CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLE 19 OF THE CONVENTION
Initial reports of States parties due in 1991
INFORMATION OF A GENERAL NATURE
Current legal framework
1. The current legal system of the Republic of Paraguay
comprises legislation of different ranks which conforms
to the guidelines established and enunciated in the fundamental
law, namely, the National Constitution.
The Constitution in force in Paraguay since 20 June 1992
originates from the decision of the National Congress of
the previous year, which ordered the total reform of the
Constitution that had been in force since 1967. On 1 December
1991, the elections of members of the Constituent National
Convention were held; they were contested by all the political
parties and independent groups.
The Constituent National Convention was opened in January
1992 and the various commissions were formed. The Constitution
was promulgated by the Convention on 20 June 1992; it comprises
291 articles and 20 transitional provisions. In particular,
the new Constitution states:
137: The supremacy of the Constitution
The supreme law of the Republic is the Constitution.
The Constitution, the international treaties, conventions
and agreements approved and ratified, the laws enacted
by Congress and other legal provisions of lower rank,
sanctioned in consequence, constitute national positive
law in the order of priority enunciated.
Any person who tries to modify this order, in a manner
other than through the procedures provided for in this
Constitution, shall be deemed to have committed the
offences that shall be categorized and punished by the
shall not lose its validity if it is no longer observed
as a result of acts of force or if it is repealed by
any means other than that for which it provides.
or acts of an authority at variance with the provisions
of this Constitution shall be deemed invalid."
It should be emphasized that the conception, discussion
and adoption of the new Constitution have taken place in
a framework of absolute democracy, on the basis of compared
legislation and the country's own experience and requirements.
In the area of human rights in particular, the Constitution
has incorporated several of the guarantees embodied in the
universal human rights. Thus article 4 of the Constitution
right to life is inherent in the human being. His general
protection is guaranteed from the time of conception.
The death penalty is hereby abolished. The physical
and psychological integrity of every person, together
with his honour and reputation, shall be protected by
the State. The law shall regulate the freedom of individuals
to dispose of their own body, but only for scientific
or medical purposes."
Article 5 reads:
one shall be subjected to torture or to cruel, inhuman
or degrading punishment or treatment.
and torture, and the enforced disappearance of persons,
abduction and homicide for political reasons, shall
Article 141 stipulates:
treaties which have been validly concluded and approved
by act of Congress and whose instruments of ratification
have been exchanged or deposited shall form part of
domestic law, with the rank determined by article 137."
Article 142 reads:
international human rights treaties may not be denounced
except through the procedures that apply for amendment
of this Constitution."
this article strengthens the intention to guarantee the
full realization of the fundamental rights of man. It should
be noted that, since 1989, when there was broad democratic
liberalization, Paraguay has ratified numerous treaties
relating to human rights. In accordance with the above-mentioned
provision, there can be no derogation from these treaties
until three years have elapsed and on the initiative of
a quarter of the members of one of the Chambers of Congress
or 30,000 electors or the President of the Republic. The
relevant motion must be approved by an absolute majority
of the Chamber of origin.
Article 145 of the Constitution reads:
Republic of Paraguay, on an equal footing with other
States, admits a supranational legal order which guarantees
the realization of human rights, peace, justice, cooperation
and development in political, economic, social and cultural
may be adopted only by an absolute majority of each
Chamber of Congress."
with this provision, article 143 reads:
its international relations, the Republic of Paraguay
accepts international law and conforms to the following
principles: ... (5) The international protection of
human rights ...".
The rights and obligations established in an international
agreement which has been duly ratified may be directly invoked
in the courts, in accordance with the provisions of the
above-mentioned article 137.
National positive legislation has not yet incorporated the
characterization of the offence of torture in accordance
with the definition contained in article 1 of the Convention.
A bill which has been submitted to Congress characterizes
torture as follows:
civil or military authority or official who, before
or during the police or judicial investigation and for
the purpose of obtaining a confession or testimony or
any other evidence or document relating to an obligation
or release, even beyond the scope of a police investigation,
or to punish him for any reason, subjects a detainee
to physical or psychological torture or to cruel, inhuman
or degrading treatment which intimidates him or undermines
his will shall be liable to four or five years' imprisonment
and to general disqualification for up to 10 years."
The National Commission on Codification, which is responsible
for examining the reform of the Paraguayan Penal Code, has
prepared a preliminary draft which will be used as a basis
for consideration by the National Congress. Chapter XII
of this draft relates to "Offences against human rights".
These include offences which acquired great notoriety during
the Second World War and under dictatorial Governments,
such as torture and genocide. The preamble to the draft
states that torture is considered to be physical or psychological
violence inflicted on a prisoner or detainee in order to
extract a confession or testimony from him or with the aim
of intimidating, tormenting or humiliating him. The relevant
article (art. 125) of the draft reads:
public official who, personally or through some other
person, inflicts physical or psychological violence
on a prisoner or detainee, or who consents to such violence
being inflicted by another person for the purpose of
obtaining a confession or testimony or in order to intimidate,
punish, torment or humiliate him, or who subjects him
to inhuman or degrading treatment, shall be liable to
three to eight years' imprisonment. The same penalty
shall be imposed on any person who, while not a public
official, inflicts violence or the aforesaid treatment."
B. The National Constitution
The National Constitution was adopted and promulgated on
20 June 1992. It established the general context in which
the State must conduct its activities and contains specific
guarantees for the inhabitants of the country. For example:
II, art. 9. Every person shall have the right to
protection of his freedom and security.
shall be obliged to do what the law does not order or
be deprived of what it does not prohibit."
11. No person shall be deprived of his physical
freedom or tried except for the reasons and in the circumstances
established by this Constitution and the other laws."
12. No person shall be arrested or detained without
a written warrant from a competent authority, unless
he is caught in the act of committing an offence which
carries a custodial sentence. Any person arrested shall
be entitled to the following:
(1) He shall
be informed, at the time of the arrest, of the reason
for it, of his right to remain silent and of his right
to be assisted by a counsel of his choice. In making
the arrest, the officer concerned is required to display
the written warrant ordering the arrest;
(2) The arrest
shall immediately be reported to the relatives of the
person arrested or to persons specified by him;
(3) He shall
be kept freely available for communication, save in
exceptional circumstances when incommunicado detention
shall be provided for by means of a competent judicial
order; incommunication shall not apply to his defence
counsel, and in no circumstances may the time-limit
prescribed by law be exceeded;
(4) He shall
have the services of an interpreter, if necessary; and
(5) He shall,
within a period of not more than 24 hours, be placed
at the disposal of the competent judge, in order that
the latter may order legally appropriate action."
The subsequent articles guarantee procedural rights. They
relate to: restrictions on making a statement; pre-trial
detention; the purpose of the penalties; the imprisonment
of persons; the public nature of proceedings; and proof.
The guarantees for the inhabitants of the country are based
on fundamental principles established in the legislation
of all democratic countries. In Paraguay, which has a Constitution
entirely based on democratic principles, the guarantees
have been incorporated in various articles of the Constitution
and all legislation thus has to conform to the principles
established in it.
An interesting contribution of the new Constitution is the
power which it grants to both Chambers of Congress to set
up investigatory commissions. At present a bicameral commission
is already working on the investigation of unlawful acts.
The Commission has so far received numerous complaints,
including some of alleged torture. It is working in close
conjunction with the judiciary. This joint work is being
followed by all the media - radio, television, newspapers
- and by this means public opinion is kept constantly informed.
Its function is very positive.
The International Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, which was
adopted by the General Assembly of the United Nations, was
ratified by Paraguay in 1989. It entered into force three
years ago and its incorporation into national legislation
is in the course of preparation and adoption.
C. Paraguayan Penal Code
Briefly, the Paraguayan Penal Code has the following background.
The course for which the country opted after the end of
the war of the Triple Alliance (1864-1870) was the adoption
of foreign, and especially Argentine, legal instruments.
In 1903, the Government considered the Argentine text to
be very backward and deficient for the times and ordered
a new Penal Code to be drafted, entrusting this work to
Mr. Teodosio González, an eminent jurist and academic. This
text was enacted in 1910 and subsequently underwent some
amendment. Since 1989 numerous amendments have been introduced
to bring the text into line with national reality.
The system adopted by the Code is the traditional division
into a general part and a special part. Following the practices
of the time, the contents are divided into two books. The
first, the general part, contains the general principles
of the Code: the rules of interpretation and application
of penal law, the rules relating to persons responsible
for offences, delinquency and accessories, the penalties
established and the rules for their application, civil liability
deriving from serious and minor offences, and lastly the
cases in which penalties may be suspended or extinguished.
In the second book, which contains the special part, there
is a list of acts which are specifically and expressly characterized
as serious or minor offences, and the penalties for each
are laid down.
Acts punishable in domestic law in connection with the
various offences which are applicable in cases of torture
The acts punished and the corresponding penalties prescribed
in the Penal Code are as follows:
(a) Abuse of authority:
174. "Any public official who, abusing his office,
perpetrates or orders, in violation of the rights of third
parties, any arbitrary act or unnecessary or unlawful harshness
or coercion shall be liable, if the act does not constitute
a more serious offence, to two to six months' imprisonment.
If the offence is committed out of vengeance, the penalty
shall be doubled".
(b) Criminal association:
37. "Any persons who associate or conspire to commit
an offence shall be deemed to be mutual abettors. Consequently,
all the associates, whether or not they took a direct part
in the perpetration of the punishable act, shall be held
liable for the offence committed, as principals".
(c) Aggravating causes of criminal liability:
31. "The following are circumstances aggravating
harm: Deliberately increasing the effects of the offence
by causing unnecessary harm in its execution.
Abuse: Abusing superiority in terms of sex, age, strength
or other circumstances unfavourable to the victim of the
of duties: When the guilty party has more numerous and
important reasons for observing the law or if the duties
violated are more imperative and the guilty party is able
clearly to understand those reasons and duties.
When the desires or passions that impelled the perpetrator
are unusually or exceptionally perverted or dangerous".
(d) Offences against the constitutional guarantees:
274. "Any person who, in cases other than those
provided for by law or in breach of the prohibition established
by law, arrests, detains or abducts another person or in
some other way deprives him of his freedom shall be liable
to three to six months' imprisonment".
275. "The penalty established in the preceding
article shall be increased from 12 to 18 months:
(1) If the offence was committed with the use of violence,
intimidation or ill-treatment or against the person of a
child under the age of 12;
(2) If it was committed by a public official or by some
other person lawfully authorized to perform a public service".
Art 278. "Any public or military official who,
regardless of his degree of responsibility for custody of
the prison, admits to it some other person without an order
from the competent authority or refuses to obey the release
order issued by that authority shall be liable to the penalty
established in article 274 and to suspension for up to six
(e) Offences against the life, physical integrity and
health of persons:
334. Homicide. "Any person who, with criminal intent,
takes the life of another human being over the age of three
days shall be liable to 6 to 12 years' imprisonment".
special aggravating circumstances
337. "The penalty shall be 15 to 25 years' imprisonment
if the homicide is committed:
(1) Against the person of the spouse, brothers or sisters,
or legitimate or natural ascendant or descendant relatives;
(2) With breach of trust;
(3) With cruelty;
(4) Through instincts of brutal ferocity alone."
341. "Any person who, without intent to kill, causes
another person physical injury or harms his health shall
be liable to:
(1) Two to four years' imprisonment if the act has caused
permanent damage to a sense or organ, a permanent impediment
of speech, a permanent deformation of the face, or danger
(2) Two to six years' imprisonment if the act has caused
mental or physical illness which is definitely or probably
incurable, or the loss or non-use of a sense or an important
member or organ.
Any other injuries shall carry a penalty of imprisonment
for three to seven days for every day of sickness or inability
to perform daily duties caused to the patient by the injury
in question, this penalty never to exceed five years".
E. Principles underlying the prison system
The legal provisions regulating treatment and life in prisons
are contained in Act No. 210/70. The principal purpose of
the Paraguayan prison system is to keep in custody untried
prisoners while their alleged involvement in an offence
is being investigated and also persons who have been sentenced
In connection with practices in prisons, it may be said
that the purpose of deprivation of freedom is simply to
ensure the presence of the untried prisoner and to separate
him from society if he has been convicted.
The new Constitution, to which the Prison Act is to be adapted,
contains the following provisions:
20. The purpose of the penalties. "The purpose
of custodial penalties shall be to rehabilitate convicted
prisoners and to protect society.
The penalties of confiscation of property and exile are
Article 3 of Act No. 210/70 states: "Treatment with
a view to the social rehabilitation of the prisoner shall
be comprehensive and shall be of an educational, spiritual,
therapeutic, assistance-oriented and disciplinary character".
Article 4 states:
prisoner shall be required to comply with the prison
regime to which he is subject. This regime shall be
free of any violence, torture, ill-treatment, or acts
or procedures which involve suffering, humilitation
or taunting of the prisoner. Any prison officer who
orders, perpetrates or tolerates such excesses shall
be held responsible and shall be liable to the relevant
provisions of the Penal Code, without prejudice to any
disciplinary penalties that may be applicable".
Article 13 stipulates:
"In prison establishments account shall be taken
of the requirements of hygiene as regards space, light,
ventilation and sanitary facilities, in accordance with
the standards of preventive medicine for the purposes
of the preservation and improvement of the physical
or mental health of the prisoner".
F. Competent authority
The questions dealt with in the Convention may be included
within the competence or jurisdiction of various branches
of State authority:
(a) Ordinary criminal jurisdiction;
(b) Correctional jurisdiction;
(a) Administrative remedies provided for in the regulations
of the Capital Police, Ministry of the Interior, through
the government delegations and National Prison Authority;
(b) Administrative formalities relating to extradition (Ministry
of Foreign Affairs and Ministry of Justice and Labour and
its Directorate-General for Human Rights);
Congressional Commission on Human Rights.
available under current legislation to a person whose rights
have been violated
Article 88 of the Code of Criminal Procedure states:
"Any person with legal capacity who witnesses the perpetration
of any offence that gives rise to the public right of action
or who, by any other means, has knowledge of the perpetration
of such an offence may report it to:
(1) The judge competent for the pre-trial proceedings;
(2) The justices of the peace in rural areas;
(3) Officials of the Public Prosecutor's Department;
(4) Political leaders or senior police officers".
Article 115 of the Code of Criminal Procedure stipulates:
judges who receive a report conforming to all the requirements
set forth in this chapter shall be obliged to initiate
any measures necessary to investigate the act and the
alleged offenders consistent with the provisions established
in this Code.
report is lodged with officials of the Public Prosecutor's
Department, the latter shall immediately transmit the
report to the judge, who shall initiate the pre-trial
report is made to political leaders or senior police
officers, they shall follow the same course as that
specified in the preceding paragraph".
In addition, under the Juvenile Code (Act No. 903/81), reports
may be made to the Juvenile Court judge of first instance,
in order that he may proceed with the investigation of acts
or omissions provided for and penalized under the legislation
in force in cases where they were perpetrated by juveniles
under the age of 14 and take action on reports relating
to the ill-treatment, punishment or improper treatment of
persons under the age of 20 and, in general, juveniles at
office of Defender of the People
Among the most important human rights institutions established
and incorporated in the new Paraguayan Constitution is undoubtedly
that provided for in Chapter IV, in which the office of
"Defender of the People" is established. Thus
article 276 of the Constitution reads: "The Defender
of the People shall be a parliamentary commissioner whose
duties are to safeguard human rights, channel demands by
the people and protect community interests. In no circumstances
shall he have a judicial function or executive competence".
Article 277 reads: "Independence, appointment and
removal. The Defender of the People shall enjoy independence
and irremovability. He shall be appointed by a two-thirds
majority of the Chamber of Deputies from a list of three
candidates proposed by the Senate; his term of office shall
be five years, concurrent with the term of Congress. He
may be re-elected. He may also be removed from office for
deficient performance of his duties, by means of the impeachment
proceedings provided for in this Constitution".
Article 279 enumerates the duties and responsibilities of
the Defender of the People, which are:
"(i) To receive and investigate reports, complaints
and claims concerning human rights violations and other
acts provided for in this Constitution and the other laws;
(ii) To demand from the authorities at the various levels,
including the police forces and the security agencies in
general, information for the purposes of the more effective
discharge of his duties, information concerning which no
reservation may be expressed. He shall have access to the
places where the acts in question were reported to have
taken place. He shall also be competent to act ex officio;
(iii) To issue a public reprimand for acts or conduct at
variance with human rights;
(iv) To report annually on his activities to the Chambers
(v) To prepare and publish reports on human rights situations
which, in his opinion, require prompt public attention;
(vi) Any other public duties and responsibilities that may
be established by law."
Undoubtedly, the Defender of the People, or ombudsman, represents
one of the most effective institutions in public law for
safeguarding the rights and guarantees of inhabitants. In
order to achieve transparency and objectivity in his functions,
in keeping with the experience of other peoples, it is absolutely
essential that the ombudsman should be a person who represents
the people, independent of political factions or parties,
and a zealous custodian of the rights of the individual.
In the chapter entitled "Constitutional guarantees",
the institution of habeas corpus is also established, in
the following terms:
"This guarantee may be applied for by the person
concerned, personally or through some other person without
need for power of attorney by any evidentiary means,
to any judge of first instance of the judicial district
Habeas corpus may:
(i) Be preventive: under which, any person who is on the
point of being unlawfully deprived of his physical freedom
may apply for an examination of the legitimacy of the circumstances
which, in his opinion, are threatening his freedom, together
with an order to terminate the restrictions on his freedom;
(ii) Provide redress: under which, any person who has been
unlawfully deprived of his freedom may apply for rectification
of the circumstances in question. The judge shall summon
the detainee, and call for a report by the public or private
official who detained him, within 24 hours of submission
of the application. If the recipient of the judge's order
does not take the action called for, the judge shall visit
the place where the detainee is being held and shall there
make a decision on the merits of the case and order his
immediate release, as if the summons had been complied with
and the report had been submitted.
If there are no legal grounds for depriving the detainee
of his freedom, the judge shall order the release immediately;
if there is an order in writing from a judicial authority,
he shall transmit the record to the official who ordered
(iii) Be generic: under which, application may be made for
the rectification of circumstances which, not being provided
for in the two previous cases, restrict liberty or threaten
security of person. In addition, this guarantee may be applied
for in cases of physical, psychological or moral violence
which worsen the conditions of persons lawfully deprived
of their freedom.
The law shall regulate the various habeas corpus procedures,
which shall be valid even during a state of emergency. The
proceeding shall be brief, summary and free of charge, and
may be initiated ex officio".
liability arising from the offence
The Code of Criminal Procedure states:
126. "Any person criminally liable for a penal
offence also bears civil liability".
130. "Civil liability comprises:
(i) The return of the object in question or reimbursement;
(ii) The repair of damage caused;
(iii) Compensation for loss;
(iv) Trial costs".
The civil action must be instituted in a civil court and,
for the purposes of a final decision, is conditional upon
a coercive judgement, enforceable in the criminal courts.
This action may be instituted by the principal victim of
the offence. If he is not in a position to initiate the
action, this shall be done by the heirs or, in cases involving
minors, their legal representatives.
of the rights established by the various international human
As we were saying, the rights provided for in the various
human rights instruments are protected in the National Constitution,
part II, title I, Chapter II, entitled "International
relations". In addition, national positive law establishes
respect for life, and even though in domestic law there
is not yet any independent reference to the offence of torture,
a number of acts described in the Convention are covered
in domestic law relating to offences in general and carry
In the so-called Mario Schaerer Prono case heard by Judge
Luis María Benítez Riera in the Second Rota Court of First
Instance, the persons found guilty of homicide in the Police
Investigations Department were sentenced to 25 years' imprisonment,
because the evidence produced during the trial demonstrated
that death occurred as a result of multiple injuries caused
by torture in police premises.
The whole edifice of the judiciary, from the magistrates'
courts up to the Supreme Court of Justice and the Public
Prosecutor's Department, within the context of the responsibilities
conferred on them in accordance with positive legislation,
is concerned with human rights matters. The Public Prosecutor's
Department, in particular, has placed special emphasis on
ensuring that the constitutional guarantees are fulfilled
and, to this end, it promotes the various proceedings on
reports of human rights violations that are currently being
dealt with in the various courts. For the same purpose,
the Office of the Attorney General of the State has set
up a department with the special responsibility of dealing
with human rights matters.
II. INFORMATION RELATING TO THE ARTICLES IN PART I OF THE
It should be pointed out that Paraguay is undergoing a period
of far-reaching change and, in these circumstances, the
provisions of domestic legislation are being brought into
line with the various conventions that have been ratified
by the Paraguayan State. The new Constitution establishes
rights and guarantees which protect all inhabitants of the
country. It is a concern of the State to ensure the strict
observance of these guarantees, which have been enunciated
The democracy which the country has experienced since 2
February 1989 was preceded by various situations in which
respect for human rights was unfortunately flouted. The
violation of these rights was the norm, especially in police
circles, where torture was the only form of questioning.
It should be observed at present that, with the agreement
of all police authorities, far-reaching changes have been
made in the various procedures for the prevention of crimes
and the procedure for taking persons into custody. The requirements
enunciated in the Constitution for the detention of persons
are complied with.
Police buildings have been upgraded, with separate facilities
for detainees, juveniles, women, etc. In the training of
police personnel, emphasis is laid on respect for human
dignity. The function of the police is limited to safeguarding
law and order and the free exercise of the rights and guarantees
of inhabitants; procedures which violate fundamental human
rights have been eliminated.
It may be said today that, in the event of a report of violations
by any authority, the necessary corrective measures are
adopted immediately. In the police and in the judiciary,
the public find due protection, and officials ensure that
their acts are in conformity with the legal provisions imposed
from the Constitution down. This work is coordinated between
the police, the judiciary and the Public Prosecutor's Department.
Coordination is growing stronger every day, in order to
ensure that every proceeding is in conformity with the provisions
which guarantee human rights.
The legal provision punishing torture, consistent with article
2 of the Convention, is contained in the Constitution itself
and is specifically embodies in the proposed reform of the
Penal Code. The Constitution also stipulates that statutory
limitations are not applicable to the offence of torture.
This provision of the Constitution originates from the Universal
Declaration of Human Rights and the Pact of San José, Costa
Making penalties more human has been one of the achievements
of human rights doctrine, and this type of provision protects
human dignity while setting a limit on the exercise of public
The country's courts are still in the process of studying
numerous proposals for prescription of proceedings for offences
involving, inter alia, torture, under the previous
legislation, which did not have similar provisions. Although
the Supreme Court of Justice has not yet issued a decision
on this matter, it should be pointed out that some ordinary
and appeal courts in Paraguay argue that statutory limitations
should begin from the fall of the dictatorship, since during
the dictatorship any judicial or extrajudicial claim that
a person had been the victim of an act by any authority
would have been futile.
When complaints are filed against police and prison institutions
for offences involving torture, the offences are immediately
investigated on the initiative of the Public Prosecutor's
Department or the sitting judge. Judicial proceedings were
recently brought against the Director of National Prisons
and several prison officials, who had been accused of physical
ill-treatment by numerous prisoners. Arrest warrants were
issued against the Director himself and several warders.
The Administration also decided that the prison system would
be reorganized and new officials appointed.
Article 208, in title III of the Constitution makes provision
for a state of emergency and fully clarifies its scope in
the following terms:
the event of an international armed conflict, whether
or not formally declared, or serious internal disturbance
placing in imminent danger the authority of this Constitution
or the regular functioning of the organs established
by it, Congress or the Executive may declare a state
of emergency in part or all of the national territory,
for a maximum period of 60 days. If the declaration
is made by the Executive, the measure shall be approved
or rejected by Congress within a period of 48 hours.
The 60-day limit may be extended for successive periods
of up to 30 days, for which an absolute majority of
both Chambers shall be required."
When Parliament is in recess, the Executive may declare
a state of emergency for a single period of no more than
30 days, but must within eight days submit the declaration
for approval or rejection by Congress, which will be convened
de jure for a special session solely for that purpose.
The decree or law declaring the state of emergency must
set forth the grounds and facts on which it is based, the
length of time it will remain in force, the territory affected
and the rights that it restricts.
While the state of emergency is in force, the Executive
may order the following measures only, by decree and on
a case-by-case basis: the detention of persons suspected
of having participated in any acts of this nature, their
transfer from one place to another within the Republic,
and the prohibition or restriction of public meetings and
In all cases, suspects will have the option of leaving the
The Executive will immediately transmit to the Supreme Court
of Justice the names of persons detained under the state
of emergency and inform it where they are being held or
have been taken, in order that a judicial inspection may
be possible. Persons detained under the state of emergency
must be held in clean and healthy facilities not intended
for ordinary offenders or must remain under house arrest.
Transfers must always be to clean and inhabited places.
It is important to stress that a state of emergency may
in no circumstances interrupt the functioning of the powers
of the States, the applicability of the Constitution or
specifically habeas corpus. In other words, even
in exceptional circumstances, the right to security of person
is inviolable and the state of siege may not be invoked
as an argument for evading responsibility for acts of torture.
Congress may at any time, by an absolute majority, order
the state of emergency to be lifted if it considers that
the reasons for its declaration have ceased.
Once the state of emergency has ended, the Executive is
required to inform Congress, within a period of not more
than five days, of the action that has been taken while
the state of emergency was in force.
It should be noted that Acts Nos. 294 and 209 (both now
repealed), which were in force during the dictatorship,
were enforced improperly, to the detriment of personal freedom,
since many persons were detained for allegedly violating
The excesses in the use of these laws were also harmful
for personal freedom, because of the abuses by the authorities
in office at the time and the unlimited power of the Executive
to restrict the freedom of the inhabitants.
The doctrine of due obedience had been used to justify abuse
of power by the authorities. Article 106 of the Constitution,
entitled "The responsibility of officials and public
employees", deals with such abuse in the following
official or public employee shall be exempt from responsibility.
In cases of violations, offences or breaches committed
by them in the performance of their duties, they shall
be personally responsible, without prejudice to the
subsidiary responsibility of the State. The State shall
be entitled to demand the reimbursement of any sums
it has had to pay in that connection."
Article 21 of the Penal Code stipulates:
following persons shall also be exempt from penalties:
person who acts out of due obedience if the violation
ordered is only an abuse, excess or violation of duties
related to the functions of the person giving the order
and the person receiving the order could not easily
perceive that the act in question was an offence ...".
exemption from penalties requires specific limitations,
and article 174 of the Penal Code therefore stipulates:
public official who exceeds the authority of his position
by committing or ordering, against the rights of third
parties, any arbitrary act or unnecessary or illegal
harshness or pressure shall be liable to imprisonment
for two to six months if the act in question does not
constitute a more serious offence. If the act was committed
out of vengeance, the penalty shall be doubled."
When due obedience is involved, it must accordingly not
be accompanied by any abuse of authority or excesses, in
order that those invoking may be exempt from criminal responsibility.
The rules of the Convention prohibit the extradition of
a person to a country where he may be considered to be in
danger of being tortured. Since this eventuality is not
provided for in specific provisions of extradition treaties,
it is governed by the provisions of the Convention. Article
43 of the Constitution states: "No person who has been
granted political asylum shall be forcibly transported to
a country whose authorities will persecute him."
Extradition is also governed by the Treaty of Montevideo,
according to which it is subject to specific provisions;
it is obviously inappropriate when the person whose extradition
is requested would have to appear before an emergency court
In such cases consideration has to be given to the political
condition or situation of the country requesting the extradition
and that of the person whose extradition is being requested.
In a democratic system of the kind which is widespread throughout
the world, the appropriateness and applicability of this
aspect of the Convention are affected by its democratic
nature, which acts as a guarantee.
Article 4 of the Constitution stipulates: "Every person
shall be protected by the State with regard to his physical
and mental integrity, and his honour and reputation. The
law shall govern the freedom of individuals to dispose of
their own body, solely for scientific or medical purposes".
This provision of the Constitution is in keeping with the
explicit prohibition of torture contained in article 5,
and the non-applicability of statutory limitations to this
As stated in this report, the categorization of this offence
in the Penal Code will come into full effect with the entry
into force of draft article 215, which stipulates:
public official who, personally or through some other
person, inflicts physical or psychological violence
on a prisoner or detainee, or who consents to such violence
being inflicted by another person, for the purpose of
obtaining a confession or testimony or in order to intimidate,
punish, torment or humiliate him, or who subjects him
to inhuman or degrading treatment, shall be liable to
three to eight years' imprisonment. The same penalty
shall be imposed on any person who, while not a public
official, inflicts violence or the aforesaid treatment.
the violence or ill-treatment inflicted on the victim
results in serious injury or death, the corresponding
penalties shall be added to those specified above. If
the victim commits suicide, the guilty party shall be
liable to six to ten years' imprisonment."
Even though the offence of torture is not yet categorized
as such, the majority of the acts constituting torture (abuse
of authority, unlawful deprivation of liberty, bodily injury,
abduction) are provided for in the positive legislation
Article 8 of the Paraguayan Penal Code stipulates: "Offences
committed in the territory of the Republic shall be punished
in accordance with this Code, irrespective of whether the
offenders are nationals or aliens ...".
The Aeronautical Code (Act No. 469/57) stipulates:
156. Acts perpetrated and events occurring on board
aircraft in flight over, or stationary on, Paraguayan
territory, or through their action affecting persons
or objects outside them but within the national territory
shall be governed by the laws of the Paraguayan State
and shall be tried by its courts.
Acts perpetrated and events occurring on board Paraguayan
aircraft over the high seas or when it is not possible
to determine over which territory the aircraft was flying
at the time when the act was perpetrated or the event
occurred, shall also be governed by the laws of the
Paraguayan State and shall be tried by its courts.
If the acts were perpetrated or the events occurred
on board a Paraguayan aircraft flying over foreign territory,
they shall fall within the competence of the Paraguayan
courts, except in cases where a legitimate interest
has been jeopardized."
The offence of torture must be punished in accordance with
the international consensus embodied in the rules of the
In certain cases the Convention may take precedence over
domestic legislation, which prohibits the extradition of
a Paraguayan citizen at the request of a foreign Government
unless it is expressly provided for in a treaty in force.
If a Paraguayan is subjected to torture, the national Government,
on learning of the case, will request the extradition of
the perpetrator or perpetrators from the place or country
in which he is present. If the country to which the extradition
request has been made does not grant it on the grounds that
it is not appropriate, that country must try the case in
its national courts. The diplomatic channel is an expeditious
means of promoting an investigation when such circumstances
come to its attention.
Criminal legislation in force in Paraguay provides the possibility
for a person being tried or already convicted to request
extradition. The above-mentioned Act stipulates that the
judge hearing the case shall, ex officio or at the
request of a party, in a legally substantiated decision,
grant permission for the extradition to be requested as
soon as it becomes appropriate.
In specific cases, and in accordance with the provisions
of the Convention, the Paraguayan State will take an interest
in any citizen who has committed the offence of torture.
It must request extradition or trial through the appropriate
channel. If extradition is not considered appropriate, the
proceedings against the offender will remain open and he
will be tried as soon as he sets foot on Paraguayan territory.
The cases described in article 5, paragraph 1 (b) and (c),
are not yet provided for in Paraguayan legislation, which
has until now limited the scope of its territorial application
to the cases described above.
Article 610 of the Code of Criminal Procedure and its related
provisions stipulate that in emergency cases the courts
of the Republic may order the provisional arrest of an alien
at the direct request of the judicial authorities of a country
linked to the Republic through extradition treaties, provided
that reference is made to the existence of a judgement or
arrest warrant and the nature of the offence in question
is clearly specified.
Similarly, article 612 of the Code of Criminal Procedure
stipulates that the provisional arrest of an alien may also
be ordered at the request of a member of a diplomatic mission,
until such time as the documents necessary for submitting
the extradition request arrive; in such cases the provisions
of the preceding articles will be applicable.
In conformity with this article of the Convention, a prisoner
must be given every facility to communicate immediately
with the nearest competent representative of the State of
which he is a national, and the Paraguayan State is obliged
to grant him this right, without prejudice to the obligation
to inform the State of which the detainee is a national
of the grounds for his detention.
In both this case and that covered by the following article,
and in general in all cases where there is no other treaty
on the subject, the provisions of the Convention apply in
full since, besides being an international instrument, it
is also a rule of domestic law and must be enforced by judges.
In conformity with the provisions of the Convention, the
State may proceed to investigate the act and communicate
its findings without delay, provided they do not indicate
that the defendant should be extradited.
When the Paraguayan State decides to try a defendant for
acts of torture, it must guarantee him due process, in accordance
with the procedural rules in force in the country, i.e.
he must have the right to be informed of the nature of the
charges against him, to communicate with his relatives,
to the assistance of defence counsel, to be presumed innocent,
to communicate freely, etc.
It is important to point out that, as regards extradition,
the Treaty of Montevideo contains no provision that is incompatible
with the provisions of the Convention; consequently, if
a request is received for the extradition of a person who
has committed torture, the substantive and procedural rules
applied by the Paraguayan courts will essentially be the
same as those of the Convention.
The general principle is that offences of torture, like
other related offences, are considered to be extremely serious
and therefore extraditable. The legislation in force contains
no provision excluding torture as an extraditable offence.
Thus, this article of the Convention is fully applicable
as long as the positive regulations remain in force and
set the criteria governing the action of the Paraguayan
system of justice in any case involving an extradition request.
This means that there is no legal rule deriving from a previous
treaty that is at variance with the provisions of the Convention.
On the contrary, any lacunae in previous legislation were
filled by the entry into force of the Convention, which
is thus fully applicable throughout the national territory.
What this means specifically is that, if a person who has
committed the offence of torture is under the jurisdiction
of the Paraguayan State and his extradition is requested
by another State party to the Convention, he must be either
extradited or tried by the national courts. In both cases,
the rules and procedures established in the Convention and
national legislation would have to be strictly complied
The Paraguayan State supports the principle of international
reciprocity and accordingly assists nations which address
to it requests for evidence relevant to the investigation
of cases of torture or other human rights offences.
When the requirements have been fulfilled in extradition
cases, the person who is the subject of the request is extradited,
in accordance with the principle of reciprocity. Already
prior to the entry into force of the Convention for Paraguay,
and pursuant to the principle of reciprocity, in 1989 we
extradited, at the request of the Argentine courts, Commissioner
Samuel Miara, whose record indicated that he had violated
human rights standards in his country. The Supreme Court
of Justice held that: "The Judge of First Instance
also rationally based his opinion on the non-existence of
political connotations in the extradition in question. He
made a correct analysis of compliance with the procedural
formalities required for this purpose, without finding in
them any pressure of that nature ...".
Thus, on the basis of the provisions of the Treaty of Montevideo,
which has been acceded to by the majority of Latin American
countries, the Paraguayan judicial authorities extradited
the above-mentioned Argentine citizen, against whom complaints
of human rights violations had been lodged.
Since the establishment of democracy in Paraguay in February
1989, far-reaching changes have taken place, with priority
attention being given to human rights and guarantees and
the full implementation of the rule of law. By way of example
we would mention the cases of the complaints of violations
of human rights which are being dealt with in the various
courts, in the full conviction that the constituted authorities
should give effect to the prohibition of harassment of the
In the cases of torture referred to, such as those which
occurred in the National Prison, in instituting criminal
proceedings against the perpetrators of this brutality the
Public Prosecutor's Department, together with the courts,
have taken immediate action to investigate the acts deemed
to be criminal (specifically, acts of torture).
By this means we have complied strictly with the Penal Code
and the specific provisions of article 4 of the Prisons
Act (No. 210/70).
In parallel with these achievements, the Paraguayan Government
has established the Directorate-General for Human Rights,
subordinate to the Office of the Under-Secretary of State
for Justice within the Ministry of Justice and Labour, which
is responsible for dealing with and publicizing fundamental
rights. In various training seminars for military and police
personnel, stress is laid on respect for the human person
and his inalienable rights.
Within the judiciary, numerous bodies, with the participation
of the United Nations and the assistance of eminent jurists
and other members of the legal profession, have organized
lectures and seminars for judges, judicial officials and
police officers. Some of the most important of these events
are listed below:
(a) Panel debate on "Democracy and constitutional reform".
Special guest: Bidart Campos;
(b) Seminar on "The Public Prosecutor's Department".
Panel of special guests: Adolfo Alvarado Velloso, Adolfo
Saúl Beraja, José Ignacio Kafferata Nores, Federico Dominguez,
Elpidio R. Monzón, Hector Carlos Superdi, Andres D'Allessio
and Wolfgang Shone;
(c) "Structure and function of the judiciary and the
Public Prosecutor's Department";
(d) "Doctrine and case-law in the area of human rights".
Speaker: Andrés D'Allessio;
(e) "Procedures in the international legal institutions";
(f) Launching of the National Campaign for the Prevention
of Physical and Sexual Abuse;
(g) "Administration of justice and criminal administration".
Seminar attended by 22 police superintendents and 250 other
persons, including judges, attorneys and procurators;
(h) "Judicial college - penal reform", with Wolfgang
(i) First Congress of the Public Prosecutor's Department;
(j) Seminar on human rights, sponsored by the Association
of Magistrates, the United Nations and the Ministry of Justice
(k) Seminar on human rights, held in the Ministry of Justice
and Labour, and attended by judicial officials, police officers,
educators and representatives of non-governmental organizations.
It should also be mentioned that the Paraguayan police have
established a Family Department to deal with cases relating
to human rights at the family level.
The activities of the Directorate-General for Human Rights
(a) First Seminar on the implementation of the international
human rights instruments and the administration of justice,
for officials, judges and law-enforcement personnel;
(b) Training course on human rights, held on the premises
of the Directorate-General;
(c) Seminar commemorating the fortieth anniversary of the
Geneva Convention relating to the Status of Refugees, organized
jointly by the Paraguayan Church Committee for Emergency
Aid and the local representative of UNHCR, and held at the
(d) Interdisciplinary course on human rights, at the headquarters
of the Directorate-General for Human Rights;
(e) International symposium entitled "Comparative bases
for a constitutional reform", organized jointly by
the Directorate-General for Human Rights, UNDP and the United
Nations Centre for Human Rights;
(f) Seminar on "Influence and current prospects of
international humanitarian law in Paraguay", organized
jointly by the Directorate-General for Human Rights and
the Regional Delegation of the International Committee of
the Red Cross for Paraguay, Argentina, Bolivia, Chile and
(g) Compilation of a comparative analysis of the International
Covenant on Civil and Political Rights and the American
Convention on Human Rights (Pact of San José) and a summary
of the content of the International Covenant on Economic,
Social and Cultural Rights, and submission of an opinion
(of the Directorate-General for Human Rights) to the Office
of the Under-Secretary of State recommending ratification
of both Covenants;
(h) Within the context of the promotion and dissemination
of the Convention on the Rights of the Child, posters, leaflets
and cartoons relating to all the articles of the Convention
have been produced jointly by the Directorate-General for
Human Rights and the Centre for the Defence of the Child,
under the auspices of UNICEF.
In addition, with the joint participation of the Directorate
for Welfare and Social Assistance (DIBEN) and the Ministry
of Education and Worship, the first "childrens elections"
were held in October 1992, with the aim of promoting and
inculcating respect for the rights of children.
The following seminars have also been held: the International
Seminar on the Administration of Justice and Criminal Investigation,
organized jointly by the Directorate-General for Human Rights,
UNDP and the State Attorney-General's Office; the first
Seminar on human rights education, organized jointly by
the Directorate-General for Human Rights and the Inter-American
Institute of Human Rights, based in Costa Rica, under the
auspices of the Friedrich Naumann Stiftung Foundation; and
the Seminar on refugee law, international humanitarian law
and human rights, held in the auditorium of the Paraguayan
We organized the visit by Mr. Klaes Ekludh, the Swedish
parliamentary ombudsman, who met members of the Supreme
Court of Justice, the State Attorney General, the Minister
of Justice and Labour, the members of the Magistrates' Association
and other senior officials.
The National University of Asunción has incorporated the
subject of fundamental rights within the programme of studies,
thereby promoting training in and knowledge of all matters
relating to this subject.
In several educational institutes in Paraguay, working groups,
comprising teachers and pupils, are being formed.
In political and judicial activities, the total transparency
of proceedings is ensured through the freedom of the press
which exists in Paraguay and, as has already been stated,
from the Attorney-General's Office itself constant encouragement
has been given to judicial investigations and the institution
of proceedings when any case has come to light. For this
purpose, the competent judges have been asked to take such
measures as they consider necessary to guarantee to the
inhabitants of the country the full enjoyment of their fundamental
rights and to eradicate torture.
Whenever there are reasonable grounds for believing that
a torture-related offence has been committed, the competent
authorities will investigate the matter. Depending on the
categorization of the offence, the Code of Criminal Procedure
requires the judicial and police authorities and the Public
Prosecutor's Department to initiate immediate measures.
The specific constitutional provision which prohibits torture
establishes as invalid any questioning in which this practice
was used; the methods used must be appropriate to procedures
for the investigation of any criminal act. In the past judicial
investigations originated in physical ill-treatment in police
and prison establishments, a practice which has become public
In the case of the police, it has been reported that torture
and cruel treatment of detainees have been terminated and
that the apparatus or instruments that were used under the
regime deposed in 1989 have consequently been dismantled.
Article 4 of the Prisons Act (No. 210) provides that a prisoner
shall not be treated with violence or brutality, or any
act or procedure which involves suffering, humiliation or
The reform of the Code of Criminal Procedure is also under
study. Consideration is being given to a number of provisions
to protect persons deprived of their liberty, in an effort
to improve procedure through observance of what are considered
to be minimum rules to safeguard the physical integrity
of any pre-trial or convicted prisoner.
The State Attorney-General's Office has arranged for weekly
visits to the National Prison by procurators and attorneys,
who assist the prisoners, inquire about the status of the
proceedings against them, and receive complaints or reports
of any specific cases of ill-treatment. These visits are
also carried out in detention centres for juveniles and
women and in police institutions. By means of these visits,
attempts are made to discourage any violation of the clear
provisions and guarantees set forth in the Constitution.
The legal provisions in force in Paraguay require the constituted
authorities to ensure that practices of the kind in question
are not carried out in any establishment. Mention may also
appropriately be made of the manifest public interest in
reporting any act which constitutes a breach of the constitutional
provisions. Reports are readily received in any competent
institution, namely, the Parliamentary Commission on Human
Rights, the police public relations department and other
organs competent to deal with cases. The only judicial action
that may be taken is the following: (i) the immediate dismissal
of any official who has committed an act of torture; and
(ii) the investigation of the act reported, with the aim
of punishing the person or persons convicted for it.
The Public Prosecutor's Department, under article 268 of
the Constitution, is required to supervise the constitutional
rights and guarantees established for the inhabitants of
the country. Among these rights, numerous provisions establish
respect for human dignity and the prohibition of torture.
The function of the Public Prosecutors Department thus has
to be a dynamic one in ensuring that action is taken on
any complaint relating to human rights. It therefore includes
among its personnel a procurator who deals with all matters
relating to human rights.
Any inhabitant of the country, either in person or through
a third party, may contact any of the competent institutions
in order to report acts of torture. The judicial proceedings
currently under way require impartiality in the judgement
of the acts reported; when the report or complaint is submitted,
the investigation is opened and continues until a judgement
in conformity with the national provisions relating to criminal
proceedings is handed down.
The State Attorney-General's Office is currently studying
a plan to set up a Protection of Victims and Witnesses Section.
This section would monitor and effectively protect persons
who have reported any criminal act, such as torture, and
would guarantee, in the name of the State, their physical,
mental and moral integrity. Judicial proceedings instituted
in connection with acts of torture are conducted in complete
normality, and the prosecution and the defence submit evidence
that must be taken into account for the purposes of a judgement.
Evidence leading to a conviction includes testimony by numerous
witnesses incriminating persons suspected of committing
or abetting an act of torture.
Article 106 of the Paraguayan Constitution provides that
no public official is exempt from responsibility and that,
in the event of serious, ordinary or minor offences committed
in the performance of his duties, a public official is personally
responsible, without prejudice to the subsidiary responsibility
of the State.
In Paraguay no claims have yet been made against the State,
but in the event of such claims, under the Constitution
and Convention, the principals would be obliged to provide
redress for the injury caused and compensation, being held
responsible for the rehabilitation of any person who has
been subjected to torture and, in the event of his death,
for compensating his heirs.
In the operative part of the judgement handed down by the
competent court in the Mario Shaerer Prono case, the court
declared the guilty parties to be civilly liable, which
has the effect of enabling the heirs to claim appropriate
compensation in the civil courts.
Constant and consistent jurisprudence supports the principle
that no one is obliged to give evidence against himself.
Consequently, it is self-evident that a statement obtained
through torture may in no circumstances be used as evidence.
Extrajudicial statements (for example, those made to the
police) do not have legal status and as such may not be
used as evidence against any person. In addition, a statement
obtained through physical harassment on police premises
is considered invalid by the court and, if a report of this
nature comes to light, an independent investigation into
the proceedings must be initiated in order to determine
the perpetrator or perpetrators of the act in question.
On the other hand, a statement made before a judge or magistrate
is endowed with constitutional guarantees and is in conformity
with the rules of criminal procedure, in which account must
be taken of the right of the accused to refrain from making
a statement, not to make a statement against himself and
to have complete freedom to say whatever he wishes in his
Charging a person with an act of torture in a responsible
statement made in accordance with the national provisions
in force is a legally valid act and as such is admitted
as oral evidence in the proceedings.
The precise provisions contained in article 4 (Right to
life) and article 5 of the Constitution extend the prohibition
of torture specifically to "cruel, inhuman or degrading
punishment or treatment". The freedom and security
of persons and their protection are provided for as an obligation
of the State. No one is obliged to do what the law does
not order or is forbidden to do what the law does not prohibit.
Article 10 of the Constitution prohibits slavery, bondage
and the slave trade. In addition, article 11 provides that
no one shall be deprived of his physical freedom or tried
without just cause or in a manner at variance with the conditions
established by the Constitution and the laws.
Article 215 of the Bill submitted by the National Commission
of Codification categorizes the offence of torture and extends
its scope to "inhuman or degrading treatment".
It establishes a penalty of three to eight years' imprisonment.
After more than three decades of authoritarian government,
in February 1989 Paraguay began a genuine "process
of democratic transition", whose cornerstone is full
respect for human rights and fundamental freedoms, as established
in the provisions of the Universal Declaration of Human
Rights and the conventions and covenants it has ratified.
The struggle to eradicate torture once and for all constitutes
one of the highest priorities of the Government. Proof of
this is the fact that it has also ratified the Inter-American
Convention to Prevent and Punish Torture and the Pact of
San José, Costa Rica, and has incorporated them into the
legislation in force. It is also constantly engaged in human
rights promotion activities and the training of law-enforcement
Various judicial proceedings are under way as a result of
reports of torture by persons who held office before 3 February
1989. These proceedings are resulting in prison sentences
for the persons found guilty of these acts.