* The initial report submitted
by the Government of Paraguay is contained in document CAT/C/12/Add.3; for
its consideration by the Committee, see documents CAT/C/SR.158, 159 and
161 and the Official Records of the General Assembly, Forty-ninth session,
Supplement No. 44 (A/49/44, paras. 52-65). For the second periodic report,
see documents CAT/C/29/Add.1, CAT/C/SR.289, 290 and 292 and the Official
Records of the General Assembly, Forty-second session, Supplement No. 44
(A/52/44, paras. 189-213).
1. The obligation to respect
rights is reflected in the acknowledgement of the existence of international
monitoring and control mechanisms which allow for persons to bring legal
proceedings, to use the systems not as a court of fourth instance or a court
of cassation but as a subsidiary element complementing the internal system.
2. However, both in general
reports and in individual petitions under the reporting process, the conformity
of internal administrative, judicial and legislative acts of the State with
treaty obligations is necessarily verified. This means that every branch
of government can be a source of international responsibility for the State.
3. The exhaustion of domestic
remedies before a petition is submitted is a rule with exceptions, for if
there are no remedies to be exhausted under domestic legislation or no due
process of law, the person is unable to exhaust remedies or is prevented
from doing so, or they are ineffective because of delay or for some other
reason, and the way is clear to accede to international justice. On a continent
where impunity prevails, along with serious shortcomings in the administration
of justice the ineffectiveness of internal justice is the rule.
4. There is a need not only
to introduce legislative measures, but also to adapt the judicial and administrative
structure of the State to this change. From this point of view, the establishment
of an Office of Ombudsman (Defensor del Pueblo), which has been delayed
for so long, is the missing element in dealing with public complaints both
about violations of human rights and poor public administration and services.
5. The fact that an ombudsman
has not yet been designated, which is directly related to political issues,
shows how badly a constitutional institution of such scale and importance
for the protection of human rights is missed among the Paraguayan political
class. This institution, which has aroused great expectations since it was
approved in the 1992 Constitution, has created some fear and apprehension
about the political considerations which might prevail over the considerations
of fitness, ability and honesty which in an institution of this type should
override all else.
6. In the same way the Office
of Public Defence Counsel which falls under the Supreme Court of Justice
and has 70 defence lawyers for poor suspects throughout the country under
its responsibility, was set up this year; if it were sufficiently well organized
and had enough resources, it might be able to deal with the countless demands
from persons with scant resources who receive little help from defence lawyers
for poor suspects who are unable to cope.
7. Developments relating to
the General Defence Counsel Office, the setting up and enlargement of which
had become urgent, since access to public defence counsel had become virtually
non-existent in trials because of this institution's lack of material and
human resources, are to be welcomed. For this institution to be able to
function efficiently, however, it is necessary to use modern systems of
quality control management, so as to streamline its operation and make it
more effective.
8. The third obligation, which
is to guarantee persons the exercise of their rights, means reorganizing
the legal system so as to provide victims of human rights violations with
access to effective remedies in order to obtain satisfaction of their demands.
9. Act No. 838/95 relating to
compensation for victims of the dictatorship finally passed into law. However,
it will not be applied until the Ombudsman is appointed, for it is he who
is responsible for the granting of compensation. This Act was drawn up in
order to make it easier for victims to obtain compensation than under the
previous cumbersome legal process applicable to claims for compensation
from the State.
10. Furthermore, improvements
were made in the administration of justice with the entry into force of
the new Penal Code and the new Code of Criminal Procedure.
11. This year the new Penal
Code (Act No. 1160/97) entered into force. For the first time torture was
classified as an offence, carrying a penalty of not less than five years'
imprisonment, and violation of physical integrity was penalized. The new
Code also penalizes the use of force to obtain statements, and punishes
the persecution of innocent people as well as criminal enforcement against
innocent people by public servants. The practical application of these provisions
will be very useful in combating impunity in respect of abuses and torture
committed by public officials.
12. Amongst the various prison
populations the provisions of the new Penal Code have raised great expectations,
particularly as regards alternative punishments to imprisonment and measures
to eliminate the numerous abuses against unconvicted prisoners during pre-trial
detention. However, the appropriate application of these provisions will
depend on the judges and it is possible that overcrowding in the prisons
will not be relieved without a willingness on their part to carry out these
measures.
13. Not long after coming to
power, the former national Government under Raúl Cubas put forward, through
the Ministry of Justice and Labour, a "Strategic Plan for Prison Modernization
- Justice into the Twenty-first Century". The first encouraging feature
of this Plan is its desire to approach the problem of prisons as an issue
for the Ministry of Justice, which is the appropriate institution for the
purpose. It is heartening to note the concern about the prison situation
shown by the Government, which in this document states that it has "carried
out a race against time to prioritize activities which, through their urgent
nature and importance, will tend to defuse accumulated pressures generated
by insensitivity on the part of the authorities reflected in a lack of respect
for human dignity …". The document also highlights the fact that changes
will be made only where they are thought to be necessary, on the basis of
perceived realities, defined strategic objectives and the implementation
of a plan of action. To this end, a series of objectives is identified based
on the specific implications of respect for human dignity in this matter.
14. One important concomitant
of the structural reform of the criminal justice system is the creation
of the institution of criminal enforcement. This new legislation establishes
that from now on legislation for sentencing and pre-trial detention will
be largely a matter for control and decision by visiting magistrates. The
new laws allow for judicial control over prison management, as well as all
decisions affecting the fate of persons in detention, and the various alternative
measures to imprisonment will be taken or in some cases revised by the judicial
power.
15. In the strict sense, this
represents judicialization of the sentence, because the visiting magistrate
deals with all substantive matters which are presented to him once the sentence
is enforceable and executory, as laid out under article 43 of the Code of
Criminal Procedure. However, since the visiting magistrate is entrusted
with seeing to "… compliance with the aims of pre-trial detention",
he has a direct input in the fate of untried prisoners, the treatment that
they receive and the punishments which are normally applied to them by the
administrative authority responsible for Paraguay's prisons.
16. The visiting magistrate
has two basic tasks: judicializing custodial penalties; and acting as guarantor
of the proper functioning of penitentiary institutions. This will allow
him to deal with two fundamental issues relating to imprisonment: (a) a
lack of judicial control (the most important decisions are taken by the
prison authority without judicial intervention); and (b) a lack of specialist
defence for the accused person, who is exposed and defenceless vis-à-vis
the administrative authorities when sanctions might be applied.
17. The State has an obligation
to maintain social order, but the prevalence of human rights violations
and impunity contributes to a breakdown in the rule of law. Society's concern
with regard to crime cannot be used as a pretext for the security forces
to take the law into their own hands: a policy of fear and arbitrariness
will not provide security but instead will undermine the institutions which
practise or tolerate such abuses.
18. The above statements regarding
non-fulfilment of the constitutional clauses mentioned earlier are borne
out, even more tellingly than by statistical data, by particular events
in the prisons this year. The crisis within the system is evident when the
State cannot even guarantee the life or physical integrity of the inmates.
19. On 8 July 1998 the executive
promulgated Act No. 1286 (Code of Criminal Procedure) after over a year
of debate. This new Code contains 506 articles, and is in line with the
new criminal norms.
20. The Code of Criminal Procedure,
inasmuch as this regulation was used to measure the rationale or gravity
of criminal activity, continued with the discriminatory vision of the former
Criminal Code (Prieto, 1994). These articles made it difficult to do full
justice to female victims and to women accused of crimes.
21. Progress has been made in
the treatment of rape victims. From August of this year, the Police Hospital
has dealt with all rape cases recorded in Asunción, the metropolitan area
and the Central Department. The reason for this centralizing measure is
to refine the medical diagnosis system and to save victims (as happened
in the past), from being exposed to disagreeable experiences during the
medical examination necessary in order to proceed to the police complaint
stage to prevent them from having to undergo pre-diagnosis tests more than
once. Previously, the process had been very hard on victims since they had
initially to go to a health centre or first-aid institution in order to
be examined; second, they needed to present themselves to the police; third,
before judicial procedures could be initiated, they had to go to the police
laboratory in order to have
samples taken to serve as evidence; and, finally, they had to await the
results before they could lodge their complaint. This project was conceived
years ago, but could not be implemented because of a lack of agreement.
Finally, it was decided to try out the proposal, because of the large number
of cases pending in the medical centres, awaiting the required diagnosis.
22. Human rights violations
related to land disputes in Paraguay continue to take place, as landless
peasants have been occupying large tracts of little used or undeveloped
land belonging to large landholders. The peasants maintain that all agricultural
settlements originated in land occupations and that the Institute for Rural
Welfare has never financed a settlement on its own initiative.
23. In Paraguay very important
advances have been made and there can be no going back on these achievements.
Although the right to conscientious objection to military service has not
yet been regulated, conscientious objectors continue to come forward. As
of 30 October, the total number of declared conscientious objectors over
the year was 5,490, which gives an overall total of 14,702 cases since 1993.
More than 50 per cent of these conscientious objectors live in inland areas.
This year an average of 18 objectors came forward per day, compared to a
daily average of 14 in 1997 and 6 in 1996. This unforeseen growth has caused
logistical problems for the armed forces, which have been obliged to reduce
troop size by 15.5 per cent, from 15,510 to 13,100 soldiers.
24. At its ordinary session
of 17 March 1998, the Chamber of Deputies was unable to achieve a majority
to override the total veto of the executive on Act No. 1,145/97, "regulating
conscientious objection to compulsory military service". On 28 July, seven
conscientious objectors brought an action of unconstitutionality against
the Compulsory Military Service (No. 569/75), before the Supreme Court of
Justice, requesting the Court to declare the contested legislation inapplicable.
25. Act No. 838 "which compensates
victims of human rights violations during the dictatorship from 1954 to
1989" is in force, but to date no one has been able to benefit from it because
of the absence of the Office of the Ombudsman, which is responsible for
its implementation. However, the introduction of such an office does not
prevent victims from filing a suit for compensation, particularly in cases
not covered by the Act.
26. One significant feature
of Act No. 838 - significant because official documents tend to avoid such
expressions - is its characterization of the regime of General Alfredo Stroessner
as a "dictatorship", defining it as "a dictatorial system prevailing in
the country between 1954 and 1989". Furthermore, the Act acknowledged the
State terrorism which prevailed in the country by noting that there are
victims who "have suffered violation of their human rights to life, integrity
of person and freedom by officials, employees or agents of the State" (art.
1).
27. Human rights violations
"for political or ideological reasons" which are subject to compensation
are the following:
1. Enforced disappearance;
2. Summary or extrajudicial
execution;
3. Torture resulting in serious
and manifest physical or psychological impairment;
4. Unlawful detention for a
period of more than one year (art. 2).
28. Given these requirements,
there will not be many beneficiaries of this Act because the majority of
cases involve unlawful detention for less than a year; the practice consisted
of frequent detentions for short periods of time for political enemies,
opponents, critics of the regime or simply the independently minded, with
the aim of frightening and at the same time intimidating the whole population.
Nor does the Act cover those who suffered exile, those who were stripped
of all their belongings, property, houses or land, or those who lost their
jobs or were unable to pursue their studies or professional career.
29. There are no precise data
regarding the total number of potential beneficiaries of this Act given
that since the fall of the dictatorship the Government has not managed to
set up a commission of inquiry, as in other, neighbouring countries, to
establish the truth about the dead, the disappeared and the tortured. This
would have been the first step, and the second would have been acknowledgement
of State responsibility for these crimes, concluding with the obligation
to make redress, including economic compensation. The institution with the
most data on the subject is the Committee of Churches (CIPAE), founded in
1976, which has documented the repression which took place under the Stroessner
dictatorship as far as possible. The other source is the Judiciary Documentation
Centre, better known as the "Archive of Terror", from which details are
being obtained under the habeas data procedure (information regarding the
victims to be found in this archive) that will be used as evidence for applicants
for compensation under Act No. 838. In addition, the National Human Rights
Commission has carried out a census gathering a considerable amount of data
regarding victims to be compensated.
30. It should also be mentioned
that the stipulated compensation is so meagre as to be little more than
token, and cannot be compared with the indemnification given by Governments
of neighbouring countries. The maximum provision will be only just over
US$ 20,000 and the lowest about US$ 3,500. Given the health situation of
victims of the dictatorship over the years, these sums will hardly be enough
to help them pay for medical, psychological, psychiatric or other urgently
needed treatment. Many of those who gave part of their lives to the struggle
for the freedom of our people are now dying abandoned and forgotten, because
this Government too is composed of people who benefited from the Stroessner
dictatorship, and are now claiming to be the new democrats.
31. The Act also stipulates
that the executive will pay the agreed compensation with funds from the
allotment "various obligations of the State". This point has been challenged
by many, including newspapers such as ABC Color, which objected to
the practice in its editorials, on the grounds that there was no reason
for the poor to pay for the crimes of the dictatorship through their taxes.
It is time that article 106 of the National Constitution confirms the personal
responsibility of State officials, but without prejudice to the subsidiary
responsibility of the State, "which shall be entitled to demand the reimbursement
of any sums it has had to pay in that connection". That is to say, individuals
should not have to pay for Stroessner, who is living very peacefully in
Brasilia, or for Sabino Montanaro, living in Honduras, or various other
people who are beyond the reach of justice, but the State has an obligation
to compensate the injured person and afterwards to recover from those who
are personally responsible and guilty. There is also a lesson to be learned
in this: that violating human rights also entails pecuniary punishment,
which will sometimes be even more painful than physical punishment for those
who base their power on money.
32. It is appropriate to note
that in the initial draft of this Act, on the initiative of the National
Human Rights Commission, the proposal was made to recover those ill-gotten
gains from the hands of the leading figures under the Stroessner regime,
and to set up a national fund with the money to compensate victims of human
rights violations. This was also the electoral pledge of the new President,
General Rodríguez, after Stroessner was ousted. However, corruption ate
into these recovered assets which, unbeknown to public opinion, did not
benefit the people but only the new holders of power.
33. In early November, Parliament
was seeking a way of securing the appointment of the Ombudsman, which requires
a two-thirds majority of votes from deputies (54 out of 80). If the Office
of the Ombudsman is set up this year, the way will be clear for the first
compensation claims to be presented to this new institution, as provided
for under Act No. 838. As most of the victims are ordinary people - workers,
peasants, slum-dwellers, etc. - it will also be necessary to set up a secretariat
to assist them in drawing up their claims, as well as in the various institutional
procedures. The National Commission is considering the possibility of helping
in this regard.
34. One possible obstacle to
the practical application of this Act is the provision of article 3 whereby,
in order to substantiate their claims, persons whose human rights have been
violated must apply to the Office of the Ombudsman "which will evaluate
the evidence presented, following referral to the Attorney-General of the
Republic for 30 days". This provision of article 3 of Act No. 838 can be
a serious obstacle in terms of the promptness of the compensation procedure,
since the Attorney-General is an official of the Government, which since
1989 has been formed by former repressers and violators of those very rights
it is sought to protect. We do not believe that any government official
is fully at one with the Universal Declaration of Human Rights although
the Supreme Court of Justice has just acceded to it, and successive international
conventions and agreements which expand on this text have been ratified
by the Paraguayan State.
35. The system put into effect
by the Human Rights Commission since certificates of conscientious objection
started to be issued in 1993 will prevent this task being passed on to the
Standing Commission over this summer, as happened during all previous recesses.
At the end of the first half of the 1998/1999 legislative year a total of
more than 15,000 young people had been given certificates of conscientious
objection since 1993, when for the first time the Lower House, meeting in
plenary, authorized its Human Rights Commission to issue these certificates.
36. This year, with the change
of membership of Congress, some objections were raised to the system which
had been put in place, such as the agreement between members of Parliament
and the former head of DISERMOV, General Juan Pozo, that all objectors must
first of all be enlisted. To this effect, a member of DISERMOV was even
attached to the Commission, leading to a protest on the part of young objectors,
who marshalled sufficient opposition to have the decision temporarily revoked.
However, the basic problem has not yet been resolved.
37. However, the court notes
that in 1959 the Universal Declaration of Human Rights was fully in force,
because it had been approved by the United Nations on 10 December 1948,
and the Republic of Paraguay had acceded to it; therefore, the facts referred
to were framed within it and subject to relevant legal norms, with precedence
over domestic legislation, as having higher rank. The court highlights the
fact that, under article 5 of the Universal Declaration, no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment,
"treatment and situations reported in proceedings as inflicted by the defendant
and, subsequently, the subject of a complaint against the accused". The
court also quotes article I of the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes against Humanity adopted
by the General Assembly on 26 November 1968, according to which no statutory
limitation shall apply to crimes against humanity, including the "grave
breaches" enumerated in the Geneva Conventions of 12 August 1949 (wilful
killing, wilful injury, torture or inhuman treatment). At the time when
the accused is said to have committed these acts, national conventions or
covenants referred to above were in force. The decision is also substantiated
by Supreme Court judgement No. 585 of 31 December 1996, which confirmed
and emphasized the non-applicability of statutory limitations to crimes
against human rights.
38. Despite the Supreme Court's
decision, the beneficiaries of the Compensation Act will not yet be able
to obtain monetary restitution from the State since the Ombudsman, who is
the person who must decide whether or not the applicants should be compensated,
is still to be appointed by Congress.
39. In Paraguay only 4.12 per
cent of prisoners have been sentenced. Ninety per cent of those who leave
prison do so not because they have completed their sentence, but because
the case has been dismissed. The judiciary, which is the body primarily
responsible, directly or indirectly, for prison services, must expedite
proceedings; a person should not be detained where guilt has not been proved
or be abandoned by his lawyers through a lack of financial means. In such
cases it should be possible to apply to institutions which are able to assist.
It should be a concern and a function of judiciary to discover the causes
and circumstances of crimes, as well as to identify Mafia leaders and punish
them strictly and justly.
40. Impunity has always been
a source of corruption and shelter and strength for offenders, particularly
"privileged" offenders.
41. In Paraguay much has been
done to promote human rights, particularly over the last 9 to 10 years,
where given the previous history of the country far more progress has been
required than by the majority of countries. There is an urgent and inescapable
need to plan public policies in the area of human rights, to devise a National
Strategic Plan and its corresponding Plan of Action, and to set short-term,
medium-term and long-term goals, according to the specific issue concerned.
Within the framework of responsibilities, the points determined by the Plan
must be strictly respected, and those ministries and offices coming under
the authority of the executive, as well as other branches of government,
must undertake to do so.
42. The main responsibility,
within the Ministry of Justice and Labour, as coordinating, monitoring and
evaluation body, lies with the Directorate-General for Human Rights, in
conformity with its creative and operational role in national public policy,
a function which it will perform with all the efficiency and ability which
has characterized it so far despite being so recently established. Its goal
is rigorous fulfilment of the tasks it has been set, spurred on in this
effort by the passionate political will shown in all its endeavours.
List of annexes*
1. Penal Code
2. Code of Criminal Procedure
3. Prison Regime Act, No. 210
4. Compulsory Military Service
Act, No. 569
5. Strategic Plan for Prison
Modernization of the Ministry of Justice and Labour, 1998
* The annexes are available
for consultation in the archives of the Office of the United Nations High
Commissioner for Human Rights.
