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OEA/Ser.L/V/II.110 THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY CHAPTER
III
IMPUNITY
1.
Impunity constitutes a serious problem in Paraguay, encompassing, among
others, 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. B. IMPUNITY AND POST-DICTATORSHIP
VIOLATIONS (1989-2000)
2.
The Inter-American Commission has argued: “Impunity is one of the
serious problems in the administration of justice in the hemisphere.”[1]
That assertion is especially relevant in Paraguay, where, as noted by the
Commission during its on-site visit, there is impunity in the case of certain
crimes. This situation is related
to several factors, including the absence of a deep-rooted culture of total
respect for the law, and the corruption that affects the country generally, and
the judiciary in particular, which has been publicly recognized, for example, by
the President of Paraguay and the President of the Supreme Court of Justice of
Paraguay.[2]
3.
The problem of high levels of impunity, as the Commission has held,
transcends the fact that numerous individual crimes remain in impunity, and
becomes a situation in which the very life and culture of the nation are
impacted, affecting not only persons who have been the victims of human rights
violations or other crimes, but also society in general.[3]
4.
The Inter-American Court has defined impunity as “the total lack of
investigation, prosecution, capture, trial and conviction of those responsible
for violations of the rights protected by the American Convention.”[4]
5.
Impunity gives rise to the international responsibility of the state,
even in the case of crimes committed by common criminals who are not state
agents when the state fails to carry out its international obligation to
undertake a serious, impartial, and effective investigation into the events that
occurred, for the purpose of punishing the persons responsible.
Indeed, that omission also gives rise to the state’s obligation to
compensate the victims or their next-of-kin for the human rights violation that
has been committed by dint of the state’s failure to undertake a proper
investigation into the facts, even if they have not been committed by its
agents.
6.
In effect, Article 1(1) of the American Convention provides: “The
States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, without any discrimination
for reasons of race, color, sex, language, religion, political or other opinion,
national or social origin, economic status,
birth, or any other social condition.” The Inter-American Court has
noted that the obligation to ensure the free and full exercise of human rights
set forth in that article: implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. ... Thus,
in principle, any violation of rights recognized by the Convention carried out
by an act of public authority or by persons who use their position of authority
is imputable to the State. However, this does not define all the circumstances
in which a State is obligated to prevent, investigate and punish human rights
violations, nor all the cases in which the State might be found responsible for
an infringement of those rights. An illegal act which violates human rights and
which is initially not directly imputable to a State (for example, because it is
the act of a private person or because the person responsible has not been
identified) can lead to international responsibility of the State, not because
of the act itself, but because of the lack of due diligence to prevent the
violation or to respond to it as required by the Convention. ...
If
the State apparatus acts in such a way that the violation goes unpunished and
the victim’s full enjoyment of such rights is not restored as soon as
possible, the State has failed to comply with its duty to ensure the free and
full exercise of those rights to the persons within its jurisdiction. The same
is true when the State allows private persons or groups to act freely and with
impunity to the detriment of the rights recognized by the Convention. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.[5]
7.
The right of the victims and their next-of-kin to an appropriate
administration of justice also arises from the provisions of Articles 8 and 25,
respectively, of the American Convention.[6]
[7]
8.
Article 25 of the Convention sets forth the right of all persons to an
effective remedy, and the correlative duty of the states to guarantee that the
competent authority decide the remedy, and that the decision of that authority
be carried out.[8]
9.
Impunity thus entails a grave violation of a state’s duties, and
involves a sort of vicious circle that tends to recur and become perpetuated,
increasing the occurrence of crimes, mostly violent crimes.[9]
Impunity gives rise to a situation of injustice such that many people opt to
take justice into their own hands, leading to incidents entailing new violations
of fundamental human rights, such as assassinations and lynchings.
10.
One specific case is the series of murders and disappearances that have
been taking place in the locality of Capitán Bado, located in the department of
Amambay, by the border with Brazil, which have been documented and denounced
publicly, among others, by Sister Laura Rossi, of the Hominis Congregation of
the Parish of Bado. The victims of
these incidents have included Germán López, who was disappeared on December
11, 1995; Crispín Vera, assassinated December 13, 1996; Teodoro López,
disappeared December 18, 1996; José Antonio Duré, who was disappeared in 1997;
Orlando Maldonado, who was assassinated on December 14, 1997; Amancio Alviso,
assassinated December 24, 1997; Tiago Concepción Barrios, disappeared December
5, 1997; Vilyama Dos Santos, kidnapped and assassinated in December 1997; Ateo
Dos Santos, kidnapped and assassinated in December 1997; Cristóbal and Vidal
Villa Alta, assassinated August 19, 1997; Enrique González, kidnapped and
assassinated March 13, 1997; Ilario López, assassinated in 1998; and Anacleto López,
disappeared January 18, 1998.[10]
11.
In this respect, it has been noted that the
bitter destiny of this locality is not determined by the original residents of
this city, but by a small group of persons who have become rich through illicit
activities for which they have made this district the epicenter: the growing and
trafficking of marijuana, and the environmental crimes committed in plain view
for everyone to see, without any authority deciding to intervene....
...
many people earn money from the blood and hunger of the poor, earn money, make
their businesses prosper, enlarge their farms, multiply their airplanes and
landing strips, buy paid killers, have people killed how and when they want, and
buy justice to continue living in impunity.[11]
12.
In an interview with the judge of Capitán Bado, Mr. Leoncio Benítez
Caballero, “he recognizes the very poor image people have of his performance,
but this doesn’t keep him up at night.”
He alleges, without more, the
files of these complaints are there, but I can’t investigate the cases.
We don’t have the means to do so.
The problem arises for me, and there are no witnesses: no one wants to
talk, and I think the police are better positioned to embark upon an
investigation, they have more personnel and more resources, whereas a judge,
being in this office and receiving the complaint, what can he do?
I don’t go out into the street ... so no one brings me elements of an
investigation.[12]
13.
The same news article in which the interview quoted above was published
also reported statements by local residents, and their perceptions of justice
and impunity: here
no one likes him [the local judge], because he is not interested in the people,
nor his town; he didn’t even have the decency to come when we invited him to
the People’s Assembly. Here,
whoever has more power and more money to buy justice is in charge.
Someone who steals a hen, a bicycle, immediately faces the justice
system, which pursues him because he’s a poor peasant, who can’t pay
anything, and that’s the only reason it falls on him with all its strength,
but what about the big fish? No one will touch him. The
first link in the justice system, to safeguard his interests, doesn’t do
anything. It doesn’t intervene,
doesn’t say anything, and things stay as they are because the justice system
doesn’t work, because neither the justice of the peace, the police, or the
saviors of the homeland who appear from time to time have opened their mouths.[13]
14.
The impunity with respect to the assassination of journalist Santiago
Leguizamón Zavan, in Pedro Juan Caballero, also in the department of Amambay,
on April 26, 1991, is also worthy of special mention. The locality of Pedro Juan
Caballero is along the border with Brazil; the IACHR was told on the on-site
visit that it is a sort of lawless zone, plagued by smugglers and other mafiosi,
where corruption and violence rule. Santiago V Leguizamón had a radio show
called “Puertas Abiertas” and “had succeeded in sparking a light of
hope for all honest citizens of Pedro Juan Caballero; those who wanted to turn
this district of terror into a space for integration and community-building
fully identified with him.”[14]
15.
After several years of investigation, the judicial file in the case of
the Leguizamón killing was reviewed in detail by two journalists and attorneys,
who were entrusted with the task by the journalists’ union Sindicato de
Periodistas de Paraguay, and with the support of the Public Ministry. It was
then noted that this review made it possible “to reveal the elemental and
inexplicable blunders committed from the outset of the investigation, the many
leads that were never followed up on, as though there were a deliberate official
will to allow the crime against Santiago Leguizamón to continue in the most
absolute impunity, while his killers wander about the streets in the light of
day.”[15] Among what it calls the “striking facts” in
that study of the judicial file, the Sindicato de Periodistas del Paraguay notes
the following:
Judge
Albino Aquino took his signed statement one-half hour after he appeared, at 8:00
a.m. After making a statement on
the case, the judge quickly ruled that he should be released.
He argued that there were not sufficient indicia against him, and that
the statement by José Paulo Galdino against TULU cannot be taken into account
because it was a mere photocopy of a statement given in 1992 to the Brazilian
courts, and was not translated into Spanish. Here
the judge displayed his own negligence, in releasing him, since as the person in
charge of the trial he should have ordered the translation into Spanish of the
incriminating document and should have sought to have Brazil provide Galdino’s
complete statement from 1992.[16]
16.
That publication also noted that “on the fiftieth anniversary of the
Universal Declaration of Human Rights, the case of Santiago Leguizamón is a
living, lacerating open wound, and not only for journalists, but for all of
Paraguayan society, for a very simple and categorical reason:
while the crime against Santiago Leguizamón continues in impunity, while
his killers continue to walk among us, it will be very difficult to say there is
real justice in Paraguay.”[17]
17.
Another example of impunity that could be mentioned has to do with the
murder of peasants Arsenio Vázquez and Mariano Díaz, on July 12, 1996 at the
Santa Carmen settlement, J. Eulojio Estigarrabia.
That murder occurred on a 2,000-hectare farm said to belong to (ret.)
General Roberto Knopfelmacher, who the family members accused in the respective
judicial proceeding of having hired the armed civilians who killed Messrs. Vázquez
and Díaz. Adrián Vázquez, the
brother of one of the peasants killed, declared in this respect that “the
perpetrators of these crimes continue to enjoy impunity to this day, and we want
justice to punish them all equally, poor and rich, if they commit such serious
crimes as a double murder.”[18]
18.
Another recent case in which impunity has been denounced, along with
other human rights violations, is that of Mr. Ricardo Canese.
In August 1992, when Mr. Juan Carlos Wasmosy was running for President,
Mr. Canese, who at that time was also a presidential candidate, called him into
question, noting that “Wasmosy was Stroessner’s straw man in Itaipú,”
alluding to acts of corruption related to multi-million dollar contracts awarded
in connection with the Itaipú dam. In
this respect, Mr. Canese denounced that Mr. Wasmosy had been Stroessner’s
intermediary, through CONEMPA, a Paraguayan business consortium.
In this respect, the Commission received a report alleging that instead
of the government investigating the acts of corruption denounced by Mr. Canese,
he was tried for defamation and slander, as per the terms of the complaint filed
October 23, 1992, by partners of CONEMPA who had not even been mentioned in Mr.
Canese’s statement.[19]
19.
The Commission considers the impunity in Paraguay very worrisome; the
above-mentioned cases are but a small representative sample, and it recommends
that the Paraguayan State adopt planned policies in the short-, medium-, and
long-term to try to eliminate or reduce to a minimum the current situation
entailing the violation of several human rights, and which may give rise to the
international responsibility of the state. Paraguay should try to put in place,
as soon as possible, a judiciary that operates fully and that imparts real
justice “without any discrimination for reasons of race, color, sex, language,
religion, political or other opinion, national or social origin, economic
status, birth, or any other social
condition.”[20] C. IMPUNITY AND HUMAN RIGHTS VIOLATIONS
UNDER THE DICTATORSHIP (1954-1989)
20.
During the dictatorship of Alfredo Stroessner, grave and systematic human
rights violations were committed, such as arbitrary detentions, torture, forced
disappearances, and extrajudicial executions.
To date, most of those violations have not been investigated or punished,
nor have the victims of those violations or their next-of-kin been compensated. This grave situation creates de
facto impunity, which violates several national and international
obligations of the Paraguayan State.
21.
Paraguay’s international obligation as a state party to the American
Convention involves, in line with Article 1(1), is to ensure the free and full
exercise of the human rights enshrined in the Convention.
This obligation, as established by the Inter-American Court of Human
Rights, implies the duty to organize the entire governmental apparatus, and, in
general, all the structures by which the exercise of government authority is
expressed, such that they are capable of legally ensuring the free and full
exercise of human rights. This
includes the obligation of the States to prevent, investigate, and punish any
violation of the rights recognized in the Convention; to seek the restoration of
the right violated; and, as appropriate, to compensate the harm caused by the
human rights violation.[21]
22.
The Inter-American Commission has indicated that Hemispheric
experience suggests that in those States in which massive and systematic human
rights violations take place, there has been a tendency for such crimes to go
unpunished. In some cases, it is a
question of de facto impunity, either
because the authorities have not made significant efforts to investigate,
prosecutor, and punish the persons responsible, or because State organs that
lack the necessary independence and impartiality are in charge of determining
the responsibilities of their own members, as is the case of the military
courts. In
other cases, the issuance of amnesty laws or the granting of benefits such as
pardon, private amnesty, or others, to persons responsible, investigated, or
punished for crimes against human rights has made possible what could be called de
jure impunity.[22]
23.
Another aspect related to the foregoing has to do with the right to know
the truth. The right to the truth and its corollary, “the right to
remember,” are part of a collective right that has to do with both the
individual and the society of which he or she is a member; the objective is to
avoid the recurrence of violations. The
right to justice entails the state’s obligation to prosecute and punish the
persons responsible for the violations. These
obligations derive fundamentally from the provisions of Articles 1(1), 8, 13,
and 25 of the Convention.[23]
24.
The “right to the truth” is a collective right that enables society
to have access to the essential information for developing democracies and is
also an individual right of the victims’ next-of-kin that makes possible a
form of reparation. The American
Convention protects the right to seek and receive information, especially in the
case of grave violations of human rights, such as crimes against humanity, in
respect of which the Commission and the Court have held that the State is under
an obligation to investigate, for example, the fate of the disappeared.
25.
The right to truth and justice is also linked to Article 25 of the
Convention, which establishes the right to a simple and prompt remedy to protect
the rights enshrined in the Convention. The
existence of legal or factual impediments to receiving information related to
facts and circumstances that reveal the violation of a fundamental right is a
flagrant violation of that right established in the Convention, and keeps the
person from exhausting the domestic remedies provided for in the domestic
legislation and Constitution of the country in question.
26.
Society, in general, and not only the individual, has the right to know
the truth and the right to see justice done.
The Commission has noted in this respect: Every
society has the inalienable right to know the truth about past events, as well
as the motives and circumstances in which aberrant crimes came to be committed,
in order to prevent repetition of such acts in the future. Moreover, the family
members of the victims are entitled to information on what happened to their
relatives. Such access to the to the truth presupposes freedom of speech, which
of course should be exercised responsibly; the establishment of investigating
committees whose membership and authority must be determined in accordance with
the internal legislation of each county, or the provision of the necessary
resources so that the judiciary itself may undertake whatever investigations may
be necessary.[24]
27.
Paraguay, in contrast to other countries of the hemisphere in which
massive human rights violations also occurred, did not pass any amnesty laws.
Rather, the Paraguayan State has enacted laws “that demonstrate its
willingness to investigate and punish the perpetrators of the serious human
rights violations that occurred under Stroessner’s dictatorship (1954–1989)
and make amends to the victims and their families.”[25]
Thus, the Paraguayan State established a prohibition on statutory limitations in
respect of crimes against human rights when it included a provision in the
following terms at Article 5 of the 1992 Constitution:
“genocide and torture, as well as the forced disappearance of persons,
and kidnapping and homicide for political reasons, shall not be subject to any
terms of limitation.” Paraguay also adopted Law No. 838/96, according to which
it recognized the “dictatorial system in place in the country from 1954 to
1989,” and established the obligation of the state to compensate those who
“have suffered a violation of their human rights, to life, personal integrity,
or liberty, by officials, employees, or agents of the state.”
That law established that claims for compensation should be submitted to
the Human Rights Ombudsman.
28.
Notwithstanding the suitability of this legislation, it has not been
fully implemented. The following has been noted as regards punishing the persons
responsible for those human rights violations. Inefficiency
of the Judiciary: While about ten
of the main perpetrators of the crimes of torture and assassination have been
deprived of liberty, and some 30 judicial proceedings have been put in place
since 1989, in only one case, that of the assassination of Mario Schaerer Prono,
has there been a final judgment affirmed by the Supreme Court of Justice.[26]
29.
The Permanent Mission of Paraguay to the OAS has been informing the IACHR
of certain judgments against persons responsible for human rights violations
committed during the dictatorship. Thus,
the Permanent Mission informed the IACHR of the judgment handed down by the
Supreme Court of Justice of Paraguay on May 7, 1999, affirming the Decision and
Judgment No. 4 of March 26, 1996, of the Court of Criminal Appeals of the
Capital, Second Chamber, which convicted Pastor Milciades Coronel (Chief of
Investigations) and others, sentencing them to 25 years in prison for the crimes
of homicide, torture, and others in the case of Mario Schaerer Prono.
The Permanent Mission also informed the IACHR that a trial court handed
down a conviction in the case of brothers Rodolfo and Benjamín Ramírez
Villalba, and that the proceedings in the case of Carlos José Mancuello were
about to produce a judgment. Similarly, the Permanent Mission of Paraguay to the
OAS informed the IACHR that in “the domestic sphere, criminal inquiries were
initiated into punishable acts against persons, such as the case brought by Martín
Almada related to the forced disappearance of Messrs. Ignacio Samaniego, Oscar
Luis Rojas, and Federico Tatter.” The
IACHR was also informed that on July 2, 1997, a trial court handed down a
conviction in the case related to Mr. Miguel Angel Soler.
30.
The State added, in its observations to this report, that “of the
proceedings and cases that were presented upon the fall of the dictatorship,
which have been few in number in relation to the events that occurred, there
have already been guilty verdicts in several cases, including on final appeal,
and the torturers were sentenced to 25 years in prison.
There has not been so much impunity in the proceedings that are still
open and have good possibilities of attaining judgments this year in those cases
in which there have not yet been any.... Indeed,
this year another request is being prepared for Stroessner’s extradition from
Brazil, after the resolution handed down by Judge Ruben Frutos in one of the
cases.”
31.
The Commission values any effort aimed at punishing the persons
responsible for the human rights violations committed during the dictatorship.
The information provided by the State reflects progress in this regard.
In addition, that information corroborates what was noted above, i.e.
that to date, more than 11 years after the end of the dictatorship, there has
been only one conviction affirmed by the Supreme Court of Justice, in the
assassination of Mr. Mario Schaerer Prono.
32.
As regards the reparations provided for in Law 838/96, the IACHR notes
that it has not been possible to grant such reparations, or even to request
them, since the Human Rights Ombudsman, entrusted with handling such matters,
has yet to be designated by the Paraguayan Congress, even though more than eight
years have elapsed since this institution was created in the Paraguayan
Constitution.[27] Instead, in November 1999 the Chamber of
Deputies approved sending the Senate a bill amending that law, in an effort to
elude the state’s responsibility for the human rights violations in question,
and to shift that responsibility to the state employees who had committed the
violations. The IACHR considers the
failure of this amendment to win approval in the Senate to be positive and
consistent with the international obligations of the Paraguayan State.
33.
The Inter-American Commission considers it fundamental that the
Paraguayan State, through the Judiciary, fulfill its obligation to investigate
and punish the persons responsible for the human rights violations committed
during the dictatorship, and that it carry out the obligation that it expressly
acknowledged in promulgating Law 838/96 -- and which, as explained supra,
has not been applied in practice due to the failure to appoint the Human Rights
Ombudsman -- as regards making reparations to the victims of such violations, or
their next-of-kin. As has been
indicated: one
must take into account that with the passage of time the health situation of
those who suffered long years of confinement and cruel torture continues to
deteriorate, and many of them are dying in abandon and indigence.[28]
34.
On concluding its on-site visit to Paraguay, the Inter-American
Commission recommended: “Since the victims, their relatives, and the
Paraguayan people in general are entitled to know the truth about the human
rights violations that occurred during the dictatorship, the Commission also
recommends the creation of an independent and impartial Investigating
Commission. Based on the information contained in the ‘archives of terror’
and other relevant sources, this body would then prepare a report on the deaths,
disappearances, cases of torture, and other human rights violations committed
during those years.”
35.
In its observations on this report, the State highlighted that recently
“the presidents of the three branches of government signed an Agreement to
Design a National Plan for the Protection and Promotion of Human Rights that
includes the creation of a Truth and Justice Commission to investigate the human
rights violations during the dictatorship, which represents a great stride
forward. This agreement expressly
provides that the members of this Truth and Justice Commission would be members
of the government and civil society, and that the work would be done in keeping
with the international standards human rights plans of Vienna, in the United
Nations system, and of the inter-American system.”
36.
The Commission explained supra
the international obligation of the State to investigate and punish human rights
violations, and to make the respective compensation, and reference was also made
to importance of the State discharging this obligation in order for there to be
justice, to make known the truth, and to try to avoid the recurrence of such
events. In this respect, the IACHR
observes with concern that even though no amnesty laws were adopted in Paraguay,
and it was declared instead that crimes against human rights would have no
statute of limitations, and the law recognized the State’s obligation to make
reparations, and even though there is a file with more than 700,000 folios, with
documents, books, data sheets of detainees, identity cards, and passports,
photographs, etc.,[29]
regarding the violations that occurred, the State, more than 11 years after the
end of the dictatorship, has not yet created the Truth and Justice Commission.
It creation was beginning to be outlined as of December 2000, as part of
an agreement to prepare a national human rights plan.
This situation clearly reflects de
facto impunity, for which Paraguay may be responsible internationally.
The Commission hopes that the Paraguayan State can implement the Truth
and Justice Commission as soon as possible, give it the economic resources and
political backing it needs, and support the preparation of a report on the truth
of the human rights violations that occurred in Paraguay during the Stroessner
dictatorship.
37.
The Inter-American Commission considers it fundamental to protect and use
the so-called “terror files,” made up of the dictatorship’s police files,
which were found in 1992 by Martín Almada, with a judicial order.[30]
Those files contain not only information on human rights violations in Paraguay
during the dictatorship, but it has also been noted that they describe
in detail the fate of hundreds, perhaps thousands, of Latin Americans who were
secretly kidnapped, tortured, and murdered by the right-wing regimes of the
1970s. They also offer a paper
trail that confirms the existence of a low and bloody conspiracy among the
services of Argentina, Bolivia, Brazil, Chile, Paraguay, and Uruguay to track
and eliminate political adversaries independent of national borders.
Now it is possible to complete the outline of “Operation Condor,” as
that illegal network was known.[31]
38.
One example of an individual case in which evidence has been found in the
“terror files” is that of Mr. Federico Tatter, a Paraguayan citizen detained
in 1976 in Buenos Aires, Argentina, where he was in exile, who disappeared after
being detained. His wife, Mrs.
Idalina Radice de Tatter, has dedicated many years to learn the fate of her
husband, and found a photograph of him with the same clothing he was wearing the
day he was taken from his home in Argentina, in the “terror file” in
Paraguay. This item of evidence has been set forth in the complaints
lodged by Mrs. Radice de Tatter in courts in Argentina and Paraguay.[32]
39.
The Inter-American Commission considers it important for determining the
amount of compensation and to try to somehow make reparation for the grave human
rights violations committed during the dictatorship that Paraguay take into
account the “Basic Principles and Guidelines on the right to reparation for
victims of violations of human rights and international humanitarian law,”
prepared by UN Special Rapporteur Theo Van Boven, in which he noted as follows: 7.
States have the duty to adopt special measures, where necessary, to
permit expeditious and fully effective reparations. Reparation shall render
justice by removing or redressing the consequences of the wrongful acts and by
preventing and deterring violations. Reparations shall be proportionate to the
gravity of the violations and the resulting damage and shall include
restitution, compensation, rehabilitation, satisfaction and guarantees of
non‑repetition. 8. Every State shall make known, through public and private mechanisms,
both at home and where necessary abroad, the procedures available for
reparations. 11.
Decisions relating to reparations for victims of violations of human
rights or international humanitarian law shall be implemented in a diligent and
prompt manner. Forms
of Reparation 13.
Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law,
such as: (a)
Physical or mental harm, including pain, suffering and emotional
distress; (b)
Lost opportunities including education; (c)
Material damages and loss of earnings, including loss of earning
potential; (d)
Harm to reputation or dignity; (e)
Costs required for legal or expert assistance, medicines and medical
services. 14.
Rehabilitation shall be provided and will include medical and psychological care
as well as legal and social services. 15.
Satisfaction and guarantees of non‑repetition shall be provided,
including, as necessary: (a)
Cessation of continuing violations; (b)
Verification of the facts and full and public disclosure of the truth; (c)
An official declaration or a judicial decision restoring the dignity,
reputation and legal rights of the victim and/or of persons closely connected
with the victim; (d)
Apology, including public acknowledgment of the facts and acceptance of
responsibility; (e)
Judicial or administrative sanctions against persons responsible for the
violations; (f)
Commemorations and paying tribute to the victims; (g)
Inclusion in human rights training and in history or school textbooks of
an accurate account of the violations committed in the field of human rights and
international humanitarian law.[33]
D.
CONCLUSIONS AND RECOMMENDATIONS
40.
The Inter-American Commission reiterates its concern over the situations
of impunity that exist in Paraguay, despite the political opening. Leaving
numerous individual crimes in impunity impacts the life of the nation and its
culture, with a detrimental impact not only on those who have been victims of
human rights violations or other crimes, but also on society in general.
41.
The IACHR recommends to the Paraguayan State that it 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. Paraguay should try to
be able to attain, as soon as possible, a judiciary that is fully operational
and that imparts real justice “without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or social
origin, economic status, birth, or
any other social condition.”[34]
42.
As regards the human rights violations committed during the dictatorship
(1954-1989), the Inter-American Commission, without prejudice to the progress
mentioned supra in relation to some
specific cases, considers it fundamental that the Paraguayan State, through the
Judiciary, fulfill its duty to investigate and punish the persons responsible
for the human rights violations through final and firm judgments, and that it
also carry out its responsibility to make reparation to the victims of such
violations. Under Paraguayan law,
implementing this responsibility requires that the Human Rights Ombudsman,
provided for in the 1992 Paraguayan Constitution, be appointed.
43.
It is recommended that Paraguay take into account the above-mentioned
“Basic Principles and Guidelines on the right to reparation for victims of
violations of human rights and international humanitarian law,” prepared by UN
Special Rapporteur Theo Van Boven, in order to determine the amount of
compensation and to try somehow to make reparation for the grave human rights
violations committed during the dictatorship. 44. Finally, and taking into account the right of the victims, their next-of-kin, and the Paraguayan people in general to know the truth of the human rights violations that occurred under the dictatorship, the IACHR reiterates 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.
[ Table of Contents | Previous | Next ] [1]
IACHR, Second Report on the Situation of Human Rights in Peru, Ch. II, para.
205. [2]
Both aspects are analyzed in detail in chapter II, supra (Democratic Institutional Framework), which also cites
statements by the President of the Republic and the President of the Supreme
Court of Justice about corruption in Paraguay. [3]
IACHR, Third Report on the Human Rights Situation in Colombia, 1999, Ch. V,
para. 16. [4]
I/A Court H.R., Case of Paniagua Morales et al., Judgment of March 8, 1998,
para. 173.
See also Case of Loayza Tamayo, Judgment of November 27, 1998, para.
170. [5]
I/A Court H.R., Case of Velásquez
Rodríguez, Judgment of July 29, 1988, Series C., No. 4, paras. 166,
172, 176, and 177. [6]
With respect to the issue of the rights of victims and their next-of-kin to
a fair trial, see also:
I/A Court H.R., Case of Villagrán
Morales et al. (“The Street-Children Case”), Judgment of November
19, 1999. [7]
Article 8(1) of that treaty provides: “Every person has the right to a
hearing, with due guarantees and within a reasonable time, by a competent,
independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or
for the determination of his rights and obligations of a civil, labor,
fiscal, or any other nature.” [8]
That article provides as follows:
“Article 25. Right to Judicial Protection.
1. Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their
official duties.
2. The States Parties undertake:
a. to ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by the legal
system of the state;
b. to develop the possibilities of judicial remedy; and c. to ensure
that the competent authorities shall enforce such remedies when granted.” [9]
See, in this respect, the Commission’s considerations in its Third Report
on the Human Rights Situation in Colombia, op.
cit., Ch. V,
para. 16. [10]
“Foráneos se Enriquecen sobre Sangre y Hambre,” Diario La
Nación, Asunción, September 22, 1999, p. 13. [11]
Id. [12]
“Audífonos para un Juez Sordo al Reclamo Popular,” Diario la Nación,
Asunción, September 24, 1999, p. 13. [13]
Id. [14]
Sindicato de Periodistas del Paraguay, Caso Santiago
Leguimazón. Expediente No. 70. La Marca de la Impunidad,
Asunción, December 1998, p. 4. [15]
Id., p. 7. [16]
Id., p. 16. [17]
Id.,
p. 7. [18]
“Reclaman Justicia por Asesinato de Labriegos,” Diario La Nación,
Asunción, July 12, 1999, p. 23. [19]
Eight years later, the trial of Mr. Canese has yet to conclude, and
throughout Mr. Canese has faced a prohibition on leaving the country,
ordered by the Supreme Court of Justice, which has given him permission
occasionally to leave the country for brief periods, and it has denied him
such permission on other occasions.
The Inter-American Commission currently has the case of Mr. Canese
before it, in the individual case system.
In this regard, the State indicated as follows in its observations to
this report: “Regarding the case of Mr. Ricardo Canese, who has been
facing defamation and slander charges since 1992, there has not been a
failure to hand down a judgment against him; rather, appeals are still
pending in the third instance, and the restrictions on his freedom, keeping
him from leaving the country, are still in effect....” [20]
American Convention on Human Rights, Article 1. [21]
I/A Court H.R., Case of Velásquez
Rodríguez, Judgment of July 29, 1988, Series C, No. 4, para. 166. [22]
IACHR, Second
Report on the Situation of Human Rights in Peru, 2000, Ch. II, paras.
206 and 207. [23]
IACHR, Report No. 1/99, Case 10,480 (El Salvador), para. 147.
On the question of the right to truth, see also the following recent
reports of the Inter-American Commission:
IACHR, 1999 Annual Report,
Report No. 136/99 - Ignacio Ellacuría, S.J. et al., Case 10,488 (El
Salvador); and IACHR, 1999 Annual
Report, Report No. 37/00, Monsignor Oscar Romero, Case 10,481 (El
Salvador). [24]
IACHR, 1985-1986 Annual Report, Ch. III, p. 193. [25]
IACHR, Press Communique No. 23/99, Asunción, July 30, 1999. [26]
Gauto, Dionisio, National Commission on Human Rights and Never Again to
State Terrorism, Indemnización,
article published in “Derechos Humanos en Paraguay 1999,” Coordinadora
de Derechos Humanos del Paraguay, p. 158. [27]
In this respect, see Chapter II, supra. [28]
Gauto, Dionisio, National Commission on Human Rights and Never Again to
State Terrorism, Indemnización,
article published in “Derechos Humanos en Paraguay 1999,”
Coordinadora de Derechos Humanos del Paraguay, p. 158. [29]
Committee of Churches and Supreme Court of Justice of Paraguay, Para
la Defensa de los Derechos Humanos, Asunción, December 1995. [30]
In its observations to this report, the State indicated as follows: “It
should also be noted that Paraguay has anticipated the recommendation issued
by the IACHR on December 9, 1998, in its 101st regular session with respect
to access to files and documents in the hands of the State, particularly in
the case of investigations aimed at determining liability for international
crimes and grave human rights violations. As the IACHR is aware, in 1992, in
a judicial procedure requested by Martín Almada, the ‘Terror File’ was
discovered, consisting of a voluminous number of declassified documents that
contain information on the violation of human rights in Paraguay from 1954
to 1989, and their connection to Operation Condor, especially in the 1970s
and 1980s.
At present, those documents are in the Center for Information and
Archive for the Defense of Human Rights, organized under the Supreme Court
of Justice, and declared a world heritage by UNESCO, which signed an
agreement with the Judiciary to present and protect that file, which was
included in the World Registry of Memory.” [31]
See, among others, Calloni, Stella, Los
Archivos del Horror del Operativo Cóndor, article published at the web
page <www.derechos.org/nizkor>. [32]
“Viuda de Desaparecido Dice No a la Impunidad,” Diario Ultima Hora,
Asunción, July 15, 1999, p. 6. [33]
United Nations, Commission on Human Rights, “Basic Principles and
Guidelines on the right to reparation for victims of violations of human
rights and international humanitarian law,” prepared by special rapporteur
Theo Van Boven and presented to the Commission on Human Rights.
Document
E/CN.4/1997/104, appendix. [34] American Convention on Human Rights, Article 1. |