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CHAPTER
I THE
SYSTEM OF LEGAL NORMS RELATING TO HUMAN RIGHTS 1. The Constitution that is in force in Paraguay today was drafted on
August 25, 1967 by a National Constitutional Assembly and was
promulgated that same day by the Government presided over by General
Alfredo Stroessner. The 1967 Constitution repealed the Constitution
that had been in force since July 10, 1940[1].
It begins with a preamble, of which the following passage is worth
quoting. The
Representatives of the Paraguayan Nation, meeting in a National
Constitutional Assembly, endorsing the unalterable republican
principles of representatives democracy,… aware of the duty to
uphold Human Rights and to ensure freedom, equality, justice and
order… as an intangible heritage guaranteeing the dignity and
welfare of generations of Paraguayans and all men of the world who
come to join them in their effort to carve out a greater destiny in
the concert of free nations… do hereby ratify this Constitution for
the Republic of Paraguay. 2. Chapter V of the new Constitution, entitled “Rights, Guarantees and
Duties,” recognizes the individual, social, economic, political and
cultural rights of the individual established in the American
Declaration of the Rights and Duties of Man, and includes provisions
to ensure effective enjoyment and full exercise of those rights. Article
50 declares that “each individual is entitled to protection by the
State of his life, physical integrity, freedom, safety, property,
honor and reputation.” Article
56 provides that “all inhabitants may move freely throughout the
national territory, change domicile or residence, leave the Republic
and return to t, and bring their goods into the country or remove them
from it –the only restrictions on the latter being those provided
for under the law.” Article 68 and 69 recognize the inviolability of the home, and of correspondence, respectively. The right to religious freedom and freedom of worship is upheld in Article 70, while Articles 71, 72 and 73 guarantee freedom of opinion, expression and dissemination of ideas. Article 76 recognizes the right of assembly, the right of association and the right of petition. The
legal remedies of habeas corpus and amparo are
provided for under Articles 77 and 78. The
right to private and family life, the right to protection of
motherhood and infancy and the right to social security are recognized
in Articles 81 through 88. The rights to education, culture and health
are upheld in Articles 89 through 93. 3. As can be seen by the examples cited, the Paraguayan Constitution is
sufficiently categorical and comprehensive in terms of recognition of
essential human rights, as well as safeguards for proper protection of
those rights. The
author of that document demonstrated commendable foresight and concern
for the protection of the individual in the face of possible
misconduct on the authorities by providing that: The
enumeration of rights and guarantees contained in this Constitution
shall not be construed as denying others, not specifically mentioned
herein, that are inherent to the individual. (Article 80). This
provision concludes with another precautionary note also worthy of
mention, that is, that “the lack of regulatory law shall not be
invoked to deny nor to impair any right or guarantee.” 4. In Paraguay, as in many other countries, the constitutional or legal
norms that recognize and protect individual rights and guarantees are
subject to certain restrictions or limitations when the system of
special legal provisions commonly referred to as “state of siege”
enters into force. Chapter
V of the Paraguayan Constitution, devoted almost in its entirety to
recognition of the rights and guarantees of the citizen, as it
happens, closes with the provision that establishes the “state of
siege.” That provision read as follows: Article
79. In order to defend this Constitution and the authorities created
in conformity therewith, the state of siege is hereby established, to
be imposed only in cases of international conflict or war, foreign
invasion, domestic disturbance, or serious threat of any one of the
foregoing. A state of siege may be either total or partial, depending
upon whether it affects all or only part of the territory of the
republic, and while it is in effect persons suspected of participating
in any of those events my be detained or they may be transferred from
one point in the republic to another, and public meetings and
demonstrations may be prohibited. Those detained by virtue of a state
of siege shall be held in sanitary and clean quarters not intended for
common criminals, and transfers shall always be made to localities
that are populated and not detrimental to the health. The declaration
of state of siege shall be for a limited time and shall in all cases
serve the purpose for which it was established. The fact that a state
of siege is in effect shall not interrupt the functioning of the
powers of the state nor affect the exercise of its prerogatives. The
exercise of the state of siege shall be regulated by law.[2] 5. The above provision is supplemented by that contained by Article 181, which provides the following: Article
181. In the cases enumerated in Article 79 of this Constitution, the
Executive Power may decree a state of siege, in which case it must set
forth the reason therefor, the guarantees that are being suspended or
restricted and whether it is in force for all or part of the national
territory; and it may adopt the measures authorized under Article 79.
The Executive Power shall inform the Congress of the corresponding
decree within five days following its publications 6. Article 79, quoted above, provides that legislation shall regulate
application of the state of siege. Knowledge of this legislation was
indispensable to the Commission in order to be able to understand
properly the scope and effects on human rights of the state of siege.
Therefore, the Commission sent a special communication (March 29,
1977) to the Government of Paraguay, requesting that it kindly provide
the text of the law in question. This request, together with many
others, was never acknowledged. After consulting different sources on
various occasions, the Commission has concluded that the regulatory
law in question has never been enacted. Therefore, the Commission must
base its interpretation of the institution of state of siege solely on
the text of the two constitutional articles cited above, and the
context in which they occur. 7. In accordance with those precepts, the state of siege is an
exceptional measure, which is established for a LIMITED period of
time, and only in four specifically defined cases, for the sole
purpose of DEFENDING THE CONSTITUTION and the authorities established
in accordance with it. It is a measure that must strictly correspond
to the purposes for which it was established. 8. In accordance with these precepts, a state of siege may be declared
only in the four following cases: 1) international conflict or war; 2)
foreign invasion; 3) domestic disturbance and 4) serious of one of the
foregoing. By
Virtue of the state of siege and while it is in effect, individuals
suspected of participating in any of the cases cited above may be
detained and transferred from one point in the Republic to another,
and public meetings and demonstrations may be prohibited. Individuals
detained by virtue of the state of siege, the Constitutional norm
specifies, will be housed in sanitary and clean quarters not used for
common criminals, and those persons transferred are to be relocated in
areas that are populated and not detrimental to the health. 9. In accordance with the terms of the constitutional provisions, the
guarantees against arbitrary arrest and detention, the right of
residence, movement or transit and the right of assembly can only be
affected or limited by the existence of a state of siege under the
terms and the conditions established by the same provisions. The
decree that establishes the state of siege must list those guarantees
that are suspended or limited as well as the grounds for the action,
and must be brought to the attention of the Congress within five days
of its publication. 10. These are the characteristics of the institution of special powers,
which in Paraguay is called the “state of siege.” Examining it in
the light of the information available to the Commission, it becomes
obvious that this institution has two basic gaps. One of the gaps is
caused by the fact that although the Constitution provides that the
state of siege must be limited in duration, it does not establish any
guideline whatsoever as to the extent of that limitation. This makes
it possible for such an emergency measure to be extended more or less
indefinitely, even to the point of becoming permanent. The other gap
is that the actions that the Executive may take under the special
powers granted by the state of siege are not in any way subject to
supervision by the other branches of the Government. It has already
been pointed out that the decree establishing the state of siege must
be brought to the attention of the Congress within a specific period
of time. But the supervision does not give the Congress any authority
whatsoever to oversee or in any way limit the manner in which the
Executive exercises this measure. The Judiciary, for its part, not
only does not enjoy any prerogative or authority to control such
measures, but rather, as stated in another part of this report, has
even declared itself incompetent to take up the petitions of habeas
corpus that are presented while the state of siege is in force.
Such circumstances have led to a continuous use of the extraordinary
institution of sate of siege, thereby turning into a dead letter the
other articles of the Constitution and those laws in which human
rights are recognized and the means to guarantees them established. 11. The inescapable fact that the people of Paraguay live under a system
of emergency powers, if such a label can be given to a situation
wherein the rights of a citizen have no guarantee or protection other
than that which an almost absolute authority may voluntarily wish to
grant them. 12. The Commission does not possess exact information as to the date on
which Paraguay first came under the state of siege. According to
reliable information, that institution was in continual effect between
1929 and 1946. After an interruption of more or less six months in
1946, it was again put into effect in 1947 and has continued in force,
without interruption, since that time. (It is known that the state of
siege is lifted for national elections, but this occurs only on the
day when the actual elections take place). 13. The terminology used in the decrees establishing this measure attest
to the fact that their issuance has become a routine custom. Almost
all of them invariably begin with the expression “Decree number…
whereby the state of siege is EXTENTED.” The justification also
tends to be vague and routine, expressed in a style such as the
following: “Whereas: The National Constitution provides for the
state of siege as a security measure; international organizations
exist whose principal objectives are subversion of the legal order as
well as the use of violent means in order to destroy the basic
foundations upon which our society rests; clandestine activities in
our hemisphere by members of such organizations have been proven
authoritatively by events that are public knowledge… etc. DECREES:
that the period of effect of the state of siege is hereby
extended...” Some Decrees extending the state of siege 14. So that these characteristics of the decrees on the state of siege
can be viewed and judged directly, the Commission felt it useful to
present some of them below. We present, as example, the decrees
bearing the numbers 8,318 and 10,579 of December 31, 1959, and May 27,
1960, respectively.[3]
15. Under the 1967 Constitution the state of siege has been continued by
virtue of the powers established in the previously cited Articles 79
and 181. Decrees 30, 177 and 13, 177 and 13, 408, of January 3, 1973,
and March 13, 1975, respectively, provide the following:
16. It is worthwhile pointing out that the Government of Paraguay extended the state of siege in December 1959, claiming an invasion of Paraguayan territory. A few months later, the Decree issued in May 1960 was based solely on the threat of subversion posed by “factions opposing the Government,” which at that time were outside Paraguayan territory. Comparing Decrees 30,177 and 13,408, of January 1973 and March 1975, we note that, except for the dates, the texts are, word by word, identical. The most recent decree extending the state of siege is number 36,982, issued on February 2, 1978. 17. Having set forth in the preceding paragraphs the specific situation
of human rights vis-a-vis the constitutional and legal institutions of
Paraguay—a situation where recognition of proclamation of these
rights is broad and conclusive in principles and precept, but where
their legal effect is somewhat precarious and in the final analysis is
dependent upon the goodwill of the authorities—the Commission feels
compelled to restate the criterion that has guided it almost since the
outset of its work with regard to this delicate question involving the
undeniable legitimacy of the institution of special powers on the one
had, and the necessary permanent legal protection of basic human
rights, on the other. 18. It is common for constitutions, especially in the countries of Latin
America, to establish or authorize special powers in the event of
serious danger or an irregular political or economic situation. Such
institution, which is essentially transitory in nature, is called in
some countries “state of siege” and in others “state of
emergency” or “disturbance of public order”, or “prompt
security measures,” (medidas prontas de seguridad). This
extraordinary measure stems fundamentally from the need to endow the
government with all the special faculties and powers it needs to
confront and overcome, effectively and swiftly, situations involving
danger or irregularity. 19. It goes without saying that the institution in itself is perfectly
legitimate, and it continues to exist in spite of the fact that it has
been the object of severe criticism due to its deficiencies, anomalies
or structural defects; and in spite of the fact that it has lent
itself to abuses which have deformed and discredited it. 20. In any event, what the Commission contends is that it cannot be
admitted, for any reason, that during disturbances of the public order
while one of those exceptional measures is in effect, the rights of
the individual can be left without legal protection, in the face of
the omnipotence of the authorities. On the contrary, it believes that
under properly structured institution of state of siege –one that
does not alter to any appreciable degree the independence of the
various branches of Government, human rights can remain basically
preserved, at least insofar as those regarded as fundamental are
concerned. In other words, while according full recognition to
precautionary and security measures imposed for the sake of defense or
public welfare, any measures that involve abuses or neglect and that
can justly be characterized as excessive continue to be inadmissible. 21. Thus, in its Annual Report for 1974, the Commission took the
following stand on the matter:[4] The
Commission is not unaware of the reasons in favor of the attribution
of special powers to the Executive Branch in exceptional situations,
such as those which arise from internal commotion or external attack,
but it takes into consideration fact that the most admitted doctrine
internationally, because it is that which inspires the American
Convention of San José de Costa Rica (Article 27) as well as the
United Nations International Treaty on Civil and Political Rights
(Article 4) and the European Convention on the Protection of Human
Rights (Article 15), places precise limits on the use of those special
powers for the purpose of protecting human rights; and considers it
necessary to harmonize the needs of a defense of a regularly
established institutional order with the protection of the fundamental
attributes of man. 22. In that same report, the Commission formulated one of its first
recommendations to the governments of the member state of the OAS, as
follows: That
all the States issue precise rules –in accordance with the
constitutional provisions in force –aimed at preventing the
deprivations of liberty ordered in the exercise of the powers that the
Constitutions usually grant for exceptional cases from being extended
beyond what is absolutely necessary for the maintenance of the
regularly established institutional order. 23.
Article 27 of the American Convention on Human Rights, to which
the Commission makes reference in the above-cited passage from its
report, is conclusive in this regard. Despite the fact that the
Convention has not yet entered into force, Article 27 is quoted below
because its content is a reflection of convictions and beliefs that
are firmly rooted in the minds of our peoples: Article
27. Suspension of Guarantees 1. In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures
derogation from its obligations under the present Convention to the
extent and for the period of time strictly required by the exigencies
of the situation, provided that such measures are not inconsistent
with its other obligations under international law and do not involve
discrimination on the ground of race, color, sex, language, religion
or social origin. 2. The foregoing provision does not authorize any suspension of the
following articles: Article 3 (Right to Juridical Personality),
Article 4 (Right to Life), Article 5 (Right to Humane Treatment),
Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post
Facto Laws), Article 12 (Freedom of Conscience and Religion),
Article 17 (Rights of the Family), Article 18 (Right to a Name),
Article 19 (Rights of the Child), Article 20 Right to Nationality),
and Article 23 (Right to Participate in Government), or of the
judicial guarantees essential for the protection of such rights. Law
Nº 294, of October 17, 1955, and Law Nº 209, of September 18, 1970 24. In a note dated March 29, 1977, we requested that the Government
provide us the following laws: 1.
Law 294 of 1955, on Defense of Democracy; 2.
Law 209 of 1970, on Defense of the Public Peace and the Physical
Liberty of the Individual. Here,
again, we received no response to our request. Fortunately,
we have obtained copies of these important legal provisions. 25. Law 294 is officially entitled “Defense of Democracy.[5]” i.
Article 1 provides that “those who make an armed attempt
against the established powers in order to replace either totally or
partially the republican democratic structure of the Nation with a
Communist system or any other totalitarian regime shall be punished by
five to ten years imprisonment.” It also adds that “intent,
conspiracy and formal instigation to commit this crime shall be
punishable by half that period of imprisonment, when accompanied by
preparatory activities.” ii.
For its part, Article 2 provides for a penalty of six months to
five years imprisonment for the following: a.
Individuals who spread “the Communist doctrine or any
doctrine or system whose purpose is to destroy or alter through acts
of violence the republican democratic structure of the Nation;” and b.
Individuals who “organize, form or lead associations or
entities whose visible or concealed purpose is to commit the crime
described in the preceding paragraph.” iii. Article 3 establishes a penalty of three months to two years for the
following: a.
Association or affiliation, with any of the entities proscribed
in the preceding article; b.
Providing pecuniary or material aid to carry out the activities
provided for under Article 2; c.
Leasing or providing, with knowledge of the facts, “premises
to be used to hold meetings and conduct activities referred to in said
article;” d.
Having relations with or receiving instructions, gifts or
assistance from foreign governments, organizations of foreign
individuals, or from persons residing outside the country, as well as
delivering, distributing or circulating these instructions or
assistance, and e.
Introducing, printing, storing, distributing, selling or
circulating pamphlets, magazine, illustrations, newspaper, films, or
any other printed matter or propaganda “of the doctrines or systems
referred to in Article 2.” iv. The most salient aspects of the remaining articles of Law 294 are the
following: a.
Article 4 establishes a penalty of two months to one year
imprisonment for those attending political rallies or secret meetings
of the entities mentioned under Article 2; b.
A penalty of one to six months imprisonment is established for
those who subscribe to the publications prohibited under Article 3,
paragraph 5 (Article 5); c.
Imprisonment of one to six months, in accordance with Article
6, for those individuals who display emblems, banners or symbols of
the proscribed organizations; d.
Suspension of one to six months, and closing in the event or
repeated offense or reoccurrence, of the publication, radio station or
news or information agency that commits any of the offenses provided
for under this law (Article 8); e.
Article 10 prohibits public institutions, state or municipal
services, or companies that provide public services, from employing
individuals “who are openly or secretly affiliates with the
Communist Party or the other organizations referred to in this law, or
who have committed any of the crimes named herein;” f.
Article 11 authorizes the Executive Power to close “any
private teaching establishment that does not bar from its directing,
teaching or administrative staff those who are openly or secretly
affiliated with the illegal organizations referred to in this law or
who have committed any of the offenses punishable by it;” g.
Article 12 provides that the penalty be as much as doubled when
the crimes punishable this law is committed “in time of war or
domestic disturbance or, in a period when there is imminent danger of
any one of these;” h.
Public officials – according to Article 14 –who commit
“any of these offenses shall be dismissed and, in addition to the
corresponding penalties shall be totally deprived of their right to
hold public positions for a period that is double the duration of the
sentence;” i.
Article 16 provides that for the crimes punishable under this
law there shall be no provisional release under bond nor commutation
of the penalty, except by means of deportation ordered by the
Executive Power. 26. Law 294 made mere dissemination of a particular political ideology a
criminal offense. With regard to this type of crime, the Commission
stated the following in its Annual Report for 1973: In
fact, some legal provisions have been issued establishing ‘crimes of
opinion’, that is, crimes stemming from a person’s beliefs,
without those beliefs necessarily taking the form of overt harmful
acts. We consider that such forms of persecution for ideological
reasons not only stand in the way of achieving the goals of political
and social stability being sought, but are entirely incompatible with
the American Declaration of the Rights and Duties of Man and with the
democratic-representative system of government supported by the
Charter of the Organization. Such
measures are usually followed by others and eventually become a tacit,
veiled form of censorship of the communication media, which out of
fear or harsh punishment, feel compelled to stop serving as vehicles
of political thought.[6] 27. Law 209, entitled “Defense of the Public Peace and Physical Liberty of the Individual,” derogated, or noted above, Article 2 and 3 of Law 294. Article
4 of Law 209 established a penalty of from one to six years
imprisonment for those who “by any means publicly preach hatred
among Paraguayans or the destruction of social classes.” For
its part, Article 5 sanctions “those who are members of an illegal
association, composed of three or more individuals, the purpose of
which is to commit criminal offenses… solely by virtue of their
being members of the same, with three to six years imprisonment.” Article
8, which has incorporated the second and third Articles of Law 294,
which had been derogated, provides for penalties of from one to five
years imprisonment for individuals who: i. Are “associated or affiliated with any Communist party or an
organization the purpose of which is to use violent means to destroy
the republic democratic system of the Nation;” ii. Provide “economic or material assistance to conduct the activities
mentioned in the first paragraph of this article;” iii. Lease or provide “premises to be used to hold meetings and conduct
activities referred to in the first paragraph;” iv. For the same purpose have relations or receive “instructions, gifts
or assistance of any kind from foreign governments, organizations or
foreign individuals,” and deliver or distribute instructions through
any means; v. “For the same purpose introduce, print, store, distribute or sell
pamphlets, magazines, illustrations, newspapers, cinematographic or
television films of the doctrine or system referred to in paragraph
one of this article.” The
remaining articles of the law establish penalties for the following:
slanderous or defamatory remarks against the President or other high
public officials; kidnapping and extortion; inciting disturbances;
deprivation of freedom without a legitimate order, and others.
CHAPTER
II |
