1. The Inter-American Commission on Human Rights (hereinafter "the Commission"), within its jurisdiction as established by the American Convention on Human Rights (hereinafter the "American Convention") and other applicable instruments, has watched with interest the evolving human rights situation in the Republic of Paraguay (hereinafter the "Paraguayan state," "Paraguay," or the "state") since the fall of the regime of General Stroessner. Paraguay is included in this section of the Annual Report pursuant to the criterion previously established by the Commission regarding short-term or structural situations in countries whose governments have been democratically elected, but which for a variety of reasons are facing situations that seriously affect the observance and enjoyment of the fundamental rights enshrined in the American Convention and the American Declaration on the Rights and Duties of Man. On establishing this criterion, the IACHR made express mention of "serious institutional crises" as one example of such a situation.1
2. The human rights situation in Paraguay has undergone a fundamental and significant transformation since February 3, 1989, with the fall of Alfredo Stroessner, bringing an end to 35 years of dictatorship and systematic human rights violations. The conclusion of this regime created the conditions for advancing in the development of democratic institutions and the strengthening of the rule of law. The Commission has acknowledged, supported, and encouraged the positive initiatives that have been adopted and implemented.
3. Nonetheless, mindful that the establishment and consolidation of democracy are based on respect for the fundamental laws and principles that they proclaim, the Commission wishes to call the attention of the hemispheric community to the events that have been unfolding in the Republic of Paraguay that are related to having a fully effective constitutional government under the rule of law, and in particular the independent of the various branches of government. For these reasons, this report will address the issues most relevant to the recent situation in Paraguay.
4. The Commission recalled in its 1988-1989 Annual Report, in the Chapter on Paraguay, that one of the main commitments expressed by then-President General Andrés Rodríguez, was to establish a society respectful of the law and human rights. On that occasion the IACHR also pointed out legal and de facto situations inherited from the period of rule by the Stroessner family that should be modified to make that objective a reality. These included, among others, the concentration of power jointly in the Executive branch and in the ruling political party, directing the other branches of government and demanding the forced political allegiance of all public employees, including the members of the Armed Forces; the lack of an electoral law and an electoral tribunal, organized to guarantee an authentic democracy; and the lack of an expeditious and independent justice system.
5. In February 1990, the Commission undertook an on-site visit to the Republic of Paraguay to observe the general human rights situation. The Commission found that in the twelve months since the rise of Gen. Rodríguez to the presidency, the Government had taken several measures and initiatives designed to re-establish the observance of the human rights provided for in the American Convention, and that it had created a climate more conducive to respect for human rights. Nonetheless, the legacy of more than three decades of an authoritarian government that committed systematic violations of human rights meant that the reforms introduced by the Government ran up against not only "isolated pockets of resistance to democracy," but also a deteriorated economic situation for many sectors, especially peasants and indigenous groups, whose demands proliferated as mechanisms for free expression and democratic guarantees were put in place.
6. The Paraguayan state carried out a series of reforms, introduced legislation, and promoted the creation of institutions to foster the observance of human rights. Of these, special mention should be made of the ratification of the American Convention on Human Rights; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, "Convention of Belém do Pará"; the Inter-American Convention to Prevent and Punish Torture; and the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment. Reform of domestic legislation has included reforms to the Electoral Code and to the Criminal Code, among others.2 In addition, on March 11, 1993, the Paraguayan state deposited the instrument by which it accepted the contentious jurisdiction of the Inter-American Court of Human Rights.
7. These changes created conditions for Paraguay to advance in restoring public liberties, dismantling the repressive apparatus of the state, and prosecuting several human rights violators, despite the problems created as a result of an authoritarian culture imposed by more than 30 years of government under Gen. Stroessner.
8. One significant advance for the development of democracy during the administration of Gen. Rodríguez was the convening of a National Constitutional Convention, which resulted in the promulgation of the National Constitution that has been in force since 1992. That Constitution incorporates provisions for the protection of civil and political rights,3 the separation of powers and independence of the branches of government, and the creation of electoral courts, among other institutions. It also abolishes the death penalty. In effect, Article 3 of the 1992 Constitution provides as follows:
The people exercise government power by means of suffrage. Government authority is vested in the Legislative, Executive, and Judicial Branches in a system of separation of powers, checks and balances, and coordination. None of these branches of government can attribute to itself, nor grant any person, whether individual or collective, special powers or the entirety of governmental authority. Dictatorship is outside the law.
9. In addition, the Constitution created the Office of the Ombudsman (Defensoría del Pueblo)--though the Ombudsman has yet to be designated--4 establishing at Article 276 that:
The Ombudsman is a parliamentary commissioner whose functions are the defense of human rights, the channelling of claims of the people, and protecting the interests of the community. In no case shall the Ombudsman have any judicial function or any executive authority.
10. It should also be noted that a series of mechanisms are being put in place aimed at facilitating the receipt and transmission of complaints of human rights violations, such as the creation of the General Bureau for Human Rights (Dirección General de Derechos Humanos) in the Ministry of Justice and Labor, and the formation of human rights committees in both houses of the National Congress.
11. In one sign of the implementation of the Commission's recommendations with respect to the political parties, the National Constitution stipulates at Article 126:
All citizens have the right to freely associate in political parties or movements to come together, by democratic means, to the election of the authorities provided for in this Constitution and in the statutes, as well as in the direction of national policy. The law shall regulate the formation and operation of political parties and movements so as to assure their democratic nature.
12. Another novelty introduced by the 1992 Constitution is the prohibition on active-duty members of the military from becoming involved in politics. This is an all-important measure, if one takes account of the politically partisan nature of the military leadership characteristic of the Stroessner regime. In this respect, Article 173 of the Paraguayan Constitution provides as follows:
The Armed Forces of the Nation constitute a national institution that shall be organized on a permanent, professional, non-deliberative, and obedient basis, subordinate to the state powers and subject to the provisions of this Constitution and the laws. Its mission is to safeguard the territorial integrity and defend the lawfully constituted authorities, pursuant to this Constitution and the laws. Its organization and membership shall be determined by law.
Active-duty members of the military shall ensure their conduct is in line with the statutes and regulations, and may not join any political party or movement, nor engage in any type of political activity.
13. The advances of what has been called the "transition government" were positive. The 1993 presidential elections represented a historical milestone for Paraguay, as it was the first time that a civilian citizen received the presidential sash from a military officer, pursuant to the laws in force, and in a framework of full democratic freedoms.5
14. On April 22, 1996, then-President Juan Carlos Wasmosy communicated to Gen. Lino Oviedo, Commander of the Army, his decision to relieve him of his command and have him retired. President Wasmosy alleged that Gen. Oviedo had tried to challenge his constitutional authority as President of the Republic. In response to this situation, the governments of the bordering countries and the United States of America, and the Secretary General of the OAS Dr. César Gaviria, gave their total backing to Paraguayan democracy, categorically rejecting any unconstitutional measure.6
15. President Wasmosy argued that his status as commander in chief of the Armed Forces gave him authority over retired military officers, and based on the military legislation in force, in November 1997 he ordered the disciplinary detention of retired General Lino Oviedo. In addition, the President convened a Special Military Tribunal to sit in judgment of him and two other retired high-level military officers, Gen. Sindulfo Ruiz Ramírez and Col. José Manuel Bóveda, on accusations of having committed the crimes of rebellion and insubordination in April 1996.
16. In 1998, the Special Military Tribunal, in final judgment No. 01/98 of March 9, sentenced to military prison retired officers Lino Oviedo (10 years) and Juan Manuel Bóveda (3 years), as it convicted them of the crimes of rebellion and insubordination. On April 17, 1998, the Supreme Court of Justice adopted Decision and Judgment No. 84, in which it affirmed the judgment of the military tribunal, finding it lawful, including the accessory sanctions consisting of dishonorable discharge (baja absoluta) from the Armed Forces and disqualification from exercising civil and political rights. Consequently, the electoral organs canceled the candidacy of the former general, instead qualifying Raúl Cubas, who was to have been his vice-presidential candidate, as the presidential candidate. As a result, the Colorado Party ran Raúl Cubas and Luis María Argaña, respectively, as its candidates for president and vice-president. Both were elected in national elections held in May 1998.
17. In the face of the announcement by president-elect Cubas that he would introduce legislation to allow the release of former Gen. Oviedo, on June 24, 1998, the Congress approved a law regulating the presidential power of pardon, providing that it may be exercised once a convict has served half of the sentence imposed.
18. Raúl Cubas assumed the Presidency of the Republic on August 15, 1998. Three days later he invoked the power the Constitution grants him of commuting sentences, and he promulgated Decree No. 117 by which he "commuted" the sentences of 10 and 3 years imprisonment, respectively, for former military officers Oviedo and Bóveda to three months detention in both cases. The decree expresses that the accessory penalty of dishonorable discharge "disappears" as well as the suspension of citizenship rights. In addition, the President ordered the "immediate release" of the former military officers whose conviction was upheld by a judgment of the Supreme Court of Justice of Paraguay.
19. Within this framework, the National Congress, with a clear majority opposing the President, adopted a declaration repudiating said decree "for violating express constitutional and statutory provisions, attacking the rule of law, constituting an abuse of power, and enshrining impunity as the law."7 In addition, the Congress proposed a motion for unconstitutionality against the Supreme Court of Justice, based on the fact that "in its view, the Supreme Court of Justice, pursuant to Article 248, second paragraph, of the Constitution should declare the nullity incurable.8
20. In August 1998, President Cubas convened a new Special Military Tribunal, in order to take a statement from retired General Sindulfo Ruiz Ramírez, the other officer who had faced charges for the 1996 coup attempt.9 By interlocutory order of August 26, 1998, that military court declared "the nullity of the proceedings" that had led to judgment 01/98 of that same court. In addition, the court declared that the nullity benefitted Oviedo and Bóveda, dismissing charges against them "with prejudice and in their entirety."
21. On December 2, 1998, the Supreme Court of Justice adopted Decision and Judgment No. 415 by which it declared Decree No. 117 unconstitutional. Among other considerations, the Supreme Court of Paraguay held in its decision:
From the analysis of the decree alleged to be unconstitutional, it appears that the Executive arrogated judicial powers to itself: (a) by commuting the term of the sentence; (b) by declaring that it refuted the guilty verdict; (c) by establishing that the nullity of the principal penalty determines the nullity of the accessory ones; (d) by ordering the persons convicted released; and (e) by mentioning Articles 56 and 57 of the Military Criminal Code, which do not refer to commutation, given that they regulate the substitution of penalties as a power of the judiciary, but here these were substituted improperly and subordinated to the Executive.
The judiciary may review (executive acts) for the purposes of determining whether the administrative authority has overstepped the bounds of its discretion, as set by the Constitution and the law; and the judiciary may even revoke the administrative act when the administrative authority, in the exercise of its discretional powers granted for the proper enforcement with the law, and not to be used arbitrarily. 10
22. In addition, Judgment 415 of the Supreme Court of Justice ordered the President of the Republic to execute Judgment No. 84 of April 1998, which confirmed the sentence of military imprisonment and the dishonorable discharge from the Armed Forces in the cases of Oviedo and Bóveda.
23. On December 4, the President of the Republic issued Decree No. 1200, by which he forwarded the background information to the Ministry of Defense. In addition, in public statements, President Cubas stated that he "had done all that I had to do" and that it was not within his powers to order the arrest of the persons convicted, as they had been "absolved" by the Special Military Tribunal, and that compliance with the judgment of the Supreme Court was "impossible."
24. On February 5, 1999, the new President of the Supreme Court of Justice, Wildo Rienzi, sent a missive to the President of the Republic reiterating the prior communication with respect to Judgment No. 415 of December 2, 1998, in the following terms:
In his capacity as Commander in Chief of the Armed Forces of the Nation; a decision will be made within 72 (seventy-two) hours, and without any other type of proceeding, ordering the imprisonment of persons sentenced to a military prison, in accordance with Article 50 of the Military Criminal Code.
25. The same day President Cubas sent a communication to the President of the Supreme Court in which he "rejects the expressions in your note," denying that the President of the Court has the constitutional authority for "personally ordering the enforcement of a judgment, and much less to order another branch of government to enforce a ruling." Cubas further stated his "profound repudiation" of Mr. Rienzi for "casting doubt on the dignity, status, and constitutional effects of the rulings handed down by the military courts."
26. The Supreme Court sent a missive to the Bureau of Electoral Registry on February 5, 1999, in order to execute Judgment 415 by striking the two convicted military officers from the voter rolls. The order by the Supreme Court of Justice was carried out immediately by the appropriate officer from the Electoral Registry, yet pursuant to Judgment No. 1/99 of the Superior Court of the Electoral Registry--signed by two of its three members, as the third cast a dissenting vote--it was ordered that it be rendered without effect. The argument brandished publicly by Carlos Mojoli, one of the two members who voted to void the Court order, was that the President of the Supreme Court lacked standing to issue such an order, for not having been elected in the presence of all of the members of the Court (to date, the replacement for Oscar Paciello--the Supreme Court justice who passed away in December 1998--has yet to be designated).
27. On February 12, 1999, the eight members of the Supreme Court of Justice issued a declaration in which they admonished Dr. Carlos Mojoli for "repudiating the authority of the highest-level judicial body," and announced that they would study other measures with respect to him and Mr. Expedito Rojas, the member of the Electoral Tribunal who voted with Mr. Mojoli, for failing to perform his legal obligations. At a press conference, the President of the Supreme Court explained that he was designated pursuant to Law 609 of 1995, which establishes that the determination as to the composition of the chambers of that Court and the election of the President should take place in February of each year, with the favorable vote of at least five of its members.
28. On February 15, 1999, a member of the Chamber of Deputies made official the request for impeachment of members Mojoli and Rojas, of the Superior Court of Electoral Justice, for having committed "contempt, prevarication, frustration of prosecution and criminal enforcement, violation of the principle of legality, and breach of legal obligation."
29. On February 17, the Supreme Court of Justice suspended the effects of Judgment No. 1/99 of the Superior Court of Electoral Justice (TSJE), which had restored Oviedo's and Bóveda's citizen rights, until the issue as to the constitutionality of the ruling is resolved, pursuant to the request by the electoral prosecutor. Nonetheless, by vote of members Mojoli and Rojas, the TSJE once again ordered the registration of the former military officers in the national voter rolls.
30. In addition, the former Commander of the Air Force, Gen. César Crámer, was arrested on February 16, 1999, by order of a new Special Military Tribunal constituted to "look into alleged irregularities related to the air matériel corresponding to the Air Force command." During the Wasmosy administration, Gen. Crámer belonged to the so-called "institutionalist" sector, which opposed the involvement of active-duty military officers in partisan politics, and he was one of the commanders who supported President Wasmosy in his decisions as President of Paraguay in April 1996. On February 25, 1999, the Special Military Court changed the preventive detention of Gen. Crámer into imprisonment.
31. Within the Colorado Party, Oviedo and Bóveda were removed from the rolls in December 1998 as a result of Judgment 415 of the Supreme Court of Justice. Nonetheless, the former officers went before the Electoral Tribunal of the Capital (TEC) and won a favorable ruling that ordered they be re-registered as officers of the Colorado Party. This issue has been appealed by representatives of that party, and a motion of unconstitutionality is pending. Meanwhile, on February 23, 1999, the Jury for the Trial of Judges (Jurado de Enjuiciamiento de Magistrados), an independent body that sits in judgment of the actions of judges, requested the suspension of electoral judges Eduardo Giménez Rabito and Andrés Bogado Romero. These judges are the members of the TEC who voted in favor of the re-registration of Oviedo and Bóveda in the voter rolls of the Colorado Party, revoking a decision to the contrary by an electoral judge of first instance.
32. The Supreme Court of Justice, in plenary, on February 25, 1999, requested that the criminal judge with jurisdiction proceed to bring charges against the President of the Republic for breaching Judgment 415 of December 1998. Among the antecedents, the Court forwarded note No. 156 of February 5, 1999, in which President Cubas, in his capacity as Commander-in-Chief of the Armed Forces of the Nation, failed to comply with that judgment within 72 hours provided for. The Attorney General (Fiscal General del Estado), Aníbal Cabrera Verón, had asked the Court to request the National Congress to impeach President Cubas. The Attorney General affirmed that the President of the Republic breached a judicial order, and thus it was considered that he had engaged in the punishable conduct of "frustrating prosecution and criminal enforcement," provided for at Articles 292, 293, and related provisions of the Paraguayan Criminal Code (Law 1,160/97).
33. On the morning of March 23, 1999, the Vice-President of Paraguay, Luis María Argaña, was assassinated. The assassination occurred as a group of hired killers ambushed a vehicle in which Mr. Argaña was travelling and proceeded to shoot the occupants, apparently using automatic weapons (machine-guns) and semi-automatic rifles. Mr. Argaña's bodyguard, Mr. Francisco Barrios González, was also killed, and the driver of the vehicle was wounded.11
34. The assassination of Mr. Argaña led to an explosion in the crisis that had been developing in Paraguay. Mr. Argaña was the main opponent of President Raúl Cubas, especially of his position with respect to former General Lino Oviedo. The assassination of Mr. Argaña caused great public shock, nationally and internationally. The news media reported that the country came to a standstill, and that people, outraged, went into the streets to stage protests and to call for the resignation of President Cubas; President Cubas and former General Lino Oviedo were considered to the be masterminds who organized Argaña's murder. In the capital city of Asunción, the protests were led by an independent group called "Youth for Democracy."
35. On March 24, 1999, the Chamber of Deputies of the Paraguayan Congress decided, by a vote of 49 to 24, to impeach President Raúl Cubas. On that same day the now former President Cubas Grau decided to enforce the above-noted Judgment 415 of the Supreme Court of Justice, which ordered that he execute Judgment 84 of April 1998, and ordered that former General Lino Oviedo be confined in the quarters of the Presidential Guard. Upon entering the military barracks, Oviedo told the news media that he did not consider himself under arrest, but that he had come forth to "clear up his legal situation before the Special Military Tribunal."
36. On that same day, March 24, 1999, and in response to the above-noted decision of the Chamber of Deputies, the president of the Senate called a special session in which the Senate decided to sit as a court and begin the proceedings in the impeachment of the President. For this purpose, the Senate called on the Chamber of Deputies to present its indictment the next day, and also called on President Cubas Grau to hear the indictment and to receive copies of the respective documents.
37. On March 25, 1999, the Chamber of Deputies presented its charges against President Cubas, and the Senate called on the defense to present its arguments refuting the charges the next day. The Chamber of Deputies alleged, among other things, that:
The President of the republic, Raúl Alberto Cubas Grau, has incurred in poor performance of his duties, by reason of having exercised the post he holds in a manner not fit for such high office, committing excesses of various sorts in carrying out his constitutional powers, endangering the institutions, bringing about juridical chaos and political instability throughout the land, so as to cause consternation and desperation in a population increasing needy of the basic elements for a dignified life, which were and continue to be denied to them by the unbridled manner in which rulers with these characteristics have always wielded power throughout our history.12
38. From the moment of the assassination of Mr. Argaña and so long as the impeachment endured, the country was at a standstill. The spontaneous inclination of the population, in that regard, was complemented by statements by several institutions, including the Chamber of Deputies, Youth for Democracy, the governors and intendants, and other members of Paraguayan civil society. The largest concentration of people was around the Congress, where the impeachment proceedings were under way against former President Cubas. The Executive adopted several actions of intimidation against persons who were demonstrating peacefully. For example, in addition to the National Police, who were in the streets, Cubas Grau issued Decree 2,258, ordering the Armed Forces to come out of their barracks to restore order. In addition, the former President officially announced that military tanks would surround the Congress. On March 26, 1999, the National Police violently repressed the demonstrators who were in front of the Congress, wounding hundreds.
39. On March 27, 1999, in the course of the impeachment proceedings, a hearing was held in which representatives of Cubas Grau presented his defense. That same day, at the end of the afternoon, the heavily-armed police forces, and snipers who were atop a building in the area, carried out a bloody attack on the youths, workers, and peasants who were in front of the Congress. Bombs and firearms were used in that attack, causing the death of seven youths13 and seriously injuring hundreds of others who were in the area of the Congress to show support for the impeachment proceeding inside.
40. On March 28, 1999, on the eve of the Senate's decision on the impeachment proceeding, President Cubas Grau stepped down as President of Paraguay. Shortly before his resignation, retired Gen. Lino Oviedo travelled to Argentina, where he sought and obtained political asylum. The day after his resignation, Cubas Grau sought and obtained asylum in Brazil.
41. In the wake of the resignation of former President Cubas Grau, itself following soon after the assassination of the Vice-President, the presidency was assumed, pursuant to Article 234 of the Paraguayan Constitution, by the President of the Congress, Luis González Macchi. The new constitutional President of the Republic of Paraguay formed a government in which the cabinet ministers are from political parties distinct from that of the new President, and he announced that his administration would be marked by respect for the Constitution and the institutional order, and, in general, democracy and the rule of law.
42. On April 5, 1999, President González Macchi issued Decree No. 2,316, which derogated Decree 1,200, issued by former President Cubas Grau to avoid enforcement of Judgment 415 of the Supreme Court of Justice of April 1998, which ordered that the prison sentence of former General Lino Oviedo be carried out. That decree was described by many media outlets and prominent figures as an important expression of the return to the rule of law in Paraguay.
43. As of the date of adoption of this report, it had not yet been determined whether elections would be called to elect a president and vice-president, or just to elect a vice-president. To date, there is not a single view in Paraguay as to how to interpret the Constitution, bearing in mind that the vice-president was assassinated and then President Cubas resigned. Recently, and mindful of a recommendation by the Attorney General of Paraguay, the Superior Tribunal of Electoral Justice sought the opinion of the Supreme Court of Justice, whose decision is still pending.
44. In the preamble to the Charter of the Organization of American States, the member states agreed that "representative democracy is an essential condition for the stability, peace and development of the region"; and that "the true significance of American solidarity and good neighborliness can only mean the consolidation on this continent, within the framework of democratic institutions, of a system of individual liberty and social justice based on respect for the essential rights of man."
45. The organs of the inter-American system have made pronouncements on several occasions about the importance of democracy and the effective rule of law for the observance and protection of human rights. In this regard, the Inter-American Court of Human Rights has established:
The concept of rights and liberties as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.14
46. In this context, the Commission has noted that the legal developments in the hemisphere have tended to insist that there be a direct relationship between the exercise of political rights and the concept of democracy as a way of organizing the state, which in turn presupposes the observance of other fundamental human rights. In effect, in the view of the Commission, the concept of representative democracy is based on the principle that political sovereignty vests in the people, and that it is in the exercise of that sovereignty that they elect their representatives to hold political power. These representatives, moreover, are elected by the citizens to take certain political measures, which implies, in turn, that there has been a wide-ranging debate on the nature of the policies to be implemented (freedom of expression) among organized political groups (freedom of association), and to meet publicly (freedom of assembly). The observance of these rights and freedoms further requires the rule of law, understood as a legal and institutional order in which the laws come before the will of the rulers, and in which there is control of some institutions over others for the purpose of preserving the purity of expression of the popular will.15
47. The Commission considers that only through the effective exercise of representative democracy can human rights be fully guaranteed. Therefore, the protection of human rights in the framework of democracy also implies the existence of institutional checks on the acts of the branches of government, as well as the supremacy of the law.
48. In this respect, the Commission has stated:
Democracy and the rule of law are necessary conditions for achieving the observance of and respect for human rights in a society. This includes the exercise of the rights to political participation, respect for the principle of legality, autonomy and independence of the judiciary, and effective protection vis-à-vis the acts of the government authorities.16
49. The rule of law establishes three fundamental principles. First is the principle of the limitation of power, which is concretized in the constitutional distribution of power. Second is the principle of legality, which establishes that the organs of state should exist and act under the law. The Constitution is the supreme law of the land, to which all other state organs must be subjected, including no doubt the person heading up the Executive branch, who cannot ignore any of the Constitutional commandments. Finally, the third principle is the declaration of fundamental rights. Therefore, not only it is a "state built on the principle of the limitation of power to ensure freedom and on the principle of legality and respect for the Constitution, but it is also a state based on the principle of declaring or recognizing fundamental rights of constitutional rank."17
50. Nonetheless, a declaration of rights is of no use if not accompanied by a set of judicial guarantees of those rights, one of which is the possibility of declaring the nullity of acts violative of the Constitution. In addition, by virtue of the guarantee of liability, all acts contrary to constitutional rights give rise to the liability of those who perform them. The fundamental corollary of constitutional rights is the possibility of recurring to the judicial organs for their enforcement. 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. Consequently, subordinating the judiciary or failing to heed its rulings are attacks on the rule of law.
51. The Commission deems it necessary to recall that one essential postulate of the rule of law is the principle of legality, which everyone without exception, rulers and ruled, must respect. In effect, the competence of the ruler is "reserved," as he is impeded from anything other than what he has been expressly authorized to do. For this reason, when an official acts beyond the limits of his legal authority, juridical certainty is compromised. One way to contribute to this overreaching is to limit the "delegation of legislative or rule-making powers to administrative organs."18
52. The Constitution of a state, as the supreme law of the land, is binding on both rulers and ruled, in order to secure and consolidate the rule of law. One of the fundamental principles of Paraguayan law is constitutional supremacy, as stipulated in Article 137 of the Constitution:
The supreme law of the Republic is the Constitution. The Constitution, international treaties, conventions, and agreements approved and ratified, the laws passed by the Congress, and other legal provisions of lesser rank, adopted pursuant to the Constitution, constitute the positive law, in the order of priority listed.
Whoever seeks to change that order, acting outside the procedures set forth in this Constitution, shall be liable for the offenses that shall be criminalized and penalized by law.
This Constitution shall not cease to have effect by acts of force or if derogated by any means other than provided herein.
All provisions or acts of authority contrary to what is established in this Constitution shall lack validity.
53. On March 12, 1999, the Commission, in keeping with its Regulations, sent the Paraguayan state a preliminary version of this report for any observations it might have. On April 12, 1999, the Paraguayan state submitted its observations, recapitulating the events that occurred as of March 23, 1999, which was the date of the assassination of Mr. Argaña, and offering its considerations.
54. The Commission has followed the serious institutional situation that has developed in Paraguay, characterized by a confrontation between the Executive branch and the electoral justice system, on the one hand, and the Legislative and Judicial branches, on the other, with great concern.
55. The solutions to this crisis should be found in the framework of legality and the rule of law, whose greatest expression is the National Constitution, which is the foundation for the democratic form of government, and the origin of the legitimacy of all authorities who exercise power in the Republic of Paraguay. The Commission, pursuant to its hemispheric doctrine in defense of human rights, deems it necessary to recall that under another principle fundamental for tackling the current situation, impunity for unlawful acts should be rejected.
56. In that regard, the Commission reiterates its most forceful condemnation of the atrocious crime committed against the person of Luis María Argaña, and likewise condemns the assassination of Mr. Francisco Barrios González, Mr. Argaña's bodyguard, and of the youths Manfred Stark Coscia, Víctor Hugo Molas, José Miguel Zarza, Porfirio González, Henry David Díaz Bernal, Cristóbal Espínola Cardozo, and Tomás Rojas, who died defending democracy and the institutions of Paraguay. The IACHR also repudiates the bodily harm inflicted on hundreds of persons. The Commission emphasizes that, certainly, an adequate investigation into the assassination of Mr. Argaña and of all the other conduct described here is fundamental for consolidating the democratic institutions and rule of law in Paraguay.
57. The IACHR views in a positive light the new situation of national consensus-building that currently exists in Paraguay. The Commission hopes that the new authorities will adopt all measures to ensure the strict practice of constitutional government and the rule of law. Among these measures, the Commission recommends that the Paraguayan state designate the Human Rights Ombudsman (Defensor del Pueblo), provided for in Article 276 of the Constitution of Paraguay, and whose designation is still pending. The IACHR considers said designation of the Human Rights Ombudsman an important measure for protecting human rights in Paraguay.
58. The IACHR urges the Paraguayan authorities and the various branches of government to adopt all measures to ensure the full observance of the constitutional rule of law. The Commission shall continue to observe the development of events in Paraguay until institutional normalcy is consolidated, in the context of the consolidation of representative democracy in the hemisphere. To this end, it shall draw on all the authorities conferred on it by dint of its status as a principal organ of the OAS, in the legal framework of the American Convention, its Statute, and its Regulations.
1 IACHR, 1997 Annual Report, OEA/Ser.L/V/II.98, doc. 6 Rev., April 13, 1998, para. 5, p. 930.
2 The Criminal Code was approved by Law No. 1,060 of October 16, 1997, and entered into force one year later. Among other novel provisions, that Code contains a Title IX entitled "Punishable acts against the peoples," which criminalized genocide and war crimes, and establishes the respective penalties. The Electoral Code was approved by Law 1/90 of March 1990.
3 Article 145 of the Constitution of Paraguay provides at the pertinent parts:
4 Article 277 of the Paraguayan Constitution provides that the Ombudsman is to be appointed by a two-thirds majority of the Chamber of Deputies, from a list proposed by the Senate. As of the date of this report, the appointment has yet to be made, as the political sectors represented in the Senate had not reached consensus on the respective list.
5 In this respect, the Unit for the Promotion of Democracy of the OAS, which deployed a significant electoral observation mission in Paraguay, found that:
Organization of American States, Observaciones electorales en Paraguay 1991-1993, Unit for the Promotion of Democracy, 1996, p. 93.
6 With respect to these events, the IACHR stated as follows:
7 National Congress of Paraguay, Declaration No. 1, "Que repudia enérgicamente el decreto No. 117 del 13 de agosto de 1998 y exige al Poder Ejecutivo su revocación," Article 1, August 19, 1998.
8 National Congress, Id., Article 5.
9 File under the heading "Sumario instruido al Gral. de División (SR) Lino César Oviedo Silva, Gral. Brig. (SR) Fernando Ruiz Ramírez y Cnel. (SR) José Manuel Bóveda Melgarejo sobre supuestos delitos contra el orden y seguridad de las Fuerzas Armadas de la Nación e insubordinación occurrido en fecha 22 y 23 de abril de 1996 en distintas unidades militares de la República." Gen. Ruiz Ramírez had been a fugitive and came forward to the authorities once Raúl Cubas had assumed the presidency.
10 Supreme Court of Justice of Paraguay, Decision and Agreement No. 415, issued in the trial "Acción de inconstitucionalidad contra el Decreto 11711 de fecha 18 de agosto de 1998, dictado por el Poder Ejecutivo" (brought by the National Congress), December 2, 1998, pp. 7 and 21, respectively.
11 The IACHR made the following statement about the incident: "The Inter-American Commission on Human Rights (hereinafter "the Commission") has learned of the assassination of Luis María Argaña, Vice-President of the Republic of Paraguay, this morning in the city of Asunción. As a principal organ of the inter-American system, the Commission expresses its most forceful condemnation of this atrocious crime, which not only breaks the law, but which also endangers the institutional stability and democratic normalcy in Paraguay. The Commission notes that the assassination of Mr. Argaña has taken place in a context of serious institutional crisis that has been dragging on for several months, and which has led to an open confrontation between the Executive and the electoral authorities, on one side, and the legislature and the Supreme Court of Justice on the other. The Commission is of the view that the solution to this crisis should come in the framework of legality and the rule of law, whose maximum expression at the domestic level is the national Constitution, which is the basis of the democratic form of government and a source of the legitimacy of all authorities in the Republic of Paraguay. The Commission makes an urgent appeal to the Paraguayan state to investigate, identify, and punish the persons responsible for this abominable crime, with the transparency and efficacy the circumstances require." IACHR, Press Release No. 9/99, March 23, 1999.
12 Source: "Juicio político acorrala al presidente Raúl Cubas," Diario Noticias, on-line edition of March 26, 1999.
13 Their names are: Manfred Stark Coscia, Víctor Hugo Molas, José Miguel Zarza, and Porfirio González, who died in the attacks, and Henry David Díaz Bernal, Cristóbal Espínola Cardozo, and Tomás Rojas, who died afterwards as a result of the wounds they suffered in the attack.
14 Inter-American Court of Human Rights, "Habeas Corpus in Emergency Situations" (Articles 27(2), 25(1), and 7(6), American Convention on Human Rights). Advisory Opinion OC-7/87, January 30, 1987, para. 26.
15 IACHR, Annual Report 1990-1991, p. 557.
16 IACHR, Press Release No. 20-98, Lima, Peru, November 13, 1998, para. 19.
17 Presente y Futuro de los Derechos Humanos. Ensayos en honor a Fernando Volio Jiménez; Inter-American Institute of Human Rights; Mundo Gráfico; San José, Costa Rica; 1998.
18 Atilio Aníbal Alterini, La inseguridad jurídica, Artes Gráficas Candil SRL, Buenos Aires,1993.