OEA/Ser.L/V/II.110
Doc.52
9 March 2001
Original:  Spanish

THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY

CHAPTER IV

ADMINISTRATION OF JUSTICE AND HUMAN RIGHTS

          A.          INTRODUCTION

          1.          The efficacy and effectiveness of human rights depends mainly on the capacity of each of the States to organize their own system of justice.  In effect, the existence of a normative system that incorporates the State’s international commitments to defend human rights will have few if any consequences if the citizens whose rights are violated do not have an effective, independent and impartial justice system to turn to.

          2.          Yet the full observance of human rights also requires that such a justice system be organized and operate in a certain way, i.e. so as to guarantee to every individual secure access, independent of social and economic status, and that it resolve disputes within a prudential period.  If this does not happen, the denial of justice would produce a parallel human rights violation. The legitimacy of a state’s justice system will turn largely on the ability of the state apparatus to respond to human rights violations.

          3.          The Commission has made pronouncements previously on the importance of the judiciary for the effective observance of human rights, when it argued:

... In effect, the judiciary has been established to protect the rights and guarantees, and is no doubt the fundamental organ for the protection of human rights.^[1]

          B.          ORGANIZATION OF THE JUSTICE SYSTEM IN PARAGUAY

          4.          When the Paraguayan Constitution was reformed in 1992, it was necessary to amend much of the legislation that had been in place since the 19th century.  One of the most important of these reforms has to do with the justice system.  The reform of the criminal justice system, described infra, has been part of this process.  In the area of criminal law, the constitutional reform introduced a series of guarantees that had not been in the Constitution until then, which implied a substantial positive change in this regard.

          5.          Before getting into an analysis of the new provisions, the Commission wishes to refer to the operation of the justice system at present. In general, it is reported that the justice system is plagued by serious shortcomings.^[2]  Even so, the Trial Jury for Magistrates has only removed 22 judges since its creation eight years ago.^[3] The Commission is aware that the legislative changes that will be analyzed in the following paragraphs entail a substantial change in the justice system, which will make it possible to improve its quality.  Nonetheless, it is necessary that the persons in charge of implementing the reform, and the Paraguayan authorities in general, closely monitor this process, and that clear and efficient mechanisms be put in place for removing judges who engage in acts of corruption or other conduct that constitutes grounds for removal.

          6.          The Commission will now analyze some of the legislative reforms carried out to date, including the new Criminal Code, the Code of Criminal Procedure, the Organic Law on the Police, and the Organic Law on the Public Ministry.  Still pending promulgation is the Code on Children and Adolescents.^[4]

          7.          The new Criminal Code enshrines the principle of legality and non-retroactivity. It prohibits analogy and does away with objective liability, as well as the criminal law concept of the autor (perpetrator/mastermind). The new Code eliminates provisions from the previous Code that provided for presumptions of intent, lack of justification, and lack of reproachability, among others.  This reform implies, in practice, shifting the burden of proof from the accused to the prosecutor.  In other words, under the previous code, a series of presumptions were made such that the accused had to prove his or her innocence, while in the new code it is the prosecutor who must prove the guilt of the accused.

          8.          The reformed Criminal Code, which was brought into line with the provisions of the Constitution, does away with the death penalty, the penalty of exile, and life sentences.  It also establishes that the maximum penalty applicable is a 25-year prison sentence, and measures are instituted as alternatives to the deprivation of liberty, such as fines or conditional suspended sentences. The Commission sees this as a positive change consistent with the presumption of innocence referred to at Article 8(2) of the American Convention.

          9.          The new Code of Criminal Procedure^[5] is in force for all proceedings initiated after March 1, 2000.^[6] Proceedings initiated prior to that date shall be governed by the previous Code. This new Code includes among its key reforms the introduction of oral proceedings.  The reform implies a change from a two-stage procedure--investigation and trial, both under the same judge--to a procedure with three well-differentiated stages:  the preparatory stage, the intermediate stage, and the final stage.

          10.          Under the new system, the preparatory stage is entirely under the Public Ministry, and as it unfolds the investigation into the facts is carried out.  At this stage, the victim may come forward as complainant.  The total duration of the preparatory phase may not exceed six months, and the criminal law judge or judge of guarantees may not intervene in it, other than to uphold the guarantees of the process.  This stage culminates with the indictment by the prosecutor.

          11.          In the intermediate stage, both the defense and the victim can present their questions regarding the indictment by the prosecutor or make requests other than those made by the Public Ministry.  This discussion unfolds in the context of an oral and public hearing, called preliminary hearing, after which the judge of guarantees rules whether to accept the indictment.

          12.          If the indictment is admitted, the final stage begins, consisting of the oral and public trial.  The judge in this stage is different from the judge of guarantees who sat in the previous stage.  For criminal offenses for which the penalties are less than five years in prison, there is one judge.  For criminal offenses that carry penalties of over five years imprisonment, the trial is by a three-judge panel known as the Tribunal de Sentencia (Court of Judgment).

          13.          With respect to the Public Ministry, its functions, how it is situated in the institutional framework of the state, its insertion within the scheme of the different branches of government, and its general mission were all reformed.  The principles that characterize the Public Ministry are: judicialidad (i.e. the principle that a penalty may only be imposed by a judicial judgment); it has its own organizational structure; priority is accorded to controlling legality; permeability; and it represents society’s interests.

          14.          In addition, and specifically with respect to the protection of human rights, the Supreme Court of Justice has created a Human Rights Unit within the organizational and functional structure of the Judiciary.  The functions of this unit include monitoring the application of human rights law in the various courts of Paraguay; serving as an investigative and consultative organ at the service of judges and judicial officers and the community in general; providing information, in response to local and international requests; training and dissemination functions; and the function of coordinating assistance and cooperation from international donors and other sources involved in promoting and implementing human rights.  The Unit does not receive private complaints, and has no judicial attributes.

          15.          The Inter-American Commission views in a very positive light the legislative change from an inquisitorial criminal procedure in which the judge must seek evidence and rule on it, to an accusatory process, in which the Public Ministry is assigned the function of collecting the evidence and formulating the indictment, and the judge is limited to judging. The IACHR must note that those changes should also be accompanied by education, not only of the prosecutors, judges, and police, for each to fully understand their role and to carry it out properly, but also for the community in general, to make sure it is aware of the positive aspects of the change.  For in some countries in which similar reforms have taken place, the failure of the Office of the Attorney General or equivalent organs to collect evidence and to exercise properly its other powers has led to the release of persons who are allegedly criminals, yet who the Office of the Attorney General has not been able to prove have committed any crime.  In other countries it has given rise to criticisms aimed not at the Office of the Attorney General, for not carrying out its role adequately, but at the new accusatory system.

          C.          JUDICIAL GUARANTEES AND DUE PROCESS

          16.          Even though the Constitution of 1992 is in force, and despite the legislative changes analyzed above, problems persist in Paraguay related to the independence and impartiality of judges, resulting in situations in which due process guarantees are violated.

          17.          The Commission has received criticisms with respect to the manner in which the Judicial branch is organized, and specifically regarding the election of judges, after the Constitutional reform.  The Commission was told that considerations of political partisanship had a major influence on the election of judges and prosecutors.^[7]

          18.          In this respect, the State, in its observations to this report, noted that “the whole process of selecting and designating members of the Supreme Court and all other government officials was in strict compliance with the constitutional and statutory rules and procedures.  As regards designation of the members of the Supreme Court and the Attorney General, there must be participation by Council of the Judiciary, the Senate, and the Executive branch, respectively, participating in the framework of coordination and checks and balances as provided for in Article 3 of the National Constitution.”

          19.          The constitutional reform also gave the Public Ministry a key role, in charge of ensuring that the Constitutional guarantees are upheld.  Nonetheless, even though the reform has been implemented for some time now, the Commission was told that the Public Ministry could play a more active role in investigating crimes generally, especially crimes such as drug-trafficking, contraband, and the trafficking of vehicles.^[8] It is also noted that the non-governmental organizations and the citizenry in general are the only means of controlling the violations of judicial guarantees.  The State noted in its observations to this report that “it is aware that the units of the Office of the Attorney General, the Unit for Economic Crimes, to cite one example, is engaged in a major investigation to put on trial government officials accused of crimes of corruption, illicit enrichment, embezzlement of public funds, money-laundering, among others, which include some criminal cases, including some that are in the judgment phase.”

          20.          At the same time, it has been noted that the reorganization of the public defender service has been very deficient, that it has been minimally restructured, and that it only has 70 attorneys to cover the whole country, which reveals the failure of the State to carry out its obligation to provide free assistance.  In addition, the chief public defender has noted that many people do not turn to the service as they are unaware of its existence.^[9]  In this regard, educational actions are needed for citizens to learn of the existence and functions of the office of the public defender.

          D.          THE RIGHT TO PERSONAL LIBERTY

          21.          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.  The Commission learned of both problems during its visit, and later received additional information.

          1.          Unlawful Detentions

          22.          Under Article 7(2) of the American Convention: “No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.”  Article 7(3) of the same instrument also provides: “No one shall be subject to arbitrary arrest or imprisonment.”

          23.          The Inter-American Court of Human Rights has explained that Article 7 of the Convention

contains specific guarantees against illegal or arbitrary detentions or arrests, as described in clauses 2 and 3, respectively. Pursuant to the first of these provisions, no person may be deprived of his or her personal freedom except for reasons, cases or circumstances expressly defined by law (material aspect) and, furthermore, subject to strict adherence to the procedures objectively set forth in that law (formal aspect). The second provision addresses the issue that no one may be subjected to arrest or imprisonment for reasons and by methods which, although classified as legal, could be deemed to be incompatible with the respect for the fundamental rights of the individual because, among other things, they are unreasonable, unforeseeable or lacking in proportionality.^[10]

          24.          The Paraguayan Constitution guarantees the right to individual liberty at Article 12, which also establishes only two cases in which a person may be detained:  under order by a competent authority, or in flagrante delicto, committing a criminal offense that calls for corporal punishment.

          25.          Notwithstanding the constitutional provision, the new Code of Criminal Procedure expands the gamut of situations in which a person can be detained.  To do so, the Code distinguishes detention (la detención), which may be ordered by a prosecutor in those cases listed in the Code, from apprehension (la aprehensión), which may be performed by the Police, even without a judicial warrant.  in this connection, Article 239 of that Code provides:

Art. 239.  APPREHENSION OF PERSONS. The National Police may apprehend any person encompassed in the following cases, even without a judicial warrant:

1. when surprised in flagrante delicto committing a punishable act or when pursued immediately after committing it; an act shall be considered flagrant when the perpetrator of the punishable act is surprised in the moment of trying to commit it or of committing it, or immediately thereafter, or while pursued by the police, by the victim, or by a group of persons;

2. when having escaped from some penal establishment or any other place of detention;

3. when there are sufficient indicia of his or her participation in a punishable act and it is among the cases that calls for prevention detention.

In addition, in cases of flagrancy, any person may apprehend the subject and prevent the punishable act from having consequences.  The person apprehended shall immediately be turned over to the nearest authority.

A police authority who has apprehended any person must so communicate, within six hours, to the Public Ministry and the judge.

          26.          As can be seen, the Code 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.  Respect for the Constitution, as well as the American Convention, requires that the judges and other officials in charge of applying this provision interpret the new Code restrictively, in line with the Constitution and the international commitments assumed by the Paraguayan State.  This restrictive interpretation would require that those officials detain a person only in case of flagrancy or a judicial order.

          27.          In this respect, the Commission has been informed that “the right to liberty, while recognized by the National Constitution and the criminal laws, is violated repeatedly in the case of persons suspected of criminal activity, and these violations are identified as ‘a lesser evil in fighting crime.”^[11] It is noted that in practice, people are detained without a judicial order, based on suspicion.  The following are examples of such situations:

Operation “Ñemopoti”

This occurred in Valle Pucú, Areguá, in late August 2000.  More than 50 people were “stopped” for having criminal records for various offenses.  The stop was performed arbitrarily by the Police, without the participation of or communication to the Public Ministry or the Criminal Judge, without complying with any of the requirements needed for the National Police to be able to proceed to the apprehension and without the existence of a written arrest warrant from a competent authority.  This operation is an absolutely unacceptable procedure in a state under the rule of law, and especially when it was expressly ordered by the Commander of the National Police and headed up by the Chief of Police of the department known as Departamento Central, Captain Adelio Gray.

Massive detention of peasants through brutally ferocious acts

When peasants are detained, the orders are given without individual identification of the persons to be detained, thus the intervening authorities proceed to take all the persons they find in a given place, without knowing specifically who they are detaining. In this process brutality is the constant factor, as happened in the incidents reported at Caazapá, where there were injured persons who had fractures, the women were tortured and subjected to serious mistreatment, including one provoked abortion.

These incidents were denounced to public opinion by the National Farmers Federation (Federación Nacional Campesina) and were also presented to the Committee on Human Rights of the Senate and the Office of the Attorney General.  Appeals were made to the police authorities, but to date no one has been prosecuted or convicted.

As of August 10 of this year, when the victims were going to Asunción in two trucks with all the legal documents to submit their complaints, they were held at the crossing at Coronel Oviedo supposedly  by order of then-minister of public works and communication, José Alberto Planás, in an absolutely arbitrary manner and with no legal justification, and in the afternoon the persons there were once again victims of repression, as tear gas and other types of gasses were thrown at them, to keep them from reaching Asunción, where they were going to lodge their complaints.  Despite all this, and with tremendous sacrifices, they were able to make their way to the capital and file legal actions, yet no judicial proceedings have yet to be initiated in these cases.^[12]

          2.          Duration of prevention detention

          28.          One of the most serious problems that the Commission has detected in Paraguay is the situation of persons deprived of liberty but not convicted; this is the status of 90% of the persons deprived of liberty.  This situation occurs in the context of a criticism of the administration of justice, which in the view of many sectors of Paraguayan civil society is not sufficiently modern or efficient to promptly and fairly solve society’s demands for justice.

          29          On this point, the State, in its observations to this Report, noted that “as of the entry into force of the new Code of Criminal Procedure, the criminal justice system has benefited since the verdicts are handed down through the abbreviated criminal procedure, and 38% of all persons litigate in absolute liberty, with no conditions imposed on their liberty.  Only 25% of the persons now litigate while held in preventive detention.

          30.          As noted in the previous section, and according to complaints received, there are cases in which persons are detained by the police without any judicial order and without flagrancy.  This increases the likelihood of torture and other cruel or degrading treatment in the primary detention centers.  Later, the persons are subjected to an excessively prolonged judicial proceeding in which the judges have a greater caseload than they can resolve, and in which the defense is usually entrusted to a public defender who is also carrying an excessive work load.  This results in proceedings coming to a standstill, especially those involving persons of scant economic means, drawing out for up to two years, while the person continues to be held in prison.

          31.          One consequence of this situation is overpopulation of the prisons. It was pointed out to the Commission that a large percentage of the prisoners have no conviction, which the IACHR verified for itself in its visits to the Tacumbú prison, the “Panchito López” correctional facility for minors, the Buen Pastor Women’s Prison, the Penitentiary at Encarnación, the police station where the female prisoners are held at Encarnación, and the jail at the police station of San Pedro.  The IACHR met with individuals who have been imprisoned for more than seven years with no conviction.  In addition, the IACHR found that persons over 70 years of age were being held, despite laws expressly prohibiting their imprisonment.

          32.          The American Convention prohibits illegal or arbitrary detentions.  In addition, it states that persons have a right to be judged within a reasonable time or to be released.  This reflects the principle that an accused should be free during trial; and that preventive detention or imprisonment is a precautionary, non-punitive measure that should be used in express and justified cases, in keeping with international standards, but that it must not exceed a reasonable time.

          33.          The contrary practice would violate the presumption of innocence until proven guilty.  In effect, the principle of the presumption of innocence implies that even if it is necessary to hold the person during a trial, the legal position of the accused continues to be that of an innocent person.  “It is understood that Article 7(5) of the [American] Convention requires that once a trial has begun and the accused has been detained, if there is a need to deprive him of his liberty, the public trial should occur, if not immediately, shortly thereafter....”^[13]  After that brief lapse, the state has the right to continue the trial, but the provision of the article requires that the accused be released.

          34.          If the reasonable period is exceeded, the preventive detention or imprisonment becomes an anticipated penalty, in violation of the right of all persons to be presumed innocent until their guilt has been legally established, enshrined in Article 8(2) of the Convention.  In this regard, the Inter-American Court of Human Rights has noted that the purpose of the reasonable time principle is “to prevent accused persons from remaining in that situation for a protracted period and to ensure that the charge is promptly disposed of.” The Inter-American Court has stated as follows:

This Court is of the view that the principle of the presumption of innocence -‑ inasmuch as it lays down that a person is innocent until proven guilty ‑- is founded upon the existence of judicial guarantees. Article 8(2) of the Convention establishes the obligation of the State not to restrict the liberty of a detained person beyond the limits strictly necessary to ensure that he will not impede the efficient development of an investigation and that he will not evade justice; preventive detention is, therefore, a precautionary rather than a punitive measure. This concept is laid down in a goodly number of instruments of international human rights law, including the International Covenant on Civil and Political Rights, which provides that preventive detention should not be the normal practice in relation to persons who are to stand trial (Art. 9(3)). This would be tantamount to anticipating a sentence, which is at odds with universally recognized general principles of law.^[14]

          E.          TORTURE

          35.          Torture is prohibited by more than one law in Paraguay. The Paraguayan State is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;^[15] in addition, the Criminal Code, in its most recent reform, criminalizes the crime of torture and mistreatment.  Nonetheless, and as noted by the IACHR, torture is a recurrent problem in prisons and police stations.

          36.          One of the reasons that can explain the occurrence of these incidents is the continuation of individuals trained under Stroessner in the ranks of the police and military.^[16] The Commission wishes to note in this respect that the effective observance of human rights requires a system in which all members of these forces are trained in the principles of a participatory and well-informed democracy.  In this regard, a thoroughgoing reform is needed of the police and military in Paraguay that includes as part of police and military training instruction in the principles related to democracy and the observance of human rights.  At the same time, a profound change is needed in these institutions, which to date maintain an intricate structure based on chains of command that often makes it difficult to determine individual liability when abuses are committed by their members.

          37.          The Inter-American Commission was informed that the police agents are the main perpetrators of torture, and that torture is usually inflicted in police stations.  The cases of torture mentioned in the Paraguayan press include the case of a 27-year-old man who was detained by at a police checkpoint as he got off a bus, was placed in a police car, and was subjected to severe beating about the head.  The next day, January 16, 1999, he died as a result of the beating.^[17]

          F.          PRISON CONDITIONS

          38.          According to a report by the Public Defender’s Office, based on information received by all of its delegates before the criminal jurisdiction, in 1998, 155 prisoners were convicts, while 2,111 prisoners were involved in ongoing proceedings. In other words, 93.2% of the persons held in Paraguayan prisons may be suffering violations of their right to personal liberty.^[18]

          39.          The difficult conditions in which the detainees are found in Paraguay are publicly known.  During its on-site visit, the Commission was able to observe the positive intentions on the part of the authorities to improve prison conditions, which has translated into some improvements at the Tacumbú and Buen Pastor prisons.^[19] Nonetheless, it must be noted that the system is facing a grave crisis that requires more than a change in the law.

          40.          The most serious problems detected by the Commission during its visit refer to the “Panchito López” correctional center for children, where minors are held in unacceptable conditions of overcrowding, and the penitentiary at Encarnación, characterized, where there is a lack of medical care, among other problems. The Commission visited both centers during its on-site visit to Paraguay. The problem with the “Panchito López” center is addressed in greater detail in the chapter on the Rights of the Child, infra.  Nonetheless, the Commission wishes to recall here that despite two fires in which more than a dozen of the persons held at the “Panchito López” lost their lives, and though the authorities of the present Administration and prior Administrations made a commitment to close it promptly, and even though the present Administration began to take actions in this regard, transferring a large number of the persons held there to the recently-created Centro de Educación Integral, the “Panchito López” correctional center for minors continues to operate, and youths are still held there.  The Commission considers that remedying this situation must not be subject to further delay.

          41.          As for the Encarnación Penitentiary, a report provided to the Commission notes that it has the capacity for 190 inmates, and that it is a 50-year-old building “with very little space and no planning.”  In addition, a report from the same establishment notes that as of July 1999, of a total of 312 inmates, 243 were males of age, while 64 were minors and eight women. All the minors held at the Encarnación prison are facing proceedings. Of the eight women, seven are facing proceedings, and one has been convicted; of the adult males, three are convicts, while 240 are being tried.

          42.          The situation described by the warden demonstrates the extent to which prison conditions in Paraguay are at odds with Paraguay’s international commitments.  First is the overcrowding problem.  Second is the high percentage of persons in the prisons who have not been convicted of any crime. And third is the duration of preventive detention.

          43.          The Commission is mindful of the reforms to the Criminal Code and the Code of Criminal Procedure, which have included provisions aimed at solving the problems related to prison conditions.   Nonetheless, it has been noted that some of the new laws will not have immediate favorable consequences for the prison system.  These include the appointment of the Judges of Penal Execution (Jueces de Ejecucion Penal), whose function will be to oversee the rights of convicts and to control implementation of the prison regime, which was postponed.^[20] With respect to this legal reform, the Commission wishes to highlight that while the laws handed down to date represent important legislative progress, there is also a need to legislate the rights of victims and witnesses.

          44.          In its observations to this report, the State indicated that judges of penal execution have already been appointed in the judicial district of the capital city, and in five other districts.  It added that in those districts in which they have yet to be appointed, three-person short lists are being selected by the Council of the Judiciary.  The State also indicated that the Public Ministry has a special Victim and Witness Protection Program, and emphasized that of the offices created by the Public Ministry, one is for servicing the needs of victims, which has physicians, psychologists, and social workers.  The IACHR views such strides forward in a positive light.

          G.          RECOMMENDATIONS

          45.          Based on the foregoing considerations, the Inter-American Commission makes the following recommendations to the Paraguayan State:

1.       Take the measures needed to ensure that the new system of criminal procedure is implemented promptly and effectively.

2.       Ensure the observance of the due process guarantees enshrined in the American Convention with respect to all individuals subject to the jurisdiction of the Paraguayan State.

3.       Take immediate measures to improve prison conditions at all prisons in Paraguay, and immediately shut down the “Panchito López” correctional center for minors.

4.       Ensure that criminal proceedings unfold within a reasonable time.

5.       Ensure full observance of the principle regarding the presumption of innocence such that the general rule is that no individuals are detained during proceedings, without prejudice to the exceptions to this rule as provided by international law.