CHAPTER I

STRUCTURE OF THE STATE AND LEGAL REGULATION OF HUMAN RIGHTS

The object of this first chapter is to describe Paraguay’s juridical system insofar as it addresses both the political organization of the state and the code of laws governing human rights which that state has undertaken to respect and promote.  To that end, the pertinent provisions of the Constitution of the Republic of Paraguay will be examined, including the amendment introduced in 1977 and existing laws whose enforcement affects the power system or the regulations of human rights.  This presentation is therefore designed to serve as a general framework for the analysis that will address the specific problem issues of each right examined in the respective chapters.

The current Constitution of Paraguay was approved by the National Constitutional Convention on August 25, 1967 and was promulgated by the executive Branch on the same day.  Article 219 foresees the possibility of introducing “such amendments as experience may counsel” following a period of five years from the date of its promulgation.  It was on the basis of this article that in 1977 another National Constitutional Convention amended Article 173 to permit reelection of the president.  With that amendment, the 1967 Constitution replaced the 1940 Constitution which had been in force until that time.

1. THE POLITICAL ORGANIZATION OF THE PARAGUAYAN STATE

Article 1 of its Constitution proclaims that the Republic of Paraguay “adopts representative democracy as its form of government.”  Article 3 stipulates that “the government of the republic is exercised by the legislative, executive and judicial powers, within a system of divisions, balance and interdependence or power.”  This division and balance of powers has traditionally been understood to be a fundamental element of representative democracy, which has repeatedly been endorsed by the Commission as the best safeguard for the observance of human rights.  Hence the importance of remembering this general postulate embodied in the Paraguayan Constitution as a basis for evaluating the extent to which it is or is not applied in the government’s practice, especially in regard to the independence of the judiciary.

Articles 40 and 41 impose restrictions on the exercise of power.  Those articles provide that:

Article 40.  None of the powers of the state may even arrogate to itself or grant to another power, or to any person whatsoever, special rights beyond those envisaged in this Constitution, or the public power as a whole, or supreme authority giving power of decision over the life, freedom, honor, and property of persons.  Dictatorship is outside the law.

Article 41.  Higher government authorities, official and employees shall at all times act in accordance with the provisions of this Constitution and the laws.  These persons shall exercise the duties within their competence in conformity with the latter and shall be personally responsible for the violations, crimes, or misdemeanors they commit in the performance of their duties, without prejudice to the responsibility of the state, which shall be regulated by the law.  A special law shall regulate the responsibility of government officials in order to ensure their effectiveness.

Chapter VII of the Constitution designated the three branches of the state and defines their jurisdiction.  This chapter starts by addressing the legislative power.  Pursuant to Article 133, this is exercised by a Congress composed of the Senate and the Chamber of Deputies, consisting of thirty and sixty members, respectively.  Both senators and deputies are elected directly.

As defined by the Constitution, the functions of both chambers are those usually included in present-day constitutions.  It should be noted, however, that the executive power retains the initiative in legislation granting “concessions for the establishment of new industries or national public services, as well as for the extraction and processing of raw materials”  (Article 149, paragraph 10); “military ordinances and the organic law of the military courts” (Article 149, paragraph 14); and the transfer of the capital of the republic to another site (Article 149, paragraph 19).

A significant factor, for reasons explained in the following section, is the size of the necessary majority stipulated by the Constitution for the adoption of legislation on important matters.  It should be noted in this respect that a two-thirds majority is required by the Constitution to approve legislation concerning the following topics:  the reprimanding or removal of one of its members from either chamber of the congress (Article 14); the suspension of any member of either chamber (Article 142); the requirement of a two-thirds majority to declare guilty any members of the Supreme Court of Justice who are tried by the Senate (Article 151, section 3); the institution by the Chamber of deputies of trial of members of the Supreme Court before the Senate (Article 153, section 4); reconsideration, after a lapse of one year, of any bill vetoed by the Executive Branch (Article 158); rejection for the second time of a bill that has twice been approved by the Chamber in which it originated (Article 160); final approval of amendments to a bill when they have twice been voted down the Chamber that presented the bill (Article 161); and final rejection, by either chamber, of the bill containing the budget (Article 163).

Closely linked to the provisions relating to the qualified majority is the system established by Law No. 886, entitled “Electoral Statute,” Article 8 of which states the following:

The Senators and Deputies, and the members of the Constitutional Conventions as well as those of Municipal Boards and Electoral Boards, will be elected in direct general elections, by means of the following complete list and proportional representation system:

a.  The system of representation adopted consists of assigning two thirds of all the positions to the party that obtains the greatest number of valid votes.  The proportion for the remaining posts will be determined in the following manner:  the total number of valid votes cast in favor of the minority parties will be added together and divided by the number of positions to be filled.  The result will be the electoral quotient for the minority, and this quotient will serve as the divisor for the number of valid votes cast in favor of each of the minority parties.

b.  If, after the respective posts have been assigned, one or more remain to be filled, the first shall be adjudicated to the minority party whose surplus votes are closest to the quotient that received the larges number of valid votes.  The system thus established shall apply also to the alternates.

As may be seen, by assigning two thirds of the chambers automatically to majority party, the proportional representation system adopted establishes a mechanism whereby that political party can control the entire Congress.  As will be evident when the subject of political rights is discussed, it must be borne in mind that a single party–the Partido Colorado–has systematically obtained the two-thirds majority thanks to this system.  The head of that party is President Stroessner.

In addressing the subject of proportional representation, it should be noted that the Constitution explicitly establishes this system in Article 111, considering it to be one of the essential bases of exercise of the right to vote.  Article 115 also establishes the system of proportional representation to form the electoral bodies.  It can be argued that the system authorized by Law No 886 does so as well, since in effect, it assigns parliamentary seats on the basis of proportion.

Nevertheless, the purpose of the proportional representation system is to allow minority groups to participate in the decision-making process, since they would be excluded from the institutional and political life of the nation if the simple majority criterion were applied.  The system adopted in Paraguay grants a determinant proportion (two thirds) to the majority party, irrespective of the percentage of votes it may have obtained, and this distorts the proportional representation system and the aims it pursues.

Chapter VIII deals with the executive Branch, its composition, the way the presidents are elected, the duration of their mandates, and the powers thereof.  Article 171 stipulates that executive power shall be vested in the President of the Republic, who is elected by direct vote.  Article 167 of the 1967 Constitution limited reelection to a single additional period, whether consecutive or otherwise.  As noted earlier, this article was changed by the National Constitutional Convention which on March 10, 1977 approved the amendment removing the limit on presidential reelection.  It is thanks to this provision that President Stroessner has been reelected until the present time.

The possibility of indefinite reelection of the president is added to the broad authority which the Constitution confers on the Chief Executive, endowing this branch with clear preeminence over the others.  Under the Constitution, the President is the Supreme Head of the State, Commander in Chief of the armed Forces, and the person who appoints the members of the Supreme Court of Justice subject to approval by the Senate; the State attorney General, with the opinion of the Council of State; and the members of the courts and other judges of the judiciary power, with the assent of the Supreme Court (Article 1809, section 8).

This system means that the judicial branch depends directly on the executive, particularly since magistrates are appointed for a period of five years, after which they can be “reelected” (Article 195 of the Constitution).  As is obvious, the judges not only have no tenure under this system, but–quite the contrary–they are kept in a permanent state of uncertainty regarding their future.  This factor alone means that the rest of the authority conferred by the Constitution on the judiciary is radically diminished, particularly in regard to action designed to exercise any control over the president or persons close to him.

In addition to the broad authority that the executive branch has over the judiciary, it can also dissolve the Congress on the basis of any “serious events imputable to it that endanger the balance among the powers of the state or in some other way affect the regular enforcement of this Constitution or the free development of the institutions created by it” (Article 182 of the Constitution).  As is evident, the president is given broad discretionary power to determine what acts are so “serious” as to warrant such a drastic measure.

The president’s far-reaching authority over the institutional structure of the Paraguayan state, reflected in powers that affect the judicial branch and Congress, are complemented by the authority over individuals the Constitution bestows on him by means of the declaration of a state of siege, which he can invoke pursuant to Article 181.  Because of its impact on exercise of the rights recognized by the Constitution, the state of siege will be discussed in the second part of this chapter.  For the time being, suffice it to say that this important mechanism is directly related to the way in which power I wielded within the framework of the Paraguayan Constitution.

The institutional supremacy of the executive branch over the other branches of the government, stemming from the provisions of the Constitution, is complemented by the absence of measures that hold the President responsible for possible illegal acts perpetrated during his incumbency.  This lack of responsibility grants personal immunity to a well protected institutional primacy.  When it is heightened, as will be seen in the chapter on political rights, by the fact that President Stroessner is also an acting General of the Army and head of the incumbent Colorado Party, it is easy to see that scant room for margin for political maneuvering is left to his opponents.

As may be seen, the formal statements set forth in Articles 1 and 3 concerning adoption of representative democracy and the division of powers are severely constrained by the group of measures that should, on the contrary, seek to defend such postulates, not to restrain and distort their application.  Hence it may be concluded that the institutional order established by the Constitution grants excessive preponderance to the Executive Branch over the Legislative and the Judiciary, making them subordinate thereto.  Thus the essential tenets relative to representative democracy and the division of power come to represent formal statements rather than principles enshrined in the Paraguayan constitutional order.

2. HUMAN RIGHTS AND THE PROTECTION THEREOF IN PARAGUAY’S LEGAL SYSTEM

1.                 The Rights that are Protected

The object of the present section is to present the juridical system that defines human rights in Paraguay’s legal system.  This includes a discussion of the instruments that guarantee the exercise of such rights.  To that end, a general presentation of the system will be used as a framework for specific consideration of each right addressed by the respective chapters of this report.

The juridical system that defines acknowledged rights establishes certain institutional recourse for their protection, and sets limits on the force thereof in the fact of exceptional situations.  In essence the system is embodied in Chapter V of the constitution of the Republic of Paraguay, which has been in effect since August 25, 1967.  Chapter III defines the right to nationality in adequate terms.

The aforementioned Chapter V deals with the rights, guarantees and obligations of individuals.  It refers separately to what it calls individual rights, also known as civil rights; to the social rights that include norms relevant to family, education and culture, and the right to health; economic rights; the rights of workers, and political rights, including provisions concerning voting rights, political parties, and political asylum.  This Chapter of the Constitution ends by establishing the obligations incumbent upon the inhabitants of Paraguay.

Section No. 1 of Chapter V, dealing with what it terms individual rights, defines some of them exhaustively while others are simply mentioned.  Thus the rights to life, physical integrity, freedom, security, property, honor and reputation are mentioned as a group in Article 50, which provides that all individuals are entitled to have such rights protected by the State.

Article 50 is partially complemented by Article 65, which states that in no case shall the death penalty be applied for political reasons.”  It is interesting to note that the death penalty has not been applied by Paraguayan courts for at least fifty years.

Article 65 also complements Article 50 in regard to personal integrity by saying that “no one shall be subjected to torture or to cruel or inhumane treatment.”  The same Article 65 also addresses the right to property, prohibiting the confiscation thereof; and, in conjunction with personal freedom, it calls for the penitentiary system to see to the rehabilitation of convicts.

The right to residence and movement is recognized in Article 56, while Article 58 is devoted to the right to intellectual property.  The right to personal freedom is addressed in Article 59, but it is interesting to note in this connection the protracted interval allowed for the police to tell the accused the reason for his detention (24 hours); the possibility of indefinitely prolonged incommunicado status is equally inadvisable, even when authorized by judicial order.

Articles 60 to 64 adequately regulate the various areas involving the right to justice and due process.  Article 67 precludes the retroactivity of penal laws except in cases where they are more favorable to the accused.  Article 68 enshrines the inviolability of the home and Article 69 that of papers, correspondence and personal communications.  Freedom of conscience and religion are recognized in Article 70, limiting their exercise to the dictates of public order and good customs.

Article 71 recognizes the right to freedom of thought and opinion, but it is limited by the text of the article stating that “it is forbidden to preach hatred, or class struggle among Paraguayans, or to defend crime or violence.”  Article 72 authorizes the right to freedom of speech and information, but with two limitations:  those stemming from the previously quoted Article 71, and the censorship of matters relating to national security and defense in time of war.  The series is completed by Articles 73 and 74, which codify the free practice of journalism and the ban on subsidies from foreign countries for news media enterprises.  Article 76 recognizes the right to freedom of association and assembly, limiting them when they infringe on the rights of others or disturb the public order.

The first section of Chapter V also includes rules about equality before the law (Article 54) and the constraints on the exercise of rights derived from generally accepted criteria, such as the rights of third parties and the public order (Article 49). It also establishes the principle that excludes from the authority of the courts such private actions as do not offend public order, morals, or the rights of third parties, as well as the one whereby no one may be forced to do anything that the law does not require, or be prevented fro doing anything not forbidden by law (Article 49).

From the legislative point of view, Article 80 of the Constitution–which marks the close of Section 1–is important.  We quote it in its entirety:

         The enumeration of the rights and guarantees contained in this Constitution shall not be construed as denying others which, not specifically mentioned therein, that are inherent in the human being. Absence of a regulatory law shall not be invoked to deny or impair any right or guarantee.

Section 2 of Chapter V is devoted to the social rights.  As noted earlier, it includes norms for the protection of the family, motherhood, and minor children, as well as the family’s patrimony and the social security system.  It also addresses the right to education and culture, establishing compulsory elementary education and the freedom to impart it.  Practical elements are also considered in these areas, such as the creation of scholarships and financial assistance to those who need it.  Constitutional status is conferred on the State’s commitment to protect and promote the use of the guarani language.  The right to health is recognized in Article 93 of the Constitution.

Section 3 regulates a series of rights which the Constitution classifies as “economic.”  Except for Article 96, which deals with the right to own property, the others are norms outside the area of human rights, as they concern private initiative, economic development, the exploitation of natural resources, and the like.

Section 4 of Chapter V of the Constitution addresses the rights of workers, and starts by establishing the ban on servitude “or personal dependency incompatible with human dignity.”  This section also sets forth various fundamental concerns bout working conditions to be provided for by the law.  It speaks in particular of the protection to be given women, and the requisite social security system.  It also recognizes the right of workers to form unions and to strike.

Section 5 of this chapter refers to political rights and addresses suffrage, political parties, and political asylum.  Paraguay’s Constitution considers voting to be the “right, duty and public function of the voter,” asserting that it is “the basis of the system of representative democracy,” predicated on “the universal, free, direct, equal and secret vote; and on the system of proportional representation” (Article 111).  This is also the system indicated by the Constitution for forming the electoral bodies (Article 115).  The opinion of the Commission regarding the proportional representational system as regulated by Law No 886 was discussed earlier, in connection with the powers of the Paraguayan Congress.

The subject of the electoral capacity of Paraguayan citizens is adequately covered by the Constitution, which even allows foreigners to vote in the case of municipal elections (Article 112).  It also recognizes the voter’s right to peaceful demonstrations (Article 116).

The section in the Constitution that regulates the political parties–Article 117 through 121–elicits observations concerning the restriction contained in Article 118, according to which “subordination of Paraguayan political parties to, or their alliance with, similar organizations of other countries is prohibited.  Nor may they receive subsidies or directives from abroad.”  This clause will be examined in greater detail when we discuss the exercise of political rights.  For the time being, then, suffice it to say that this is an anachronistic constraint without any particular justification at a time when international relations feature the participation of numerous political organizations that focus on doctrinal and ideological affinities, but could not be considered as an element that would subordinate the exercise of important political rights inside Paraguay to external decisions.

In addition to this regulation, another norm appears in Article 119 that states that “no political party may proclaim abstention that would signify non-participation of citizens in elections.”  Both rules leave it to the courts to cancel or suspend the legal status of political parties that might be affected by these measures, pursuant to Article 121, which represents a clearly negative situation for the functioning of political parties.

2.                  Limitations on the exercise of recognized rights

Paraguay’s legal system limits the validity of the rights recognized by the Constitution through three different types of instruments.  The first is the declaration of the state of siege, addressed by Article 79 of the Constitution; the second is Law No 294 of 1955, entitled “Law for the Defense of Democracy”; and the third is Law No 209, known as the “Law of Public Peace and Freedom of the Individual.”  The Commission will discuss them in the following paragraphs.

a.                  The State of Siege

As noted earlier, the state of siege is established by Article 79 of the Constitution, the text of which appears below.

Article 79.  In order to defend this Constitution and the authorities created inconformity therewith, the state of siege is instituted to be imposed only in cases of international conflict or war, foreign invasion, domestic disturbance, or serious threat of any one of these events.  A state of siege may be complete or partial, depending on whether it affects the entire territory of the republic or only a part thereof, and during the time it is in effect persons suspected of participating in any of those events may be arrested, or they may be transferred from one point in the republic to another, and public meetings and demonstrations may be prohibited.  Those arrested by virtue of a state of siege shall be held in healthful and clean premises not intended for common criminals, and transfers shall always be made to localities that are populated and healthful.  The declaration of state of siege shall be for a limited time and shall in all cases serve the purpose for which it was instituted.  The fact that a state of siege is in effect shall not interrupt the functioning of the powers of the state or affect the exercise of their prerogatives.  The imposition of a state of siege shall be regulated by law.

The article transcribed above is complemented by Article 181 of the Constitution, which states that following:

Article 181.  In the cases stipulated in Article 79 of this Constitution the executive power may decree a state of siege, in which case it must set forth the reasons therefore, the guarantees that are being suspended or restricted, and whether it is in force for the entire national territory of a part thereof, and may adopt the measures authorized in the aforementioned article.  The executive power shall inform the Congress of the corresponding decree within five days following its publication.

The Inter-American Court of Human Rights has on many occasions addressed the difficult subject of the states of exception in the different OAS member countries.  The IACHR has always acknowledged the need that governments may face, in exceptional circumstances, to suspend the exercise of one or several rights recognized by their legal system.  For their part, modern international instruments also acknowledge this type of situation.

Insofar as Paraguay is concerned, it should be noted that the American Declaration of Human Rights and Duties of Man–which is applicable to Paraguay–does not contemplate the possibility of restricting or suspending certain rights.  The Commission will consider in the light of doctrinary criteria derived from the American Convention, which–although not applicable to Paraguay, which failed to ratify it–in its day embodied the Hemisphere’s thinking on this subject.  Other doctrinary criteria that have been applied in this delicate area will also be used.

The evolution of the treatment of this topic has given rise to the development of detailed guidelines as to the way governments must act in these exceptional circumstances.  In the first place, it was found that certain rights can never, under any circumstances, be abolished or their exercise suspended.  In the inter-American sphere, they are the ones listed in section 2 of Article 27 of the American Convention on Human Rights.1

In addition to this recognized prohibition on the suspension of certain rights, the Commission, following unanimous doctrinary thinking, has found that any restriction or suspension of rights must be limited in time and appropriate to the seriousness of the situation that triggers the adoption of such measures.  The American Convention, while regulating the states of exception mentioned in Article 27 stipulates that they can be applied when there is a situation “of war, public danger, or other emergency that threatens the independence or security of the State Party,” and that the measures adopted by each State Party must be “to the extent and for the period of time strictly required by the exigencies of the situation.”  The phrase “to the extent” refers to the criterion of proportionality and “for the period of time” to the temporariness criterion.

The Commission will now examine the way in which the Government of Paraguay has applied the measures of the state of siege.  The foregoing criteria will be used for this purpose:  situations that give rise to the proclamation of the state of siege, the proportionality of the measures adopted and the temporary nature thereof.  It will also examine the rights whose exercise can be suspended in accordance with Paraguay’s Constitution and the way the decisions taken by the executive power have been put into practice.

Article 79, transcribed above, starts by citing the end to be achieved by implementation of the state of siege: defense of the Constitutions and the authorities created pursuant to it.  It also establishes the causes the can lead to the adoption of such a measure:  international conflict or war, foreign invasion, domestic disturbance, or a serious threat of any one of these events.  As may be gathered from the text, the domestic disturbance must be so serious as to endanger the validity of the Constitution or the authorities created in conformity therewith.

The text of the Constitution in regard to the rights whose exercise is suspended is consistent with the requirements of the international instruments and the doctrine relevant to human rights.  According to Article 79, during the time the state of siege is in effect, “persons suspected of participating in any of those events may be arrested, or they may be transferred from one point in the republic to another, and public meetings and demonstrations may be prohibited.”  This provision is complemented by the one designed to regulate the conditions under which the persons arrested by virtue of a state of siege shall be held:  “in healthful and clean premises not intended for common criminals, and transfers shall always be made to localities that are populated and healthful.”

The criterion of temporariness is also reflected in Article 79, when it stipulates that the state of siege shall be fore a limited time–although it does not specify the length thereof.  The criterion of proportionality is acknowledged as well when it is stated that the state of siege “shall in all cases serve the purpose for which it was instituted.”

A particularly significant clause in Article 79 is the one cautioning that the state of siege “shall not interrupt the functioning of the powers of the state or affect the exercise of their prerogatives.”  This type of provision is highly important when it is a matter of regulating exercise of the executive power in the face of a state of exception, for it tends to preserve the balance of powers inherent in a democratic system of government, thus ensuring the protection of individuals by the judicial government, thus ensuring the protection of individuals by the judicial branch to protect them from any excesses that might result from the declaration of a state of siege by the administrative or political authority.  The part played by Congress in this institutional game is set forth in the final provision of Article 79 when it says that “the imposition of a state of siege shall be regulate by law.”

This balance of powers is strengthened by the contents of Article 181, which call for the executive power to inform the Congress of the decree declaring a state of siege within five days following its publication.  The same article also established the requirements to be met by such a decree:  a statement of the reasons for its issue, the guarantees that are being suspended or restricted, and the portion of the national territory affected thereby.

The Commission will now examine the method used by the Paraguayan Government to put these constitutional measures into practice.  Before doing so, however, it is indispensable to discuss two laws that represent important elements in the practice of the Paraguayan Government because of the severe limitations they impose on the exercise of the rights recognized by the Constitution.

b.                  Law No 294/55 and Law No 209/70

October 17, 1955 marked the promulgation of Law No 294, entitled the “Law for the Defense of Democracy.”  It was partially amended by Law No 209 of September 18, 1970, known as the law “for Defense of the Public Peace and Personal Freedom.”2

Article 1 of Law 294/55 established penalties ranging from five to ten years of imprisonment for “those who rise in arms against the constituted powers to replace, in whole or in part, the republican democratic organization of the nation by the communist system or any other totalitarian regime.”  Articles 4 to 6 establish penalties for those attending meetings of the organizations mentioned, or for persons engaging in propaganda or displaying emblems or insignia thereof.

The same law also dictated penalties for government officials who willfully or as a result of negligence fail to prevent the perpetration of such acts or to arrest the perpetrators (Article 7); for publications, radio broadcasts and news agencies when “any of the crimes cited in this law are committed through the press” (Article 8); and for members of the armed or police forces that spread the communist doctrine (Article 10), as well as government officials (Article 10) or naturalized foreigners (Article 14) who commit such crimes.

Law 294/55 also forbids public institutions, municipalities or utility companies to hire employees or workers who belong to the Communist party or to the organizations mentioned in Article 1, or those who have been found guilty of any of the crimes cited in this law (Article 10).  It further orders the closing down of “any private teaching establishment that fails to exclude from its directive, teaching or administrative personnel” members of the organization cited (Article 13).

Two additional provisions that are exceptionally serious complete this law:  Article 16, which precludes “release on bail or substitution of the penalty, except in the form of commutation by exile decreed by the executive power”; and Article 17, which deals with the creation of a “court of the first instance and a criminal prosecution agency exclusively to consider the crimes contemplated by this law.”  As is evident, the latter is tantamount to the creation of a special statute to judge political behavior, which is a serious infringement of the right to justice and due process of law.

Law No 209 of 1970 partially amends the previous law, adding new criminal concepts involving clearly political behavior.  It establishes sanctions for anyone who instigates the commission of crimes (Article 1), or defends a crime or the person found guilty of a crime (Article 2); anyone who incites others to violence or violation of the laws (Article 3); anyone who preaches hatred or “destruction of the social classes” among the Paraguayans (Article 4); and anyone engaged in illegal association (Article 5).

Law No 209/70 imposes especially severe penalties–from three to six years of prison–on those who slander or defame the president, the ministers of state, members of the legislative branch, and members of the Supreme Court (Article 6), as well as anyone affronting the symbols of the country (Article 7).

Article 8 prescribes sanctions for those associated or affiliated with “any communist party or organization which proposes to destroy the republican democratic regime of the nation” (paragraph 1).  It also imposes penalties on anyone knowingly assisting the performance of those activities; those who rent or provide premises for the holding of meetings designed to carry out the activities sanctioned by this article; those who receive or send instructions to that end from foreign government, organizations or persons; and “those who with such intent introduce, print, store, distribute or sell leaflets, magazines, posters, newspapers, cinematographic or television films of the doctrine or system referred to in first paragraph of this article.”

Articles 9 through 15 of Law no 209/70 address the crime of kidnapping, its aggravating circumstances, and the penalties for complicity therein.  Article 16 specifies sanctions for anyone provoking riots or detonating bombs or explosives, while Article 17 penalizes the illegal occupation of public or private establishments.

As may be seen, the broad scope afforded by the description of the acts or events considered to be punishable in both laws is matched only the seriousness of the penalties incurred.  Freedom of thought and expression is stringently limited, as are the right of assembly, political rights–and even the right to work, which is enshrined in the Constitution itself.  The lack of precision in defining punishable conduct grants broad discretionary powers to the judicial authority responsible for applying the law.  This is even more marked as a result of a special jurisdiction created for the cases covered by Law 294/55.

If we add to these items the ample authority bestowed on the executive power during the state of siege, it is easy to discern the narrow margins remaining for the exercise of the rights recognized in the Constitution.  It is for this reason that the true reality of human rights must be sought in the specific practices of the Paraguayan Government in this area.  The following section is devoted to that topic.

3.     The states of exception and the practice of the Government of Paraguay

Within the limits set for the present report, the Commission has deemed it necessary to examine the various aspects of the Paraguayan Government’s practice since the date when the previous IACHR report was approved, in other words, from 1978 until the present.  The examination revealed numerous and serious anomalies stemming from the Government’s conduct.  Hence the Commission will address the Government’s compliance with the constitutional provisions transcribed earlier in this text, especially those dealing with the reasons for declaration of the state of siege; the temporary nature of that measure; the extent of the rights whose exercise is suspended or restricted; and the control exercised over the action of the executive branch by the other branches of the state.

It should be noted first of all that, according to the contents of Article 79 in fine of the Constitution, a law should regulate the exercise of the state of siege.  That law was never discussed nor approved, despite numerous bills submitted by opposing members of the Congress.  Thus the provisions of the state of siege have been applied broadly and in an ad hoc manner, according to the specific needs of the political moment and the assessment thereof by the executive power.

We come now to the reasons for declaring a state of siege.  It is interesting to note that in its 1978 report3 the Commission reproduced two decrees which extended the state of siege, invoking as the reasons the existence of “international organizations whose principal objectives are subversion of the legal order as well as the sue of violent means in order to destroy the basic foundations on which our society rests.”  In both decrees, the existence of such organizations was “proven by events that are public knowledge.”  The decrees reproduced in the IACHR report were dated January 3, 1973 and March 13, 1975.

On July 27, 1985–ten and twelve years after the decrees cited–the Decree that extended the state of siege for ninety days included the following concepts:

That clandestine groups and organizations still exist whose objectives are subversion of the legal order and the use of violent means in order to destroy the basic foundations upon which our society rests.

That the organization, activities and financial aid from foreign extremist agencies in recent times are public knowledge, constituting a threat which the State is compelled to repress and prevent within the country, and the reason for which it is obliged to utilize the measures set forth in the Constitution to meet such emergencies.

The repetition of causes over such a protracted period, using the same concepts and even the same phrases, compels the Commission to address certain considerations.  In the first place, it must be pointed out that at no time are any details provided that permit a serious evaluation of the gravity of the threat invoked by the Government, since the action undertaken by the groups mentioned is not specified, nor are those groups–or their locations–identified.  Secondly, these asseverations are in flagrant contrast to the Government’s repeated assurances as to the social peace which the regime currently in power in Paraguay has managed to establish and preserve in that country.

These two observations and the absence of serious social incidents in Paraguay between 1979 and the present lead the IACHR to conclude that the premise of domestic disturbance required by the Constitution for declaration of the state of siege is neither justified by the facts nor does it flow from the reasons adduced by the Government.  Moreover, it is public knowledge that during the interval covered by the present report there has been no conflict or international war nor foreign invasion–which are the other reasons for declaring a state of siege.

Accordingly, the Commission can but conclude that the reasons invoked by the Government of Paraguay for declaring a state of siege do not comply with the constitutional requirements, since the premises it postulates simply do not exist in Paraguay.  The absence of justified causes makes it irrelevant tot assess the proportionality of the measures adopted under the state of siege from the standpoint of the motives that led to the declaration thereof.

In this context, neither is it relevant to examine the criterion of temporariness, since at no time have events or situations occurred that call for imposition of a state of siege.  Nevertheless, it must be underscored that this state of exception has existed uninterruptedly from the time General Stroessner took office until April 1987, when that measure was not renewed.  The Government’s practice has been to declare the state of siege for sixty or ninety days and renew it ritually on the date of its expiry.  The constitutional state of exception was lifted for 24 hours once every five years, on the day when general elections were held in the country.

In the light of the factors cited, the Commission finds it reasonable to conclude that adoption of such a serious measure as imposition of state of siege is designed to impede the free play of the democratic institutions which the Constitution promises to establish and defend.

As stated earlier, the rights whose suspension or restriction is authorized by the Constitution are the right to personal freedom, the right to residence and movement, and the right of assembly.  Such suspension or restriction of the validity of a right, however, cannot continue indefinitely, particularly in regard to the right to personal freedom.

The practice of the Government of Paraguay in this respect has been characterized by a permanent lack of compliance with reasonable criteria in applying the provisions of the state of siege.  It is these measures that have served as a pretext for indefinitely protracted deprivation of freedom, as described in the corresponding chapter of the present report.  By way of example, suffice it to say that Sergeant Guillermo Escolástico Ovando, after serving a fifteen year sentence in prison, was kept there for another seven years by virtue of the measures imposed under the state of siege.

The right of residence and movement, for its part, has suffered from the combined action of Article 79 of the Constitution on the state of siege and the regulation contained in Law No. 294/55.  The practice of the Government of Paraguay in this respect has been to condemn political opponents pursuant to the provisions of that law and then, under the aegis of Article 16 thereof, to commute the sentence to one of exile and expel the accused from the country.  The imposition of so drastic a measure, for an indefinite period or for a length of time the state of siege has been in effect, has constituted a veritable perversion of the reasons that warrant imposition of exceptional measures.  The result has been a violation not only of the right to residence and movement, but also of the right to justice and due process, since those affected have been deprived of the most essential means of defense.

Such grave violations were made possible by another serious anomaly that contradicts the express stipulations of the Constitution.  Emphasis was placed earlier on the importance of the precept in Article 79 of the Constitution, whereby the existence of the state of siege “shall not interrupt the functioning of the powers of the state nor affect the exercise of its prerogatives.”  Despite this express constitutional stipulation, the courts of justice have expressly refused to receive and process writs of habeas corpus when cognizance of the measures decreed by the executive branch under the state of siege is at issue.  This–with few exceptions–has been the norm.  The gravity of such conduct by the branches of the Paraguayan state cannot be overemphasized, for in practice it leaves individuals utterly defenseless in the face of a president’s omnipotence, destroying the balance of powers that characterizes the democratic system of government recognized by the Paraguayan Constitution itself.

The absence of justification for imposition of the state of siege, the continued existence of such a draconian measure for almost thirty-three years, the infringement of rights of which the Constitution does not authorize the suspension or restriction, and the lack of judicial recourse for individuals in the face of the presidential powers–all of these elements allow the Commission to conclude that the state of siege in Paraguay has not been an instrument for meeting exceptional situations, but a tool in the service of a dictatorship, in overt conflict with the constitutional provisions and international instruments applicable to that country.