THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY
OF JUSTICE AND HUMAN RIGHTS
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.
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
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
ORGANIZATION OF THE JUSTICE SYSTEM IN PARAGUAY
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.
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.
Even so, the Trial Jury for Magistrates has only removed 22 judges since
its creation eight years ago. 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.
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.
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.
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.
The new Code of Criminal Procedure
is in force for all proceedings initiated after March 1, 2000.
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.
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.
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.
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).
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.
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
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
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.
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.
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
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. 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.”
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. In
this regard, educational actions are needed for citizens to learn of the
existence and functions of the office of the public defender.
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.
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.”
The Inter-American Court of Human Rights has explained that Article 7 of
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.
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.
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:
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;
when having escaped from some penal establishment or any other place of
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.
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.
police authority who has apprehended any person must so communicate, within six
hours, to the Public Ministry and the judge.
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.
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.” It is noted that in practice, people are
detained without a judicial order, based on suspicion.
The following are examples of such situations:
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.
detention of peasants through brutally ferocious acts
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.
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.
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.
Duration of prevention detention
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.
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.
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.
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.
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.
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....”
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.
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
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.
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;
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
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. 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.
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.
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.
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
Nonetheless, it must be noted that the system is facing a grave crisis that
requires more than a change in the law.
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.
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.
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. 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.
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.
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.
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.
Take immediate measures to improve prison conditions at all prisons in
Paraguay, and immediately shut down the “Panchito López” correctional
center for minors.
Ensure that criminal proceedings unfold within a reasonable time.
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
IACHR, 1998 Annual Report, Ch. IV, Paraguay, para. 50.
See infra, on judicial guarantees
and due process.
Pese a vigencia de
corrupción y lentitud: Sólo 22 magistrados removidos en 8 años.
Ultima Hora, digital. March 6, 2000.
See chapter on Children’s Rights, infra.
Law No. 1,286/98.
So provided by Transition Law No. 1,444/99.
Luis Escobar Faella, Garantías
Judiciales y Debido Proceso. Study published in Derechos Humanos en
Paraguay 1999, published by CODEHUPY, Coordinadora de Derechos
Humanos del Paraguay, Asunción, 1999, p. 147.
Id., p. 152.
Interview published in the daily newspaper ABC
Color, July 8, 1999.
I/A Court H.R., Case of Gangaram
Panday, Judgment of January 21, 1994, paras. 45-47, and Case of Suárez Rosero, Judgment of November 12, 1997, para. 42.
Raquel Talavera, Detenciones Ilegales
y Arbitrarias. Study published in Derechos Humanos en Paraguay 2000,
published by CODEHUPY, Coordinadora de Derechos Humanos del Paraguay,
Asunción, 1999, pp. 51 and 82.
Maier, Julio B.J. Derecho Procesal
Penal. Tomo I. Editores Del Puerto, Buenos Aires, 2nd edition, 1996, p.
I/A Court H.R., Case of Suárez Rosero,
Judgment of November 12, 1997, para. 77.
Paraguay ratified this Convention on March 12, 1990.
Nelson García Ramírez, Abusos y Torturas de Agentes Públicos. Study published in Derechos
Humanos en Paraguay 1999, published by CODEHUPY, Coordinadora de
Derechos Humanos del Paraguay, Asunción, 1999, p. 61.
César Báez Samaniego.
Derecho a la vida. Study
published in Derechos Humanos en Paraguay 1999, published by CODEHUPY,
1999, p. 49.
The report also reveals that defense counsel must go once a week to the
various prisons, though it is also reported that due to lack of time, they
go only once every two weeks. Another problem affecting the defense counsel
is the lack of communication, mainly since they do not have their own phone
Press Release 23/99. Published at the Commission’s web site at <http:/www.cidh.org/Comunicados/English/1999/Comunicados.htm,
and in the Commission’s 1999 Annual Report.
So provided for by Article 15 of Law 1,444/99, which regulates the
transition to the new penal system.