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OEA/Ser.L/V/II.110
THIRD
REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY CHAPTER I LEGAL SYSTEM AND THE PROTECTION OF HUMAN RIGHTS
A.
CONSTITUTIONAL STRUCTURE OF THE PARAGUAYAN STATE
1.
On June 20, 1992, approximately three years after the fall of the
dictatorship headed by Alfredo Stroessner, which held power in Paraguay for
over 30 years, a National Constitutional Assembly adopted and promulgated a
new National Constitution. Article 1 of that Constitution provides: “The
Republic of Paraguay is forever free and independent. It is a social state
under the rule of law, unitary, indivisible, and decentralized as provided for
in the Constitution and statutes. The
Republic of Paraguay adopts for its form of government representative,
participatory and pluralist democracy, founded on the recognition of human
dignity.”
2.
The Paraguayan Constitution provides that the Legislative power will be
vested in the Congress, made up of the Senate and the Chamber of Deputies.
Its members are elected directly by the people for a period of five
years, and may be re-elected. Article 191 of the Constitution provides: No
member of Congress may be accused judicially for the opinions he or she
expresses in the performance of his or her functions. No Senator or Deputy may
be detained, from the day of their election until the day they leave office,
unless found in flagrante delicto for a crime that merits corporal punishment.
In such a case, the intervening authority shall place him or her under house
arrest, shall immediately report the incident to the respective Chamber and
the judge with jurisdiction, to whom it shall submit the respective
information as soon as possible. When a criminal complaint is brought against a Senator or Deputy before the regular courts, the judge shall so communicate, with a copy of the record, to the respective Chamber, which will examine the merits of the criminal investigation and, by two-thirds majority, shall determine whether there are grounds for suspending his or her immunity, so as to proceed to trial. If so, his or her immunities shall be suspended.
3.
Among the functions of the legislative chambers is to request reports
on matters of public interest from the other branches of government, to
summons and question ministers and other high-ranking officials of the central
and decentralized public administration, with the powers to censure them and
recommend to the President of the Republic or the superior of the public
official in question that they be removed.
The functions of the Congress include to oversee to the observance of
the Constitution and statutes; to issue the codes and all other statutes,
amend them, or repeal them, interpreting the Constitution; to approve each
year the law on the General Budget of the Nation; to approve or reject the
treaties and all other international agreements signed by the Executive; to
make the appointments that the Constitution prescribes and to impeach the
President and other high-ranking officials.
4.
The Constitution provides at Articles 226 and 227 that “the Executive
power vests in the President of the Republic” and that “there shall be one
Vice-President of the Republic who, in case of impediment or temporary absence
of the President, or definitive vacancy of the presidency, shall immediately
replace him or her, with all of the powers of said office.”
Article 234 of the Constitution provides: In
case of impediment or absence of the President of the Republic, he or she
shall be replaced by the Vice-President, and, lacking a vice-president and
successively, the President of the Senate, the Speaker of the Chamber of
Deputies, and the President of the Supreme Court of Justice. The
Vice-President-elect shall assume the presidency of the Republic if it is
vacant prior to or after the proclamation of the President, and shall hold
said office until the end of the constitutional term. If
there is a definitive vacancy of the vice-presidency during the first three
years of the constitutional term, elections will be called to fill it.
If it occurs in the last two years, the Congress, by absolute majority
of its members, shall designate the person to fill the post for the rest of
the term. 5. Among the duties and powers of the President of the Republic, the Paraguayan Constitution lists representing the State and directing the general administration of the country; abiding by and enforcing the Constitution and statutes; reporting to Congress, at the beginning of each annual session, as to the activities of the Executive branch, as well as reporting on the general situation of the Republic and plans for the future; being the Commander-in-Chief of the Armed Forces; preparing and submitting the draft annual General Budget of the Nation to the legislative chambers; and enforcing the rulings of the authorities established by the Constitution.
6.
Another function of the President is to choose the Solicitor General (Procurador
General) of the Republic, whose powers and duties are established in
Article 246 of the Constitution: to
represent and defend, in court or out of court, the property-related interests
of the Republic; to give an opinion in those cases and for the purposes
indicated by law; to provide legal counsel to the Public Administration in the
manner determined by law; and all other duties and powers set by law.
7.
Article 247 of the Paraguayan Constitution provides that “the
Judicial branch is the custodian of this Constitution. It interprets, abides
by, and enforces it. The
administration of justice is entrusted to the Judicial branch, whose powers
are exercised by the Supreme Court of Justice, the lower courts [tribunales
and juzgados], in the manner
established by this Constitution and the law.”
Article 256 of the Constitution establishes, for its part, that “all
judicial judgments shall be grounded in this Constitution and the law.
Rulings may be freely criticized.”
8.
The Constitution also provides that “the independence of the Judicial
branch is guaranteed,” and that “those who attack the independence of the
Judiciary and of its judges shall be disqualified from exercising any public
function for five consecutive years, in addition to being subject to any
penalties set by law.”
9.
According to Article 249 of the Constitution, the Judicial branch
enjoys budgetary autonomy, and its budget must be approved by the Congress.
It also provides that the Judiciary will be allocated “a sum no less
than three percent of the budget for the central administration” in the
General Budget of the Nation.
10.
The designation of the members of the Supreme Court of Justice is made
by the Senate, with the constitutional agreement of the Executive, after a
process of selecting candidates and including them on lists drawn up by the
Council of the Judiciary. The
Supreme Court of Justice, in turn, designates the members of all other tribunales
and juzgados from the list proposed
by the Council of the Judiciary. Article
261 of the Constitution provides that “the members of the Supreme Court of
Justice may only be removed by impeachment.
They must step down upon reaching the age of 75 years.”
Furthermore, Article 252 provides: Judges
may not be removed from their post, seat, or rank during the time for which
they were appointed. They cannot be transferred or promoted without their
prior and express consent. They
are designated for five-year terms, to be counted from the date of their
appointment. Those
judges who are confirmed for two terms following the term in which they were
chosen shall have tenure in the post until reaching the mandatory retirement
age established for members of the Supreme Court of Justice.
11.
Among the duties and powers of the Supreme Court of Justice enshrined
in Article 259 of the Constitution are: the
exercise supervision of all organs of the Judiciary, and to decide, without
appeal, jurisdictional conflicts, pursuant to the law; to hear and decide
ordinary appeals established by law; to hear and decide writs of habeas
corpus, with original jurisdiction, without prejudice to the jurisdiction
of other judges or courts; to hear and decide cases of unconstitutionality; to
hear and decide on final judgments, by virtue of its power of review, in the
manner and to the extent established by law; to suspend on a preventive basis,
acting on its own or at the request of the Trial Jury for Magistrates, those
judges who are standing trial, until a final decision is reached in their
case; to supervise detention centers and prisons; and to hear conflicts of
jurisdiction between the Executive branch and the departmental governments,
and between the departmental and municipal governments.
4.
The Council of the Judiciary
12.
The Constitution of Paraguay enshrines the existence of the Council of
the Judiciary, whose duties and powers mentioned at Article 264 include “to
propose a list of three candidates to fill each place on the Supreme Court of
Justice, selected on the basis of suitability, with consideration of merits
and qualifications, and to submit them to the Senate, which will appoint the
members of the Supreme Court, with the agreement of the Executive branch”;
and “to propose a list of three candidates, following the above criteria for
selection and examination, to serve as members of the lower courts, judges,
and prosecutors.”
13.
According to Article 262 of the Constitution, the Council of the
Judiciary is made up of one member of the Supreme Court of Justice, designated
by it; one representative of the Executive branch; one Senator and one Deputy,
both appointed by their respective Chamber; two licensed attorneys, appointed
by their peers in a direct election; one law professor from the Law School at
the Universidad Nacional, chosen by his or her peers; and one law
professor from the private universities, chosen by his or her peers.
14.
The Public Ministry, according to Article 266 of the Constitution,
represents society before the judicial organs of the state, and enjoys
functional and administrative autonomy in the performance of its duties and
powers. Its direction is vested
in the Attorney General and the state attorneys, as established by law.
15.
The Attorney General is designated by the Executive branch, from a list
of three persons submitted by the Council of the Judiciary, with the consent
of the Senate. The Attorney
General shall serve a term of five years, and may be re-elected.
The principal duties and functions of the Attorney General are set
forth at Article 268 of the Constitution:
“to safeguard respect for constitutional rights and guarantees; to
bring criminal charges to defend the property of the public and society, the
environment, and other diffuse interests, and the rights of the indigenous
peoples; to bring criminal charges in those cases in which initiating or
continuing such an action does not require the initiative of a private party,
without prejudice to the judge or court acting upon its own initiative, when
so provided by law; and to obtain information from public officials in order
to properly discharge its functions.”
16.
The Electoral Justice System, as provided for in the Paraguayan
Constitution, is made up of a Superior Electoral Court (a three-person panel
whose members are elected and removed following the same procedure as for the
members of the Supreme Court of Justice), which shall define its organization
and functions, and by the courts, prosecutorial offices, and other organs to
be defined by law.
17.
It is up to the Electoral Justice System to convoke, judge, organize,
direct, supervise, and oversee the acts and issues derived from general,
departmental, and municipal elections, and the rights and titles of those who
are elected. Also under its
jurisdiction are the issues stemming from all types of referenda and regarding
the elections and functioning of political parties and political movements.
18.
The Paraguayan Constitution includes an office that is very important
for the promotion and defense of human rights in Paraguay, the Human Rights
Ombudsman (Defensor del Pueblo).
Following are the formal characteristics of this office as laid out in
the Constitution. In Chapter II, infra,
the IACHR offers a series of considerations on the fact that eight years have
elapsed since the Constitution was promulgated, and no Human Rights Ombudsman
has yet to be designated in Paraguay.
19.
Article 276 of the Constitution provides that the Human Rights
Ombudsman “is a congressional commissioner whose functions are to defend
human rights, channel popular complaints, and uphold the community interests.
In no case shall he or she have any judicial function or executive
power.” The following articles
state that the Human Rights Ombudsman shall enjoy autonomy and be irremovable,
that he or she shall be appointed by a two-thirds majority of the Chamber of
Deputies, from a list of three candidates submitted by the Senate, and shall
serve a term of five years, coinciding with the term of the Congress. The Constitution also provides that the Ombudsman may be
re-elected; may be removed for poor performance of his or her functions, using
the impeachment procedure established in the Constitution, and that during his
or her term he or she may not be part of any branch of government nor engage
in any political party activity.
20.
The main duties and powers of the Human Rights Ombudsman are spelled
out at Article 279 of the Constitution, and refer to receiving and
investigating reports, complaints, and claims against human rights violations
and other acts established in the Constitution and by law; requesting
information from the authorities, at the various levels, including the police
organs and security organs in general, so as to better perform their
functions, without the latter being able to keep any such material under seal;
and to have access to those sites where it is alleged that such acts are
performed. The Human Rights
Ombudsman also has the power to act on his or her own initiative; to censure
publicly acts or conduct contrary to human rights; to report annually on his
or her efforts to the Chambers of Congress; and to prepare and disseminate
reports on the human rights situation which, in his or her view, require
prompt public attention.
B.
THE PARAGUAYAN CONSTITUTION AND HUMAN RIGHTS
1.
Rights enshrined directly in the Constitution
21.
The Constitution of the Republic of Paraguay states at Article 137 that
the Constitution itself is the supreme law of the land, and establishes, in
Part I, a detailed series of civil, political, economic, social, and cultural
rights, such as the rights to life, personal liberty, due process, property,
freedom of expression and press, freedom of assembly and public protest,
conscientious objection, compensation for damages caused by the state,
equality, protection for children, protection for the elderly, indigenous
rights, health, education, and work. The
Constitution also enshrines a series of guarantees, such as habeas
corpus, amparo, and habeas data.
2.
Incorporation of international protection to domestic law
22.
The Constitution of Paraguay states at Article 137 that “the supreme
law of the Republic of Paraguay is the Constitution.
The Constitution, treaties, conventions, and international agreements
that have been approved and ratified, the statutes adopted by Congress, and
other legal provisions of lesser rank, approved accordingly, make up domestic
positive law, in the order of priority set forth.”
Article 141 of the Constitution indicates, similarly, that
international treaties are part of the domestic legal order, with the rank
established at Article 137.
23.
Pursuant to Article 145 of the Constitution, “the Republic of
Paraguay, in conditions of equality with other States, recognizes the
existence of a supranational
legal order that guarantees the observance of human rights, peace, justice,
cooperation and development, in the political, economic, social, and cultural
spheres.” Article 143 of that
instrument also indicates that Paraguay accepts international law in its
international relations, and that it accedes, among other principles, to the
international protection of human rights.
Article 142 of the Constitution notes that “international human
rights treaties may not be denounced other than by the procedures that govern
the adoption of amendments to this Constitution.”
C.
PARAGUAY AND INTERNATIONAL HUMAN RIGHTS TREATIES
24.
The Paraguayan State has ratified the vast majority of human rights
treaties and the two additional protocols signed in the context of the OAS:
Paraguay is a party to the American Convention on Human Rights;[1]
the Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights, “Protocol of San Salvador”;[2]
the Protocol to the American Convention on Human Rights to Abolish the Death
Penalty;[3]
the Inter-American Convention to Prevent and Punish Torture;[4]
the Inter-American Convention on Forced Disappearance of Persons;[5]
and the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women, “Convention of Belém do Pará”.[6] In
addition, on November 3, 1993, Paraguay accepted the contentious jurisdiction
of the Inter-American Court of Human Rights.
b.
Treaties pending ratification
25.
Although Paraguay already signed the Inter-American Convention on the
Elimination of All Forms of Discrimination Against Persons with Disabilities,
it has yet to ratify it.
a.
Treaties ratified
26.
In the United Nations framework, the Paraguayan State is a party, among
other human rights treaties, to the International Covenant on Economic, Social
and Cultural Rights; the International Covenant on Civil and Political Rights;
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment; the Committee on the Elimination of Discrimination Against
Women, established by the Convention on the Elimination of All Forms of
Discrimination Against Women; and the Committee on the Rights of the Child,
established, in turn, by the Convention on the Rights of the Child.
b.
Treaties pending ratification
28.
In the UN framework, Paraguay has yet to ratify, among others, the
following human rights treaties: the
International Convention on the Elimination of All Forms of Racial
Discrimination; the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity; the Optional Protocol
to the Convention on the Elimination of All Forms of Discrimination Against
Women; the Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition of the death penalty; the
International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families; and the two recent Optional Protocols
to the Convention on the Rights of the Child, regarding, respectively, the
participation of children in armed conflict and the sale of children, child
prostitution, and child pornography. D. PROMOTION AND PROTECTION OF HUMAN RIGHTS IN PARAGUAY
29.
This section includes an outline of some State plans and institutions
in the area of human rights, and comments on the role of civil society in
promoting and protecting human rights in Paraguay.
1.
The State and the implementation of human rights
30.
The Paraguayan Executive, Legislative, and Judicial branches include
offices dedicated exclusively to human rights.
In this same vein, a Human Rights Office is being established in the
Ministry of Foreign Relations, and recently an Office on Human Rights and
Humanitarian Law was established in the Ministry of Defense.
In addition, there were already Human Rights Offices in the Ministry of
Justice and Labor, and in the Office of the Attorney General, currently held
by Luis A. Resck.
31.
The Supreme Court of Justice designated Justice Raúl Sapena Brugada as
“member in charge of human rights issues.” He then promoted the creation
of a “Human Rights Unit” whose functions include monitoring the
application of human rights provisions by the domestic courts; serving as a
center for research and consultation on human rights; and promoting the
training of judges in the area of human rights, through seminars and
conferences, and through the publication of materials on the topic.
The Honorable Supreme Court of Justice designated attorney Fátima
Andrada as the coordinator of that Unit.
32.
It should also be noted that the Senate has a Committee on Human
Rights, currently chaired by Sen. Luis Alberto Mauro.
The Chamber of Deputies also has a Committee on Human Rights, chaired
by Deputy Sonia De León.
33.
The Paraguayan State informed the Inter-American Commission that on
December 19, 2000, an Agreement was signed among the Presidents of the
Executive, Legislative, and Judicial branches to Prepare a National Plan for
the Protection and Promotion of Human Rights, which was the result of a
coordinated effort by the governmental institutions.
The IACHR considers this inter-institutional effort very important, and
hopes that it can be translated into specific actions on behalf of human
rights in Paraguay.
2.
Civil society and its role with respect to human rights
34.
In its press release issued upon the conclusion of its on-site visit to
Paraguay, the Commission noted that it: is
appreciative of the existence, within Paraguayan society, of heightened
awareness of and concern for human rights in the country. Thus, the Commission
was pleased to note the presence of an increasingly active and participative
human rights movement that expresses its opinions and, at the same time, works
to promote and defend human rights and to strengthen the democratic system. In
the commitment, dedication, and civic spirit of the human rights
organizations, the IACHR sees an important resource for Paraguayan society as
it meets the challenge of extending and consolidating the rule of law.[7] 35. The Inter-American Commission considers the excellent work done by the non-governmental organizations of Paraguay to be very important for the promotion and protection of human rights; they are increasingly participating in the life of the nation. A highly representative group of these organizations has come together in the Coordinadora de Derechos Humanos del Paraguay, CODEHUPY, which has been carrying out several activities and significant campaigns on behalf of human rights, such as producing the report “Derechos Humanos en Paraguay--1999,” which cites this report several times.
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[1]
Paraguay ratified this treaty in 1989. [2]
Ratified by Paraguay in 1997. [3]
Paraguay ratified this Protocol in the year 2000. [4]
Ratified by Paraguay in 1990. [5]
Paraguay ratified this Convention in 1996. [6]
Ratified by Paraguay in 1995. [7]
IACHR, Press Release No. 23/99, Asunción, July 30, 1999, para. 24. That
press release can be found at the Commission’s web page, <www.cidh.oas.org>. |