CHAPTER V

THE RIGHT TO JUSTICE AND DUE PROCESS

American Declaration, Article XVIII – Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from act of authority that, to his prejudice, violate any fundamental constitutional rights.

Article XXVI – Every accused person is presumed to be innocent until proved guilty.

Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with preexisting laws, and not to receive cruel, infamous or unusual punishment.[1]

1. Chapter I of this Report concerned itself with the two Articles of the Paraguayan Constitution which establish the institution of the sate of siege. A brief study was made there of the content and scope of those Articles and it was also noted that in the absence of a regulatory law, these Articles may lead to a situation whereby this special measure, developed for dangerous or emergency situations could be established and converted into the normal state of affairs. This is what in fact has occurred in Paraguay over the last three decades, having a serious and disturbing impact on the observance and respect of some of the most important human rights.

2. It may asserted that individuals detained during the state of siege do not enjoy the right to a fair trial and due process of law. Chapter III of this Report is an account of innumerable cases of detention wherein the victims were deprived of their freedom for indefinite or unreasonably prolonged period of time. This is a frequent occurrence against which there is no recourse because, as the Commission has already noted on a number of occasions, the judicial authorities have declined jurisdiction in the case of individuals detained under the special powers of the state of siege.

3. These powers nullify or render ineffectual such remedies as amparo or habeas corpus and any other guarantee that can protect the detainee against excesses or abuses of power. Furthermore, the Commission has been informed that a simple telephone call from the Ministry of Interior to a judge or a magistrate stating that the individual has been detained under the special provisions of the state of siege is sufficient to frustrate any remedy and leave that individual without a legal defense.

4. Article 79 of the Constitution of Paraguay specifically enumerates the individual guarantees that can be suspended or restricted under the state of siege and no reference is made to the suppression of habeas corpus. It is pertinent to reiterate our position concerning the scope of that remedy, as expressed in the Second Report on the Situation of Human Rights in Chile:[2]

In good constitutional doctrine, no form of arbitrary detention (irregular, abusive, contrary to law) is excluded from the control of legal regularity that is presupposed by the principle of habeas corpus. And it is unnecessary to demonstrate that this vice of arbitrariness can be presented in the case of deprivation carried out by a low-ranking policeman as much as it would be if this act were preformed by the President of the Republic who has delegated to the policeman (regularly or not) this exceptional power. It is clear that the Judge cannot dispute the merit of the decision, that he is not able to discuss whether the exigencies of maintaining public order make it necessary that citizen ‘X’ be preventively detained; but the should be able, on the other hand, to require that the body of the detainee be brought into his presence (habeas corpus), which would enable him to ascertain whether he is alive, whether he is physically whole, whether he shows signs of mistreatment or torture; it would permit him to know where he is and whether he has someone to give him legal advice; he would be able to decide whether the order for his detention had come from a competent authority and whether it fulfills the indispensable formal requirements; he would be able to find out whether the detainee is in an adequate place, or whether he is mixed with common criminals in an ordinary jail, etc. This is the enormous, the transcendental significance of the recourse to habeas corpus in these exceptional cases.

5. And in the Annual Report of the Commission for 1974, the following recommendation was made:[3]

That the necessary rules be issued in all the States –in accordance with the constitutional provisions in force—aimed at specifying the scope of the writ of habeas corpus or amparo with respect to persons detained in the exercise of special powers, exceptional powers of state of siege, prescribing that the interposition of one of these remedies to a judge obligates the arresting authority in all these cases to bring the detainee before the judge, to deliver to the judge a copy of the arrest order, to inform him specifically where the person is being detained, and to show the documentation proving the correctness of the detention and inform the judge immediately of any transfer to another place.

6. The pastoral letter from the Paraguayan bishops dated June 12, 1976, cited elsewhere, stated the following concerning the administration of justice in Paraguay:

The dramatic need to d) ON JUSTICE

reestablish ‘justice’

11. During these times the need for a respected and efficient judiciary manifest itself as a matter of dramatic urgency. If such does not exist, where do we turn to prove our guilt or innocence? Courts of justice were developed by society in order to overcome the law of the jungle; to make violence unnecessary, and to ensure the rule of law and peaceful coexistence. Any wave of violence must give us cause to reflect on the administration of justice.

For years we have called for cleansing of our courts; judges in our country must reestablish their credibility. Without the assurance of an incorruptible, competent and efficient justice, no peace is stable. Without such justice, what recourse have we? Shall we take justice into our own hands? Correct administration of justice is man’s highest aspiration…

We are witnesses to the anguish of our faithful, who feel abandoned in the absence of justice.

We need the reign of incorruptible justice, of equality the law. Respect for truth and the human person is imperative. ‘The Lord shall judge the people by his truth.’

7. In 1968 the Commission adopted the following Resolution:[4]

DECLARES:

That the suspension of constitutional guarantees or “state of siege� is compatible with the system of representative democratic government only if enacted under the following conditions:

a) When officially decreed under the procedure established in the respective constitutions;

b) When established in a measure strictly limited to the exigencies of the situation and with application limited to the duration thereof;

c) When adopted in case of war or other serious public emergency threating the life of the nation or the security of the State;

d) When it does not entail any discrimination based on reason of race, color, sex, language, religion, political or other opinions, national or social origin, economic state, birth or any other social condition;

e) When it does not in any manner presuppose the suspension of the right to life, liberty or personal security, the right to protection against arbitrary detention, the right to due process of law, and the right of freedom of thought, conscience and religion;

f) When it does not presuppose restriction of the rule of law, or the provisions of the constitution, or alteration of the scope of the Powers of the State or of the proper exercise of the police powers.

8. As stated in Chapter III of this Report, the Commission has received information to the effect that a number of proceedings have been initiated against a number of individuals detained under the state of siege. With regard to these proceedings, we have received denunciations, which allege that confessions were obtained under torture, and that the accused were forced to sign a blank sheet of paper in advance. A group of lawyers, sponsored by the Committee of Churches for Emergency Aid, has assumed responsibility for defending the accused. The claimants report that, as a general rule, the lawyers have not been permitted to take along paper to take notes and at least one lawyer has been pressured and intimidated for having visited the prison more often than the others.

9. Some 15 years ago the Commission received a communication from the Bar Association of Paraguay denouncing the following:

…noncompliance with sentences, judicial rulings and court orders, police interference in matters awaiting judicial decision through arrest of lawyers…[5]

10. It appears that the situation has not changed judging by an article dated April 3, 1977, published in the Paraguayan newspaper ABC, which reports that a number of attorneys, among them all the lawyers from the Committee of Churches, had the renewal of their licenses withheld by the Supreme Court of Justice, thereby obstructing the normal exercise of their profession. A number of them, the article goes on to say, filed a denunciation with the Bar Association, which met in a special session to take up this matter.

11. After the meeting, the President of the Bar Association, Dr. José Félix Fernández Estigarribia, reported the decision adopted in the following statement:

The Bar Association of Paraguay plans to go before the Supreme Court of Justice to oppose the decision to withhold certain licenses, an action that it regards as illegal, as it feels that any action taken to deny or withhold a lawyer’s license necessarily requires a trial, with all guarantees, and a sentence upon conclusion thereof.

12. In a note published in the newspaper El Radical during the third week of September 1977, a group of lawyers requested the Bar Association to seek a solution to the “state of affairs which affects justice� in Paraguay This document, entitled “The State of Justice Alarms Attorneys�, states, among other things, the following:

In the hope that the bar Association of Paraguay might share our concerns and convey them to the competent authorities, by virtue of the right to petition established in Article 76 of the National Constitution, we turn to that professional Association in order to bring to its attention the concern among lawyers in general with respect to certain events, some of which are public knowledge and others not, which continue to occur without any permanent resolution in the Judiciary; and which because they represent serious threats to the liberty and security of lawyers, obstruct them in the exercise of the duties that the law has given them.

The judges and courts of the Republic are frequently incapable of acting independently because trials are beset by extralegal factors that distort application of the law.

With the closing of the judicial term at hand, there are judges who violate the law with impunity out of a fear of incurring displeasure and thus of not being reappointed. In these instances, the judge is as much a victim as the individual who is not served by justice.

Fear of losing the post, or of being transferred, or an interest in maintaining oneself in the position, whatever the cost, is often the extralegal factor that determines the outcome of a trial, thereby seriously damaging the prestige of the Judiciary.

…

In recent times, certain magistrates have attempted to use the law guaranteeing judicial privilege (Ley de Garantía de Fueros) as a tool to dissuade and intimidate attorneys in order to see to it that the latter neither challenge the judges nor openly express their grievances in appeals challenging judicial rulings, in the exercise of a legally-recognized right.

Others deny the right to public trials and hearings as established under our laws as a means to guarantee open judicial action and freedom of information.

…

When a problem develops between an attorney and a magistrate, it has become almost customary that the judges immediately meet in order to discuss the problem and adopt a decision, a decision that holds for all magistrates. This is equivalent to corporate action, thereby destroying the independence of the bench and creating an unfair situation for attorneys who are at a disadvantage before magistrates who have compromised a personal position in order to act collectively, which abuses the function they have been given.

Out of respect for that independence, steps should be taken to do away with the practice employed by some magistrates of ‘consulting’ the option of higher authorities for the ruling they should hand down, in order to ensure that their decisions are upheld. It should be assumed that judges are sufficiently competent to hand down decisions that are in keeping with the law and in line with their understanding of the case.

In a recent incident, a request to replace the judge, which is a legally-founded means of defense, led to the threat of application of the law guaranteeing judicial privilege (Ley de Garantía de Fueros) against the objector. Now, each time an attorney challenges a magistrate, exercising a legitimate right granted by the law, we shall feel intimidated and run the risk of seeing the exercise of an incontrovertible right to become something illegal, which leads our professional association to believe that an effort is being made to impose a kind of judicial terror.

We ask, Mr. President, that a petition be filed with the authority, through the Bar Association of Paraguay, and that an effort be made to find the means to resolve the state of affairs that affects our legal system and, through it, the citizenry as a whole.

13. It is fitting to quote the following paragraphs from our Annual Report for 1976, in which we addressed the issue of the pressure brought to bear against lawyers and judges involved in cases related to human rights, as follows:[6]

In this line of thinking, we must mention first of all the serious limitations on the right to a defense in some countries of our continent. According to the information gathered by the Commission, in some countries the performance of attorneys in defense of human rights is obstructed or prevented by assaults against life, deprivation of freedom, exile, or every kind of threat or reprisal against them or their near relatives. The Commission has specific denunciations by attorneys who have been victims of every kind of violence due only to their active participation in the defense of detainees for reasons of state security or for assumed violations against the public order.

In some instances the bar associations or similar organizations which have fulfilled their duty to defend their members’ rights have also been subjected to threats and acts of violence.

The Commission has also received denunciations stating that in some instances judges have also been victims of these abuses and that they are also exposed to delayed promotions or even loss of their positions if they do not yield to the intentions of the executive authorities.�

14. The following recommendation was made in our Annual Report for 1973:[7]

That the necessary measures be taken so that, in proceedings initiated because of domestic disturbances in the states, the accused will be given full protection, with the right to independent legal counsel and to due process being guaranteed.

15. In conclusion, the information the Commission has at hand indicates that in Paraguay, individuals detained under the state of siege have not had an opportunity to appear before a competent judge, within a specified period of time, with the necessary guarantees and legal counsel, in order to assert their rights.

Notes____________________

[1] American Convention on Human Rights

Article 8

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:

a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

b. prior notification in detail to the accused of the charges against him;

c. adequate time and means for the preparation of his defense;

d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

g. The right not to be compelled to be a witness against himself or to plead guilty; and

h. the right to appeal the judgment to a higher court.

3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.

5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interest of justice.

Article 24

All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.

[2] OEA/Ser.L/V/II.37, doc.19, corr.1, 28 June 1976.

[3] Annual Report for 1974 of the Inter-American Commission on Human Rights. OEA/Ser.P/AG/doc.520/75, 31 March 1975, p. 37.

[4] Resolution on the Protection of Human Rights in Connection with the Suspension of Constitutional Guarantees or “State of Siege.� OEA/Ser.L/V/II.19, doc.32, 16 May 1968. This Resolution was the result of a study conducted by the IACHR in order to “determine whether the institution of the Sate of Siege can or should be subject to clarification and definition of principles which could be observed throughout the hemisphere…�

[5] OEA/Ser.L/V/II.10, doc. 3, 8 September 1964, p.30.

[6] Annual Report for 1976 of the Inter-American Commission on Human Rights to the General Assembly. OEA/Ser.G/CP/doc.652/77, corr.1, 3 March 1977, p. 26.

[7] Annual Report for 1973 of the Inter-American Commission on Human Rights to the General Assembly. OEA/Ser.P/AG/doc.409/74, 5 March 1974, p. 36.