REPORT Nº 77/02


CASE 11.506




December 27, 2002



I.          SUMMARY


1.          On May 11, 1995, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the IACHR”) received a petition lodged by two Brazilian citizens, José Víctor Dos Santos and Waldemar Gerónimo Pinheiro (hereinafter “the petitioners”), in which they charge that the Republic of Paraguay (“the State”) has international responsibility for the delay in the legal action brought against them in 1985, and for the prolonged pretrial detention.


2.          The petition states that Waldemar Gerónimo Pinheiro was imprisoned in Tacumbú National Penitentiary in Paraguay for over 10 years, in pretrial detention on suspicion of homicide, without ever being sentenced.  It further alleges that his case file was lost on three occasions, that he was never granted parole, and that he did not have the economic resources needed to cover the cost of his defense.


3.          José Víctor Dos Santos in turn reported that he had been the victim of torture and that he was imprisoned in Tacumbú National Penitentiary in Paraguay for over 10 years, in pretrial detention on suspicion of homicide, without ever being sentenced, that he was never granted parole, and that he did not have the economic resources for his defense.  He further alleged that he was tortured at the time of his arrest and that, as a result, he was hospitalized for five months.


4.          In its responses, the State denied the allegations of torture by Mr. Dos Santos.  As far as the rest of the allegations were concerned, it confined its response to providing information on the relevant judicial proceedings.


          5          The Inter-American Commission declared the present case admissible, finding that charges were made of possible violations of the rights embodied in the American Declaration on the Rights and Duties of Man (hereinafter the "American Declaration" and the American Convention on Human Rights (hereinafter "the American Convention" and that, owing to the unjustified delay in the processing of the case under domestic law, it was not necessary for the petitioners to exhaust domestic remedies.


6.          After having examined the case, the IACHR concludes in this report that the prolonged pretrial detention and the delay in settlement of the cases against José Víctor Dos Santos and Waldemar Gerónimo Pinheiro cause the State of Paraguay to incur responsibility for the violation of the following rights protected by the American Declaration with respect to the acts that occurred prior to August 24, 1989:  the right to protection from arbitrary arrest (Article XXV); and, the right to due process of law (Article XXVI).  In addition, with regard to the acts which occurred subsequent to the entry into force of the American Convention, the State incurs responsibility for violation of the following rights:  right to personal liberty (Article 7), and the right to a fair trial (Article 8), all in accordance with the obligation stipulated in Article 1(1) of that international instrument.




7.          On June 29, 1995, the IACHR sent to the State the pertinent parts of the petition.  On September 14, 1995, it received the State’s response, the pertinent parts of which were forwarded to the petitioners on November 3, 1995.  On November 29, 1995 and on April 9, 1996, the IACHR requested additional information of the State, which was provided on May 23, 1996.


8.          On September 27, 1999, during its 104th regular session, the Inter-American Commission declared that the present case was admissible.  It found that it was not necessary for the petitioners to exhaust domestic remedies in view of the unjustified delay in processing the matter in the domestic courts.  This report was transmitted to the parties on October 13, 1999.


9.          On October 13, 1999, the IACHR placed itself at the disposal of the parties to initiate proceedings for a friendly settlement of this matter.


10.          The State’s response was received on February 4, 2000, and it was transmitted to the petitioner.  In that communication, the State indicated its willingness to initiate a friendly settlement process in this case.  The petitioners never responded to the proposal.


11.          On March 15, 2001, the IACHR requested the State to provide additional information.  Paraguay sent the additional information on September 7, 2001.  The petitioners were informed of this communication.




A.          Position of the Petitioners


12.          The petitioners, Brazilian nationals, maintain that their rights were violated by the Paraguayan authorities, who arrested them in 1985 on suspicion of homicide, without any evidence against them.  They further state that on the date that the petition was lodged, ten years had lapsed without settlement of their legal situation, since they had never been convicted of any crime whatsoever.


13.          Mr. Dos Santos found himself in detention since 1988 because of suspicions that he had participated in a homicide somewhere in the hinterland of the country, where one of the individuals charged had the same surname.  Mr. Dos Santos reported in his letter of April 4, 1995 that he did not understand the reasons for his detention, that he did not know if there was a criminal proceeding against him, and that he had no means for defending himself, since he had neither family nor economic resources to cover the cost of his defense.  In addition, he reported that as a result of the torture he had received at the time he was arrested, he was seriously ill, and for that reason he had spent five months in a hospital.


14.          In a letter of the same date, Waldemar Gerónimo Pinheiro stated for his part that he was a prisoner awaiting trial for ten years, on suspicion of having participated in a homicide, but that there was no evidence against him.  He further alleged that his case file had been lost three times and that he did not have the economic resources to defray the cost of defense.  He also denounced the poor prison conditions, and reported that he had not been granted parole.


B.          Position of the State


15.          As far as the reported events are concerned, the State of Paraguay responded as follows in its various communications:


16.          That it was not aware of the supposed mistreatment and torture, and it categorically denied the statements to that effect contained in the petition filed by José Víctor Dos Santos. With regard to Waldemar Pinheiro, the State maintained that he has been imprisoned since June 6, 1985 in the national penitentiary of Tacumbú, charged with the crime of homicide related to robbery, that his trial was located in the judicial district of Ciudad del Este and that on March 17, 1995, he was convicted to 30 years in prison in a judgment issued by the court presided over by Dr. Doctor Justo Salvador Reyes.  The State also maintained that since the case was pending appeal, the matter was still being litigated, so that domestic remedies had not been exhausted.


17.          In the case against José Víctor Dos Santos, the State also reported that he had been in pretrial detention at Tacumbú National Penitentiary since 1988 on charges of double homicide.  By virtue of a corrective habeas corpus motion filed with the Supreme Court of Justice, the Supreme Court ordered his release.  That order was executed in July 1995.


18.          In addition, the State indicated that although there is a card on prisoner José Víctor Dos Santos in the Tacumbú National Penitentiary, there is no case file on him there, or in the judicial district of Ciudad del Este, or in any other court.


19.          The State also provided various documents related to the detention and later processing of the petitioners.




A.          Analysis of the facts


20.          The following acts and events are considered as proven by the information provided by the State and the petitioners:


1.           Waldemar Gerónimo Pinheiro


21.          On July 1, 1985, the police chief [Alcalde Policial] of General Patricio Colmán Town Hall prepared a police report in which he reported that on June 6, 1985, Cledirio Teleken, his wife, Alice de Teleken, and their children Nelci and Nerio Teleken were murdered.  In that report he stated that the investigations showed that the perpetrators of the homicide were Waldemar Gerónimo Pinheiro, José Mairoso Dos Santos, and a third person known as "Joasinho", and that the first two were being detained at the police station.


22.          On July 5, 1985, the Chief of Police referred the police report to the judge of the lower criminal court of Presidente Strossner City, along with information to the effect that Waldemar Gerónimo Pinheiro and José Mairoso Dos Santos were being held in preventive detention.


23.          On November 10, 1987, the lower criminal court of Presidente Strossner City, with Dr. Artemio Benitez Vásquez presiding, ordered that the file labeled "Waldemar Pinheiro and José Mairoso Dos Santos S/Homicide in Santa Lucía" be reconstructed, since it had been lost, and decided to advise a court in the capital to take the signed statement [declaración indagatoria] of the two defendants.  On February 29, 1988, that same court converted the preventive detention of Mr. Pinheiro and Mr. Dos Santos into pretrial imprisonment [prisión preventiva], and ordered that they continue to be confined at the General Penitentiary of the capital.


24.          On July 10, 1988, that court issued a decision in which it resolved to allow the incidental plea for revocation of the imprisonment order presented by José Mairoso Dos Santos, and to notify the General Penitentiary in the capital to comply with that decision.


25.          On May 16, 1990, the court issued A.I. N° 451 in which it established that in taking stock of its records, in view of the fact that a new judge, Dr. Ruben Candia Amarilla, had taken possession of the court, it noted that the aforesaid file had been lost.  As a result, the court decided once again to carry out preliminary criminal proceedings, confirm the preventive detention of defendant Waldemar Gerónimo Pinheiro, give notice of a hearing so that the defendant could render his signed statement, and issue an arrest warrant for José Mairoso Dos Santos, to which end it ordered that notice be given to the police in the capital and to the regional police.


26.          On May 19, 1990, the court was constituted at Tacumbú National Penitentiary and the signed statement of Mr. Pinheiro was taken.  The pertinent record indicates that he was not in condition to testify, but it does not indicate why.


27.          On May 21, 1990, Mr. Pinheiro appointed two defenders.  On May 22, 1990, the court decided to convert the preventive detention of defendant Waldemar Gerónimo Pinheiro into pretrial imprisonment [prisión preventiva], and ruled that the defendant would remain in detention.


28.          On August 27, 1991, the lower court, with its new presiding judge, Dr. Juan G. Arguello, responded to a request from the Public Prosecutor for Criminal Matters, which resulted in designation of a public defender for the defense of Waldemar Pinheiro.


29.          On September 21, 1991, Mr. Pinheiro rendered his signed statement, in which he claimed that he was innocent of the crime with which he was charged.  He stated that on June 6, 1985, he had arrived in Paraguay by land from Brazil, for the purpose of working on a property his father had leased.  When he stopped at a police station to ask directions, the police detained him, tortured him, and made him confess to the crimes for which he was being prosecuted.


30.          The pertinent case file was lost from September 1992 to September 1994.  On September 27, 1994, the court, which at that point was under the authority of Dr. Justo Salvador Reyes, declared the summary or preliminary hearing closed, whereupon the trial proceeded to the second stage of oral arguments.


31.          On December 14, 1993, Mr. Pinheiro designated Dr. Jorge Valdéz Bavera, a public defender, to defend him.


32.          On March 17, 1995, the court handling the case, which at that time was called the “Juzgado de Primera Instancia en lo Criminal y Correccional del Menor del Segundo Turno de la Circunscripción Judicial del Alto Paraná y Canindeyú” [Trial Court for Criminal Matters and Correctional Matters involving Minors of the Second Rotation of the Judicial District of Alto Paraná and Canindeyú], with Dr. Justo Salvador Reyes as presiding judge, issued a final judgment in which it convicted Waldemar Gerónimo Pinheiro to 30 years in prison for the crimes of which he was accused.


33.          On May 22, 1995, said judgment was communicated to Dr. Jorge Valdéz Bavera, the public defender in charge of Mr. Pinheiro’s defense, who appealed it on that same date.  On October 19, 1995, the aforesaid public defender presented to the Chamber of Appeals a well-founded brief in justification of the appeal.  In that document, he maintained that there was absolutely no evidence in the file against Mr. Pinheiro, and that “the only valid piece of evidence appearing in the record is the signed statement of my defendant,” in which he denied on good grounds any participation in the events under investigation.


34.          On April 12, 1996, the Court of Appeals for Civil, Commercial, Labor, Criminal, Guardianship and Correctional Matters of the First Chamber of the Judicial District of Alto Paraná and Canindeyú issued Decision and Judgment Nº 3, in which it declared Final Judgment Nº 11 of March 17, 1995 to be null and void.  In that decision, the superior court took into consideration that the lower court decision was handed down without an accusatory instrument or a response from the defense, so that “technically, there was no trial, because the principal foundations for arriving at a conclusion, namely the accusation and the defense, were absent.”  On this basis, it annulled the conviction.


35.          On October 29, 1996, the director of Tacumbú National Penitentiary reported to the court that defendant Waldemar Gerónimo Pinheiro had fled the Juan Max Boettner Medical Center, where he was being treated for T.B.C. pneumonia.  The flight took place on October 27, 1996.


36.          On November 1, 1996, a warrant for the arrest of Waldemar Gerónimo Pinheiro was issued.  Subsequent to that date, neither of the parties contributed any new information on the status of the proceedings.


2.          José Víctor Dos Santos


37.          In 1988, José Víctor Dos Santos was arrested for his presumed participation in a double homicide.  On this point, it should be noted that the Commission takes 1988 as the date of arrest, since that is the date that appears in the court records, and the petitioner has not proven his contention that he was in detention as of 1995.


38.          On June 9, 1995, the Supreme Court of Justice handed down a judgment in a habeas corpus appeal filed in favor of José Víctor Dos Santos. In that judgment, the Court found that the records of the case did not contain any orders for deprivation of freedom issued by a competent authority against the defendant, and so on those grounds it ordered his release.  On that date Mr. Dos Santos was freed.


39.          The State never provided any information in any of its communications that explained or justified the reasons for the detention of José Víctor Dos Santos.


B.          Analysis based on the law


40.          The Commission then proceeded to ascertain whether in the present case, the following rights, enshrined in Articles XXV and XXVI of the American Declaration and Articles 1, 5, 7, and 8 of the American Convention, were violated:  the right to personal liberty; the right to humane treatment; the right to a fair trial; and access to a simple and effective judicial remedy.


1.          The right to personal liberty (Article 7)


a.       The legality of the arrest – Violation of Article XXV of the American Declaration and Article 7(2) and 7(3) of the Convention


41.          From the information provided by the parties and the documents in the possession of the Commission, it is apparent that Waldemar Gerónimo Pinheiro was detained between July 1 and 5, 1985 at the Town Hall of General Patricio Colmán.  This detention was reported to the judge of the lower court for criminal matters of Presidente Strossner City on July 5, 1985.  As the grounds for the arrest, there is a police report in which the accused is charged with four homicides that occurred on June 6 of that year.


42.          As regards José Víctor Dos Santos, there is a record of his admittance to Tacumbú National Penitentiary in 1988, apparently on charges of two homicides.  However, there is no further information on the charges on which Mr. Dos Santos was detained or on the legal proceedings on which said detention was based, but there seems to be some confusion concerning the name of another person charged in the same homicides, José Mairoso Dos Santos.


43.          The petitioners allege that they were imprisoned without any foundation, which constitutes illegal and arbitrary arrest in violation of the provisions of Article XXV of the Declaration and Article 7(2) and 7(3) of the American Convention.


44.          In its written arguments, the government did not refer to the detention, but it did provide a copy of the police report in which Waldemar Gerónimo Pinheiro and another person named José Mairoso Dos Santos were accused of the homicides.  At the same time, they supplied a copy of the corrective habeas corpus judgment in favor of José Víctor Dos Santos, which indicated that the organs of the State of Paraguay had no knowledge of any criminal charges against Mr. Dos Santos.


45.          Article XXV of the Declaration, entitled Right of Protection from Arbitrary Arrest, states as follows:


No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.


46.          Article 7(2) of the Convention establishes that:


No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.


47.          Article 7(3) holds that:


No one shall be subject to arbitrary arrest or imprisonment.


48.          Now, in order to ascertain whether or not there was a violation of these legal provisions, we need to be familiar with the Paraguayan legislation in force at the time of the arrest, so that we can establish what the “conditions established beforehand by law” were and determine whether these conditions were fulfilled in the arrests of Waldemar Gerónimo Pinheiro and José Víctor Dos Santos.


49.          As for the scope of the provisions established in Article 7(2) (which are the same as those appearing in Article XXV of the Declaration), the Inter-American Court of Human Rights has stated that “no person may be deprived of personal liberty except for the reasons and in the cases or circumstances expressly described in the law (material aspect), and then only in strict observance of the procedures objectively defined by the law (procedural aspect).”[1]


50.          The Commission has followed the practice of analyzing whether a case of deprivation of liberty is consistent with the norms of paragraphs 2 and 3 of Article 7 of the American Convention, on the basis of a three-step procedure.  The first step consists in determining the legality of the arrest in a material and procedural sense, for which purpose the compatibility of the arrest with the national laws of the state in question must be ascertained.  The second step involves an analysis of the relevant domestic law in the light of the guarantees established in the American Convention, in order to determine whether it is arbitrary.  Finally, if the detention complies with the requirements of a national law that is compatible with the American Convention, then it must be determined whether application of the law to the specific case in point was arbitrary.[2] 



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[1] Inter-American Court of Human Rights, Gangaram Panday Case, Judgment of January 21, 1994, Series C Nº 16, para. 45-51.

[2] IACHR Report Nº 53/01, Case 11.565 - Ana, Beatriz y Celia González Pérez, Mexico, April 4, 2001, para. 23 and 27. In further support of this finding, the Working Group on Arbitrary Arrests of the United Nations Organization has established that there are three circumstances in which an arbitrary arrest can occur, as follows:

When it is evidently impossible to invoke a legal basis of any kind that justifies it, such as maintaining a person in detention after that person has completed his sentence or in spite of an applicable amnesty law;

When deprivation of freedom is the result of prosecution or conviction for exercise of the rights or freedoms set forth in Articles 7, 13, 14, 18, 19, 20, and 21 of the Universal Declaration of Human Rights and, with respect to the States Parties, in Articles 12, 18, 19, 21, 22, 25, 26, and 27 of the International Covenant of Civil and Political Rights;

When total or partial noncompliance with international law on the right to a fair trial, established in the Universal Declaration of Human Rights and in pertinent international instruments accepted by the affected states, is so serious in nature that it makes the deprivation of freedom, in whatever form it may take, arbitrary in nature (Category III).