Paraguay

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Legal Resources for Paraguay

Constitution of Paraguay ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

Background

The Republic of Paraguay is a landlocked country located in South America, which declared its independence from Spain on the night of May 14th, 1811. Following a series of authoritarian governments culminating in the 35-year regime of Alfredo Stroessner and his fall in 1989, Paraguay embarked on an era of democratisation, solidified by the adoption of its 1992 Constitution.

Contemporary Paraguay has a thriving agricultural economy, and is amongst the largest global exporters of hydropower. The official languages are Spanish and the indigenous language Guaraní, which is widely spoken and remains a symbol of the nation’s cultural identity.

The Legal system

Paraguay has a civil law system due to its colonial history. Therefore, the legal system relies significantly on codified laws as opposed to judicial precedents, distinguishing it from common law systems, such as those of the United States or the United Kingdom.

Legal Aid

State Sponsored legal aid:

Article 17(6) of the Constitution establishes that the State will provide a public defender where an individual does not have the economic means to pay for legal representation. Article 9, clause 3 of The Organic Law of the Ministry of Public Defence (Ley Nº 4.423/11, Orgánica del Ministerio de la Defensa Pública) ensures the observation of this right in practice

Number of lawyers (criminal/civil) if known:

Paraguay was the country with the highest number of lawyers per capita in Latin America in 2019, with an estimated 722 lawyers per 100,000 inhabitants. This ratio suggests there were approximately 50,540 lawyers at the time. Recent data suggests Paraguay has now been surpassed by Brazil and the Dominican Republic in terms of lawyers per capita, but its legal sector remains prominent nonetheless.

Source of Defendants Rights

National Sources of Defendant’s rights:
The Constitution of the Republic of Paraguay (1992)
The Code of Criminal Procedure (Law No. 1286/98)
The Criminal Code (Law No. 1160/97)
Organic Law of the Ministry of Public Defence (Law No. 4423/11)
Penitentiary System Law (Law No. 210/70)
The Law for Free Access of Citizens to Public information and Government Transparency (Law No. 5282/14)

International Sources of defendant’s rights: The primary sources of protection for the rights of Paraguayan citizens in international law are the American Convention on Human Rights (ACHR), and the International Covenant on Civil and Political Rights (ICCPR).

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures:

National law:

Article 12 of the Paraguayan Constitution provides that no individual may be arrested without a written order issued by a competent authority, unless they are caught in flagrante delicto committing a crime which merits a penalty involving the deprivation of physical liberty. With respect to searches, Article 179 of the Criminal Procedure Code Law (Law No. 1286/98) provides that police should inform the person being searched of the suspected grounds and the object being sought, inviting them to produce the object voluntarily. Furthermore, it is required that the search be conducted in the presence of two competent witnesses, preferably neighbours, with no connection to the police. Article 180 of the Criminal Procedure Code Law (Law No. 1286/98) further provides that searches are to be carried out separately by a person of the same sex, respecting individuals’ dignity and modesty. Regarding the seizure of property, Articles 196 and 197 of the Criminal Procedure Code Law outline that seized property is to be appropriately stored and returned once no longer required.

International law:

The American Convention on Human Rights (ACHR), to which Paraguay is signatory, protects the right of citizens to personal liberty in Article 7, particularly prohibiting arbitrary arrest or imprisonment in Article 7 (3). This is reinforced by the International Covenant on Civil and Political Rights (ICCPR) at Article 9.

Right Against Unlawful Detention:

National law

Article 12 of the Paraguayan Constitution provides the same conditions for unlawful detention as arrest. It further establishes that all detained persons have an immediate right to be informed of the motive of their arrest, for the detention to be communicated to their family or the people they indicate, and to remain in free communication with others unless a competent judicial mandate rules otherwise. They additionally have the right to be provided with an interpreter and be brought before the competent judicial magistrate within 24 hours.

International law

Article 7 of the ACHR establishes the conditions for lawful detention, including the right to be brought promptly before a judge and undergo proceedings before a court, which are further reflected in Article 9 of the ICCPR.

Right Not to be Tortured or Ill-Treated:

National law

Article 5 of the Constitution explicitly prohibits torture and all other cruel, inhuman or degrading treatment.

International law

Paraguay is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Furthermore, Article 5 (2) of the ACHR mirrors the protection provided by national law, and is itself reflected in Article 7 of the ICCPR.

Right to Medical Care:

National law

Resolution No 1344/2015, Article 1 (e), sets access to a medical professional when needed, under strict police supervision, as a minimum condition for police detention.

International law

This right is implicitly protected through the right to physical, mental and moral integrity in Article 5 (1) of the ACHR, and likewise in Article 10 of the ICCPR.

Right to be Informed of Charges:

National law

Article 303 of the Criminal Procedure Code Law (Law No. 1286/98) requires criminal judges to notify the accused of the formal charges. As provided by Article 302, there must be a succinct description of the act(s) being charged in the official charging document (acta de imputación).

International law

Article 7(4) of the ACHR requires for detainees to be both informed of the reasons for their detention and promptly notified of the charge(s) against them, as reflected in Article 9 (2) of the ICCPR.

Right to Presumption of Innocence:

National law

Article 17 (1) of the Paraguayan Constitution ensures that individuals are presumed innocent. The Criminal Procedure Code Law (Law No.1286/98) translates this right into procedural protections, with Article 4 providing that the accused will be considered innocent during the process of justice until a final judgment declares their guilt.

International law

This right is bolstered in international law through Article 8 (2) of the ACHR, and Article 14 (2) of the ICCPR.

Right Against Self-Incrimination:

National law

Article 18 of the Paraguayan Constitution establishes that nobody can be compelled to testify against themselves.

International law

Article 8(2)(g) of the ACHR ensures that the accused may not be compelled to be a witness against himself, and this is mirrored by Article 14(3)(g) of the ICCPR.

Right to Counsel:

National law

Article 17(5) of the Paraguayan Constitution protects the right of individuals to be assisted by defenders of their choice, or under Article 17(6), to be provided with a public defender by the State if they do not have the economic means to provide their own counsel. Furthermore, Title IV, Chapter III of the Criminal Procedure Code Law (Law No. 1286/98) outlines the framework for enforcing this right in practice.

International law

This is mirrored by Articles 8(2)(d) and (e) of the ACHR, which establish the right to be assisted by legal counsel of one’s own choosing, or provided by the State, and this if further reflected in Articles 14(3)(b)and (d) ICCPR.

Right to a Present a Defense:

National law

The ‘inviolable’ right to defence in court is enshrined in Article 16 of the Paraguayan Constitution, and is again bolstered by Title IV, Chapter III of the Criminal Procedure Code Law (Law No.1286/98), and Article 9, ensuring the accused is guaranteed a fair opportunity to present his case.

International law

Article 8(2)(c) of the ACHR underlines the need for the accused to be allowed the adequate time and means to present his defence, whilst Article 8(2)(f) ensures the right of the defence to engage effectively in the process, such as by examining witnesses. This is reinforced by Articles 14(3)(b) and (e) ICCPR.

Right to Due Process:

National law

The right to due process is primarily embedded in Article 17 of the Paraguayan Constitution which outlines robust procedural safeguards to ensure fairness and transparency. The Criminal Procedure Code Law (Law No.1286/98) guarantees that this right is observed throughout the entire proceedings.

International law

Article 8(1) of the ACHR clearly establishes the right for a hearing to be carried out with the ‘due guarantees’, and Article 14 ICCPR reflects the core guarantees underlying the right to due process.

Right to Equal Protection of the Laws:

National law

This right is enshrined in Chapter III of the Paraguayan Constitution, on equality, with Article 47 (2) in particular underlining that the State guarantees to all inhabitants of the Republic ‘equality before the laws’.

International law

Likewise, Article 24 of the ACHR holds that all persons are equal before the law, and Article 26 ICCPR provides the same guarantee, whilst underlining the totality of the ban on discrimination.

Right to Bail:

National law

An explicit right to bail is notably absent in the Paraguayan Constitution, although Article 12(5) holds that the accused must be brought before a competent judicial magistrate within 24 hours. Again, the Criminal Procedure Code Law (Law No.1286/98) does not directly provide a right to be released ‘bajo fianza’ (on bail); however in Articles 257-9, a system of ‘cauciones’ (cautions) is outlined, which is analogous to the use of bail in common law systems, whereby personal or financial guarantees can be used to avoid preventive detention.

International law

Similarly, there is no explicit right to bail in the ACHR, but Article 7(5) establishes that detainees have a right to trial within a reasonable period of time, or to be released without prejudice to the continuation of the proceedings, potentially subject to ‘guarantees’ assuring his appearance for trial. This is mirrored by Article 9(3) of the ICCPR.

Right Against Ex Post Facto Prosecution:

National law

Article 14 of the Paraguayan Constitution prohibits law from having a retroactive effect unless it is more favourable to the accused. This is reinforced in practice by the Criminal Procedure Code Law (Law No.1286/98), Article 1 of which clearly sets out that no one may be convicted except based on a law enacted before the act subject to the proceeding, and this is furthered by Article 11, which prevents procedural rules from being applied retroactively unless doing so is more favourable to the accused.

International law

Article 9 of the ACHR explicitly protects freedom from ex post facto laws, and goes even further to require that if subsequent law provides for the imposition of a lighter punishment, the accused must benefit. This is mirrored by Article 15 ICCPR, indicating a thorough defence overall of this right in international law.

Right Against Double Jeopardy:

National law

Article 17 (4) of the Paraguayan Constitution holds that nobody may be prosecuted or convicted twice for the same act, as is directly reflected in Article 8 of the Criminal Procedure Code Law (Law No.1286/98), which further provides that closed proceedings may not be reopened, except to review sentences in favour of the convicted person.

International law

Article 8(4) of the ACHR underlines that a person already acquitted by a non appealable judgment is not to face trial again for the same cause, consistently with Article 14(7) ICCPR.

Right to a Fair Trial:

Generally: The right to a fair trial in the Paraguayan Constitution is protected through Article 16, which emphasises the inviolability of the rights of the defence during trial, and the procedural guarantees framed in Article 17. The Criminal Procedure Code Law (Law No.1286/98) synthesises these guarantees into a coherent framework for protecting the right to a fair trial in Paraguay. In international law, Article 8 of the ACHR explicitly covers the right to a fair trial, and lists the requirements demanded by this right, which are reflected in Article 14 of the ICCPR.
Right to a Trial by Jury: No jury mechanism exists in Paraguay; criminal trials are conducted by sentencing tribunals composed of professional judges.
Right to a Speedy Trial: Article 12 of the Paraguayan Constitution emphasises that detainees must be brought before a competent judicial authority within 24 hours; however, the Criminal Procedure Code Law (Law No.1286/98) provides for this right more explicitly in Article 136 on maximum duration, which upholds the right to a judicial resolution within a reasonable time frame, and sets a maximum duration of three years, with an extension of 6 months available only for appeals. In international law, this is reinforced by the entitlement to trial within a reasonable time in Article 7(5) and Article 8(1) ACHR, as well as Article 9(3) and Article 14(3)(c) of the ICCPR.
Right to an Impartial Judge: The right to an impartial judge is explicitly protected by Article 16 of the Paraguayan Constitution, and reinforced in international law by Article 8(1) ACHR and Article 14(1) ICCPR.

Right to Language Interpretation:

National law

Article 12 of the Paraguayan Constitution ensures the right to be provided with a language interpreter if necessary, and this is enforced in practice by Article 7 of the Criminal Procedure Code Law (Law No.1286/98).

International law

Article 8(2)(a) of the ACHR reasserts this right and highlights the requirement for an interpreter to be provided ‘without charge’, as is echoed by Article 14(3)(f) ICCPR.

Right to Habeas Corpus

National law

Article 133 of the Paraguayan Constitution provides detailed preventive, reparative and and generic protection of the right to habeas corpus. This right is extensively protected in practice through Law No. 1500, which regulates the constitutional guarantee to habeas corpus.

International law

The ACHR and ICCPR do not explicitly address habeas corpus but require mechanisms against unlawful detention, in Articles 7 and 9 respectively.

Capital Punishment:

National law

Article 4 of the Paraguayan Constitution on the right to life unequivocally provides that ‘the death penalty is hereby abolished’.

International law

This protection is supplemented by the restrictions on the death penalty in Articles 4(2)-(6) of the ACHR and Article 6(2)-(5) of the ICCPR

Right to Appeal:

National law

The Paraguayan Constitution does not provide an automatic right to appeal, although it explicitly recognises the possibility of an appeal system, such as in Article 17, which emphasises that cases may not be reopened unless on appeal. However, Article 461 of the Criminal Procedure Code Law (Law No.1286/98) provides which rulings may be appealed, particularly highlighting that any ruling which cause irreparable harm are appealable, except when explicitly declared non-appealable elsewhere.

International law

Article 8(2)(h) of the ACHR compensates for this lack of direct protection in national law, by explicitly upholding a right to appeal to a higher court, as is equally reflected in Article 14(5) ICCPR.

Rights of Counsel

Right to Provide Representation:

National law

In its discussion of the rights of the accused in Articles 16 and 17, the Paraguayan Constitution indirectly ensures some safeguards for counsel to provide representation without interference. Likewise, in the Criminal Procedure Code Law (Law No.1286/98), the right of the counsel to provide representation is framed in terms of the rights of the accused to legal representation.

International law

Again, in Article 8(2)(d) of the ACHR, the right of the counsel to provide representation is protected through the right of the accused to choose their counsel and communicate freely with them, as reinforced by Article 14(3)(b) ICCPR.

Right of Access to the Client:

National law

There is no explicit right of access to the client in the Paraguayan Constitution; however, the Criminal Procedure Code Law (Law No.1286/98) requires in Article 101 that defense attorneys be immediately recognised, without any unnecessary formalities, thereby ensuring their unhindered access to the client.

International law

Again, this right is implicitly protected through the rights of the accused in Article 8(2)(d) of the ACHR and Article 14(3)(b) of the ICCPR.

Right to Information:

National law

Beyond the implicit protection of Articles 16 and 17 of the Paraguayan Constitution, the Criminal Procedure Code Law (Law No.1286/98) protects this right through Article 9, which promises equality of procedural opportunities, and more specifically elsewhere, such as in Article 352 which provides that for the preliminary hearing, the evidence gathered during the investigation must be made available to both parties.

International law

The right of the defence in Article 8(2)(f) ACHR and Article 14(3)(e) ICCPR to examine witnesses aids the counsel in enforcing their right to obtain the information needed to defend their client.

Right to Confidential Communication with the Client:

National law

There is a lack of an explicit basis for the right to confidential communication with the client in the Paraguayan Constitution. For Public Defenders at least, the Organic Law of the Ministry of Public Defence (Law No. 4423/11) compensates in practice, for example through Article 47, which requires an office to be designated for private interviews between detainees and the Public Defender.

International law

Again, this right is furthermore loosely protected through implication in Article 8(2)(d) ACHR and Article 14(3)(b) ICCPR

Means of Protecting or Enforcing Rights

a. Exclusionary Rule: Article 174 of the Criminal Procedure Code Law (Law No.1286/98) excludes evidence obtained through acts which violate procedural guarantees enshrined in the Constitution, and in applicable international law.

b. Nullity of Procedure: Article 165 of the Criminal Procedure Code Law (Law No.1286/98) provides for the nullity of acts which fail to observe the requisite forms and conditions enshrined in the Constitution, international law and the Code, with Articles 167-171 providing the mechanism and effects of declaring the nullity of acts or entire procedures which irreparably violate a right.

c. Motions: In addition to the motions for appeal, the exclusion of evidence, nullity and habeas corpus, others include the motion for recusal, to disqualify a judge or judicial officer for impartiality (Article 50, Criminal Procedure Code Law No.1286/98), the motion for amparo to protect constitutional rights against acts or omissions which violate or threaten fundamental rights (Article 134, Paraguayan Constitution), and the motion for conditional suspension of proceedings (Article 308, Criminal Procedure Code Law No.1286/98).

d. Contempt: Law No.4711, which sanctions the contempt of a judicial order, was enacted by the Executive branch and provides as punishment prison sentences ranging from six months to two years, or five in exceptional cases, and otherwise a fine.

e. Civil Actions: Title II Chapter II of the Criminal Procedure Code Law No.1286/98 provides the basis of a civil action for the reparation or compensation of damages caused by a criminal offence.

Pre-Trial Procedure

Police procedures

Complaint/information:

Title I, Chapter II, sections I and II of the Criminal Procedure Code Law (Law No.1286/98) provide for denuncia and querella. Denuncia is a formal notification to public authorities about the occurrence of a punishable act, whereas querella is a formal private prosecution initiated by the victim which requires a higher degree of formality and involvement from the claimant.

Arrest, Search and Seizure Laws:
Stops and Frisks:

Articles 179-180 of the Criminal Procedure Code Law (Law No.1286/98) provide on the rules for police inspection of a person, including the need for sufficient motives to believe they are concealing objects related to a punishable act in their clothing, belongings, or externally attached to their body. The suspect must be invited to willingly present the object, and the inspection is to be carried out in the presence of two competent witnesses, preferably neighbors of the area, who must not have any connection with the police. Furthermore, the inspection is to be conducted separately, by a person of the same sex. A record must be drawn up and should be signed by the person searched.

Arrest:
Pre-trial detention:
Searches

Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures): Article 174 of the Criminal Procedure Code Law (Law No.1286/98) excludes evidence obtained through acts which violate procedural guarantees enshrined in the Constitution, and in applicable international law, thereby preventing illegal police procedure.

This is furthered by Article 165 of the Criminal Procedure Code Law (Law No.1286/98), which provides for the nullity of acts which fail to observe the requisite forms and conditions enshrined in the Constitution, international law and the Code, with Articles 167-171 providing the mechanism and effects of declaring the nullity of acts or entire procedures which irreparably violate a right.

Lineups and other identification procedures:
Lineups: Articles 229 and 230 of the Criminal Procedure Code Law (Law No.1286/98) establish the protocol for police lineups. It is established that a record of the procedure will be created, noting all relevant circumstances and personal details of those participating in the lineup. Precautions will be taken to prevent the accused from altering their appearance, and identification may proceed even without the accused's consent. If the accused cannot be physically present, photographs or other records may be used, following the same rules.

Other identification procedures: Article 232 of the Criminal Procedure Code Law (Law No.1286/98) upholds analogous standards for the identification of objects.

Interrogation

Court Procedures

Pre-Trial:

i. Initial Court Appearance:

ii. Charging Instrument:

iii. Preliminary Hearing:

iv. Pre-Trial Motions:'

v. Discovery:

Trial:

i. Nature of the Trial: The Criminal Procedure Code Law (Law no.1286/98) outlines several practices and principles underlying trial in Paraguay. Article 366 requires that the same judges must be present continuously, whilst article 370 underlines the oral nature of the hearing. Furthermore, under Article 368, hearings will be public unless there are special reasons such as the privacy of a minor.
ii. Defendant: Article 6 of the Criminal Procedure Code Law (Law no.1286/98) emphasises the inviolability of the defence, whilst Article 75 details the rights of the defendant, including the right to refrain from making a statement, and for their defense attorney to be present at the time of their statement if they choose to declare, as well as during other proceedings requiring their presence. In order to respect the Defendant’s right to a fair trial, it is prohibited to impair the judge or the Public Prosecutor's Office in their duties.
iii. Lawyers: Title V of the Criminal Procedure Code Law (Law no.1286/98) lays out the freedoms and standards in relation to lawyers at trial. Article 106 holds that a lawyer must not abandon his client, whilst Article 97 upholds the freedom for the accused to choose his own lawyer.
iv. Expert Witnesses: Articles 214-255 of the Criminal Procedure Code Law (Law no.1286/98) outline that judges or parties can request experts in specialised fields, to present written or oral reports. At trial, these experts may be questioned by both sides.
v. Judges: Article 3 of the Criminal Procedure Code Law (Law no.1286/98) immediately draws attention to the principle that judges are independent and must act without external influence. Article 41 outlines that the trial typically proceeds before a single judge or a 3-judge panel depending on the severity of the offence. Article 366 emphasises that the same panel must remain throughout the trial.
vi. Victims: Victims have the right to actively participate.The victim’s role in public proceedings can be as a querellante adhesivo, meaning the victim collaborates with the exiting case but does not act independently, whilst in private prosecutions, the victim can independently initiate and lead the prosecution without relying on the Public Ministry, thereby acting as a querellante autónomo.

Sentencing:

The Paraguayan Criminal Code (Law Nº 1160/97) outlines sentencing in detail. In Title III it defines the primary forms of criminal punishment, and compensatory avenues. Chapter VI of Title III clearly explains how the sentence is to be determined, and what factors are to be considered, whilst Articles 65 and 67 concern aggravating and mitigating circumstances.

Appeals:

Rights in Prison

Right to Humane Conditions of Confinement:
The right to humane conditions in prison comes under the scope of the protection against degrading treatment in Article 5 of the Paraguayan Constitution. The Penal Code and Penitentiary Law further detail the right to access to basic care including food, healthcare and safety.

Immigrant’s Rights in Detention:
Article 146 of the Paraguayan Constitution ensures foreign citizens have the same civil rights as those of nationals, outlined above. This is reinforced in international law by Article 24 of the ACHR and Article 26 of the ICCPR.

Right to Medical Care in Prison:
The right to medical care in prison comes under the scope of Article 5 of the Paraguayan Constitution, which prohibits inhuman and degrading treatment. The Penal Code and Penitentiary System Law (Law No. 210/70) together emphasise the right to health and ensure the provision of services. Paraguay’s Ministry of Public Health upholds initiatives to provide basic access to healthcare for marginalised groups, including prisoners.

Right to Mental Health Care:
Likewise, the right to mental health care comes under the scope of Article 5 of the Paraguayan Constitution, and the Penal Code and Penitentiary System Law (Law No. 210/70) reinforce the right to the provision of health care.

Restriction of rights: Prisoners retain their rights, besides those that are implicated by imprisonment, as emphasised by the Penitentiary Code. For example, Article 11 of the Paraguayan Constitution on the deprivation of liberty is necessarily implicated by imprisonment. Despite this Standard, reports have found abusive physical conditions and treatment in Paraguayan prisons which go far beyond what is implicated by imprisonment.

Rights of Special Populations:
1. Women: Article 48 of the Paraguayan Constitution establishes the equal rights of men and women in, and Law No. 5777/2016 on the protection of women against all forms of violence aims to enforce this right. Despite this framework, in practice, women's rights face infringement, for example rape is a pervasive problem encroaching women’s rights to bodily integrity. In the prison context, the Penitentiary Code lays out standards in relation to female prisoners, including that they must be separated from male prisoners, and also providing for specialised medical care for pregnant and nursing mothers.

2. LGBT Prisoners: There is a very notable lack of protection for the LGBTQ+ community in Paraguay. International law attempts to compensate through prohibition in the ACHR AND ICCPR of discrimination on the grounds of any social condition, which has been interpreted to include sexual orientation and gender identity. The lack of legal protection of the LGBTQ+ community reflects a significant broader issue, with public officials and legislators engaging in discrimination. Particularly, the lack of availability of legal gender recognition has created difficulties in accessing essential services.

3. Mentally-Ill Prisoners: The rights of mentally ill prisoners are protected through the Article 68 right to health in the Paraguayan Constitution. Furthermore, the Penitentiary Code requires a framework for providing services and measures, including segregation and specialised units.

4. Juveniles: The Código de la Niñez y la Adolescencia (Ley 1680/01) governs the treatment of convicted minors. It sets due process protections, requires separation from adults, establishes the focus on rehabilitation, and sets maximum durations. Concerningly, in practice juvenile facilities were reported as lacking ventilation, falling short of the standards mandated by law.