In a petition received at the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the IACHR”) on May 11,
1995, Mr. José Víctor Dos Santos and Mr. Waldemar Gerónimo Pinheiro
(hereinafter “the petitioners”) reported that they had been
incarcerated in a prison in the Republic of Paraguay (hereinafter
“Paraguay,” “the Sate” or “the Paraguayan State”) for more
than 10 years without ever having been convicted or sentenced.
Mr. José Víctor Dos Santos alleged that he had spent five
months in a hospital as a result of the torture he suffered at the time
he was taken into custody. The
State alleged that the domestic remedies had not been exhausted.
The Commission considers that the rule requiring exhaustion of
domestic remedies does not apply in the instant case and therefore
decides to admit the case, to proceed with the examination of the merits
and to make itself available to the parties for a friendly settlement
based on respect for the human rights recognized in the American
Convention on Human Rights (hereinafter “the Convention” or “the
PROCESSING WITH THE COMMISSION
On May 11, 1995, the Commission received the complaints that the
petitioners had originally sent to the Inter-American Juridical
Committee in Rio de Janeiro, Brazil, which then forwarded them to the
Commission. The Commission
received the petitions on May 11, 1995, opened the case on June 29,
1995, and forwarded the pertinent parts of the petitions to the
Paraguayan State. The
Commission asked the State to provide information relevant to the
petitions within 90 days. Paraguay
responded on September 14, 1995. On
November 29, 1995, the Commission solicited additional information from
Paraguay, which the latter supplied on June 20, 1996.
On May 12, 1999, the Commission requested that the State provide
up-to-date information on the case, which it did on June 17, 1999.
POSITION OF THE PARTIES
The petitioners’ position
In his April 4, 1995 petition, Mr. José Víctor Dos Santos
stated that he had been incarcerated in Tacumbú National Penitentiary
since 1985, which by then was more than 10 years, without ever having
been convicted and sentenced.
Mr. Dos Santos stated that he was arrested on suspicion of having
participated in a murder in the country’s interior although, he
maintained, there was no evidence that he had.
Mr. Dos Santos further stated that he was tortured when taken
into custody, as a result of which he became seriously ill and was
hospitalized for five months.
Mr. Dos Santos stated that he did not know why he was
incarcerated. He also
stated that he did not know whether any court proceedings had been
instituted against him, but that he
did not have the means to defend himself as he had neither family nor
financial resources. He
noted that many people incarcerated in that prison were in the same
In his petition, also dated April 4, 1995, Mr. Waldemar Gerónimo
Pinheiro stated that he had been in the Tacumbú National Penitentiary
for 10 years, prosecuted on suspicion of murder.
He said that there had been no evidence against him.
Mr. Pinheiro stated that his court file had been lost three times
and that, as he had no finances he had no means to defend himself.
He said he did not know what to do, as he had spent ten years in
prison without ever having been convicted and sentenced.
The State’s position
The Paraguayan State presented its reply on September 14, 1995,
and sent the Commission a copy of a report on the case prepared by the
Ministry of Justice and Labor, attached to which was another report on
the case, this one prepared by the Office of the Attorney General of the
Regarding the case of Mr. José Víctor Dos Santos, Paraguay
reported that he had been free since August 8, 1995, by virtue of an
order the Supreme Court issued on a petition of habeas
corpus filed on his behalf. In
its reply, the State added the following:
file on inmate JOSÉ VÍCTOR DOS SANTOS is on record at the Tacumbú
National Penitentiary. He
has been incarcerated there since 1988 for a double homicide.
However, no case file for this person is on record with the
Ciudad del Este court circuit. One
JOSÉ DOS SANTOS is named as an indicted accomplice in the case of
Waldemar Pinheiro, although no information on Dos Santos is recorded and
no one by the name of José Víctor Dos Santos is named in Final
Judgment Nº 11, of March 17, 1995.
Paraguay forwarded to the Commission a copy of the Supreme
Court’s June 9, 1995 writ issued on the petition of habeas corpus filed on behalf of José Víctor Dos Santos.
In that ruling, the Court held that “a review of the records
finds that to date, no competent authority has issued an order to have
the person in custody imprisoned.”
It therefore ordered that he be released.
As for Mr. Gerónimo Waldemar Pinheiro, Paraguay stated that
since June 6, 1985, he had been in prison “in the Tacumbú National
Penitentiary for the crime of murder committed for the purpose of
robbery” and that his final sentence of 30 years’ imprisonment was
delivered on March 17, 1995. It
pointed out that the case file had been lost and had been reconstructed
for purposes of sentencing. It
added that the court record of Mr. Pinheiro’s case was in the Appeals
Chamber, which meant that domestic remedies had not been exhausted.
On May 23, 1996, Paraguay supplied the Commission with background
information, documents and rulings related to both petitioners.
There, the Commission ascertained the following:
On July 1, 1985, the Police Chief of the Colonia General Patricio
Colmán prepared a police report stating that on June 6, 1985, Mr.
Cledirio Teleken, Mrs. Alice de Teleken and their children Nelci and
Nerio Teleken had been murdered. According
to the report, the inquiries carried out indicated that the suspects in
the murders were Mr. Waldemar Gerónimo Pineiro, Mr. José Mairosa Dos
Santos and a third person by the name of “Joasinho.”
The report stated that the first two were in custody at the
On July 5, 1985, the Police Chief presented the police report to
the Criminal Court Judge of First Instance for Ciudad Presidente
Strossner and informed him that Mr. Waldemar Gerónimo Pineiro and Mr.
José Mairosa Dos Santos were then in preventive custody.
Because the case file labeled “Waldemar Pinheiro and José
Mairoso Dos Santos /Murder in Santa Lucia” had been lost, on November
10, 1987 the Criminal Court of First Instance for Ciudad Presidente
Strossner, with Dr. Artemio Benitez Vásquez presiding, ordered that the
file be reconstructed and agreed to recommend to a court in the capital
that statements be taken from the two men.
On February 28, 1988, the same court ordered that the preventive
custody was to be changed to preventive imprisonment and that the two
men were to remain incarcerated in the Asuncion General Penitentiary.
On July 10, 1988, the same court delivered a ruling admitting a
motion filed by Mr. José Mairosa Dos Santos to have the order for his
imprisonment revoked. The
court also decided to instruct the Asuncion General Penitentiary to
execute the court ruling.
On May 16, 1990, the court in question delivered A.I. Nº 451,
wherein it established that a review of the court’s case files
conducted when a new judge, Dr. Ruben Candia Amarilla, took office,
found that the case file in question was missing.
In view of the foregoing, the court decided to conduct new
preliminary proceedings, to confirm the preventive detention of Mr.
Waldemar Gerónimo Pineiro, to convene a hearing for Pineiro to make a
statement, and to issue an arrest warrant for José Marioso Dos Santos.
The judge ordered that the Asuncion and regional police be
On May 19, 1990, the court convened at the Tacumbú National
Penitentiary and took Mr. Pinheiro’s statement.
The record for the hearing indicated that Mr. Pinheiro was not in
a position to make a statement, but did not give the reason.
On May 21, 1990, Mr. Pinheiro designated two defense attorneys.
On May 22, 1990, the Court decided to change the preventive
custody to preventive imprisonment and ordered that Mr. Pinheiro was to
remain in prison.
On August 27, 1991, the Court, with a new judge, Dr. Juan G.
Arguello, presiding, responded to a request from the Criminal Prosecutor
and designated the Public Defender for Indigent Prisoners to serve as
Waldemar Pinheiro’s defense counsel.
At a hearing on September 21, 1991, Mr. Pinheiro made his
preliminary statement, wherein he said he was innocent of the crime with
which he was charged. He
stated that on June 6, 1985, he had traveled overland from Brazil to
Paraguay, to work on a property that his father had leased.
When he stopped at a police station to ask directions, he was
taken into custody, tortured and forced to confess to the crimes for
which he was on trial.
The respective case file was missing from September 1992 to
September 1994. On
September 27, 1994, the Court, with Dr. Justo Salvador Reyes Riveroo
presiding, closed the preliminary inquiry and the process moved into the
On December 14, 1993, Mr. Pinheiro designated Dr. Jorge Valder
Bavera, Public Defender for Indigent, Absent and Disabled Prisoners to
serve as his defense attorney.
On March 17, 1995, the Court hearing the case, known then as the
First Criminal and Second Juvenile Correctional Court of the Circuit of
the Alto Paraná and Canindeyú, with Judge Justo Salvador Reyes Riveroo
presiding, handed down the final judgment, sentencing Mr. Waldemar Gerónimo
Pinheiro to 30 years’ imprisonment for the crimes with which he was
On May 22, 1995, Dr. Jorge Valdés Savera, Defense Attorney for
Indigent, Absent, and Disabled Prisoners and Mr. Pinheiro’s defense
counsel, received notification of the sentence and filed an appeal with
the Appellate Court that same day.
The brief filed stated the grounds for the appeal.
There, the defense attorney argued that there had been absolutely
no proof in the case against Mr. Pinheiro, since the “only valid
evidence in the case files is the preliminary statement made by my
defendant,” flatly denying any part in the events under investigation.
On April 12, 1996, the Civil, Commercial, Labor, Criminal,
Custodial, and Juvenile Correctional Appellate Court of the First
Chamber in the Alto Paraná and Canindeyú Circuit issued the Decision
and Judgment Nº 3, wherein it nullified Final Judgment Nº 11, of March
17, 1995. In that ruling,
the Superior Court held that the judgment of the court of first instance
was delivered without the prosecution’s case and the defense’s
rebuttal being argued. This
meant that “technically speaking, there was no trial, since without
prosecution and defense arguments, there was no basis for any
On June 17, 1999, the Paraguayan State argued that on September
3, 1996, the Medical Department of the Tacumbú Penitentiary ordered
that Mr. Waldemar Gerónimo Pinheiro be hospitalized at the Juan Max
Boettner Treatment Center, because he was suffering from T.B.C. pneumonia. While
hospitalized, Mr. Pinheiro escaped from the Treatment Center on October
27, 1996. The State also
reported that on November 1, 1996, the Court issued a nationwide arrest
warrant for Mr. Pinheiro.
The Commission will now examine the requirements stipulated in
the American Convention for a petition’s admissibility.
materiae, ratione personae and
ratione temporis of the Commission
The Commission is competent to hear the complaint of the
petitioners. The acts
alleged therein have affected natural persons subject to the
jurisdiction of the State, according, initially, to the applicability in
Paraguay of the American Declaration of the Rights and Duties of Man
and, subsequently, to the applicability of the American Convention.
The Commission therefore is proceeding to examine whether this
case meets the requirements established in Articles 46 and 47 of the
Requirements for the petition’s admissibility
Exhaustion of domestic remedies
Since more than 14 years have elapsed since the judicial
proceedings were initiated, the Commission finds, prima facie--and without ruling on the substantive issues, which it
will do in due course--that there has been an unjustified delay in those
judicial proceedings, and, therefore, in accordance with Article
46(2)(c) of the Convention, the petitioners are exempt from meeting that
Timeliness of the petition’s presentation
As to the requirement stipulated under Article 46(1)(b) of the
Convention, to the effect that the petition must be lodged within a
period of six months from the date on which the party alleging violation
of his rights was notified of the final judgment, the Commission
observes that this is another requirement that does not apply in the
instant case. As the
exception to the rule requiring exhaustion of local remedies, provided
for in Article 46(2)(a) of the Convention, has been allowed, as
explained in the preceding paragraph, an exception to the time period
for lodging petitions is also called for by virtue of Article 46(2).
Concurrency of legal actions and res
The Commission understands that the subject of the petition is
not pending in another international proceeding for settlement and is
not substantially the same as one previously studied by the Commission
or by another international organization.
Therefore, the requirements stipulated in articles 46(1)(c) and
47(d) have been met.
Nature of the facts alleged
The Commission is of the view that the statements of the
petitioners and of the State do not indicate that the petition is
manifestly groundless or obviously out of order, wherefore the
requirement stipulated in Article 47(c) of the Convention has also been
The Commission finds, therefore, that it has jurisdiction to hear
the present case and that, as herein explained, is admissible in
accordance with the requirements established in articles 46 and 47 of
the American Convention.
Based on the arguments of fact and of law explained above and
without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible.
To notify the petitioners and the State of this decision.
To proceed with the analysis of the merits of the case.
To make itself available to the parties for the purpose of
reaching a friendly settlement based on respect for the rights
recognized in the American Convention, and to invite the parties to
express their views on this possibility.
publish this decision and include it in the Commission’s Annual Report
to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on the 27th day of
the month of September, 1999. (Signed): Robert Goldman, Chairman; Hélio
Bicudo, First Vice-Chairman; Claudio Grossman, Second Vice-Chairman;
Commissioners: Alvaro Tirado Mejía, Carlos Ayala Corao and Jean Joseph
Paraguay ratified the American Convention on Human Rights on August
24, 1989. The Commission wishes to clarify that even though the acts
in question--the allegedly arbitrary imprisonment of Mr. Dos Santos,
the preventive detention or imprisonment of Mr. Pinheiro for an
amount of time alleged to be unreasonable, and the reported
submission of both individuals to judicial proceedings that
allegedly exceeded a reasonable period of time--began in 1985,
before Paraguay's ratification (in 1989) of the American Convention,
those acts could constitute a continuing violation, since it is
argued that their effects continued after Paraguay had ratified the
Convention. In that connection, the IACHR recently confirmed “its
practice of extending the scope of application of the American
Convention to facts of a continuing nature that violate human rights
prior to its ratification, but whose effects remain after its entry
into force." IACHR, Report N° 95/98 (Chile), December 9, 1998,
in Annual Report of
the Inter-American Commission on Human Rights, 1998, para. 27.
Similarly, the Commission has established that “once the American
Convention entered into force … , the Convention and not the
Declaration became the source of legal norms for application by the
Commission insofar as the petition alleges violations of
substantially identical rights set forth in both instruments and
those claimed violations do not involve a continuing situation (IACHR,
Report N° 38/99 (Argentina), March 11, 1999, in
Annual Report of the Inter-American Commission on Human Rights,
1998, para. 13).