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OEA/Ser.L/V/II.110
THIRD
REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY
CHAPTER
II DEMOCRATIC
INSTITUTIONAL FRAMEWORK
1.
The member States of the Organization of American States agreed in its
Charter that “representative democracy is an indispensable condition for the
stability, peace and development of the region”; and that “the true
significance of American solidarity and good neighborliness can only mean the
consolidation on this continent, within the framework of democratic
institutions, of a system of individual liberty and social justice based on
respect for the essential rights of man.”[1]
2.
The organs of the inter-American system have stated their views several
times regarding the importance of democratic government and the observance of
the rule of law in order to ensure the effective observance and protection of
human rights. In this regard, the
Inter-American Court of Human Rights has established: The
concept of rights and freedoms as well as that of their guarantees cannot be
divorced from the system of values and principles that inspire it. In a
democratic society, the rights and freedoms inherent in the human person, the
guarantees applicable to them and the rule of law form a triad. Each component
thereof defines itself, complements and depends on the others for its meaning.[2]
3.
The concept of representative democracy is based on the principle that
political sovereignty is vested in the people, and that in exercising that
sovereignty the people elect their representatives in whom political power
vests. The representatives thus
have a mandate from their constituents, who ideally aspire to have a dignified
life, in liberty and democracy. The
Inter-American Commission has pointed out as follows in relation to the human
right to a dignified life: Certainly
the requirements of the human right to a dignified life go beyond the equally
fundamental contents of the right to life (understood in its strictest sense),
the right to humane treatment, the right to personal liberty, the rights related
to the system of representative democracy, and all other civil and political
rights.[3]
4.
The preamble to the Additional Protocol to the American Convention in the
Area of Economic, Social and Cultural Rights, “Protocol of San Salvador,”
expressly acknowledges “the close relationship that exists between economic,
social and cultural rights, and civil and political rights, in that the
different categories of rights constitute an indivisible whole based on the
recognition of the dignity of the human person, for which reason both require
permanent protection and promotion if they are to be fully realized, and the
violation of some rights in favor of the realization of others can never be
justified.” Along the same lines, the Commission has cited the current
President of the Inter-American Court of Human Rights, Professor Antonio A. Cançado
Trindade, who notes as follows: The
denial or violation of economic, social, and cultural rights, materialized, for
example, in extreme poverty, affects human beings in all aspects of their lives
(including civil and political rights), clearly revealing the interrelation or
indivisibility of human rights. Extreme
poverty constitutes, ultimately, the denial of all human rights.
How can one speak of freedom of expression without the right to
education? How can one conceive of
the right to enter and leave the country (freedom of circulation) without the
right to housing? How can one
consider the right to free participation in public life, without the right to
adequate food? How can one speak of the right to legal assistance without also
taking into account the right to health? And
the examples multiply. Clearly, we
all experience the indivisibility of human rights in our everyday experience,
and that is a reality that cannot be left aside.
There is no place for compartmentalization, an integrated vision is
needed of all human rights.[4]
5.
The observance of human rights requires a legal and institutional order
in which the laws come before the will of the rulers, and in which some
institutions oversee others for the purpose of ensuring the expression of the
popular will, i.e. to ensure the rule of law.
The Commission considers that only through the effective exercise of
representative democracy can all human rights be fully guaranteed.
Accordingly, it has stated: democracy
and the rule of law are necessary prerequisites for achieving observance of and
respect for human rights within a society. This involves exercising rights of
political participation, respecting the principles of the judiciary’s
legality, autonomy, and independence, and ensuring effective protection against
actions by state agents.[5]
6.
The Commission would add that representative democracy cannot be
separated from what is stated in the very preamble of the American Convention,
which proclaims that “the ideal of free men enjoying freedom from fear and
want can be achieved only if conditions are created whereby everyone may enjoy
his economic, social, and cultural rights, as well as his civil and political
rights.”
7.
The objective is not only to advance towards full representative
democracy, but to ensure that this system of political organization represents,
for each individual, the possibility of attaining respect for and the full
realization of all his or her human rights, civil and political as well as
economic, social, and cultural. Moreover,
this is the best means to guarantee the very preservation of democracy as a
system, for to the extent that people are convinced, from their own personal
experience, that democracy is in effect the best model for political
organization, they will be the best guarantee against traditional dictatorships
and other authoritarian forms of government.
8.
The recent Human Development Report 2000, published by the United Nations
Development Program, notes that Only
with political freedoms--the right for all men and women to participate equally
in society--can people genuinely take advantage of economic freedoms.
And the most important step towards generating the kind of economic
growth needed to do that is the establishment of transparent, accountable and
effective systems of institutions and laws.
Only when people feel they have a stake and a voice will they throw
themselves wholeheartedly into development. Rights make human beings into
economic actors. And
it is clearly not enough for countries simply to grant economic and social
rights in theory alone. You cannot
legislate good health and jobs. You
need an economy strong enough to provide them--and for that you need people
economically engaged. People will
work because they enjoy the fruits of their labor: fair pay, education and
health care for their families and so forth.
They will build the wealth that allows them to be compensated.
But if the rewards of their labor are denied them again, they will lose
their motivation. So economic and
social rights are both the incentive for, and the reward of, a strong economy.[6] 9. In studying the current human rights situation in Paraguay, the foregoing general considerations may have particular relevance, in view of the efforts of the Government of Paraguay to consolidate the country’s democratic institutional framework, and to endeavor, at the same time, to seek solutions to the economic crisis affecting the country.
10.
The Committee on Economic, Social and Cultural Rights of the United
Nations has stated as follows regarding the general situation in Paraguay: The
Committee is well aware that democracy in Paraguay must be consolidated and that
it will take many more years to eradicate completely the attitudes created by
decades of dictatorship, glaring social inequalities and latifundismo.
The economic difficulties encountered by the State party, the high degree of
poverty throughout the country and the constraints imposed by foreign debt
repayment are further obstacles to the full realization of the economic, social
and cultural rights embodied in the Covenant. The Committee also recognizes that
the persistence in Paraguayan society of attitudes engendered by a culture in
which men are treated as superior to women does not facilitate the full
implementation of article 3 of the Covenant.[7]
11.
In this chapter the Commission summarizes the evolution of Paraguay’s
institutions, and outlines the current situation of the democratic institutional
framework.
B.
EVOLUTION OF THE INSTITUTIONAL FRAMEWORK IN PARAGUAY
12.
The Paraguayan State has offered the following comments regarding the
evolution of the country’s institutions: The political situation then produced a further succession of Governments which, in terms of their duration, can only be described as unstable until General Alfredo Stroessner came to power in 1954. General Stroessner installed a dictatorial regime characterized by lack of freedom in a variety of respects -‑ including freedom of the press, freedom of expression and freedom of the individual ‑- and centralized power solely in the Executive branch, with he himself at the helm. Institutions were corrupted and the State machinery became yet another tool in the hands of the dictator, who used it essentially to manipulate the electorate and bring in an ostensibly democratic Government, while manipulating the opposition and using its members as well as the governing party for his own ends. Anyone daring to oppose him on matters of principle or ideals was persecuted, arrested, tortured and even banished or exiled. Personal
rights and the most fundamental human rights were flouted by General Stroessner
and his entire cabinet, on such a scale that even lower‑level officials
amassed fortunes and violated rights with complete impunity. It
was against this background that a coup d'état took place during the night of 2
to 3 February 1989, toppling the Stroessner regime and proclaiming the rule of
law, respect for human rights, and freedom of thought and expression, which are
now becoming an internationally acknowledged reality.[8]
13.
The Inter-American Commission included a chapter on the development of
the human rights situation in Paraguay in its 1998 Annual Report, in which it
analyzed the institutional developments in Paraguay as of the fall of the
Stroessner dictatorship in 1989.[9]
In that document, the IACHR outlined the commitment expressed by the
President who succeeded Stroessner, General Andrés Rodríguez, to establish a
society respectful of the law and of human rights; it also referred to the
on-site visit it made to the Republic of Paraguay in 1990 to observe the human
rights situation, and the series of reforms, laws, and initiatives to put in
place institutions to promote the observance of human rights, including, among
others, actions aimed at making progress in restoring public liberties,
dismantling the repressive apparatus of the State, and prosecuting several human
rights violators.
14.
In the same document, the Commission presented a detailed analysis of the
situation that came about in Paraguay as of April 22, 1996, when then-President
Juan Carlos Wasmosy communicated to then-General Lino Oviedo, Army Commander,
his decision to relieve him of his command and have him retire. That analysis
was based on the facts in relation to the trial and conviction of Lino Oviedo
for rebellion and insubordination; the election in 1998 of Mr. Raúl Cubas and
Mr. Luis María Argaña as president and vice-president, respectively, of
Paraguay; the release of Oviedo, ordered by President Cubas, and the subsequent
confrontation between Cubas and the Supreme Court of Justice and the
Legislature; the assassination of Luis María Argaña; the beginning of the
impeachment of President Cubas; the events of March 1999 in which several
persons who were in front of the Congress of Paraguay, supporting the
impeachment of the then-president were killed; and the resignation of President
Cubas and the subsequent accession to the presidency of then-President of the
National Congress, Mr. Luis González Macchi.
15.
Among the conclusions drawn by the Commission in that document, it was
noted that The
IACHR urges the Paraguayan authorities and the various branches of government to
adopt all measures to ensure the full observance of the constitutional rule of
law. The Commission shall continue to observe the development of events in
Paraguay until institutional normalcy is consolidated, in the context of the
consolidation of representative democracy in the hemisphere. To this end, it
shall draw on all the authorities conferred on it by dint of its status as a
principal organ of the OAS, in the legal framework of the American Convention,
its Statute, and its Regulations.[10] C. ASSASSINATION OF THE VICE-PRESIDENT AND
THE EVENTS OF MARCH 1999
16.
On March 23, 1999, in the morning, the vice-president of Paraguay, Luis
María Argaña, was assassinated. His
bodyguard, Francisco Barrios González, was also killed, and the driver of the
vehicle was wounded.[11] In its chapter on the human rights situation in
Paraguay in its 1998 Annual Report, the Commission described the situation in
the following terms: The assassination of Mr. Argaña led to an explosion in the crisis that had been developing in Paraguay. Mr. Argaña was the main opponent of President Raúl Cubas, especially of his position with respect to former General Lino Oviedo. The assassination of Mr. Argaña caused great public shock, nationally and internationally. The news media reported that the country came to a standstill, and that people, outraged, went into the streets to stage protests and to call for the resignation of President Cubas; President Cubas and former General Lino Oviedo were considered to be the masterminds who organized Argaña's murder. In the capital city of Asunción, the protests were led by an independent group called "Youth for Democracy." On
March 24, 1999, the Chamber of Deputies of the Paraguayan Congress decided, by a
vote of 49 to 24, to impeach President Raúl Cubas [as per the provisions of
Article 225 of the Paraguayan Constitution].... On
that same day, March 24, 1999, and in response to the above‑noted decision
of the Chamber of Deputies, the president of the Senate called a special session
in which the Senate decided to sit as a court and begin the proceedings in the
impeachment of the President. For this purpose, the Senate called on the Chamber
of Deputies to present its indictment the next day, and also called on President
Cubas Grau to hear the indictment and to receive copies of the respective
documents. On
March 25, 1999, the Chamber of Deputies presented its charges against President
Cubas, and the Senate called on the defense to present its arguments refuting
the charges the next day.... From
the moment of the assassination of Mr. Argaña and so long as the impeachment
endured, the country was at a standstill. The spontaneous inclination of the
population, in that regard, was complemented by statements by several
institutions, including the Chamber of Deputies, Youth for Democracy, the
governors and intendants, and other members of Paraguayan civil society. The
largest concentration of people was around the Congress, where the impeachment
proceedings were under way against former President Cubas. On
March 27, 1999, in the course of the impeachment proceedings, a hearing was held
in which representatives of Cubas Grau presented his defense. That same day, at
the end of the afternoon, the heavily‑armed police forces, and snipers who
were atop a building in the area, carried out a bloody attack on the youths,
workers, and peasants who were in front of the Congress. Bombs and firearms were
used in that attack, causing the death of seven youths and seriously injuring
hundreds of others who were in the area of the Congress to show support for the
impeachment proceeding inside. On
March 28, 1999, on the eve of the Senate's decision on the impeachment
proceeding, President Cubas Grau stepped down as President of Paraguay. Shortly
before his resignation, retired Gen. Lino Oviedo traveled to Argentina, where he
sought and obtained political asylum. The day after his resignation, Cubas Grau
sought and obtained asylum in Brazil. In
the wake of the resignation of former President Cubas Grau, itself following
soon after the assassination of the Vice‑President, the presidency was
assumed, pursuant to Article 234 of the Paraguayan Constitution, by the
President of the Congress, Luis González Macchi. The new constitutional
President of the Republic of Paraguay formed a government in which the cabinet
ministers are from political parties distinct from that of the new President,
and he announced that his administration would be marked by respect for the
Constitution and the institutional order, and, in general, democracy and the
rule of law.[12]
17.
In that report, the Commission reiterated its “most forceful
condemnation of the atrocious crime committed against the person of Luis María
Argaña,” condemned in the same terms “the assassination of Mr. Francisco
Barrios González, Mr. Argaña's bodyguard, and of the youths Manfred Stark
Coscia, Víctor Hugo Molas, José Miguel Zarza, Porfirio González, Henry David
Díaz Bernal, Cristóbal Espínola Cardozo, and Tomás Rojas, who died defending
democracy and the institutions of Paraguay,” and added that it “repudiates
the bodily harm inflicted on hundreds of persons.”[13]
18.
The Commission also emphasized that “certainly,
an adequate investigation into the assassination of Mr. Argaña and of
all the other conduct described here is fundamental for consolidating the
democratic institutions and rule of law in Paraguay.”[14]
The Commission reiterates the importance of these events not remaining in
impunity, both for the sake of justice in the specific cases and due to the
specific repercussions of those cases on the institutional life of the country.
19.
To date, approximately two years since the assassination of Mr. Argaña,
the assassination of the students mentioned, and the other events described
above, the judicial proceedings are continuing.
In the trial for the murder of Mr. Argaña, a verdict was handed down in
the trial court on October 24, 2000, convicting several persons as the direct
perpetrators. The judge also
decided to dismiss charges, without prejudice, against three of the accused, due
to lack of evidence tying them to the assassination.
20.
The Commission understands that the culmination of the trial for the
assassination of Mr. Argaña, the investigations into the assassination of the
students mentioned, and the other events mentioned above may be complex and take
some time, and that even with a complete, impartial, and effective
investigation, in which all the economic and human resources needed could be
used, and displaying all the necessary will, it might turn out to be practically
impossible to clarify precisely all the facts and establish all the specific
responsibilities in the case.
21.
Nonetheless, the Commission observes that in the investigation and
judicial process relating to both events, preventive or pre-trial detention has
been ordered of persons who have been so detained beyond a reasonable period,
several of whom have publicly declared that they are innocent and that they have
been detained for political motives.[15]
The IACHR should point out, in general terms, that the obligation of a state to
investigate, prosecute, and punish the persons responsible for the
above-mentioned acts should be discharged in keeping with the guarantees of due
process set forth in the American Convention, which include being tried
“within a reasonable time” and the right “to be presumed innocent so long
as his guilt has not been proven according to law.”[16]
22.
A trial with full guarantees is the appropriate way to avoid the
injustice of convicting innocent persons or depriving them of their liberty for
unreasonable periods. In this
regard, it should be borne in mind that preventive detention is a precautionary
measure, not a punitive one, and that as such it cannot exceed a reasonable
time, for otherwise preventive detention becomes an anticipated punishment, in
violation of the right of all persons to be presumed innocent until proven
guilty, enshrined in Article 8(2) of the American Convention.[17]
23.
In the wake of the resignation of President Raúl Cubas Grau on March 28,
1999, and the earlier assassination of the vice-president, the office of the
president of Paraguay was assumed, in keeping with Article 234 of the Paraguayan
Constitution, by the President of the Congress, Luis González Macchi.
That Article provides as follows: In
case of impediment or absence of the president of the Republic, the president
shall be replaced by the vice president. If the vice president is also
unavailable, the order of succession will be as follows: the Senate president,
the Chamber of Deputies president, and the Supreme Court president. The
vice president‑elect shall assume the presidential office if left vacant
before or after the proclamation of the president and shall hold the office
until the end of the constitutional term. If
the office of vice president is left permanently vacant during the first three
years of the constitutional term, an election shall be held to fill it. If the
vacancy occurred during the last two years of the term, Congress -‑ by an
absolute majority vote -‑ will designate a vice president to complete the
remainder of the term.
24.
Later, and taking into account a recommendation by the Attorney General,
the Superior Tribunal of Electoral Justice consulted the Supreme Court of
Justice to
interpret the constitutional clause and determine whether the President of the
National Congress should temporarily accede to the post of President of the
Republic, until new elections for president are called, or whether he should
serve out the 1998-2003 presidential term, and call elections only for
vice-president of the Republic.[18]
25.
The decision of the Supreme Court on the consultation was as follows: HAVING
SEEN: The merits of the foregoing
agreement, the SUPREME COURT OF JUSTICE RESOLVES:
2.
TO DECLARE LIKEWISE that the Superior Tribunal of Electoral Justice
should call elections only for the post of Vice-President of the Republic for
the 1998-2003 constitutional period.[19]
26.
In keeping with that April 27, 1999 judgment of the Supreme Court of
Justice of Paraguay, the Superior Tribunal of Electoral Justice called elections
for the post of vice-president, to be held August 13, 2000.
Those elections were held on the date indicated, and Julio César Franco,
senator for the Partido Liberal Radical Auténtico, was elected.
The official results of the election were announced on August 24, 2000,
by the Superior Tribunal of Electoral Justice (TSJE).
27.
The Paraguayan State had previously entered into an agreement with the
General Secretariat of the OAS for OAS observation of the elections.
In implementing that agreement, the Secretary General of the OAS
designated José Luis Chea as chief of the Electoral Observation Mission, and
Diego Paz Bustamante as deputy chief. In
its preliminary report on those elections submitted to the Permanent Council of
the OAS, the Electoral Observation Mission affirmed that in the purely electoral
arena, the process of electing the vice-president in the Republic of Paraguay
displayed significant advances that reflected the credibility of the TSJE in the
eyes of the political actors and the citizens in general, and he added that
“in politics, the Paraguayan electoral process had special characteristics
that evidenced the following: the
political will of the Government of Paraguay to respect the principle of
separation of powers and the official election outcome; the political maturity
of the parties and their leadership to respect the democratic rules of the game
and the elections; and the civic spirit of the Paraguayan people who, despite
the serious challenges to strengthening democracy in Paraguay, believe in and
support democracy.”[20]
E.
ATTEMPTED COUP D’ETAT OF MAY 18, 2000
28.
On May 18, 2000, there was an attempted coup d’etat in Paraguay,
apparently led by members of the Army’s First Corps, the Army High Command,
and other offices of the National Police.
29.
Immediately the Paraguayan State, through the Permanent Mission to the
OAS, requested that a special meeting of the OAS Permanent Council be convened
to reject the coup attempt and to offer support to the constitutional government
of President González Macchi. Accordingly,
on May 19, 2000, a meeting of the OAS Permanent Council was held in which
Paraguay reported on the events and the other states expressed their fullest
support and backing for Paraguay’s democracy and institutions.
In this respect, the Permanent Council of the Organization issued
Resolution 770 (1235/00) that same day, with the following operative paragraphs:
1.
To express the full and unwavering support of the Organization of
American States for the Government of the constitutional President of Paraguay,
Luis Angel González Macchi.
2.
To condemn vehemently this assault on the democratic and constitutional
order of Paraguay.
3.
To express its appreciation to the Secretary General of the Organization
for his swift response in support of the Government of the constitutional
President of Paraguay and the Paraguayan people, and for his valuable
contribution to the preservation of democracy in that country; and to request
the Secretary General to keep the Permanent Council informed on the matter.[21]
30.
On May 19, 2000, and pursuant to Decree No. 8,772, the Paraguayan State
suspended certain rights and guarantees enshrined in the American Convention
throughout the national territory. On
May 23, 2000, the Permanent Mission of Paraguay to the OAS reported that
suspension to the other States party to the American Convention, through the
Secretary General of the Organization. That
notification was made in keeping with Article 27 of the Convention, according to
which 1.
In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating 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.
3.
Any State Party availing itself of the right of suspension shall
immediately inform the other States Parties, through the Secretary General of
the Organization of American States, of the provisions the application of which
it has suspended, the reasons that gave rise to the suspension, and the date set
for the termination of such suspension.
31.
On June 1, 2000, the Permanent Mission of Paraguay to the OAS notified
the other States party to the American Convention, through the Secretary General
of the OAS, that it had ended the state of emergency on May 31, 2000.
32.
The Inter-American Commission joins the expressions of condemnation of
that effort to interrupt democracy in Paraguay and ratifies what was said supra
with regard to the importance of democracy and the rule of law for the
observance and protection of human rights.
33.
The IACHR considers it positive that the Paraguayan state ended the state
of emergency, under which rights and guarantees were suspended, as soon as
possible. In this respect, the Commission has explained that one of the
requirements of the suspension allowed by Article 27 of the American Convention
is that it be temporary: This
requirement refers to the duration of the suspension, which, as established in
Article 27(1) of the Convention, should be only for the time strictly limited to
the exigencies of the situation. The Commission has warned that it is even more
serious to decree states of emergency for indefinite or prolonged periods,
especially when they allow broad powers to be concentrated in the head of state,
including the judicial branch abstaining with respect to the measures decreed by
the Executive, which in certain cases may lead to the exact opposite of the rule
of law.[22]
34.
The Commission also recalls that in investigating, determining the
responsibilities, and punishing the persons responsible for that attack on the
democratic institutional framework, the Paraguayan State is called on to set an
example of government by institutions and respect for human rights, which
implies, among other things, full respect for judicial guarantees and all other
rights and guarantees of the persons investigated in connection with those
events.
35.
In this respect, the Commission has been concerned to receive information
that indicates that several members of the police who had been involved in the
coup d’etat were repeatedly tortured by other police in the days immediately
following the coup attempt, and that indeed the acts of torture had been
perpetrated in the presence of high-level officials.[23]
In its observations to this report, the State requested that the following
information be added: “As a
result of the investigations, the Public Ministry, through prosecutor Amilcar
Ayala, has pressed criminal torture charges against Walter Bower, Minister of
Public Works and Communications (who as of the date of the punishable acts was
Minister of Interior), Basilio Pavón, District Commander of the 11th Police
District, Deputy Commanders Diosnel Ferreira and Merardo Palacios, and officer
Osvaldo Vera. The judge in the
case, Pedro Mayor Martínez, will refer the information in the case to the
Senate to ask that the Minister’s privilege be lifted.
The other persons accused are already facing judicial proceedings.” F. JUDGMENT ON THE NON-REMOVABILITY
OF THE MEMBERS OF THE SUPREME COURT
36.
The effective observance of rights and liberties in a democracy, as the
Commission, has pointed out,[24]
requires a legal and institutional order in which the laws prevail over the will
of the rulers, and in which there is judicial review of the constitutionality
and legality of government acts, i.e. it presupposes respect for the rule of
law.
37.
Recently, there was a situation in Paraguay related to the members of the
Supreme Court of Justice that involved the legislature, the Executive, and the
Judiciary. On November 5, 1999, the Honorable Senate adopted Resolution
421, confirming five members of the Supreme Court of Justice in their positions,
and not confirming others. On
November 9, 1999, the Executive branch, through Decree No. 6,131, issued a
“Constitutional Decision” confirming the Senate resolution.
38.
According to those decisions by the Legislative and Executive branches,
some members of the Supreme Court of Justice were to leave their positions on
the Court without having undergone a formal impeachment, whereas under Article
261 of the Constitution, “the members of the Supreme Court of Justice may only
be removed by impeachment....”
39.
Those decisions of the Legislative and Executive branches were
challenged, before the Supreme Court of Justice, on grounds of
unconstitutionality, and on May 5, 2000, the Court handed down judgments
declaring the provisions challenged unconstitutional, noting that “as provided
for by Article 261 of the National Constitution, the members of the Supreme
Court shall be required to step down upon turning 75 years of age, without
prejudice to the possibility of their removal through impeachment, and by no
other means.”[25]
40.
The Commission considers it positive that the issue raised, which
involved the three branches of government, has been resolved by the Judiciary,
in its role as the highest-level entity authorized to interpret the
Constitution. and that the Legislative and Executive branches have respected the
final, firm, and binding decision of the Supreme Court in the matter.
Although respect for and effective compliance with the mandate of a
judgment of the Supreme Court of Justice is an obvious and inherent feature of a
democratic state, the Commission highlights this situation, mindful of the
recent conflict among the branches of government in Paraguay, caused in large
measure by the Executive’s refusal to abide by a decision of the Judiciary,
culminating in the resignation of the President of Paraguay in March 1999.[26]
41.
Corruption is an important element to be taken into account in analyzing
the democratic institutional framework of a state, since various member states
of the OAS, including Paraguay, have recognized that “corruption undermines
the legitimacy of public institutions and strikes at society, moral order and
justice, as well as at the comprehensive development of peoples” and that
fighting corruption “strengthens democratic institutions and prevents
distortions in the economy, improprieties in public administration and damage to
a society's moral fiber.”[27]
42.
In this respect, the Paraguayan State itself has officially recognized
the corruption that existed in the country during the Stroessner dictatorship
(1954-1989), and the country’s highest-level authorities also recognize that
corruption continues to have a profound impact on Paraguay in the current
period. In this context, Paraguay has held, in the framework of the United
Nations, that ... in 1954 the government of General Alfredo Stroessner came to power; he established a regime in several respects.... The institutions were corrupted and the state apparatus become one more instrument by which the dictator wielded power....
43.
As regards corruption in Paraguay currently, the President has publicly
acknowledged corruption, and has noted, for example, that “corruption in the
tax-collection agencies is the bottleneck hindering economic recovery, and the
state’s capacity to assume its pressing responsibilities in the areas of
health, security, housing, and education.”[28]
For his part, then-President of the Supreme Court of Paraguay, Carlos Fernández
Gadea, also admitted publicly to the corruption in the Paraguayan judiciary,
noting, however, that the Judiciary is not the most corrupt of the three
branches of government.[29]
44.
The renowned non-governmental organization Transparency International
mentions Paraguay among the most corrupt countries in the world covered in its
last study, and as the second most corrupt of the Latin American countries
studied.[30]
45.
The phenomenon of corruption has to do not only with the legitimacy of
public institutions, society, the integral development of peoples, and all other
more general aspects mentioned supra,
but also has a specific impact on the effective enjoyment of human rights in
society in general.
46.
One of the areas where corruption and human rights are interrelated is
impunity. Chapter III, infra,
discusses the serious problem of impunity in Paraguay, and explains that the
failure to investigate and punish the persons responsible for human rights
violations committed by state agents gives rise to the international
responsibility of the state, and that this responsibility may also be triggered
by acts violative of human rights not originally committed by state agents, but
which are not duly investigated by the state.
Chapter III further notes that impunity also entails a serious violation
of the international human rights obligations assumed by states, and is part of
a sort of vicious circle whereby such acts tend to recur and be perpetuated,
increasing the occurrence of criminal acts.[31]
47.
Another point where corruption and human rights concerns come together,
also in the context of impunity, is that the corruption of the judge in a
particular trial undermines his or her independence when deciding the case, and
may consequently constitute a violation by the state of the rights and
guarantees enshrined in the American Convention, among them the guarantee that
all persons will be judged by an independent and impartial judge, enshrined in
Article 8(1) of the American Convention.[32]
48.
In the area of economic, social, and cultural rights, corruption has a
major impact, as it is one of the factors that can stand in the way of the state
adopting “the necessary measures .. to
the extent allowed by their available resources, ... for the purpose of
achieving progressively ... the full observance of”[33]
such rights. In this regard, it has
been noted that “the maximum available resources are not utilized as
effectively as possible towards the realization of economic, social and cultural
rights when a substantial portion of the national resources are diverted into
the private bank account of a head of state, or when development aid is
mismanaged, misused or misappropriated.”[34]
49.
It has also been noted, with respect to the relationship between
corruption and economic, social, and cultural rights, that when a minister’s
discretion is
“sold”, the decision he takes is influenced primarily by the extent to which
he is likely to be personally enriched. For example, a government obliged to
take deliberate, concrete and targeted steps towards achieving as high and
stable a level of employment as possible, will be corruptly persuaded to choose
a capital intensive project rather than a labor intensive one.[35]
50.
The relationship between corruption and human rights has also been
addressed from the perspective of discrimination.
Article 1(1) of the Convention provides that: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
51.
The principle of non-discrimination is fundamental to human rights, and
implies that every person has the right to receive equal treatment by public
officials in the performance of their functions.
In this respect, it has been noted that there is discrimination when a
public official accepts money or other gifts or favors from a person, given that
said person then acquires a privileged status in relation to other persons who,
in otherwise equal circumstances, have not offered any gift or favor and
therefore receive discriminatory treatment.[36]
52.
In addition, points of convergence between corruption and other human
rights have been described, such as the right to freedom of expression and
political rights.[37]
53.
In its observations to this report, Paraguay highlighted that the current
administration has fostered concrete actions to fight corruption, with the
formation of a National Council to Fight Corruption, made up of representatives
of the government, civil society, and the political parties.
The state added that in December 2000 it launched a National
Anti-corruption Plan whose implementation is entrusted to that Council, through
a Coordinating Office that enjoys the financial and technical backing of the
World Bank.
54.
The State also indicated that the former Comptroller General of the
Republic is on trial and under house arrest on corruption charges; that the
former director of the National Indigenous Institute and several other
authorities have been tried for links to corruption, including the former
president of the Republic, Juan Carlos Wasmosy.
55.
The Commission values and accords priority to actions to combat
corruption, and hopes that the State will report any convictions, so as to
include such information in reports that follow up on this report.
56.
In keeping with the foregoing considerations, corruption in Paraguay has
a serious detrimental impact on the democratic institutional framework and is an
important factor to be taken into account when analyzing the human rights
situation. As the Paraguayan State acknowledged on signing and ratifying
the Inter-American Convention Against Corruption, corruption undermines the
legitimacy of public institutions, and is an attack on society, the moral order,
and justice, and on the integral development of peoples. In addition, corruption weakens democratic institutions,
distorts the economy, vitiates public management, and deteriorates the morale of
society.[38]
H.
THE FAILURE TO APPOINT THE HUMAN RIGHTS OMBUDSMAN
57.
One aspect of great concern to the Commission, directly related to the
democratic institutional framework in Paraguay, is the failure to appoint the
Human Rights Ombudsman (Defensor del Pueblo). The 1992 Paraguayan
Constitution created this institution, but to date, eight years after that
Constitution was promulgated, the Honorable Congress of Paraguay has yet to
designate the Human Rights Ombudsman.
58.
The IACHR, within the scope of its powers, has voiced its concern in
this respect on several occasions.
Accordingly, in the Report on Paraguay included in the IACHR’s 1998
Annual Report to the OAS General Assembly, the following was noted: The
Commission hopes that the new authorities will adopt all measures to ensure
the strict practice of constitutional government and the rule of law. Among
these measures, the Commission recommends that the Paraguayan state designate
the Human Rights Ombudsman (Defensor del Pueblo), provided for in Article 276
of the Constitution of Paraguay, and whose designation is still pending. The
IACHR considers said designation of the Human Rights Ombudsman an important
measure for protecting human rights in Paraguay.[39]
59.
Later, in the press communiqué that it released on concluding its
on-site visit to Paraguay in July 1999, the IACHR noted: The
Commission notes with extreme concern that more than seven years after the
promulgation of the 1992 Constitution, Congress has not yet appointed the
People’s Defender. Article 276 of Paraguay’s 1992 Constitution created the
office of the People’s Defender, whose functions were to be, according to
that article, "the defense of human rights, the channeling of popular
demands, and the protection of community interests." Article 277 of the
Constitution states that the Defender’s appointment is to be based on a
Senate proposal of a three‑name shortlist, from which the Chamber of
Deputies must then make a choice, backed up by a two‑thirds majority.
The Commission believes that the work of the People’s Defender is
essential to protect and defend Paraguayans’ basic rights, particularly
those of the economically underprivileged, who generally suffer more frequent
human rights violations.
The appointment of the People’s Defender is an inescapable and
pressing constitutional commitment that Paraguay’s senators and deputies
have toward the Paraguayan people and the international community. The
Commission urges the Paraguayan Congress to proceed to elect a People’s
Defender for Paraguay at the earliest possible juncture.[40]
60.
On March 20, 2000, the Permanent Mission of Paraguay to the OAS
informed the IACHR that the Senate had designated the three-person slate of
candidates for the post of Human Rights Ombudsman, and that it was now up to
the Chamber of Deputies to choose the Human Rights Ombudsman.
On March 22, 2000, the IACHR sent a note to the Permanent Mission of
Paraguay to the OAS in which it noted that “it hopes that the Honorable
Chamber of Deputies of the Paraguayan Congress is able to culminate, as soon
as possible, the appointment of the Human Rights Ombudsman.”
61.
On July 19, 2000, the Inter-American Commission sent notes to His
Excellency Juan Esteban Aguirre, Minister of Foreign Relations of the Republic
of Paraguay, and, through him, to the Honorable Deputy, Cándido Vera Bejarano,
Speaker of the Chamber of Deputies of the Honorable Congress of the Republic
of Paraguay, requesting official information on the appointment of the Human
Rights Ombudsman.
62.
The Inter-American Commission on Human Rights considers that the
failure to make an appointment to a constitutional organ of such importance as
the Human Rights Ombudsman is a grave affront to the rule of law in Paraguay,
as said appointment is a mandate, of the Constitution, which is the supreme
law of the land.
The IACHR also observes that the special majority of the Chamber of
Deputies required by the Paraguayan Constitution to designate the Human Rights
Ombudsman is not a valid excuse, especially considering that in the case of
other constitutional organs that also require special majorities, the
necessary political will has been mustered to make the appointment.
63.
The IACHR once again urges the Paraguayan State to implement its
Constitution by urgently and immediately designating the Human Rights
Ombudsman. 64. The Inter-American Commission observes that Paraguay has made an effort to consolidate its democracy and to try to handle, in the framework of its democratic institutions, various legal and factual situations that affect the country, including those mentioned above. One important exception that affects the transition to full implementation of the democratic institutional framework in Paraguay is the failure to appoint the Human Rights Ombudsman provided for in the 1992 Constitution. This circumstance is a very grave and unacceptable failure to implement the Constitution of Paraguay. The Commission expresses its grave concern over this omission, which involves precisely an organ that has proven to play an important role protecting human rights in other countries. [ Table of Contents | Previous | Next ] [1]
The considerations in this introduction reproduce, in large measure, those
offered by the Inter-American Commission in its most recent report on
Paraguay. See
IACHR, 1998 Annual Report, Chapter IV.
That report is published at the Commission’s web page, <www.cidh.oas.org>. [2]
Inter-American Court on Human Rights, “Habeas Corpus in Emergency
Situations,” (Arts. 27(2), 25(1), and 7(6) of the American Convention on
Human Rights).
Advisory Opinion OC-8/87, January 30, 1987, para. 26, p. 41. [3]
IACHR, Second Report on the Situation of Human Rights in Peru, 2000, Chapter
VI, para. 2. [4]
IACHR, Second Report on the Situation of Human Rights in Peru, 2000, Chapter
VI, para. 4,
citing Cançado Trindade, Antonio A., “La Justiciabilidad de los
derechos económicos, sociales y culturales en el plano internacional,”
published in Revista Lecciones y Ensayos, 1997-98, Universidad de
Buenos Aires, School of Law and Social Sciences, Abeledo-Perrot, Buenos
Aires, 1998, p. 80. [5]
IACHR, Press Release No. 20/98, Lima, Peru, November 13, 1998, para. 19. [6]
United Nations Development Program (UNDP), Human Development Report 2000,
Foreword. This report can be found at the web page <www.undp.org/hdr2000/english/HDR2000.html>. [7]
Committee on Economic, Social and Cultural Rights, Consideration of Reports
Submitted by States Parties under Articles 16 and 17 of the Covenant,
Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Paraguay, May 28, 1996, E/C.12/1/Add.1, para. 7. [8]
Republic of Paraguay, Basic Document that is an integral part of the Reports
by the States Parties, Document prepared by the Paraguayan State and
submitted to the United Nations, Doc. HRI/CORE/1/Add.24, May 11, 1993, paras.
80 to 82. [9]
IACHR, 1998 Annual Report, Chapter IV. That report is published at the
Commission’s web page: <www.cidh.oas.org>. [10]
IACHR, 1998 Annual Report, Chapter IV, para. 59.
That report is published at the Commission’s web page: <www.cidh.oas.org>. [11]
The IACHR addressed the situation in the following terms:
“The Inter‑American Commission on Human Rights (hereinafter
‘the Commission’) has been advised this morning of the assassination of
Dr. Luis María Argaña, Vice President of the Republic of Paraguay, in
Asunción. As a principal organ of the inter‑American system, the
Commission most emphatically condemns this atrocious crime, which not only
violates the law but also threatens institutional stability and normal
democratic life in that country. The Commission cannot fail to point out
that the assassination of Dr. Argaña takes place in the context of a grave
institutional crisis that has dragged on for several months and has led to a
public clash, on the one hand between the Executive Branch and the Electoral
Authorities, and, on the other, between the Legislative Branch and the
Supreme Court. The Commission considers that this crisis must be solved
legally and in a manner that preserves the rule of law, the highest
expression of which, internally, is the national Constitution, the basis of
Paraguay’s democratic system of government and the instrument from which
all the authorities in the Republic derive their legitimate powers. The
Commission calls upon the Paraguayan State, with the utmost urgency, to
investigate, identify, and punish those responsible for this abominable
crime, acting with the transparency and effectiveness that the circumstances
demand.”
IACHR, Press Release No. 9/99, March 23, 1999. [12]
IACHR, 1998 Annual Report, Chapter IV, paras. 34 ff.
That report is published at the Commission’s web page: <www.cidh.oas.org>. [13]
IACHR, 1998 Annual Report, Chapter IV, para. 56. That report is published at
the Commission’s web page: <www.cidh.oas.org>. [14]
IACHR, 1998 Annual Report, Chapter IV, para. 56. That report is published at
the Commission’s web page: <www.cidh.oas.org>. [15]
In its observations to this report, the State indicated that “The
technical office of the Supreme Court of Justice has made the following
observation on point 21: While it is true that several persons are being
tried and held in preventive detention, they cannot argue defenselessness or
excessive time in the proceeding, since the criminal charges have been
brought before the judge with jurisdiction, respecting the basic standards
for a fair trial.
The accused have been held less than two years in preventive
detention, which tells us that the reasonable time of duration of the case
has not been exhausted, mindful that our new Code of Criminal Procedure
provides that the maximum time for the proceeding is three years.” [16]
American Convention, Art. 8. [17]
In this respect, see the I/A Court H.R., Case
of Suárez Rosero, Judgment of November 12, 1997, para. 77. [18]
Republic of Paraguay, Supreme Court of Justice, Decision and Judgment No.
191, April 27, 1991. [19]
Id. [20]
Report by the Electoral Observation Mission to the Republic of Paraguay,
Vice-Presidential Elections of August 13, 2000, Unit for the Promotion of
Democracy, OAS, Chapter IX, pp. 9-10. [21]
OAS, Permanent Council, Support for
the Constitutional Government of the Republic of
Paraguay, Resolution CP/RES.770 (1235/00), of May 19, 2000. [22]
IACHR, Second Report on the Situation of Human Rights in Peru, 2000, Ch. II,
para. 70. [23]
Báez Samaniego, César (American Association of Jurists, AAJ), Abusos
y Torturas de Agentes Públicos. Study published in: Derechos Humanos en
Paraguay 2000, published by CODEHUPY, Coordinadora Nacional de Derechos
Humanos, Asunción, 2000, pp. 47 ff. [24]
Id. Ch. II, para. 1 ff.
The initial considerations of this chapter largely reproduce those
offered by the Commission in that recent report.
(IACHR, Second Report on the Situation of Human Rights in Peru, 2000,
Ch. II). [25]
Supreme Court of Justice of the Republic of Paraguay, Decisions and
Judgments Nos. 222 and 223, both of May 5, 2000. [26]
See IACHR, 1998 Annual Report, Ch. IV, Paraguay. [27]
Inter-American Convention Against Corruption, Preamble.
That Convention was adopted in Caracas, Venezuela, March 29, 1996,
and entered into force June 3, 1996.
Paraguay ratified that instrument on January 28, 1997. [28]
“González Macchi Hace Nuevo Llamamiento a Diálogo para Salir de la
Crisis,” EFE news agency, July 1, 2000. [29]
“Supreme Court member Carlos Fernández Gadea said that influential groups
seek to dominate the judiciary.
He admitted the corruption that exists in the judiciary, yet he
categorically rejected the conclusions of the survey done months earlier,
which describe the judiciary as the most corrupt branch of government,
ensuring that such is not the opinion of the World Bank....
He added that they are working to implement corrective measures and
that to date 40 judges have been suspended and/or removed from their
posts....” Diario
Noticias, Asunción, Paraguay. Electronic version of July 13, 2000. [30]
For purposes of the respective study, Transparency International focuses on
corruption in the public sector and understands this to mean the use of
public posts for private gain.
Its indices (CPI, or Corruption Perception Index) published annually
classify countries by degree of corruption of politicians and public
employees perceived to exist. The latest study, for 1999, indicates a
composite index obtained from 17 different surveys and 10 studies by
different institutions, among businesspersons, the general public, and
analysts in the country.
Transparency International,
1999 Corruption Practices Index.
This study can be obtained at the following web page:
<www.transparency.de>. [31]
See, in this respect, the Commission’s considerations in the Third Report
on the Human Rights Situation in Colombia, op.
cit., Ch. V, para. 16. [32]
See, e.g., that the Commission has held as follows: “if Mr. Marzioni
presented information establishing that the trial was not impartial because
the judges were corrupt, or were biased for racial, religious, or political
reasons against him, the Commission would be competent to examine the case
under Articles 8, 21 and 25 of the Convention.”
IACHR, Report No. 39/96, Santiago Marzioni, Case 11,673 (Argentina),
1996 Annual Report, para. 62. [33]
Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights, “Protocol of San Salvador.”
Article 1. [34]
Nihal Jayawickrama, Executive
Director, Transparency International, Corruption--A Violation of Human
Rights?
June 1998. This paper can be found at Transparency International’s
web site, <www.transparency.de>. [35]
Id. [36]
Id. [37]
Id. [38]
Inter-American Convention Against Corruption, Preamble.
Adopted in Caracas, Venezuela, March 29, 1996, and entered into force
June 3, 1996. Paraguay ratified it on January 28, 1997. [39]
IACHR, 1998 Annual Report, Ch. IV, Paraguay, para. 57. [40]
IACHR, Press Release No. 23/99, Asunción, July 30, 1999.
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