Paraguay
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Legal Resources for Paraguay
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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
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)
Rights of the Accused
- National law:
- International law:
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- 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.
- National law
- International law
Right to Habeas Corpus
- National law
- International law
- National law
- International law
- National law
- International law
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: Article 239 of the Criminal Procedure Code Law (Law No.1286/98) allows the apprehension of individuals caught in flagrante delicto, or who have escaped from a penal establishment, or otherwise when there are sufficient indications of their involvement in a punishable act.
- Pre-trial detention: Article 240 of the Criminal Procedure Code Law (Law No.1286/98) provides for detention in the following cases: 1) where there is a founded probability to reasonably assert that they are the author or participant in a punishable act, and they may hide, flee, or leave the location 2) When, at the commencement of the investigation, it is impossible to identify the accused and witnesses, and it is necessary to act urgently to avoid harming the investigation, preventing those present from leaving the location, communicating with each other, or altering the condition of the objects and the scene, and 3) When, for the investigation of a punishable act, the attendance of any person is necessary to give testimony, and they refuse to do so.
- Searches Articles 187-192 of the Criminal Procedure Code Law (Law No. 1286/98) provide various restrictions on searches conducted by police, including the need for a warrant and the time of day in which searches may be conducted.
- 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
- -Before formal charge in court
Article 90 of the Criminal Procedure Code Law (Law No.1286/98) explicitly prohibits the police from conducting extensive formal inquiries.
- After Defendant is formally charged Article 88 of the Criminal Procedure Code Law (Law No.1286/98) prevents certain methods of interrogation even after the defendant is charged, such as torture and intimidation.
- Enforcing the Rules (procedures to protect against illegal interrogation) Under Articles 165-174 of the Criminal Procedure Code Law (Law No.1286/98), statements provided through illegal interrogation would be null.
Court Procedures
- i. Initial Court Appearance:
Articles 301-306 of the Criminal Procedure Code Law (Law No.1286/98) describe the procedure and requirements for initiating a formal accusation and soliciting the initial court appearance.
ii. Charging Instrument: The nature of the charging instrument is detailed in Articles 347-349 of the Criminal Procedure Code Law (Law No.1286/98), including the requirement for: a precise and detailed account of the punishable act attributed to the accused; the basis of the accusation, with a statement of the evidentiary elements that support it; a precise statement of the applicable legal provisions and the presentation of evidence to be introduced during the trial.
iii. Preliminary Hearing: Once the accusation has been presented, Article 352 of the Criminal Procedure Code Law (Law no.1286/98) on Preliminary Hearings provides for the judge to summon parties to an oral and public hearing which must be held no less than ten days and no more than twenty days later.
iv. Pre-Trial Motions:' Article 327 of the Criminal Procedure Code Law (Law no.1286/98) establishes that the defence or other parties may raise motions that challenge the progress of the prosecution. The judge is required to decide these motions before trial or at least before the final resolution of the main case.
v. Discovery: There is no ‘discovery phase’ directly analogous to common law systems, but the Criminal Procedure Code Law (Law no.1286/98) does thoroughly ensure access to evidence, through Article 282, which underlines that the defense can request or verify investigative acts under judicial control, as well as Article 352, which upholds that once the accusation is filed, the parties have five days to examine the file and evidence before the preliminary hearing.
- 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.
- 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.
- i. Right to Counsel:
Articles 6, 75, and 97–111 of the Criminal Procedure Code Law (Law no.1286/98) continue to apply in appellate stages, the defendant cannot be left unrepresented, due to their right to counsel enshrined in Article 17 of the Paraguayan Constitution
ii. Ineffective Assistance of Counsel: If the counsel’s ineffectiveness constitutes a serious violation of the inviolable rights of the defence in Article 6 of the Constitution, there would be grounds for nullity under Articles 165 and 166 of the Criminal Procedure Code Law (Law no.1286/98), owing to the due process violation.
iii. Other Grounds for Appeal: Article 461 of the Criminal Procedure Code Law (Law no.1286/98) outlines the decisions that are appealable, and Article 467 establishes lack of observance or erroneous application of law as the standard for appealing a final sentence. Furthermore, under Articles 477-489, there is extraordinary appeal for certain more serious grounds such as contradictory judgments or major errors.
iv. Collateral Remedies: Habeas Corpus, discussed above, is provided for by Articles 133-136 of the Paraguayan Constitution, and prevents the unlawful detention of citizens. Moreover, the ‘Recurso de Revision’ in Articles 481-489 of the Criminal Procedure Code Law (Law no.1286/98) is an extraordinary remedy to revise a final conviction when fundamental flaws are uncovered.
Rights in Prison
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.
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.
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.
Resources
- https://www.britannica.com/place/Paraguay
- https://py.vlex.com/vid/ley-n-4-423-796976521
- https://latintrade.com/2019/11/01/packed-with-lawyers/
- https://worldpopulationreview.com/country-rankings/lawyers-per-capita-by-country
- https://www.bacn.gov.py/leyes-paraguayas/3497/codigo-penal
- https://www.bacn.gov.py/leyes-paraguayas/2405/ley-n-210-regimen-penitenciario