Aníbal Miranda v. Paraguay, Case 12.000, Report No. 82/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 246 (2001).
In a petition submitted to the Inter-American Commission on Human
Rights (hereinafter the Commission or the IACHR)
on November 3, 1997, Dr. Dionisio Gauto (hereinafter the petitioner)
and Mr. Aníbal Miranda, the alleged victim, claimed that the Republic of
Paraguay (hereinafter Paraguay, the State, or the
Paraguayan State) had violated Mr. Mirandas human rights by
subjecting him to police harassment, illegal arrest, kidnapping, torture,
the illegal confiscation of his passport, and abuses of authority, all in
connection with publications dealing with crimes committed during the dictatorship
that Mr. Miranda released. They further claimed that none of the perpetrators
of those violations had been punished, even though criminal proceedings
had been ongoing since 1989, and that in a suit for damages brought by Mr.
Miranda against the Paraguayan State in 1997, his right to due process and
his right to a fair trial were violated. The State claimed that the remedies
provided by domestic jurisdiction had not been exhausted. The Commission
decided to admit the case and to continue with its analysis of the merits.
II. PROCESSING BY THE COMMISSION
On April 9, 1998, the Commission opened the petition, transmitted
the relevant parts of the complaint to the Paraguayan State, and asked it
to submit information thereon within a period of 90 days. On May 29, 1998,
additional information was received from the petitioner. On September 24,
1998, the Commission asked the State to supply information within a period
of 15 days. The State responded on October 20, 1998. On December 21, 1998,
the petitioner sent comments on the States response. Both parties
submitted additional information on several occasions between then and May
of this year. On August 30, 1999, the State said that it was not in
a position to begin a friendly settlement that did not conform to the spirit
of Law 838/96.
At its 110th session, the IACHR held a hearing at which the parties put
forward their points of view regarding the admissibility of this petition.
III. POSITIONS OF THE PARTIES
The petitioner claims that during the second half of the 1970s and
throughout the 1980s, Mr. Aníbal Miranda published several books dealing
with crimes committed by the Alfredo Stroessner dictatorship; on several
occasions he also denounced other aspects of that situation, and these allegations
were covered in the press in Paraguay and in other countries.
As a result of this, he claims, Mr. Miranda was harassed by the police
and the military, beginning with an army intelligence report drawn up in
July 1976. He reports that one aspect of this harassment was the December
1980 break-in at Mr. Mirandas home by a group of police officers and
soldiers; his passport was confiscated by the Department of Identifications;
in November 1988 he was kidnapped from a public thoroughfare and, although
no judicial order had been issued against him, he was sent to prison, where
he was tortured, kept in isolation, and denied visits by relatives and lawyers.
He reports that following those violations, Mr. Miranda attempted
to bring criminal action to punish the perpetrators; he also filed suit
against the Paraguayan State in a bid to secure compensation for the harm
he had suffered as a result of the human rights violations committed by
the States agents.
Regarding the criminal action filed by the alleged victim, the petitioner
states that in March 1989, Mr. Miranda filed criminal proceedings against
Sabino A. Montanaro (then Paraguays Interior Minister), Alcibiades
Britez Borges (then the capitals Chief of Police), and others, for
illegal arrest, kidnapping, torture, and abuse of authority.
In reprisal, two criminal committal proceedings were opened against him
and a warrant was issued for his arrest; subsequently, Judge Nelson A. Mora
initiated a third committal criminal proceeding, as a result of which Mr.
Miranda was kept under arrest from March through July 1991. Both the aforesaid
criminal suit and a complaint that Mr. Miranda later filed against Judge
Nelson A. Mora before the Magistrates Disciplinary Board were unsuccessful;
instead, a series of obstacles and substitutions paralyzed those proceedings,
including the exclusion of Mr. Miranda from the trial of Sabino A. Montanaro
and others. The petitioner also reports that none of the persons against
whom Mr. Miranda brought criminal charges were arrested: Sabino A. Montanaro
did not appear before the court because he was in exile in Honduras, and
Alcibiades Britez Borges did not face trial.
With regard to the suit filed against the Paraguayan State to secure
compensation for the harm suffered by Mr. Miranda as a result of the alleged
human rights violations, the petitioner claims that in May 1997 Mr. Miranda
filed suit against the Paraguayan State for damages arising from the violation
of his rights; these proceedings have not yet been resolved, and the petitioner
claims that the State has adopted a strategy of systematically obstructing
Mr. Mirandas claims for compensation.
In its reply of October 16, 1998, the State included a copy of a
report by the Ministry of Justice and Labor. This report indicates that:
the report of the Public Prosecution Service, Office of the Attorney General
of the State, Department of Human Rights, drawn up by Prosecutor Lourdes
Acevedo Acosta on September 15 of this year, the dossier titled Sabino
Augusto Montanaro and Aurelio Cáceres Spelt in Abuse of Authority and Illegal
Arrest at the 6th Criminal Court, 11th Secretariat, has as its latest
development A.I. No. 1347 of July 3, 1997, the resolutive part of which
reads as follows: (1) To disallow the extension of the committal proceedings.
(2) To annul the proceedings reported in the case file. The case is
not currently lodged with the Court.
The State added that, in accordance with the above, in the
case referred to in this petition, the remedies provided by domestic jurisdiction
have not been exhausted, and it listed a number of provisions contained
in Paraguayan law.
Later, on April 25, 2001, the State informed the Commission that
although Mr. Miranda was no longer an instigator in the criminal proceedings
against Sabino Montanaro and others, following the withdrawal motion presented
in favor of one of the defendants, the judge had decided that:
consideration of the nature of the matter under investigation, which is
a criminal action, publicly prosecutable on an ex officio basis, and in
compliance with the provisions of Articles 16 (paragraph 1), 17, and 20
of the relevant criminal law; it should be pursued at the initiative of
the Public Prosecution Service.
On August 30, 1999, the State submitted a document to the IACHR,
in which it said:
should be noted that there were many cases of human rights violations under
the dictatorship (1954 to 1989), and the States position on the matter
is that compensation given to the victims or their families should observe
equitable guidelines to ensure that new injustices are not committed as
we repair the harm caused by those violations.
this regard, the Government holds that one valid instrument for that purpose
is Law 838/96 of September 12, 1996, which compensates the victims
of human rights violations during the 1954-1989 dictatorship; this
law benefits individuals of any nationality who, under the dictatorship
in power in Paraguay during the period indicated, had their human rights
to life, personal integrity, or freedom violated by officials, employees,
or agents of the State.
the Commission already knows, although Law 838 is in force, it is not applicable
because we do not have a Peoples Defender who, in accordance with
the law, would be the person responsible for examining compensation claims.
It should be noted that during the Commissions recent on-site visit,
the authorities offered specific undertakings toward ensuring the promptest
appointment of a Peoples Defender. (
this case, as in all the other cases involving human rights violations committed
by the dictatorship, the material reparations and other forms of compensation
are provided for by Law 838. The State is therefore not in a position to
begin a friendly settlement that does not conform to the spirit of the aforesaid
law which, using notions of equity, is an attempt to offer historic amends
to the dictatorships victims.
Competence of the Commission Ratione Materiae, Ratione Personae, and Ratione Temporis
The petitioners are entitled, under Article 44 of the American Convention,
to lodge complaints with the IACHR. The petition names, as its alleged victims,
individual persons with respect to whom Paraguay had assumed the commitment
of respecting and ensuring the rights enshrined in the American Convention.
As regards the State, the Commission notes that Paraguay has been a party
to the American Convention since August 24, 1989, when it deposited the
corresponding instrument of ratification. The Commission therefore has competence
ratione personae to examine the
The Commission has competence ratione
loci to hear the petition, since it alleges violations of rights protected
by the American Declaration and the American Convention occurring within
the territory of a state party thereto.
The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights
protected by the American Declaration and the American Convention was already
in force for the State on the date on which the incidents described in the
petition allegedly occurred. The Commission points out that some of the
alleged violations of Mr. Mirandas human rights began prior to August
24, 1989, the date on which Paraguay ratified the American Convention; as
a result, the source of law applicable thereto is the American Declaration.
Both the Court and the Commission have ruled that the American Declaration
is a source of international obligations for OAS member states.
The violations of Mr. Mirandas right to a fair trial and right to
judicial protection, which allegedly occurred during the legal proceedings
he initiated in May 1997, must be analyzed in accordance with the American
Convention. Finally, with respect to the violations of the right to a fair
trial and the right to judicial protection that allegedly occurred during
the proceedings initiated by Mr. Miranda in March 1989before Paraguays
ratification of the American Convention in August of that yearthe
IACHR recently confirmed its practice of extending the scope of application
of the American Convention to facts of a continuing nature that violate
human rights prior to its ratification, but whose effects remain after its
entry into force.
Similarly, the Commission has ruled that once the American
Convention entered into force (...) the Convention and not the Declaration
became the source of legal norms for application by the Commission insofar
as the petition alleges violations of substantially identical rights set
forth in both instruments and those claimed violations do not involve a
Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights protected
by the American Declaration and by the American Convention.
The Commission will now proceed to analyze whether the case at hand
meets the requirements for admissibility set by Articles 46 and 47 of the
B. Admissibility Requirements
a. Exhaustion of Domestic Remedies
The Commission notes that following the alleged violations suffered
by Mr. Miranda, he initiated criminal proceedings under Paraguayan jurisdiction
with the aim of ensuring that the perpetrators were punished; he also sued
the Paraguayan State for compensation for the harm he suffered as a result
of those violations of his human rights.
In an attempt to determine criminal responsibilities for the human
rights violations he had suffered, in March 1989 Mr. Miranda initiated criminal
proceedings against Sabino A. Montanaro (then Minister of the Interior),
Alcibiades Britez Borges (then Chief of Police in the capital), and others,
for illegal arrest, kidnapping, torture, and abuse of authority. With regard
to these proceedings, the Paraguayan State at first maintained that the
remedies provided by domestic jurisdiction had not been exhausted. Later,
the State claimed that within that same suit, Mr. Miranda had requested
that the criminal committal proceedings be expanded to include former President
Alfredo Stroessner. In formulating that request, Mr. Miranda withdrew the
suit lodged against one of the several defendants, Aurelio Cáceres Spelt,
and that withdrawal benefited the remaining defendants through the application
of Article 123 of the adjective criminal code. In a final note sent to the
Commission in response to a request for information regarding the competence
of the Public Prosecution Service and about whether steps had been taken
in connection with the extradition of Alfredo Stroessner, the Paraguayan
State said that:
Even though the private citizen has withdrawn, the publicly prosecutable criminal actions are still being pursued on an ex officio basis by the Public Prosecution Service.
Public Prosecution Service is legally obliged to conduct investigations
into publicly prosecutable criminal acts, and this has been the case in
these proceedings, during which it has requested that certain steps be taken.
regard to the endeavors of the Public Prosecution Service, the Attorney
General of the State ordered the Court to take a series of steps, which
have not yet been carried out. (
Stroessner is not included in these proceedings, although there are others
in which he does feature.
The Commission notes that Article 46(2)(a) of the American Convention
provides that the requirement of exhausting the remedies provided by domestic
jurisdiction shall not apply when there has been unwarranted delay
in rendering a final judgment under the aforementioned remedies.
Under that provision, and noting that more than twelve years have
gone by since the criminal proceedings were initiated and not even a first-instance
sentence has been handed down, the Commission holds that in the case at
hand, the aforesaid exception to the requirement of exhausting domestic
remedies is applicable. This decision is further based on the Public Prosecution
Services legal obligation of pursuing the investigation of publicly
prosecutable crimes, even when the original complainant has withdrawn.
Regarding the suit Mr. Miranda filed in May 1997 in an attempt to
secure compensation from the Paraguayan State for the violations of his
human rights, the Commission notes that pursuant to the States claims
of August 30, 1999, (paragraph 11, above), the appropriate resource available
to Mr. Miranda for obtaining reparations would be the mechanism set forth
in Law 838/96. Under that law, claims for compensation by persons who had
their human rights to life, personal integrity, or freedom violated by officials,
employees, or agents of the State during the dictatorship in
power in Paraguay between 1954 and 1989 must be lodged with the Peoples
Although the office of the Peoples Defender was created by
the 1992 Paraguayan Constitution, the holder of the office has not yet been
selected by the Paraguayan Congress. The Commission consequently notes that
Mr. Miranda has not enjoyed access to the ideal means for submitting his
The Commission believes that this also constitutes an exception to
the prior exhaustion requirement: as indicated by Article 46(2)(a) and (b)
of the American Convention, this requirement does not apply when domestic
legislation (...) does not afford due process of law for the protection
of the right or rights that have allegedly been violated and when
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
them. However, through its courts, the Paraguayan State has been pursuing
ordinary civil proceedings to resolve the compensation claim filed by Mr.
Miranda; with this, in principle, the State would appear to have provided
the petitioner with an alternative mechanism to the one established by Law
However, the legal channels to which the alleged victim turned
as a result of the real absence of the specific and effective mechanism
provided for under Paraguayan law cannot be considered an ideal or efficient
alternative for pursuing the goals sought by Mr. Miranda since, after four
years, the court in question has not even handed down a first-instance ruling.
b. Timeliness of the Petition
As regards the requirement set forth in Article 46(1)(b) of the
Conventionthat a petition be lodged within a period of six months
from the date on which the alleged victim was notified of the final judgment
exhausting domestic remediesthe Commission notes that this provision
is not applicable in the instant case; this is because if the exception
to the prior exhaustion rule is admissible, as is indicated in the preceding
paragraphs, then, pursuant to Article 46(2) of the Convention, an exception
also applies to the requirement of timely filing. Under Article 32(2) of
the IACHRs Rules of Procedure, in cases in which the exceptions to
the prior exhaustion requirement are applicable, the petition must be presented
within what the Commission deems to be a reasonable period of time. In this
specific situation, the Commission takes into consideration the date on
which the alleged violations occurred, the context within which they took
place, and the procedural steps taken by the petitioner, and it concludes
that the petition was lodged within a reasonable delay.
c. Duplication of Procedures
The Commission understands that the substance of the petition is
not pending before any other international agency and that it has not been
previously studied by the Commission or any other international body. Hence,
the requirements set forth in Articles 46(1)(c) and 47(d) of the Convention
have been met.
d. Characterization of the Alleged Facts
The Commission believes that the petitioners claims describe
incidents that, if true, could tend to establish a violation of rights enshrined
in the American Declaration and American Convention.
The Commission believes that it is competent to hear this case and
that under Articles 46 and 47 of the American Convention, the petition is
admissible, in the terms outlined above.
Based on the foregoing considerations of fact and law, and without
prejudging the substance of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible as regards the alleged violations
of Articles I, XVIII, XXV, and XXVI of the American Declaration of the Rights
and Duties of Man and the alleged violations of Articles 8 and 25 of the
To give notice of this decision to the alleged victim, to the petitioner,
and to the State; and,
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American Commission on Human Rights on the tenth day of October, 2001. (Signed): Claudio Grossman, President; Juan Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commissioners Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
The Paraguayan State did not enact amnesty laws; instead, in 1986, it
promulgated Law Nº 838. This law provides that no statute of limitations
shall apply to crimes against human rights committed under the Stroessner
dictatorship, and it also stipulates that reparations for those violations
shall be determined by an administrative procedure conducted before
the Peoples Defender (Paraguays ombudsman).
On August 30, 1999, the State said that these proceedings were being
processed by the 6th Criminal Court, Secretariat 11.
See: Inter-American Court of Human Rights, Advisory Opinion OC-10/89,
Interpretation of the American Declaration of the Rights and Duties
of Man Within the Framework of Article 64 of the American Convention
on Human Rights, July 14, 1989, Ser. A. No. 10 (1989), paragraphs 35-45;
IACHR, James Terry Roach and Jay Pinkerton vs. United States, Case 9647,
Res. 3/87, September 22, 1987, Annual Report 1986-1987, paragraphs 46-49,
and Rafael Ferrer-Mazorra et al.
vs. United States of America, Report Nº 51/01, case 9903, April 4, 2001.
See also: Statute of the Inter-American Commission on Human Rights,
IACHR, Report Nº 95/98 (Chile), December 9, 1998, Annual Report of the
Inter-American Commission on Human Rights, 1998, paragraph 27.
IACHR, Report Nº 38/99 (Argentina), March 11, 1999, Annual Report of
the Inter-American Commission on Human Rights, 1998, paragraph 13.