FOLLOW-UP REPORT ON COMPLIANCE WITH THE RECOMMENDATIONS OF THE IACHR IN THE THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY

 

1.                 On March 9, 2001, the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the IACHR") adopted the Third Report on the Situation of Human Rights in Paraguay (hereinafter "the Third Report").  In that Report the Commission examined protection of human rights under the constitutional, legal, and political system in force in the Republic of Paraguay (hereinafter "the State," "Paraguay," or the "Paraguayan State"), administration of justice and the rule of law, international obligations of Paraguay in the framework of the inter-American system, political rights, freedom of expression, economic, social, and cultural rights, women’s rights, the rights of children, prison conditions, and the rights of indigenous peoples.  The Report also made a series of recommendations in the light of the conclusions it reached.

 

2.                 On November 28, 2001, the Commission wrote to the State to request it for information on compliance with the recommendations contained in the Third Report.  On March 14, 2002, the State presented its “Report on actions taken by the State to implement the recommendations contained in the Third Report of the Inter-American Commission.” Written by the Ministry of Justice and Labor of Paraguay, this document is based on information provided by the state agencies involved in implementing the measures recommended in the report.

 

3.                 During its 114^th regular session, the IACHR adopted a “Draft Follow-up Report,” which was duly forwarded to the State, with a 30-day deadline for presentation of observations.  On April 8 the State presented its response, ratifying the observations contained in its presentation of March 14, 2002.

 

4.                 Since it sent its Third Report to the State, the Commission has received periodic information from the State on the human rights situation in Paraguay. The Commission has evaluated compliance with its recommendations mainly through the analysis of information furnished by the State and by other reliable sources. All of this information has been considered in the context of the panorama painted by the events that have come to the knowledge of the IACHR in 2001 as a result of the performance of its mandate to promote respect for and protect human rights in the region. The Commission thanks the State for its ongoing cooperation and for the pertinent information it transmits periodically.

5.                 This Follow-up Report is divided into nine sections that examine the measures adopted to deal with the challenges arising from the various issues addressed: democratic institutions, impunity, administration of justice, prison system, and the right to freedom of expression. It also deals with progress in compliance with obligations arising from social, economic and cultural rights, as well as protection of children, women and indigenous peoples.

 

I.                    RECOMMENDATIONS ON DEMOCRATIC INSTITUTIONS

 

6.                 In the Third Report, the Commission recommended to the State the prompt appointment of a Human Rights Ombudsman. The Commission also stressed the importance of the decision of the Paraguayan legislative branch in that respect, since the position of Human Rights Ombudsman had been created by the 1992 Constitution of that country and had remained vacant since then. For its part, on various occasions the Commission had expressed its concern about the delay in appointing the Human Rights Ombudsman.[1]

 

7.                 The State has informed the Commission that it complied with the recommendation on October 11, 2001, when, through resolution Nº 768, the Chamber of Deputies elected Mr. Oscar Páez Monges as Human Rights Ombudsman and Mr. Héctor Raúl Marín Peralta as Deputy Ombudsman, thereby complying with Article 277 of the National Constitution and Articles 4 and 11 of Law 631 of November 14, 1995.[2]

 

8.                 The State also told the Commission that in the first week of January 2002 the new Ombudsman set up a special office to receive petitions, with a view to expediting enforcement of Law 838/96, “which compensates victims of violations of human rights during the 1954-1989 dictatorship.” Specifically, the office began receiving petitions on January 2, 2002 and will continue to do so for up to 30 months. The State reported that the funds to be earmarked for compensation payments have already been contemplated in the National General Expenditure Budget in the Chapter on Miscellaneous Obligations of the State.[3]

 

9.                 The Commission has become aware of discussions regarding the autonomy and budget of this institution. In that connection, the Inter-American Commission understands that the autonomy of the Office of the Human Rights Ombudsman is an essential condition for the adequate development of its powers.  Further, the Commission mentions that it is necessary for it to have an adequate budget for the performance of its functions.  The Commission recalls the provisions contained in resolution AG/RES. 1601 (XXVIII-O/98), which recommends:

 

(…) to the member states that measures be taken, according to each country's legal system, to promote the political, administrative, and financial independence of defenders of the people, defenders of the population, human rights attorneys, and human rights commissioners in the member countries of the Hemisphere.

 

10.             Finally, the Inter-American Commission considers that the above appointment constitutes a forward step for the consolidation of democratic institutions in Paraguay, and expresses its complete readiness to collaborate with the Human Rights Ombudsman in the performance of its delicate duties.

 

11.             The Commission believes it important to underscore with regard to the stability of Paraguayan institutions, that said stability was overshadowed in the early part of the year by reiterated requests for the impeachment of the President of the Republic and a series of tense social pressures and mobilizations-peasant movements, internal workers’ movements, privatization processes-that arose and led to unrest in the government employee sector and accusations of corruption that produced considerable political instability.

 

12.             However, the Commission considers it a step forward in the area of democratic stability that, on November 18, 2001, municipal elections were held in complete normality across the country.  The Commission mentions as an important fact to bear in mind that the national turnout of voters was less than 49%. The results of the elections gave a political victory to the candidates of the Colorado Party, who won in 138 of the 220 municipalities in the country; the Authentic Liberal Radical Party (PLRA), for its part, only did so in 70. The most significant outcome was the victory of Enrique Riera, the Colorado Party candidate, in the Municipality of Asunción.  The opposition had governed in the country’s capital for more than ten years.  The Colorado Party was also successful in other important areas of the country, such as Fernando de la Mora, Luque, Lambaré, and San Lorenzo.

 

13.             The Commission also observed how in this climate a President of the Republic coexisted in harmony with a Vice President from another party, bearing in mind particularly that the two leaders were elected at different times and by different mechanisms.  Indeed, President González Macchi was elected as an upshot of the institutional crisis of 1999 when Raúl Cubas left the presidency, and took office while he was the speaker of the Senate, pursuant to a constitutional provision. The Supreme Court of Justice confirmed that President González Macchi should stay in power until 2003. Vice President Julio César Franco, on the other hand, was elected by a popular ballot.  Further to the foregoing, the Commission notes that the party of the Vice President, the PLRA is asking for the impeachment of the President.

 

14.             For its part, the Commission notes that the signs for stability are positive thanks to the National Dialogue being convened by the Catholic Church.  This appeal for dialogue has paved the way for equilibrium and national talks in which all political parties and sectors of the society play a part.

 

15.             Finally, the Commission observes with concern that the most recent Latinobarómetro poll shows that Paraguayans are currently the least satisfied with the democratic system of all the countries surveyed. In the Americas as a whole, the average level of satisfaction is 48%; in Paraguay it is 23%.  In the opinion of the Commission, democracy has not yet become firmly established among the populace.

 

II.                  RECOMMENDATIONS ON IMPUNITY

 

16.             It is necessary in first place to mention that the problem of high levels of impunity, as the Commission has said, is not simply a question of leaving numerous individual crimes unpunished.  Rather, the issue is one of the creation of an entire system of impunity which affects the culture and life of the nation even for those individuals who are not directly affected by human rights violations or other crimes.[4]  Only through the rule of law and the proper administration of justice can we break the vicious cycle of impunity, re-establish public order, and guarantee observance of fundamental rights and social harmony.[5]

 

17.             The Inter-American Commission, in the Final Reflections of the Third Report, observes that among the main aspects that generally affect the enjoyment of human rights in Paraguay are the situations related to impunity.[6]

 

18.             The Commission further mentions that impunity in Paraguay encompasses the failure to investigate and punish the persons responsible for assassination, torture, corruption, and other grave crimes that continue to occur in the country in the present democratic era, and the failure to compensate victims or their family members in cases of human rights violations. It also includes the failure to investigate and impose punishment for the human rights violations committed by state agents during the Stroessner dictatorship (1954-1989), and the failure to compensate the victims of those violations, or their surviving family members.  In that way, impunity is a feature present in two periods of Paraguayan history: one dictatorial and the other democratic, continuing in time and revealing its nature as a structural, and not a purely circumstantial, problem.

 

19.             In that perspective the recommendations of the Commission were designed to encourage Paraguay to have in place as soon as possible a judiciary that might enable the State to meet its international obligations to investigate and punish persons responsible for human rights violations. In first place it recommended the State to adopt policies planned for the short-, medium-, and long-term to try to eliminate or reduce to the maximum extent possible situations of impunity, which entail violations of several human rights, and may give rise to the international responsibility of the State.

 

20.             Further, with respect to human rights violations committed during the Stroessner regime, the Commission underscored its recommendation that the State fulfill its duty to investigate and punish the persons responsible for the human rights violations, and provide adequate compensation to the victims.  Finally, and taking into account the right of the victims, their next-of-kin, and the Paraguayan people in general to know the truth, the IACHR reiterated its recommendation to create an independent and impartial investigative commission to draw up a report on the deaths, disappearances, acts of torture, and all other human rights violations committed at that time, working from the “terror files” and other relevant sources.

 

21.             As to compliance with the above recommendations, from the information sent by the State it emerges that in 1989 many actions against human rights violations and claims for compensation of victims of torture and other cruel treatment began to be brought before the Paraguayan courts.[7] 

 

22.             The State has informed the Commission of the outcome of several of these suits. For instance, in the file entitled “Sabino Augusto Montanaro and others on kidnapping, illegal deprivation of liberty, misuse of authority, torture, and dual homicide in the capital". (in relation to IACHR petition Nº 11.667 of Rodolfo and Benjamín Ramírez Villalba), in a definitive judgment handed down on September 1, 1999, the Criminal Court of First Instance under Judge Rubén Darío Frutos Ortiz convicted defendants Pastor Milciades Coronel, Alberto Cantero Cañete, Camilo Almada Morel, Lucilo Benítez, Agustín Belotto Vouga, and Juan Aniceto Martínez, sentencing Pastor Coronel to 25 years in prison and the others to 12 years and six months. That judgment also established the civil liability of those convicted.[8]

 

23.             The Commission was also informed that the Carlos José Mancuello lawsuit (IACHR petition Nº 11.665) was reaching judgment stage in the Criminal Court of First Instance (5^th session). Finally, the Commission was told that in respect of IACHR petition Nº 11.559 of Miguel Angel Soler, the Judge of the Sixth Session Criminal Court handed down judgment in the case “Francisco Alcibiades Britez Borges, Pastor Coronel, and others on homicide, housebreaking, misuse of authority, illegal deprivation of liberty, kidnapping, torture, and death threat,” classifying the offenses, rejecting the statute of limitations claim as inadmissible, noting that actions could now be brought before civil law courts on account of consequential liability, and sentencing defendants Coronel, Almada, Benítez Santacruz, and Martínez Amarilla to prison.[9]

 

24.             However, all the criminal lawsuits brought against Alfredo Stroessner are still being processed, without any of them having achieved his extradition from Brazil, where he has been given political asylum.

 

25.             The State has pointed out that two detention orders designed to bring about Stroessner’s extradition exist at this time: one in connection with inquiries into the disappearance of the Villalba brothers and the other relating to investigations into the disappearance of Dr. Agustín Goiburú. These two cases are currently pending before the Inter-American Commission.[10]

 

26.             The Commission notes with concern the aversion of some public authorities to cooperate with judicial investigations.  For instance, in the criminal complaint filed by Teresita Asilvera versus A. Stroessner, Edgar Insfrán, and others, the Civil Registry has been disinclined to release the death certificates of several alleged torturers, so that the court might exclude the deceased from the proceeding and press on with the investigation. Further, the Commission continues to point out the slowness of judicial investigations. In the paradigm case of Napoleón Ortigoza, to date his criminal complaint continues to await a ruling by the Court of Appeals for Criminal Matters, due to the innumerable incidental proceedings introduced by the counsel for former general Ramón Duarte Vera, who, although it has been more than 11 years since the process began, continues to lodge appeals arguing that the statute of limitations on the crimes has run. The Commission, at the same time, mentions as an example of positive progress the civil suit for damages filed by Napoleón Ortigoza, in which Judge Hugo Bécker of the 7th Civil Court, ordered the Paraguayan State to pay compensation; that decision in favor of Napoleón Ortigoza was upheld in second instance.[11]

 

27.             It is of vital importance, therefore, that all the lawsuits filed against Alfredo Stroessner, his collaborators, and representatives of the apparatus of repression, be concluded by imposing criminal penalties commensurate with the gravity of the acts and with the degree of responsibility. For its part, the Commission insists on taking all the necessary steps to secure the extradition of Alfredo Stroessner, in order for him to face trial in all the actions pending against him in the Paraguayan justice system.

 

28.             In the opinion of the Commission, the investigation and punishment of the most high-ranking persons responsible for the violations committed during the dictatorship is one of the best guarantees to ensure the non-repetition of such acts.

 

29.             As regards the impunity present in the democratic era, the Commission continues to receive information relating to various cases of corruption that remain unpunished. The government attorney Fernando Casañas Levi, in charge of the investigation in one such case, resigned lamenting the concealment of information by the Attorney General.[12] Other recent cases, inter alia, those of trafficking in visas and the existence of fictitious soldiers on Armed Forces payrolls, remain before the courts without decisions being rendered.  Furthermore, in a few cases where the courts have issued final judgments, the police have not proceeded to capture the convicted persons, as in the recent matter of the “persons who emptied the BNT” [vaciadores del BNT] (Banco Nacional de Trabajadores).[13] The Commission hopes to see the prompt conclusion of these cases and will continue to monitor their outcome.

 

30.             With respect to the recommendation to compensate victims of human rights violations, both during the dictatorship and in the current democratic era, some progress has been made that the Commission hopes will lead to the effective provision of the aforesaid compensations.

 

31.             In first place, in 1996, the State of Paraguay passed Law N° 839, which provides compensation to victims of human rights violations during the dictatorship from 1954 to 1989, thus creating the mechanism that victims from that period should use to present claims to the Human Rights Ombudsman, who will decide the appropriate classification and compensation. This legislative measure, though laudable, remains to be implemented in practice.  It has already been 12 years since the democratic era began, yet no compensation has been forthcoming to the victims of the dictatorship and their next-of-kin, many of whom are in a state of complete indigence. The Commission highlights the importance of the recent appointment of the Human Rights Ombudsman and his deputy, and hopes, finally, that they will expedite as soon as possible the procedures for payment of the necessary compensation and provision of immediate and effective, free medical and psychological care for the victims of the dictatorship, in order to ensure their prompt reparation.  Further, the Commission wishes to underscore the importance of the compensation judgment in the case of Napoleón Ortigoza and hopes that the payment thereof is completed as soon as possible.

 

32.             As an instance of highly important progress, the State has informed the Commission that the Public Ministry–the Attorney General’s Office–on August 22, 2001 decided to assign to government criminal prosecutors exclusive competence over punishable acts that violate human rights, to which end it appointed three government prosecutors with jurisdiction over the entire Republic. The Public Ministry says that, “as the representative of society its fundamental purpose is to ensure respect for constitutional rights and guarantees by instituting public criminal proceedings in defense thereof, and thus prevent punishable acts that violate those fundamental rights from remaining unpunished”.[14]

 

33.             Finally, the State has not complied with the recommendation to create a Truth and Justice Commission. Such a commission is an effective instrument to investigate what happened to the victims of the dictatorship, and, in particular, to determine the whereabouts of detained/disappeared persons based on the information contained in the so-called “terror files”.

 

34.             However, the State informed the Commission that several Paraguayan men and women who were persecuted and tortured during the dictatorship, from 1954 to 1989, have benefited from the constitutional guarantee of habeas data, provided in Article 135 of the Constitution, and have brought actions before the ordinary courts, in order to access the information and data on themselves contained in the “terror files”, as well as to know the purpose of that information and the use to which it was put.[15]

 

35.             The Commission regards as essential the proper preservation and protection of those documents, in order to make it possible to ensure in every respect the real effectiveness of the right to know the truth that concerns the whole of society, as well as the victims’ next-of-kin.  The State informed the Commission that the “terror files” are suitably protected at the Information and Archive Center for the Defense of Human Rights of the Supreme Court of Justice and were declared world heritage by UNESCO. Further, Supreme Court of Justice has signed an agreement with that international agency to preserve, protect and disseminate the “terror files”.[16]

 

III.      RECOMMENDATIONS ON ADMINISTRATION OF JUSTICE

 

36.             In its Third Report the Commission addressed the difficulties of the Paraguayan justice system to ensure the full observance of judicial guarantees and due process. It also drew attention to the need for the new system of criminal procedure to be implemented promptly and effectively.

 

37.             For its part, the State mentions the important progress that the legal reform, in particular in the area of criminal law, represents for the administration of justice. The Commission was informed that the new Criminal Code (Law 1.160/97) and the Code of Criminal Procedure (Law 1.286/98) are in force, replacing the obsolete codes that governed such matters. The main change is the switch from the inquisitive system of criminal procedure in force under the 1890 Code of Criminal Procedure, to the accusatory system currently in effect. The State draws attention to the results of the legal reform, saying that in 2001 in just four months of work (March to June), under the new oral procedure 843 individuals were convicted and 86 were acquitted.[17]

 

A.      JUDICIAL GUARANTEES AND DUE PROCESS

 

38.             With respect to the recommendations that the Commission made to the State as regards ensuring observance of the due process guarantees enshrined in the American Convention for all individuals subject to the jurisdiction of the Paraguayan State, the Commission finds that problems persist in Paraguay relating to the independence and impartiality of judges.

 

39.             The Commission has received criticisms mainly to do with the selection of members of the judiciary, in the sense that as a general rule, due to partisan political influences, that selection neglects the effective observance of the constitutional precept of equality of all citizens before the law and the constitutional provisions governing access to those positions.

 

40.             In its observations to the Third Report, the State emphasizes that the whole process of selecting and designating members of the Supreme Court and all other government officials was strictly in accordance with the relevant legal provisions. However, the Commission continued to receive information that raised reservations about the selection process. In particular, with the passing away in June 2001 of Supreme Court Justice Dr. Elixeno Ayala, of the approximately 30 candidates put forward to replace Ayala, the Council of the Judiciary selected three, who were strongly disputed by various sectors of public opinion.[18] Given the necessary background and requirements to qualify for the position, they did not exactly have the best academic and professional records to recommend them for such a high office. In spite of that, the much-questioned shortlist was submitted by the Council and accepted by the Senate, which, in a quick vote, elected Dr. Antonio Fretes, who also received the prompt approval of the President of the Republic.[19]

 

41.             For its part, the constitutional reform gives the Public Ministry a key role, in charge of ensuring that constitutional guarantees are upheld in the prosecution of crimes, as well as making it responsible for launching a criminal policy coordinated with the other departments and sub-departments of the justice system, designed to enable them to become genuinely proactive in the investigation of crime. In reality the Public Ministry, being unable to harmonize its roles with those of the National Police, the Comptroller, and other organs, has not managed to articulate a criminal policy that might enable the prevention of crimes and their effective investigation and punishment.

 

42.             Following is an examination of specific problems concerning administration of justice in Paraguay in light of the recommendations made by the Commission in its Third Report.

 

B.       THE RIGHT TO PERSONAL LIBERTY

 

43.             The Commission mentioned in its Third Report that two of the most serious problems affecting the right to personal liberty in Paraguay are the detentions without observing the requirements established in the law, and excessive preventive detention.

 

1.       Unlawful detentions

 

44.             The Paraguayan legal system espouses the classic principle of inviolability of personal liberty, except on the grounds and in the conditions provided by the law (Article 11 of the Constitution).  The direct legal consequence of the right to personal liberty is that a person may only be detained for the reasons and in accordance with the procedures that the law provides. These cases and procedures must be in keeping not only with domestic laws, but also with explicit and implicit principles contained in international instruments in this area.

 

45.             In that connection, the Commission says in its Third Report that the Code of Criminal Procedure expands the cases in which a person can be detained without a judicial order, incorporating concepts such as “sufficient indicia of one’s participation in a punishable act” which may, in practice, give way to its application to an indeterminate number of situations.

 

46.             All the data show that the police make a large number of arrests without a judicial order and without any existing situation of flagrancy, whether in the course of a criminal investigation or simply through abuse of authority.  For example, Carsten Isensee, a German citizen, with passport N° 3230038308, filed a complaint with the Public Ministry on July 16, 2001,[20] accusing agents of Metropolitan Police Station N° 18 of permanent harassment of him, subjecting him to short periods of detention, and threatening to press charges against him in order to extort money in cash from him.[21]  In addition, on March 15, 2001, Messrs. Rodolfo Céspedes Carabajal and Isidro Alfonso Almada lodged a complaint with the Public Ministry alleging the arbitrary detention of José Felipe Martínez, Cirio Martinez, and Nilson Mercado, residents of the community of Tava Yopoi, in the District of Curuguaty (Department of Canindeyú).  According to the complaint,[22] a group of approximately 19 policemen from a local police station proceeded, in a state of drunkenness, to detain those persons without any explanation as to the reason for their detention, and robbed money from the victims.[23]

 

47.             For its part, the Commission received a petition presented by the leadership of the Union of Moneychangers of Asunción, against agents of Metropolitan Police Station N° 3, alleging unlawful detention, mistreatment, and robbery on March 31, when at least five agents proceeded to arrest and mistreat Diego Daniel Acosta, the union secretary. While attempting to identify himself and ask the reason for his arrest, a policeman struck him twice with a truncheon. The commander of the police station said in his statements to the press that, “Acosta was making trouble in a bar. He seemed to us to be under the influence of stimulants.  He refused to show his identity document and, therefore, we took him to the police station for identification.”[24]

 

48.             Recently, Professor Luis Alfonso Resk, advisor to the Attorney General and member of the National Human Rights Commission of Paraguay, denounced criminal prosecutor Carlos Cálcena for mistreatment and use of violence during the detentions of Lebanese citizens on September 21, 2001; they were accused of possession of false documents and alleged links to terrorism.[25]

 

49.             In conclusion, the Commission recommends a stricter and fuller application of the provisions contained in the Code of Criminal Procedure and in the New Code on Children and Adolescents, in the part referring to the rules on juvenile justice. To that end it reiterates the recommendation to the State to ensure the provision of greater training in the new paradigms contained in these codes for justice personnel, judicial operators, and legal professionals.

 

2.       Duration of preventive detention

 

50.             In its Third Report, the Commission recommended to the State to ensure that criminal proceedings unfold within a reasonable time and to guarantee full observance of the principle regarding the presumption of innocence.

 

51.             The entry into force of the new Code of Criminal Procedure in many ways heralded the beginning of the end of the abuses to which the institution of preventive detention had led.

 

52.             The laws governing the institution were based on the application of preventive detention as a rational and exceptional measure and on the possibility of adopting alternative or substitute measures for confinement, which signified a major stride forward in the area. The Commission regards as hugely important and values the efforts of the State in this respect.  In the first year of application of the new process, 67.6% of defendants before the courts of guarantees of Asunción were held in preventive custody, while 32.3% were bound by some precautionary measures that enabled them to remain at liberty; of the latter only two cases required police control. In the first four months of the second year of application (until June 2001), the proportion of remand prisoners fell to 46%, while those who were the subject of an alternative measure amounted to 54%, none of whom was under police control.[26]  The Commission further takes into consideration the information it received that the percentage of “prisoners with no conviction” in Tacumbú has diminished considerably. By August 2001, according to data on the Judicial Record of Inmates in Tacumbú Prison provided by the Technical Office for Resources, of a total of 1,713 prisoners, some 958 (56%) were not convicted and 775 (44%) had been convicted. Of the latter, 55% of judgments were final and the remainder were under appeal.[27] “El Buen Pastor” prison for women, which has the capacity to hold more than 200 inmates, has a population of 154 prisoners (according to statistics for October 2001), of which 120 have been convicted and 34 are in preventive detention.

 

53.             The Commission remains concerned by the excessive delays in the preventive detention of persons whose cases predate March 1, 2000, substantiated under the Code of 1890. Law N° 1.444/99, which governs the transition period between the two systems, expressly provides that the provisions contained in the new code shall not apply to the duration and guarantees of review of preventive detention, which may constitute a violation of the principle of retroactivity of the most favorable criminal law for the defendant, there being several cases of accused persons who have already been in preventive detention for longer than three years.

 

54.             The Commission highlights the progress in this area and at the same time reiterates the need to continue to adopt the necessary measures to give full effect in practice to the right to a proceeding in a reasonable time, which implies the principle of liberty during prosecution based on the principle of presumption of innocence.

 

C.      TORTURE

 

55.             With respect to the recommendations on the elimination of torture, the Commission notes that the State of Paraguay prohibits torture and other cruel, inhuman, or degrading treatment or punishment, practices for which it regards the statute of limitations as non-applicable for the purposes of criminal prosecution (Article 5 of the Constitution and Article 309 of the Criminal Code), and that it is a state party to two international treaties on torture. However, torture has continued to exist.

 

56.             In police investigations the Commission detects a similar pattern closely linked to the occurrence of detentions without a judicial order. According to information received, when a suspect is detained by the police, whether because they have been caught in flagrante delicto, or because they are connected with a prior complaint under police investigation, it is likely that they will be subjected to physical abuse by the police at primary detention centers so that they might admit their guilt, confirm police suspicions, provide more clues that might lead the stolen object to be found, or inform on alleged perpetrators or accomplices. In some cases corruption is a determining factor in the practice of torture, when certain state agents use it for extortion purposes in exchange for not reporting the detention to the Public Ministry.[28] Further, the information reveals that as a general rule when a detainee is turned over to the prosecutor, the latter usually charges them without considering whether or not the arrest was arbitrary, if there are allegations or evidence of physical abuse, and that in many cases no more evidence is presented than an admission of guilt and an alleged identification by the victim, both obtained on police premises without a defense attorney present, which means that they are inadmissible as evidence and should have no value in a trial.[29]

 

57.             Following are some complaints that illustrate practices of torture that occurred subsequent to the Third Report that the Commission prepared on the State. Diego David Benitez complained to the Public Ministry that on February 24, 2001, he was stopped in a shopping mall by a private security guard named Arévalos. The latter was accompanied by two policemen from Police Station 11, who were looking for the complainant’s brother in connection with an investigation into an alleged robbery at a store in the mall. When the victim did not provide any information, the policemen manhandled him into a nearby police booth, where he was beaten, humiliated, and terrorized so that he might give information on the whereabouts of his brother.[30]

 

58.             On March 28, 2001, Messrs. Elvio Ramón Duarte, Claudelino Amarilla, and Pablo Quiñones filed a complaint with the Public Ministry alleging arbitrary detention and torture. The complainants said they were detained in the early hours of January 24, 2001, when the home of Quiñones was raided without a court order by policemen from Police Station N° 17 in Capi’ibary, Department of San Pedro. They were handcuffed and taken to the police station. They were tortured on the way to, and after arriving at, the police station.  The complainants say that “they tortured us psychologically by making us sing and then they kicked and hit us, telling us to be quiet; they also forced us to bite one another; at the police station they summoned us one by one, put a black plastic bag over our heads, and beat us about the ears; they cocked their revolvers inside our mouths and next to our ears, and we were even struck in the genitals (…).”[31]

 

59.             Finally, the Commission has information that on August 8, 2001, government attorneys Amílcar Ayala and Fabián Centurión filed formal criminal charges against former interior minister and current deputy Walter Bower, and asked Judge of Guarantees Gustavo Gorostiaga to sentence the accused to between one and five years in prison. According to the accusation, Bower is responsible for the crime of torture, as well as inducement of a subordinate to torture defenseless people. According to the case record, in Bower’s presence policemen subjected Police Chief Alfredo Cáceres and officer Jorge López to torture following the abortive coup d’état.[32]

 

60.             The aforementioned situations reveal the extreme seriousness of the problem of torture in Paraguay. This acute problem also raises a legal question. The State of Paraguay is a party to two international conventions against torture.[33] Accordingly, it adopted the obligation to provide for this crime in its criminal laws, in accordance with these two conventions. From a comparison of Article 309 of the Criminal Code in force with the pertinent articles contained in the conventions, we find that Paraguayan criminal law does not agree fully with the descriptions of the crime given in the conventions, which means that the State is in breach of its obligation in this respect, with the attendant lack of guarantees which that entails for the adequate punishment and prosecution of such acts. The crime of torture as provided in the new Criminal Code does not include basic elements of the offence described in the Convention,[34] for instance, under the Code the crime is not punishable based on its commission alone but, rather, evidence is required of grave effects or consequences to the victim.[35]

 

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Article 1

 

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

 

Inter-American Convention to Prevent and Punish Torture. Article 2

 

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

 

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

 

Penal Code of Paraguay. Article 309

 

(1)        Any person who, with the intention of destroying or seriously harming the personality of the victim or of a third party, and acting in an official capacity or with the agreement of an official:

1.         Perpetrates a punishable act against:

a.         Another person's physical integrity, according to Articles 110-112;

b.         His liberty, according to Articles 120-122 and 124;

c.         His sexual integrity, according to Articles 128, 130, and 131;

d.         Minors, according to Articles 135 and 136;

e.         The lawful exercise of public duties, according to Articles 307, 308, 310, and 311; or inflicts serious psychological suffering on the victim, shall be liable to a custodial sentence of not less than five years.

(2)        Paragraph 1 shall apply even when the official's status:

1.         Lacks a legal or valid basis; or

2.         Has been wrongfully assumed by the perpetrator.

61.             The Commission has no information that an official policy has yet been drawn up to put a stop to torture. Nor has the Commission been informed that persons responsible for committing torture have been effectively punished. Lastly, the Commission has not been informed about any legislative initiatives to amend Article 309 of the Criminal Code, in order to ensure the requisite compatibility of the classification of the crime with the international conventions.

 

D.      PRISON CONDITIONS

 

62.             In its third report, the Commission expresses concern at conditions for inmates held in the country’s various prisons caused by the total lack of infrastructure to accommodate them.  Indeed, the information available to the IACHR shows that overcrowding continues as a result of the number of inmates who are facing proceedings but have not been convicted.

 

63.             Also of concern to the IACHR is the unsatisfactory distribution of inmates, since there are no set parameters for their placement within the prisons.  Equally worrying are the lack of variety of work occupations, shortage of trained and specialized personnel in proportion to the number of inmates, and inadequate medical attention.

 

64.             The Commission knows that the State of Paraguay has one National Prison, which has the largest population of approximately 1,781 inmates; nine regional prisons (Emboscada, Encarnación, Ciudad del Este, Coronel Oviedo, Concepción, Pedro Juan Caballero, Misiones, Villarrica, and San Pedro); and two women's prisons, one in Asunción and the other in Ciudad del Este.[36]

 

65.             The total prison population of Paraguay is under 5,000; of those, approximately 558 are adolescents and 170 women.  Minors are interned at the Itagua Education Center and, to a lesser extent, at some regional prisons.  There are 17 inmates at La Salle Education Center.[37]

 

66.             The Paraguayan prison system is governed by Law 210/70.  The State has recognized that this legal framework urgently needs to be reviewed and made consistent with the minimum standards, principles, and rules adopted in this area at the international level, in order to ensure that the system has a solid body of basic norms with which to implement a sweeping and comprehensive prison reform.

 

67.             The State has also recognized that there are serious shortcomings in prison infrastructure that must be corrected in the short and medium term, in order to improve conditions for inmates and enable the implementation of social and educational programs in prisons.  The system as it stands has prisons with precarious infrastructure, obsolete security mechanisms, a shortage of staff who are also badly paid, and a budget insufficient to provide proper health care and food for inmates.[38]

 

68.             In some prisons there is an extremely serious problem of overcrowding, as the Inter-Institutional Commission for Prison Inspection saw.[39] In that connection, the IACHR has been informed that the Government is increasing the pace of works, in order soon to have ready two new prisons in Concepción and Coronel Oviedo, each with a capacity for 600 inmates.  Coronel Oviedo Regional Prison currently holds some 456 inmates, while Concepción holds 151. The construction of two other prisons is also underway in Pedro Juan Caballero and Encarnación.

 

69.             The State has told the Commission of its profound concern at the various implications of this issue and, accordingly, has informed that the Government, through the Ministry of Justice and Labor, undertakes to invite international consultants in the first half of 2002 to carry out a comprehensive review of the system, which, apart from the regulatory framework, will encompass prison infrastructure, staff, living conditions, health, education, and work activities for inmates, as well as classification of the latter according to trial stage and age.  The Ministry of Justice and Labor will set up and be part of an Inter-Institutional Technical Commission composed of government and civil society representatives with a mandate to study and propose for consideration by the Legislature a new legal framework for the prison system that includes the organic law on prisons, the law on execution of criminal sentences, the prison official statute, and other provisions that govern this area.[40]

 

70.             The Government of Paraguay undertakes to make every effort to ensure that, in the short term, the prison system has a new, up-to-date legal framework consistent with internationally recognized basic standards and principles, and infrastructure in conformity with the minimum rules and the purpose of imprisonment set down at Article 20 of the Constitution, which is the "protection of society and rehabilitation of the convict." [41]

IV.      RECOMMENDATIONS ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

 

71.             In its recommendations in the Third Report, the Inter-American Commission, urged the State of Paraguay to accord higher priority and to muster greater political will to address issues related to economic, social and cultural rights. Compliance with the recommendations on economic, social and cultural rights must be followed up, therefore, in the framework of the situation of the Paraguayan economy.

 

72.             The Commission begins its examination of economic, social and cultural rights by mentioning that the Paraguayan economy is currently in a recession that adversely affects the enjoyment of those rights.  At the time of writing of this follow-up report most of the economic growth and social development indicators have deteriorated compared to the previous year. According to surveys, Paraguay ranked 72 out of 75 in the index of countries contained in the Global Competitiveness Report 2001-2002.[42]  Furthermore, the United Nations Human Development Report 2001, which analyzes technological progress, shows the inferior position of Paraguay with respect to the use of computer tools.  Thus, only two in 100 students are enrolled in a tertiary education institution specializing in sciences, the lowest ratio in MERCOSUR.  All these indicators reflect the country’s economic and social decline.

 

73.             In that connection the State reaffirms that it is doing its utmost to comply with all the resolutions emanating from the international agencies of which it is a member, in particular those resolutions on economic, social, and cultural rights.

 

74.             Accordingly, the State informed the Commission that on March 19, 2001, the Executive Branch issued Decree 12.512, "Whereby the implementation and obligatory fulfillment is ordered of the Economic and Social Strategic Plan (PEES)," in light of the urgent need to set in motion a process of economic recovery, social growth, and progress in every sphere of national life, and of the urgency to tackle structural reforms of the State and adopt macroeconomic measures aimed at growth, in order to ensure that public economic and social policies are effectively achieved.[43]

 

75.             Furthermore, the State mentioned that the PEES is in process of implementation along four integrated and mutually complementary lines of action: a) productive development, competitiveness and investment; b) human development and poverty reduction; c) modernization of the State and institution building; and, d) macroeconomic equilibrium.  The National Council on Financial and Economic Policy is the authority that monitors and evaluates fulfillment of the Ministerial goals contained in the objectives, goals, and lines of action of the above-mentioned plan.  For its part, the Technical Secretariat of Planning of the Presidency of the Republic is in charge of the creation of mechanisms and procedures to supervise implementation and evaluate progress.[44]

 

76.             In the framework of these economic circumstances there follows an analysis of the specific issues covered in the recommendations made by the Commission on economic, social, and cultural rights in its Third Report.