THE RIGHT TO PERSONAL LIBERTY
A. GENERAL CONSIDERATIONS
The right to personal liberty is recognized by Articles I and XXV of the American Declaration of the Rights and Duties of Man in the following terms:
Article I. Every human being has the right to life, liberty and the security of his person.
Article XXV. No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.
No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
The Inter-American Commission of Human Rights has underscored the fundamental importance of this right to personal liberty and has stated that “unless all citizens are guaranteed the exercise of that right, all other rights are in jeopardy.”1
Article 59 of the Paraguayan Constitution defines protection of the right to personal liberty in the following terms:
Except when caught in the act of committing a crime, persons may be arrested only by written warrant issued by a competent authority. No person whatsoever may be detained for more than twenty-four hours without being advised of the reason for his detention, nor shall he be kept detained other than in his domicile or in a public place designated for this purpose. The detention shall be brought to the knowledge of the competent judge within forty-eight hours. If the arrested person is held incommunicado, this condition may in no case be prolonged beyond that period time, unless by judicial order.
The right to personal liberty is nevertheless severely restricted by the provisions of Article 79 of the Constitution of the Republic concerning the state of siege. It states that the executive power can detain “persons suspected of participating” in the events which–according to that article–justify declaration of this state of exception. Article 79 also provides that “those arrested by virtue of a state of siege shall be held in healthful and clean premises not intended for common criminals.”
As noted in Chapter I of this report, the provisions governing the state of siege are complemented by the norms contained in Law No. 294/66 and Law No. 209/80 which, in addition to tightening the restrictions on acknowledged rights, introduce new elements allowing individuals to be deprived of their freedom.
The recourse of habeas corpus is officially guaranteed in Article 79 of the Constitution:
The right to habeas corpus is recognized and guaranteed. Any person who is unlawfully detained or coerced in any way in the exercise of his individual freedom, or any other person acting on behalf of that person, without need for power of attorney, shall have the right to petition the competent judicial authority, verbally, in writing or in a delivery-report telegram, that he be made to appear in order for his freedom to be restored. When the judicial authority considers it desirable, he shall make the appropriate verifications in the place where the detained person is found. The procedure shall be brief, summary, and without cost. The regulatory law shall afford the maximum guarantees for this institution and shall impose sanctions against anyone who opposes it arbitrarily.
For its part, the judicial branch has opted against exercising jurisdiction over cases involving detention during a state of siege. Thus, in a decision of October 12, 1983 on the case of a writ of habeas corpus presented on behalf of newspaperman Alcibiades González Delvalle, detained by virtue of Article 79 of the Constitution, Paraguay’s Supreme Court issued an opinion in favor of the Government’s position that it did not have to bring the individual before the court nor explain the reasons for his detention. The Court maintained that imposition of the state of siege is the exclusive purview of the executive branch.
It is in the context of this gravely weakened juridical position–both in the extension of the right to personal liberty and in the efficacy of the recourses established for the protection thereof–that the Commission will proceed to present the features that characterize the practice of Paraguay’s Government in this area. To that end the IACHR will address detentions for short periods; those of a more protected nature; the qualitative aspects of deprivations of personal liberty; and the social groups or sectors that have been almost affected by the Government’s practice.
B. SHORT-TERM DETENTIONS
a. Case No. 9826: Alejandro Stumpfs
As an example, in Case No. 9826, concerning Alejandro Stumpfs, the second vice president of the Movimiento Popular Colorado (MOPOCO), the plaintiffs allege that Mr. Stumpfs was detained without a court order and was not accused of any crime. The petition, presented on October 30, 1986, states the following:
In the latest wave of illegal detentions recently used to intimidate the citizenry and prevent any sort of protest, movement, meeting or political action on the part of opponents to the present Government, on October 6, 1986 Mr. Alejandro Stumpfs, Second Vice President of the Movimiento Popular Colorado (MOPOCO), was again detained–as usual, without order from a competent judge and without allegation of any motive or justified reason. This time it occurred when he was peacefully traveling on an international passenger bus from Foz de Iguazú, Brazil to the Paraguayan capital, Asunción.
His illegal arrest took place in the city of San Lorenzo about 15 kilometers from Asunción, whence he was taken to the Guardia de Seguridad maximum security prison center for political prisoners, located in the outskirts of the capital. We demand that, if there are any charges against him, they be made and that he be placed at the disposal of the competent courts; or, to the contrary, that he be released forthwith.
The leaders and members of MOPOCO and other political parties are often subjected to harassment, short-term detention, and internal exile. Mr. Stumpfs was previously detained on December 10, 1984 and again on September 6, 1985. No reason was even given for these arrests.
On November 19, the Paraguayan Government responded to this petition:
CASE 9826 ALEJANDRO STUMPFS STOP DETAINED AT THE DISPOSAL OF THE EXECUTIVE POWER BY VIRTUE OF THE STATE OF SIEGE ARTICLE 79 OF THE NATIONAL CONSTITUION STOP HE IS IN THE CAPITAL POLICE GUARDIA DE SEGURIDAD STOP
In a note dated December 22, 1986, the Paraguayan Government informed the Commission that “Mr. Alejandro Stumpfs, who had been detained by virtue of Article 79 of the National Constitution, has been released.” In another note, dated January 6, 1987, the Paraguayan Government again told the Commission that Mr. Stumpfs had been released, giving no justification for the arrest other than the fact that he had been detained pursuant of the laws governing the state of siege. The message this time was:
CASE 9826 ALEJANDRO STUMPFS STOP SAID PERSON WAS DETAINED BY VIRTUE OF ARTICLE 79 OF THE NATIONAL CONSTITUTION (STATE OF SIEGE) STOP HE IS NOW COMPLETELY FREE STOP NO PROCEEDINGS WERE INSTITUTED AGAINST HIM STOP
It was later learned that Alejandro Stumpfs had been released on December 19, 1986 after having spent two months incommunicado, without judicial process and without having been informed of the reasons for his detention.
A writ of habeas corpus was presented to the Supreme Court on behalf of Mr. Stumpfs, but the court simply stated that Alejandro Stumpfs had been detained by virtue of the state of siege and by decision of the executive branch, without giving any explanation regarding the motive or the reason for his detention.
b. Case No. 9729: Dr. Carlos Filizzola Pallares
Case No. 9728, involving Dr. Carlos Filizzola Pallares, president of the Hospital de Clínicas Medical Association, is an instance of a person who was detained twice in 1986, once because of the state of siege and the second time pursuant to Law 209. On May 6, 1986 the first complaint was submitted to the Commission:
Dr. Carlos Filizzola was arrested on May 2 and then transferred to the Departamento de Investigaciones, where he is being illegally detained in the absence of charges. He must be released immediately or be arraigned before the competent courts and judges if he is considered responsible for a criminal act. The attempt to intimidate him is due to his present position as president of the Hospital de Clinicas Physicians’ Association, whose just, civic and peaceful strike for salary increases the Government wishes to end. His support of this legitimate strike action is his only crime. We have also learned that one of the reasons the strike of the hospital staff has been extended rather than ending the work stoppage is to protest against the illegal detention of Dr. Filizzola and obtain his release.
The plaintiffs later informed the Commission that Dr. Filizzola had been transferred from the Departamento de Investigaciones to the Guardia de Seguridad in Asunción, and that he was being kept incommunicado pursuant to Article 79 of the Paraguayan Constitution’s provisions on the state of siege.
In a note dated June 2, 1986, the Government of Paraguay apprised the Commission that Dr. Filizzola had been released on May 23, 1986:
PHYSICIAN CARLOS FILIZZOLA WHO WAS DETAINED ON ORDERS FROM THE EXECUTIVE POWER (ART. 79 OF NATIONAL CONSTITUTION) WAS RELEASED LAST FRIDAY MAY 23 STOP NO CHARGES ARE BEING PRESSED.
In a note dated September 11, 1986, the Paraguayan Government again reported that Dr. Filizzola had been set free:
CARLOS FILIZZOLA HAS BEEN COMPLETELY FREE FOR A LONG TIME. HE WAS DETAINED PURSUANT OT THE PROVISIONS OF ARTICLE 79 OF THE NATIONAL CONSTITUTION.
The plaintiffs submitted a new claim in a note dated December 4, 1986, telling the Commission that Dr. Filizzola had again been arrested on November 29:
With further regard to our original accusation concerning Dr. Carlos Filizzola who had been arrested on May 2, 1986 and released on may 23, 1986, we wish to advise you that he was again arrested on November 29, 1986 and is being held incommunicado in the Central police Barracks in Asunción.
Dr. Filizzola is President of the Physicians’ Association of the Hospital de Clínicas, and we have been told that he was arrested solely for the purpose of intimidating him since, as is public knowledge, the doctors, nurses and other staff of the hospital have held periodic demonstrations to seek popular support for their request for salary increases.
The Government reported in a note dated January 21, 1987 that Dr. Filizzola had been arrested this time pursuant to Law 209, and was being arraigned:
CARLOS RILIZZOLA WAS ACCUSED OF VIOLATING LAW 209 STOP HE WAS ARRESTED AND SENT TO THE TACUMBU NATIONAL PENITENCIARY AND PROCEEDINGS WERE INSTITUTED BEFORE THE JUDGE OF FIRST INSTANCE IN CRIMINAL COURT WHO ORDERED HIS PREVENTIVE DETENTION WITH THE RIGHT OF FREE COMMUNICATION STOP SUBSEQUENTLY THE PRESIDEING JUDGE ORDERED HIS RELEASE ON DECEMBER 23, 1986 STOP
The judge ordered his release, but, as in the first incident, the authorities gave no reason for his arrest or his release, and in Paraguay there are no legal mechanisms whereby an individual can claim damages for having been imprisoned without cause.
Later on the Commission received more information about Filizzola’s arrest:
Filizzola was stopped on the street near his home last November 29 and detained without a court order. The doctor was intercepted by plainclothes police when he was on his way to work at the hospital. He was forced to drive his own car to the General Barracks of the Police where he was held prisoner and incommunicado.
One of the police who stopped him got into his care and went with him to the Central Barracks. According to a relative, when his mother appeared there, she was told that he had been arrested and that she could not see him, but could bring him food and clothing.
The police told Mrs. Alba de Filizzola that her son was being held incommunicado “by orders from higher up.” On December 1, 1986 a writ of habeas corpus was requested on his behalf of the Supreme Court of Justice. Attorney Pedro A. Rolón of the Comité de Iglesias, presented the request in writing to the court, denouncing the solitary confinement in which the doctor was held “without telling him–or even his mother–why.”
The lawyer emphasized that at the guardhouse of the Central Police barracks, as always, the trite phrase ‘detained by orders from above’ was used, and he asked the Court to order police headquarters to produce and release Filizzola. The court order called for Fillizzola to appear before it on Wednesday, December 3. He did not appear, however, and his lawyer then asked for the arrest of Police Chief General Alcibíades Brítez Borges for contempt of court.
That same day the trade union leader was transferred to Tacumbú national penitentiary, accused by the police of a supposed violation of Law 209.
Doctors, nurses and staff of Clínicas, together with medical students from the Asunción national university, have organized mass demonstrations, permanent assemblies, work stoppages and other means of protest, demanding that the Government substantially raise their meager salaries. Unaccustomed to street demonstration of the populace, the administration of General Alfredo Stroessner has answered the demands of these civil servants with violent police repression and the arrest of union leaders.
In this context, Dr. Filizzola has become one of the foremost leaders of the union’s fight at Clínicas and one of the Government’s most intransigent challengers. It has responded by accusing him of being “an agitator and subversive.” This is the doctor’s third arrest in seven months in connection with his leadership of the health workders.2
It is particularly noteworthy that although Dr. Filizzola was arrested in conformity with Law 209, he was never arraigned or formally accused of any crime.
A particularly typical example of the Paraguayan Government’s habitual practice in respect to personal freedom is the case of Marcelino Corazón Medina, who was hospitalized in serious conditions to recover after a hunger strike to regain his freedom.
c. Case No. 9627: Marcilino Corazón Medina
The case of Marcelino Corazón Medina, No. 9627, was originally presented to the Commission on October 7, 1985 in the following terms:
MARCELLINO CORAZON MEDINA, Chairman of the “Farm Producers” Coordination Committee,” an affiliate of the recently formed campesino organization known as the “Permanent Assembly of Landless Peasants,” was arrested at his office in Paraguari on Friday September 20, 1985. He was held incommunicado in the Technical Section of the Ministry of the Interior.
We have managed to learn that Marcelino is on a hunger strike which he started on Friday, September 27, 1985, one week after his arrest. He was taken to the Police Clinic at Asunción, where he had two visits: one from his mother and the other from Monsignor Melano Medina, but his health is in critical condition. We demand that he be released immediately, or that the authorities press the pertinent charges–if there are any–and that he be placed in the jurisdiction of the country\s court of justice
The Commission was informed that the campesinos had been the target of arrests in Paraguay since the 70s, when thousands of them were detained. Many were linked to the campesino organization Ligas Agrarias, which fought for agrarian reform. Land tenure disputes in the are of Paraguay’s eastern border have been increasing since 1983, resulting in the arrest and detention of many of these peasants. A chairman of the Coordination Committee, Marcelino Medina, represents some 25,000 landless campesinos. In June 1985 the Commission learned that Mr. Corazón Medina had spoken publicly about the economic plight of cotton and soybean producers who receive less than 25 per cent of the officially recommended price for their output.
His protest was that the middlemen and exporters made most of the profit, and on August 15, 1985 he was arrested while attending a meeting of subsistence farmers who were discussing the problem of cotton and soybean productions. It was said that the arrest was made because the campesinos had not asked for authorization to hold the meeting.
In October 1985, the Commission learned that Mr. Corazón Medina had ended his hunger strike when he became critically ill, because the authorities had assured him that he would be released. When his health improved, he was transferred from the Police Polyclinic to the Central police barracks, and on October 23, 1985 he was released.
The Paraguayan Government’s note of October 24, 1985 reiterated that “Mr. Marcelino Corazón Medina, who was arrested pursuant to Article 79, was released completely.” The note included an attack on Mr. Corazón Medina’s activities: “It is to be noted, Mr. Secretary, that this person is a false farmer who incited the peasants not to raise cotton, a major export crop, by means of printed leaflets.”
In November 1986, Case 9836 was opened in the name of Marcelino Corazón Medina, who had presumably been arrested on October 15, 1986. The Commission sent the following cable to Paraguay’s authorities, requesting information about his situation:
INTER-AMERICAN COMMISSION HUMAN RIGHTS HAS RECEIVED THE FOLLOWING COMPLAINT: “WE REQUEST YOUR SWIFT INTERVENTION WITH THE PARAGUAYAN GOVERNMENT TO DETERMINE THE SITUATION AND OBTAIN THE IMMEDIATE RELEASE OF THE GENERAL SECRETARY OF THE NATIONAL CAMPESINO UNION, MARCELINO CORAZON MEDINA, WHO WAS ARRESTED AND DISAPPEARED ON OCTOBER 15 WHEN THE POLICE TOOK HIM PRISONER WITHOUT A COURT ORDER IN UNLAWFUL ENTRY INTO THE PREMISES OF THE UNION NACIONAL CAMPESINA.
The Government of Paraguay answered the Commission on December 9, stating that Mr. Corazón Medina had not been arrested:
MARCELINO CORAZON MEDINA NOT HELD AT ANY POLICE ESTABLISHMENT STOP THE (allegation of) POLICE PROCEDURE CITED IN THE ACCUSATION PRESENTED TO THE AMERICAN COMMISSION ON HUMAN RIGHTS IS FALSE.
In Mr. Corazón Medina’s case, the practice of arbitrary arrest was followed by his being held incommunicado and later released, thus leading to contradictory reports about his situation.
The Commission was again told that Mr. Corazón Medina had been arrested–this time together with Bernardo Torales, in San Estanislao, San Pedro Department, on February 28, 1987. Later on the plaintiffs said that the two had been arrested on March 5, not February 28, and that they had been held at the Guardia de Seguridad in Asunción until March 17, when they were transferred to the Tacumbú National Penitentiary.
The petitioners also told the Commission that both were accused of breaking Law 209 by “promoting subversion among the campesinos.” On March 30, Mr. Corazón Medina began a hunger strike to protest his detention.
On April 7, 1987 the government of Paraguay answered the Commission’s request for information in the following message:
MARCELINO CORAZON MEDINA AND BERNARDO TORALES ARE INDICTED FOR PRESUMED VIOLATION OF LAW 209 STOP THEY HAVE AN ATTORNEY FOR THEIR DEFENSE AND ARE BEING HELD AT THE TACUMBU PENITENTIARY STOP ON 6 APRIL MEDINA PRESENTED AN INQUIRY TO THE PRESIDEING JUDGE, WHO WILL DECIDE WHETHER TO CEASE THE DETENTION OR CONVERT IT TO PREVENTIVE IMPRISONMENT STOP
On April 13, 1987 the government of Paraguay sent the Commission the following additional information on the case:
BERNARDO TORALES INDICTED PRESUMED VIOLATION OF LAW 209 AND THE JUDGE IN THE CASE TERMINATED HIS DETENTION STOP MARCELINO CORAZON MEDINA APPEARED BEFORE JUDGE TO ADD TO HIS STATEMENT STOP
On May 5 the commission received a telegram from the petitioners to the effect that Mr. Corazón Medina was in critical condition, having been on a hunger strike since March 30. The Commission then sent the following telegram to the Government, asking that he be moved to a hospital where he could receive the necessary treatment to save his life:
MARCELINTO CORAZON MEDINA, WHO BEGAN A HUNGER STRIKE AT THE TACUMBU NATIONAL PENITENTIARY IN ASUNCION MORE THAN THIRTY DAYS AGO, IS IN CRITICAL CONDITION. HE WAS MOVED TO THE RIGOBERTO CABALLERO POLICE POLYCLINIC HOSPITAL, WHERE HE WAS DIAGNOSED AS HVING KETOACIDOSIS, WHICH CAN PRODUCE A COMATOSE STATE AND DEATH. HIS LAWYER HAS BEEN REFUSED PERMISSION TO VISIT HIM. AN APPLICATION FOR HIS RELEASE HAS BEEN SUBMITTED TO THE COURT OF APPEALS. WE HAVE BEEN INFORMED THAT MEDINA STARTED HIS FAST ON MARCH 30 TO PROTEST HIS ARREST. BECAUSE OF HIS WEAKENED CONDITION HE IS BEING GIVEN GLUCOSE INTRAVENOUSLY. PARAGUAYAN PHYSICIANS HAVE REQUESTED HIS IMMEDIATE TRANSFER TO A CIVILIAN HSOPITAL WHERE HE COULD RECEIVE THE PROTEINIC TREATMENT NEEDED TO SAVE HIS LIFE.
On May 11, 1987 the Government of Paraguay informed the Commission that Mr. Corazón Medina has been moved to the university hospital:
CASE NO. 9838 STOP THE ACCUSED WAS TRIED IN THE ORDINARY CRIMINAL COURT STOP PRESIDING JUDGE ON THE FIRST INSTANCE IN CRIMINAL PROCEEDINGS IS DOCTOR TITO MEDINA STOP THE ACCUSED MARCELINO CORAZON MEDINA HAS HIS OWN DEFENSE LAWYERS, HIRED BY THE COMITE DE IGLESIAS STOP ACCUSED WAS ADMITTED TO RIGOBERTO CABALLERO POLYCLINIC WHICH OS ONE OF THE NATION’S MOST PRESTIGIOUS HOSPITALS STOP ON MAY 8 JUDGE TITO MEDINA ORDERED THE RELEASE OF THE ACCUSED AND HE WAS TRANSFERRED TO THE CLINICAL HOSPITAL OF THE ASUNCION NATIONAL UNIVERSITY SCHOOL OF MEDICAL SCIENCES STOP THE CASE AGAINST CORAZON MEDINA WAS FOR PRESUMED VIOLATION OF LAW 209 STOP
Once again, Mr. Corazón Medina was forced to risk his life in order to regain his freedom. The practice of arbitrary detention without a semblance of due process of law is a flagrant violation of the pertinent provisions of the American Declaration.
C. LONG TERM DETENTIONS
Abuse of the state of siege as a pretext for arresting numerous persons for relatively short periods of time is only one of the factors in Paraguay’s practice of arrest without due process or justice. The other is detention of persons who are deprived of the right to due process, submitted to trials involving many irregularities, and held for periods of more than twenty years. Such is the case of Captain Napoleon Ortigoza, who has been incarcerated longer than almost any prisoner on this continent–since 1962, serving a 25-year sentence–and Guillermo Escolástico Ovando, a cavalry sergeant who was arrested with Captain Ortigoza.
a. Case No. 1843. Napoleón Ortigoza and Guillermo Escolástico
Case 1843, involving Captain Ortigoza and Sgt. Ovando, was submitted to the Commission in 1974. According to the original accusation, both were reported arrested in 1962 at police headquarters in Asunción. The Commission asked the Paraguayan Government for information about the case. Receiving no reply to its repeated requests, the Commission resolved to apply Article 51 of the regulations and apprise the Paraguayan Government that these accusations constituted a grave violation of Article XXV of the American Declaration, which stipulates the right of protection against arbitrary arrest. The Commission included in this resolution in its 1975 annual report as well as in its report on the Situation of Human Rights in Paraguay for that year. Faced with inclusion of the resolution in the report, the Government of Paraguay informed the Commission that:
CAPTAIN NAPOLEON ORTIGOZA TOGETHER WITH FUILLERMO OVANDO AND OTHER PERSONS PERPETRATED A MILITARY COUP IN DECEMBER 1962 THAT WAS DISCOVERED BY CADIT ALBERTO ANASTASIO BENITEZ, WHO WAS THEN CRUELLY MURDERED. BOTH HAVE BEEN INDICTED AND SENTENCED BY THE MILITARY COURT OF FIRST INSTANCE, AND THE CASE IS NOW BEFORE THE APPEALS COURT OF THAT JURISDICTION.
The version of the events related by the petitioners is that Ortigoza, a political rival of General Stroessner, is in prison for his part in a political conspiracy to overthrow the Government. The Government maintains that Ortigoza and Ovando killed a military cadet–who had allegedly intercepted a conspiratory message–by hanging him from a tree. The petitioners say the authorities found a message from Ortigoza that had been in the cadet’s possession, and took Ortigoza to the Police Investigation Department, where he died from the torture inflicted by the authorities in trying to force him to reveal the supposed pilot.
The Representative of the government of Paraguay made the following statement about Captain Ortigoza’s case at the OAS General Assembly in 1980:
Here is the sentence. The case started on December 13, 1962 with the accusation of a brutal crime in the military jurisdiction, and a sentence of 25 years was given to Mr. Napoleón Ortigoza. To be more specific, in addition to the 25-year sentence for having killed a first-year military cadet, there is another. In the course of the inquest, the political implications were discovered, so that apart from the verdict of homicide there is another for conspiracy. The latter charge calls for a sentence of 4 years, which is one handed down by the Superior Court.
In a note dated October 27, 1962 the Commission asked the Government of Paraguay for a “copy of the proceedings against former Captain Ortigoza and former Sergeant Ovando, and for the confirmatory sentences of the second instance cited by the Representative of Paraguay.” The commission never received a copy of the file, and this is the only reference on record to the putative additional sentence of four years on the charge of conspiracy.
According to information provided by the petitioners on July 22, 1969, Ortigoza was given the death penalty for the crime of homicide. The final sentence was registered under the number four on July 22, 1963 in conformity with Article 203 of the Military Penal Code.
The petitioners state that Ortigoza was denied the right of justice, on the premise of the following irregularities in the judicial proceedings:
1. Torture. All of the statements of those accused were made as a result of dreadful torture. The judge not only failed to order an investigation of such unconstitutional practice; he also accepted those statements as valid.
2. Jurisdiction. The death of a person is a civil crime, and must be tried by a civil–not a military–court.
3. Defense. a) Because he had asked the coroner to testify as to the victim’s fractured skill, the counsel for the defense, Dr. Alberto Varessini Clossa, was first publicly threatened by the then Police Chief, Col. Duarte Vega, and thereafter arrested, beaten, and expelled from the country. (Years later Dr. Varessino received permission to return to Paraguay, but is not permitted to practice law.) b) Ortigoza was never allowed to testify before the court: he was sentenced in absentia.
The sentence was not carried out, thanks to the intervention of a Franciscan priest, Fr. Josua Arquetta, who had stated on the Radio Caritas program called “Heart to Heart” that Ortigoza and the other officers were completely innocent of the cadet’s death, and that if the sentence was executed he would reveal the names of the real perpetrators. The father had received this information in the confessional was covered by the confidentiality of that religious rite. The plaintiffs reported that, given the priest’s ultimatum, the Government had not carried out the sentence. It did, however, proceed to deal with the priest by confining him to a city in the interior (Villarrica). According to another witness, Dr. Edgar L. Insfran, who was Minister of the Interior at the time, gave precise instructions to Engineer Guanes, an official of ANTELCO (Paraguayan Telecommunications Administration) for reprisals against the Radio Caritas broadcasting station. Captain Ortigoza and the others who had been sentenced spent the next seven years expecting to be executed at any moment. Finally, on November 20, 1969, a military court reduced the death penalty to 25 years in prison for Ortigoza and 15 for Ovando (Brítez, the driver, died in prison as a result of the injuries he had received during the torture sessions).
In 1983, the plaintiffs asked the Commission to intercede on behalf of Sgt. Ovando, who had served all of his 15-year sentence (in December of 1977), but had not been released. The Government continued to hold him pursuant to Article 79 of the Constitution, which allows the executive branch to detain individuals when a state of siege has been declared. As his lawyer, Miguel Abdon Saguier, pointed out, there was no way Ovando could have participated in any acts responsible for the declaration for the state of siege, since he had been in prison for the past 21 years.
On November 14, 1982, Guillermo Ovando began a hunger strike as a protest against his continued detention after having served his sentence. In mid-December of that year, the regional delegate of the International Red Cross Committee and one of its physicians came from Buenos Aires to Asunción, and met with him on December 16. The Red Cross representative asked that he be released on humanitarian gournds.3
On January 6, 1984 the Government of Paraguay informed the Commission that:
ECOLASTICO OVANDO IS HELD PURSUANT TO ARTICLE 79 OF THE NATIONAL CONSTITUTION.
In January 1984 Sgt. Ovando’s lawyers submitted a writ of habeas corpus to Paraguay’s Supreme Court for their client. The Supreme Court refused to comply, and the lawyers, Dr. Francisco José de Vargas and Dr. Miguel Abdón Saguier, were sued for libel by Supreme Court President Luis María Argana because of certain statements they had made when it was announced that the Court had rejected the writ of habeas corpus.
A note from the Paraguayan Government dated May 22, 1984 advised the Commission that “Escolástico Ovando who was being held pursuant to Article 79 of the National Constitution, State of Siege, has been released.” Ovando was set free on May 21, 1984 by order of general Stroessner, after spending 21 years in prison. He was 57.
The case of captain Modesto Napoleón Ortigoza is not yet closed. Ortigoza and Ovando were originally sentenced by a military court to death by a firing squad, but the sentence was commuted to 25 years of prison.
Captain Ortigoza is reportedly still imprisoned at the Guardia de Seguridad, a top security military barracks in the outskirts of Asunción, and will complete his 25-year sentence in December 1987. According to the statement made by the Representative of Paraguay to the 1980 OAS General Assembly, Captain Ortigoza will have to serve an addition sentence of four years for “conspiracy.”
Paraguay’s new Military Penal code states that a prisoner originally condemned to death whose sentence has been commuted may be given conditional freedom after serving three quarters of his sentence. Presentation of a power of attorney (given by the prisoner to a lawyer) in the presence of a notary is a prerequisite for consideration of a request for conditional freedom.4 Napoleón Ortigoza cannot meet this condition since no lawyer had been allowed to enter the Guardia de Seguridad to see him. Napoleón Ortigoza, now 55 years of age, has spent most of the last 24 years incommunicado. He is reported to have mental problems, and has tried to commit suicide on several occasions.
At present, dr. Digno Brítez, the Comité de Iglesias lawyer, is the professional who is helping Captain Ortigoza. He succeeded attorney Varessini Clossa, who was exiled, and Felino Amarilla, who tried to have the case reviewed by the Supreme Court of Justice, but the file could not be found.
On August 20, 1986, Dr. Britez submitted a request for the conditional release of Ortigoza to the Supreme Court of Military Justice. Ortigoza had signed the petition through third parties, since the lawyer was never able to see the prisoner due to his incommunicado status.
The attorney presented the writ to the Secretary of the Supreme Court of Military Justice, Col. Marecos, on August 20, 1986. It was returned to him on August 26 because Ortigoza’s signature had not been “certified.” Dr. Brítez the tried again to communicate with Mr. Ortigoza at the Ministry of Justice Guardia de Seguridad. He was told at police headquarters that the case was not his responsibility, and his requests for an interview with the Minister of the Interior were not granted.
In this instance, despite the existence of a law in Paraguay that potentially favors the prisoner, the fact that the authorities refuse to let him see a lawyer nullifies the purpose of the law and keeps the prisoner under arrest the exclusive pleasure of the executive branch. As the Commission has said on previous occasions:
The detention of individuals for an indefinite period, without formulating specific charges and with no effective means of defense, is unquestionably a violation of the right to freedom and due process of law… to maintain that the executive branch may prolong an individual’s detention indefinitely, without submitting him to legal procedures, would turn that branch into the judicial branch, thus terminating the separation of public powers which is characteristic of the democratic system.5
D. DETENTIONS: QUANTATIVE ASPECTS
While there are some 600 political prisoners in Paraguay in 1977, that number has progressively declined.
In 1983, according to information published by the International Committee of the Red Cross (ICRC), visits were made to 55 prisoners held for security reasons in two prisons administered by the Ministry of Justice (the House of the good Shepherd and the Tacumbú Penitentiary) and three administered by the Ministry of the Interior (the Department of Investigations, the Technical Affairs Department, and the Tacumbú Guardia de Seguridad).
In 1984 the International Committee of the Red Cross visited 112 prisoners who had been arrested for security reasons, some of whom were later ICRC released. In 1985 the ICRC visited 57 in the three detention centers, thereafter requesting that one of them be released because of his precarious state of health.
The ICRC has repeatedly asked the Paraguayan authorities to free Captain Ortigoza since he is suffering from serious mental problems.
Since the Government of Paraguay has not allowed the Commission to conduct an on-site investigation in the country or to make personal visits to those being held for security reasons, the Commission must rely on information provided by other sources. The Latin American human Resources Office of the World Council of Churches published a report on “The Situation of Human Rights in Paraguay” in February 1987, which says that:
As this report is being written, there are a total of 80 political prisoners in the prisons, police stations and the National Penitentiary, and the police are looking for another 7 subjects of accusations.6
E. GROUPS AFFECTED BY ARRESTS
A 1986 report published by the Committee of Churches for Emergency Aid, entitled “Lists of Political and Social Prisoners and Individuals Expelled and Exiled,” gives the names of 218 detainees and five subjects who have been forced to leave the country and live in exile.
According to information given to the Commission, most of them belong to organizations that oppose the Government:
1. Labor Unions: Movimiento Intersindical de Trabajadores Sindicato de Empleados y Obreros del Comercio Agrupación Independiente de Trabajadores Sindicato de Trabajadores de Eirday-Ute (Yacyreta)
2. Professional: Asociación de Médicos, Enfermeras y Empleados del Hospital de Clínicas Frente Independiente MUEC-FEDUC Encuentro Permanente de Organizaciones Sociales
3. Lay Groups: Movimiento Juvenil Salesiano Movimientos Juveniles Laicos
4. Peasants: Movimiento Campesino Uruguayo
Partido Liberal Radical Auténtico–PLRA (129 arrested in 1986)
Partido Liberal (PL)
Partido Revolucionario Febrerista–PRF
Movimiento Popular Colorado –MOPOCO
“Ethnical” Sector of the Partido Colorado
Members of the Press
El Pueblo; the foreign press; Radio Nandutí; and Channel 13.
As may be seen from the affiliation of many of those arrested, authorities of the Stroessner regime arrest these people to keep political parties or organized social groups from meeting. In 1986 more than 200 persons were arbitrarily arrested for political activism. Of that number 129 were arrested as a result of unauthorized meetings of the Authentic Radical Liberal Party (PLRA). In May 1986, 48 PLRA members were arrested during a meeting, but most of them were released the next day. In November 1986, 62 were arrested as a result of a PLTA meeting. The same tactics were used against members of other political parties and organizers of workers and campesinos.
Despite the constitutional guarantees of freedom of assembly and association, the authorities insist that a permit be obtained for political meetings. But they do not grant permits to those parties which are not officially recognized. Under the state of siege, police permission is required for any meeting of more than five persons who are not related, but such permission is routinely denied to parties and organizations that criticize the administration. As the Commission says in its 1985-86 report, “as stated by the accusers, police and parapolice authorities acted with unjustified violence in repressing and breaking up groups of demonstrators, shooting just over the heads of the participants, beating them with brass knuckles, clubs and rifle butts, using cannons that emitted powerful jets of water and extremely strong tear gas and asphyxiants.” When violent repression does not suffice to prevent a demonstration, the participants are arrested and held.
Although persons detained pursuant to law 209 are presumably entitled to a certain amount of protection–which is denied to those detained by virtue of the state of siege–many individuals are routinely deprived of such protection.
For example, as the cases described indicate, the prisoners are kept incommunicado; they are not told the reasons for their arrest, they are not permitted to have a lawyer; and they are not arraigned within the 48 hours stipulated by the Constitution. As a result of this system, the United Nations cite Paraguay as the country in the region with the highest index of unsentenced prisoners (94%).7
The discussion throughout this chapter reveals a clear pattern of violations of the right to personal freedom stemming from the conduct of the Government of Paraguay. The analysis of the practices of that Government and its judicial branch shows the citizens to be completely defenseless and in the face of the measures which the state agencies may use against them.
Under the permanently current state of siege, the executive branch has detained numerous persons without the required legal formalities, particularly those who have expressed critical opinions of the Government. In a large number of such cases, the Government has released the prisoners after holding them without even stating the charges, always using the premise of the state of siege. The executive branch has also used those provisions for prolonged incarceration of prisoners who have already served out their sentences, keeping them incommunicado sine die and thus adding a further cruel punishment to the deprivation of freedom suffered by the victims.
1. The IACHR, Ten Years of Activities, page 317.
2. Quarterly notes of the Comité de Iglesias, No. 3, 1986.
3. Annual Report of the ICRC for 1983, page 36.
4. Article 66 of the Military Penal Code.
5. Annual Report on the status of Human Rights in Argentina, 1980, pp. 140-141.
6. The list of those detained appears in Annex I at the end of this Chapter.
7. United Nations Report “The Unsentenced Prisoner in Latin America and the Caribbean, cited by Dan O’Donnell: “The Judiciary Power” in SIJAU: Paraguay, Un Desafío a la Responsabilidad Internacional (1986).