THE RIGHT TO RESIDENCE AND MOVEMENT
A. GENERAL ASPECTS
The Inter-American Commission on Human Rights believes that the right to residence and movement is closely linked to the right to personal liberty and may, in a sense, be considered as one of the manifestations thereof.1 It should be noted that in Paraguay the exercise of this right has been associated with the right to personal liberty in important legal provisions2 and in the Government’s practice. Accordingly, in this chapter the Commission will examine the modalities assumed by this practice of the right to residence and movement, having discussed the peculiarities that characterize the right to personal freedom in the previous chapter.
B. APPLICABLE NORMS
Article VIII of the American Declaration on the Rights and Duties of Man recognizes that right in the following terms:
Article VIII. Every person has the right to fix his residence within the territory of the state of which he is a national, to move about freely within such territory, and not to leave it except by his own will.
The right to residence and movement is recognized by Article 56 of the Paraguayan Constitution, which says:
All inhabitants may travel freely throughout the national territory, change their domicile or residence, absent themselves from the republic and return to it, bring their property into the country or remove it therefrom, without any limitations, in this last case, other than those established by law.
This general principle undergoes two types of limitations in Paraguay. On the one hand, it is subordinated to the provisions of Article 79 of the Constitution which provides that if a state of siege is in effect, persons “may be transferred from one point in the republic to another.” Moreover, Article 16 of the Law No. 294 of 1955 stipulates that those charged with the crimes set forth in that law cannot be released from prison nor can the sentence be changed “except by commutation thereof to that of exile upon orders from the executive branch.”
C. THE PRACTICE OF THE PARAGUAYAN GOVERNMENT
Based on these measures, during the period covered by the present report the Government of Paraguay adopted various steps violating the right to residence and movement, of which the Inter-American Commission on Human rights was informed. Thus Mr. Gunter Oto Portenshlag-Ledermayr, an Austrian national, was expelled from Paraguay on July 24, 1979 after having been arrested. Mr. Luis Alfonso Resck, one of the chief leaders of the opposition to President Stroessner, was expelled from Paraguayan territory on June 27, 1981. Mrs. Saturnina Almada, who had been tried and sentenced under Law 209 of 1970, was evicted from the country on May 12, 1982. The renowned Paraguayan writer, Augusto Roa Bastos, was expelled from the country on April 30, 1982. And Mr. Domingo Laino was expelled following his arrest on December 9, 1982.
Another modality adopted by the Government of Paraguay that affects the right to residence and movement has been to deny a passport to persons considered to hold critical position in the Government. Thus Mrs. Carmen de Lara Castro, Chairwoman of the Paraguayan Commission on Human Rights, was not granted a passport until 1983, after three years of fruitless efforts. In the same year, Mrs. Ligia Prieto de Centurión, a former member of Congress, was given the document only after waiting for a year.
In February 1983, the Government of Paraguay allowed the political opposition leaders who had been in exile for 20 years or more to come back. Those who returned to the country under the aegis of this measure included Dr. Miguel Angel González Casa Bianca, leader of the Movimiento Popular Colorado (MOPOCO); Hermes Rafael Saguier, of the Partido Liberal Radical Auténtico; and other distinguished Paraguayan politicians, including Antonio González Prieto, Mario Paredes, Mario Mallorquín, Juan A. Aranda, Silvestre Gómez Rolón, Andrés Gómez Galeano, Guido Arce Bazán, and others.
The exiles returned with the Government’s guarantee that they could resume their political and personal activities with no restrictions on their freedom to move from one part of the country to another, and that they could also enter and leave Paraguay whenever they wished to do so.
This guarantee was reaffirmed in January 1984 by the Asunción Chief of Police in an interview with Mr. Waldino Ramón Lovera, a member of MOPOCO.
In the cases of Messrs. Domingo Laino, Chairman of the Partido Liberal Radical Auténtico, a writer and university professor; Luis Alfonso Resck, Chairman of the Partido Demócrata Cristiano; and Augusto Roa Bastos, writer, the reasons for having denied them entry into the country, as cited by the Minister of the Interior, Mr. Sabino Montanaro, were illustrative of the Paraguayan Government’s conduct. In an interview granted to the press on February 22, 1983–a copy of which was given to the IACHR by the Paraguayan Foreign Office–Minister Montanaro stated that Mr. Laino had been deported “for painting political slogans on walls in the public streets, which was considered to mark the start of a campaign to unseat the Government”; that Luis Alfonso Resck had been deported because was “mentally unbalanced and an instigator of rebellion,” and that writer Roa Bastos “has connections with Soviet and Cuban elements, and wished to give a lecture at a college and a university,” sot that “before he could indoctrinate young people to organize guerrillas or rise up against the Government, we expelled him from the country.”
In 1986 the Government removed the ban that had kept writer Augusto Roa Bastos and Christian Democrat Party Chairman Luis Alfonso Resck from returning to the country. The latter came back to Paraguay on April 20, 1986.
A particularly illuminating instance of the Paraguayan government’s procedure in regard to personal freedom, the right of residence and movement, and the exercise of political rights is the case of Mr. Domingo Laino. Its nature is such that the Commission will present it in greater detail.
Mr. Domingo Laino is neither is neither imprisoned nor legally indicted. He is confined to the locality of Mbuyapey in the Department of Paraguari, 182 kilometers from the capital. He is free to move about in that locale. His relatives, fellow members of the church, and lawyers visit him there. His wife spends several days at a time with him when she wishes. His lawyers have submitted writs of habeas corpus and an appeal of unconstitutionality to the Supreme Court of Justice. He is confined (a classic institution in Paraguay’s domestic life) and by virtue of Article 79 of the National Constitution (state of siege). The national press reports instances of this almost every day.
Mr. Laino–a radicalized leader of the Authentic Liberal Party, a small group that broke away from the other liberal opposition parties and is not legally recognized by the Central Electoral Board–was not arrested by the police nor at any time held in prison or in the Capital Police Investigation Department. He was invited to go to the Technical Affairs Directorate of the Ministry of the Interior itself. There he was asked for information about his latest activities, and later he was confined to the area of Mbuyapey. The official in the case was the Technical Affairs Director himself, Dr. Antonio Campos Alum.
The cause of Mr. Laino’s confinement is public knowledge in the country. In his day, the Ministry of Foreign Affairs issued an official communique on the matter. He was not confined simply because of persecution by his opponents as it is claimed. Laino took advantage of a lecture he gave in Curitiba, Brazil to insult the President of the Federative Republic of Brazil and the President of the Republic of Paraguay. Without any basis for doing so, he said at that time that His Excellency the President of the Federative Republic of Brazil had not attended a visit to the Itaipu hydroelectric dam works because he did not wish to meet with His Excellency the President of the Republic of Paraguay. The accusation is easily proven false. One of the opposition parties, the February Revolutionary Party, was holding a meeting at the time. The party is affiliated with the International Socialist Party. Well-known foreign social democrats or socialist leaders were invited to attend the meeting. All of this information was printed in the daily newspapers; it is not a secret. This proves that the opposition is free to act. Its official weekly, “El Pueblo,” not only appears regularly, but even uses practically subversive language.
The right to freedom of expression enjoyed by Mr. Laino in making such statements and the arbitrariness of his arrest and confinement led the commission to adopt a resolution stating that the Government of Paraguay had violated Articles IV and VII of the American Declaration of the Rights and Duties of Man by its actions in respect to Mr. Laino.
Freed on December 21, 1979, Mr. Domingo Laino was again arrested on September 30, 1980, along with Miguel Abdón Saguier. After several hours, Dr. Saguier was released, but Mr. Laino was held until October 15, 1980. According to the Government of Paraguay, he had been detained for questioning. The plaintiffs stated at that time that his house had been entered illegally, he was denied legal counsel, and he was held incommunicado.
On December 9, 1982, Mr. Laino was arrested once again, and for the last time. On December 15, 1982, the Government advised the Commission that Mr. Laino had been detained by virtue of Article 79 of the Constitution, and that:
He was informed that the executive branch would transfer him from one point to another of the national territory, in conformity with the provisions of that article. Dr. Laino chose to go abroad. Since yesterday, December 14, he has been in Clorinda, in the Republic of Argentina, where he is at liberty. No restrictions have been placed on his family’s freedom of movement.
The Commission received the plaintiffs’ version of Domingo Laino’s arrest and expulsion on January 25, 1983, in which it was reported that various provisions of the Paraguayan Constitution had been violated.
At about 8:30 on the morning of December 9, 1982, a large contingent of police invaded the home of Dr. Domingo Laino, located at the intersection of Avenida España and San José. The forcible entry was made without a court order, expressly violating the provisions of Article 68 of the National Constitution.
Mr. Laino returned to his home while the raid was in progress. He was immediately arrested and taken to the Capital Police Investigation Department on Calle Presidente Franco between Nuestra Señora de Asunción and Chile.
His detention violates Article 59 of the National Constitution.
The Police also seized the supply of Dr. Laino’s new book, entitled “El General Comerciante” 9for which the scheduled publication date was December 10), thereby violating Articles 71 and 72 of the National Constitution.
From that moment on, the government’s security services proceeded to mobilize their forces.
During the proceedings, the following persons were arrested: Mr. Rafaela Guanes de Laino, for several hours; Mrs. Cecilia Gondra de Juárez; and the owner of the printing press, Mr. Enrique Velilla–who was kept incommunicado for eight days, simply because he had printed the books in question.
From that time onward, Dr. Laino was held strictly incommunicado. The only one to see him during that time, and briefly, was his wife.
The next day, Friday, December 10, 1982 Mrs. Rafaela Guanes Gondra de Laino was again summoned by the police to warn her that the release of the book “El General Comerciante” was forbidden.
At the time set for the official release of the book, police forces cordoned off Dr. Laino’s house, the site of that event, preventing the large number of persons in attendance from entering.
On December 14, 1982, Dr. Domingo Laino was taken by the police to the border with Argentina, where he was told that he was being expelled from the country by order of General Alfredo Stroessner. He remains in exile up to the present time. This measure is illegal and arbitrary and it contravenes express provisions of the Republic’s Magna Carta.
In May 1983 the petitioners contradicted the Government’s version of the events, stating that Domingo Laino had not chosen exile, as proven by the fact that he had tried to return to Paraguay in March of that year, but the Paraguayan authorities had not allowed him to get off the plane.
On May 17, 1984 the Committee approved a resolution on this case which cited the obvious contradiction between the versions presented by the plaintiffs and the Government of Paraguay. It declared that the Paraguayan Government had violated the articles guaranteeing Mr. Domingo Laino’s right of residence and movement, and the right to justice, the right to protection against arbitrary arrest, and the right to due process of law, all of which are recognized by Articles VIII, XVIII, XV and XXVI of the American Declaration.
The Government of Paraguay refused to admit Laino during his various subsequent attempts to return and give himself up to the Paraguayan authorities. On March 9, 1985, Mr. Laino tried to return but was not allowed to alight the plane. He tried to enter the country by crossing the Clorinda-Puesto Falcón Border on December 23 and 24, but was told that “his entry was strictly forbidden by higher orders.”
Domingo Laino made his fifth attempt to return to Paraguay on June 24, 1986. He was accompanied at that time by the former United States Ambassador to Paraguay Robert White, and other persons. Mr. Laino was brutally beaten by Paraguayan policemen in plain clothes, who attacked his companions as well. Mr. Laino was forced to reembark and return to Uruguay, although White and other members of the group were allowed to disembark.
When the Government lifted the state of siege on April 8, 1987, Mr. Laino was allowed to return to Paraguay, where he is now residing.
The events described in this chapter reveal a clear pattern of violations of the right of residence and movement by the Government of Paraguay. The practices of Paraguay’s government and Judiciary have abandoned the citizens, leaving them at the mercy of any measures the state agency may take to oppose them.
The Paraguayan Government’s conduct in regard to personal liberty, discussed in the previous chapter, is in fact complemented by the usage concerning the right to residence and movement. After first harassing its opponents by means of repeated arrests, the government has proceeded to confine them in places in the interior of the country and to expel them therefrom. This penalty has been applied without due process of law, and it has remained in effect as long as the state of siege, or the President’s wish to prolong it. The reasons adduced for such cruel punishment border on the ridiculous, as is evident in the statements made by Minister Montanaro in the cases of Laino, Resck and Roa Bastos.
In the face of this clearly arbitrary scenario, individuals have been abandoned by the judicial branch which, in palpable abdication of its constitutional responsibilities, has repeatedly stated that the recourse of habeas corpus does not apply to measures adopted by the President under the provisions of the state of siege. Given this situation, the Commission cant but conclude that such important rights as the freedom of individuals and their prerogative of remaining in the country where they were born have remained in Paraguay in the hands of the President of the Republic or his ministers, against whom individual citizens are bereft of defense.
1. Report on the Situation of Human Rights in Chile, 1985, page 129.
2. See Article 16 of 1955.