penitentiary in the capital to comply with that decision.
On May 16, 1990, the court issued A.I. N° 451 in which it
established that in taking stock of its records, in view of the fact
that a new judge, Dr. Ruben Candia Amarilla, had taken possession of the
court, it noted that the aforesaid file had been lost.
As a result, the court decided once again to carry out
preliminary criminal proceedings, confirm the preventive detention of
defendant Waldemar Gerónimo Pinheiro,
give notice of a hearing so that the defendant could render his signed
statement, and issue an arrest warrant for José Mairoso Dos Santos, to
which end it ordered that notice be given to the police in the capital
and to the regional police.
On May 19, 1990, the court was constituted at Tacumbú National
Penitentiary and the signed statement of Mr. Pinheiro was taken.
The pertinent record indicates that he was not in condition to
testify, but it does not indicate why.
On May 21, 1990, Mr. Pinheiro appointed two defenders.
On May 22, 1990, the court decided to convert the preventive
detention of defendant Waldemar Gerónimo Pinheiro
into pretrial imprisonment [prisión
preventiva], and ruled that the defendant would remain in detention.
On August 27, 1991, the lower court, with its new presiding
judge, Dr. Juan G. Arguello, responded to a request from the Public
Prosecutor for Criminal Matters, which resulted in designation of a
public defender for the defense of Waldemar Pinheiro.
On September 21, 1991, Mr. Pinheiro rendered his signed
statement, in which he claimed that he was innocent of the crime with
which he was charged. He
stated that on June 6, 1985, he had arrived in Paraguay by land from
Brazil, for the purpose of working on a property his father had leased.
When he stopped at a police station to ask directions, the police
detained him, tortured him, and made him confess to the crimes for which
he was being prosecuted.
The pertinent case file was lost from September 1992 to September
1994. On September 27,
1994, the court, which at that point was under the authority of Dr.
Justo Salvador Reyes, declared the summary or preliminary hearing
closed, whereupon the trial proceeded to the second stage of oral
On December 14, 1993, Mr. Pinheiro designated Dr. Jorge Valdéz
Bavera, a public defender, to defend him.
On March 17, 1995, the court handling the case, which at that
time was called the “Juzgado de
Primera Instancia en lo Criminal y Correccional del Menor del Segundo
Turno de la Circunscripción Judicial del Alto Paraná y Canindeyú”
[Trial Court for Criminal Matters and Correctional Matters involving
Minors of the Second Rotation of the Judicial District of Alto Paraná
and Canindeyú], with Dr. Justo Salvador Reyes as presiding judge,
issued a final judgment in which it convicted Waldemar Gerónimo
Pinheiro to 30 years in prison for the crimes of which he was accused.
On May 22, 1995, said judgment was communicated to Dr. Jorge Valdéz
Bavera, the public defender in charge of Mr. Pinheiro’s defense, who
appealed it on that same date. On
October 19, 1995, the aforesaid public defender presented to the Chamber
of Appeals a well-founded brief in justification of the appeal.
In that document, he maintained that there was absolutely no
evidence in the file against Mr. Pinheiro, and that “the only valid
piece of evidence appearing in the record is the signed statement of my
defendant,” in which he denied on good grounds any participation in
the events under investigation.
On April 12, 1996, the Court of Appeals for Civil, Commercial,
Labor, Criminal, Guardianship and Correctional Matters of the First
Chamber of the Judicial District of Alto Paraná and Canindeyú issued
Decision and Judgment Nº 3, in which it declared Final Judgment Nº 11
of March 17, 1995 to be null and void. In that decision, the superior court took into consideration
that the lower court decision was handed down without an accusatory
instrument or a response from the defense, so that “technically, there
was no trial, because the principal foundations for arriving at a
conclusion, namely the accusation and the defense, were absent.”
On this basis, it annulled the conviction.
On October 29, 1996, the director of Tacumbú National
Penitentiary reported to the court that defendant Waldemar Gerónimo
Pinheiro had fled the Juan Max Boettner Medical Center, where he was
being treated for T.B.C. pneumonia.
The flight took place on October 27, 1996.
On November 1, 1996, a warrant for the arrest of Waldemar Gerónimo
Pinheiro was issued. Subsequent to that date, neither of the parties contributed
any new information on the status of the proceedings.
José Víctor Dos Santos
In 1988, José Víctor Dos Santos was arrested for his presumed
participation in a double homicide.
On this point, it should be noted that the Commission takes 1988
as the date of arrest, since that is the date that appears in the court
records, and the petitioner has not proven his contention that he was in
detention as of 1995.
On June 9, 1995, the Supreme Court of Justice handed down a
judgment in a habeas corpus
appeal filed in favor of José Víctor Dos Santos. In that judgment, the
Court found that the records of the case did not contain any orders for
deprivation of freedom issued by a competent authority against the
defendant, and so on those grounds it ordered his release. On that date Mr. Dos Santos was freed.
The State never provided any information in any of its
communications that explained or justified the reasons for the detention
of José Víctor Dos Santos.
Analysis based on the law
The Commission then proceeded to ascertain whether in the present
case, the following rights, enshrined in Articles XXV and XXVI of the
American Declaration and Articles 1, 5, 7, and 8 of the American
Convention, were violated: the
right to personal liberty; the right to humane treatment; the right to a
fair trial; and access to a simple and effective judicial remedy.
The right to personal liberty (Article 7)
The legality of the arrest – Violation of Article XXV of the
American Declaration and Article 7(2) and 7(3) of the Convention
From the information provided by the parties and the documents in
the possession of the Commission, it is apparent that Waldemar Gerónimo
Pinheiro was detained between July 1 and 5, 1985 at the Town Hall of
General Patricio Colmán. This
detention was reported to the judge of the lower court for criminal
matters of Presidente Strossner City on July 5, 1985.
As the grounds for the arrest, there is a police report in which
the accused is charged with four homicides that occurred on June 6 of
As regards José Víctor Dos Santos, there is a record of his
admittance to Tacumbú National Penitentiary in 1988, apparently on
charges of two homicides. However,
there is no further information on the charges on which Mr. Dos Santos
was detained or on the legal proceedings on which said detention was
based, but there seems to be some confusion concerning the name of
another person charged in the same homicides, José Mairoso Dos Santos.
The petitioners allege that they were imprisoned without any
foundation, which constitutes illegal and arbitrary arrest in violation
of the provisions of Article XXV of the Declaration and Article 7(2) and
7(3) of the American Convention.
In its written arguments, the government did not refer to the
detention, but it did provide a copy of the police report in which
Waldemar Gerónimo Pinheiro and another person named José Mairoso Dos
Santos were accused of the homicides.
At the same time, they supplied a copy of the corrective habeas
corpus judgment in favor of José Víctor Dos Santos, which indicated
that the organs of the State of Paraguay had no knowledge of any
criminal charges against Mr. Dos Santos.
Article XXV of the Declaration, entitled Right of Protection from
Arbitrary Arrest, states as follows:
person may be deprived of his liberty except in the cases and according
to the procedures established by pre-existing law.
Article 7(2) of the Convention establishes that:
one shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the
State Party concerned or by a law established pursuant thereto.
Article 7(3) holds that:
one shall be subject to arbitrary arrest or imprisonment.
Now, in order to ascertain whether or not there was a violation
of these legal provisions, we need to be familiar with the Paraguayan
legislation in force at the time of the arrest, so that we can establish
what the “conditions established beforehand by law” were and
determine whether these conditions were fulfilled in the arrests of
Waldemar Gerónimo Pinheiro and José Víctor Dos Santos.
As for the scope of the provisions established in Article 7(2)
(which are the same as those appearing in Article XXV of the
Declaration), the Inter-American Court of Human Rights has stated that
“no person may be deprived of personal liberty except for the reasons
and in the cases or circumstances expressly described in the law
(material aspect), and then only in strict observance of the procedures
objectively defined by the law (procedural aspect).”
The Commission has followed the practice of analyzing whether a
case of deprivation of liberty is consistent with the norms of
paragraphs 2 and 3 of Article 7 of the American Convention, on the basis
of a three-step procedure. The
first step consists in determining the legality of the arrest in a
material and procedural sense, for which purpose the compatibility of
the arrest with the national laws of the state in question must be
ascertained. The second
step involves an analysis of the relevant domestic law in the light of
the guarantees established in the American Convention, in order to
determine whether it is arbitrary.
Finally, if the detention complies with the requirements of a
national law that is compatible with the American Convention, then it
must be determined whether application of the law to the specific case
in point was arbitrary.
Inter-American Court of Human Rights, Gangaram
Panday Case, Judgment of January 21, 1994, Series C Nº 16,
IACHR Report Nº 53/01, Case 11.565 - Ana, Beatriz y Celia González
Pérez, Mexico, April 4, 2001,
para. 23 and 27. In further support of this finding, the
Working Group on Arbitrary Arrests of the United Nations
Organization has established that there are three circumstances in
which an arbitrary arrest can occur, as follows:
it is evidently impossible to invoke a legal basis of any kind that
justifies it, such as maintaining a person in detention after that
person has completed his sentence or in spite of an applicable
deprivation of freedom is the result of prosecution or conviction
for exercise of the rights or freedoms set forth in Articles 7, 13,
14, 18, 19, 20, and 21 of the Universal Declaration of Human Rights
and, with respect to the States Parties, in Articles 12, 18, 19, 21,
22, 25, 26, and 27 of the International Covenant of Civil and
total or partial noncompliance with international law on the right
to a fair trial, established in the Universal Declaration of Human
Rights and in pertinent international instruments accepted by the
affected states, is so serious in nature that it makes the
deprivation of freedom, in whatever form it may take, arbitrary in
nature (Category III).