COMMITTEE ON ENFORCED DISAPPEARANCES EXAMINES REPORT OF PARAGUAY
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Paraguay on how that country implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
Presenting the report, Víctor Núñez, Minister of the Supreme Court of Justice of Paraguay, said the Constitution provided for the protection of persons against enforced disappearances and limitations for the crime of enforced disappearance. Since 2012 the Criminal Code had sanctioned all forms of enforced disappearance under the convention, and in 2011 a national preventive mechanism was created. The Government had a great responsibility, in spite of difficulties, to enable the legitimate and intrinsic right of families to know the truth about disappeared family members, as well as of Paraguay society to know about its recent past. It had set up a national investigative team which was currently analysing the remains of 27 people: the State considers their identification as a great responsibility to the families of the victims but also to the Paraguayan society.
During the dialogue, Experts commended Paraguay for defining and criminalizing the offence of enforced disappearances, and for including in the Criminal Code since 2012 guarantees of effective investigation of cases of enforced disappearance in terms equivalent to those established by the Convention. Questions were asked about the issue of limitation, compensation for victims, the implementation of habeas corpus, provisions relating to the state of emergency and the duty of obedience in the case of an illegal order. Experts also raised concerns about appropriations of children in relation to enforced disappearances, and asked about investigations into historic cases.
In concluding remarks Juan José López Ortega, Committee Expert and Co-Rapporteur for the Report of Paraguay, highlighted very positive results of the dialogue, without prejudice to the written replies that would be provided. Paraguay had an impeccable definition of the crime of enforced disappearance, something not all States Parties had, and that was something it should be proud of.
Alvaro Garcé García Y Santos, Committee Expert and Co-Rapporteur for the Report of Paraguay, speaking in concluding remarks, said he was grateful for the generosity of the delegation given the sensitivities around enforced disappearances in Paraguay. It was extremely important to make necessary adjustments to legislation, including through the appointment of a new Ombudsman, as well as recognition of universal jurisdiction.
In concluding remarks Victor Núñez, Minister of the Supreme Court of Justice of Paraguay, said Paraguay’s authorities were very open to facilitating and promoting any investigation both from the period of the dictatorship and after. He promised to highlight to authorities the issue of the long overdue appointment of an Ombudsman, which was also a concern for Paraguay.
The delegation from Paraguay included representatives from the Ministry of Justice, the General Department of Human Rights at the Ministry of Foreign Affairs and the Permanent Mission of Paraguay to the United Nations Office at Geneva.
The next public meeting of the Committee will be at 3 p.m. on 18 September in Room XII of the Palais des Nations, when a discussion will be held with States parties, United Nations bodies and specialised agencies, intergovernmental organisations, non-governmental organizations and civil society.
Report
The initial report of Paraguay (CED/C/PRY/1).
Presentation of the Report
VICTOR NÚÑEZ, Minister of the Supreme Court of Justice of Paraguay, said
Paraguay assumed its obligation to seek persons who disappeared during the dictatorship period between 1954 and 1989 and to that end established a national investigation team on extrajudicial executions. The Government had a great responsibility, in spite of difficulties, to enable the legitimate and intrinsic right of families to know the truth about disappeared family members, as well as of Paraguay society to know about its recent past. A Truth and Justice Commission was established to find the disappeared, starting with the remains of 27 persons which were found and sent to the forensic laboratory of the Public Prosecutor's Office. Paraguay benefitted from Argentina’s technical and forensic recognised experience as well as that of civil society.
On the legislative side, Paraguay had enshrined enforced disappearances and the non-applicability of the statute of limitations in its Constitution, and guarantees were in place to ensure the imprescriptability of war crimes and the right to truth. In domestic law the offence of enforced disappearance comprised several offences which included the infringement of the right to personal freedom, judicial guarantees, prohibition of torture, right to life and to legal personality. Due process guarantees were enshrined in the Constitution and could not be removed in a state of emergency, said Mr. Núñez and a new law set up an independent mechanism to prevent torture and ill treatment with the aim of monitoring deprivation of freedom. A declaration of a state of emergency across all, or part, of Paraguay's territory, could last for 60 days at most, Mr. Núñez said, and during that period State powers and the Constitution, including habeas corpus and protection guarantees remained in force.
Work to be done included strengthening specialised units on specific human rights offences and adopting the draft bill for the implementation of the Rome Statute which enshrined the duty to try enforced disappearances under Paraguay law and give the maximum sentences to perpetrators and whoever withheld information about the fate of the victim. Although there were obstacles to the full implementation of the Convention, Paraguay had in recent years demonstrated a great efforts through establishing human rights policies. Paraguay’s continued cooperation with universal human rights mechanisms included technical support from the Office of the High Commissioner of Human Rights since 2010 as well as visits from the Deputy High Commissioner for Human Rights, several Special Rapporteurs and other mechanisms. Paraguay also took the opportunity to thank civil society and the Ombudsperson for enriching the dialogue with the Committee.
Questions from Committee Experts
ALVARO GARCÉ GARCÍA Y SANTOS, Committee Expert and Co-Rapporteur for the Report of Paraguay, welcomed the delegation and thanked it for the comprehensive report. He asked when a new Ombudsman would be selected, given the mandate of the current one had already run for six years. He also asked whether Paraguay still considering whether or not to recognise the competence of the Committee to deal with individual communications and communications by another State?
What rights were suspended following the declaration of a state of emergency in 2011? The delegation was asked to explain the rationale behind the amendment, in 2008, of the law to broadly allow the Executive to take exceptional measures under military law, such as the mobilisation of armed forces.
Did the witness and victim protection programme set up by Paraguay apply to all people under Article 12 of the Convention, especially in the light of allegations received that the programme lacked of resources to provide the needed assistance? How did the anti-abduction unit function, what was it budget and mandate, and was it able to investigate enforced disappearances? Could the Public Prosecutor's Office prosecute disappearances committed under the dictatorship?
Had there been any recent progress in investigations of events under the dictatorship, such as in the case of Dr. Agustín Goiburu Giménez and other disappearances after 1989? What about the alleged disappearances of Marcelino Gómez Paredes and Cristian Ariel Núñez? Had likely suspect perpetrators been identified, given that there was not clarity about the whereabouts of victims?
The country rapporteur asked if an offence of enforced disappearance committed by a member of military personnel in "active" office could be considered as a military offence under domestic law. The delegation was also asked to comment on the alleged non-cooperation of Paraguay with Argentina’s legal investigation into cases of enforced disappearance committed in Paraguay from 1954 and 1989, especially with regard to diligently carrying out DNA research on children requested by Argentina.
JUAN JOSÉ LÓPEZ ORTEGA, Committee Expert and Co-Rapporteur for the Report of Paraguay, said he was sure that the outcome of the session would be fruitful for both the State Party and the Committee, even if the late submission of the responses to the List of Issues had made it difficult to allow sufficient time to translate and review appropriately the issues. Paraguay was commended defining and criminalizing the offence of enforced disappearances, and for including in the Criminal Code since 2012 guarantees of effective investigation of cases of enforced disappearance in terms equivalent to those established by the Convention.
Nevertheless, in the implementation of such provisions, the "removal from the law" of the person could be interpreted as a subjective element of the offence, rather than as the consequence of an illegal kidnapping or detention. That was a matter of concern, as courts could convert enforced disappearance into an intentional crime. Since the offence had not yet been applied in domestic law, did Paraguay think it was possible to develop training strategies to prevent the consolidation of that wrong interpretation? Since there was quite a broad sentencing range, from a minimum of five years to a maximum 30 years in prison, how did Courts determine in each case whether to apply the maximum or the lesser sentence respectively?
Other Experts asked about the practical exclusion of the application of due obedience from cases of enforced disappearance. Did the delegation think that the gravity of that crime required the adoption of explicit legal provisions in domestic law preventing any possibility to apply due obedience? The Report stated that the subordinate was exonerated from compliance with illegal orders from the superior that contravened human rights. Would it not be preferable to prohibit compliance with such orders and indicate that the perpetrator would still be held responsible? Could the delegation elaborate on the procedure to report to superiors? Moreover, how was the offence demarcated in Paraguay legislation when the demanding officer was aware of the crime of enforced disappearance and was unable to prevent it?
According to Paraguay, no statute of limitations applied to the offence of enforced disappearance, as it was "imprescriptible", however later in the Report it was stated that it did prescribe after 15 years. What was the interpretation of the Supreme Court in that regard?
Furthermore, what was the rationale for the reference to "political grounds" for enforced disappearances reflected in Paraguay's Constitution? Why did it only apply to homicide and not to torture? Also the Supreme Court was only subject to the statute of limitation for crimes against humanity, but not for cases of torture. Should an explicit reference to enforced disappearance as a permanent offence not be included in domestic legislation? According to the Penal Code, Paraguay was bound to prosecute an act of enforced disappearances even if it was committed abroad. What level of discretion existed for the application of this provision?
Experts asked about procedures for effective investigations; did victims have the right to participate actively in investigations of cases of enforced disappearance. Were officials suspected of influencing the investigation suspended from their functions? Could members of armed forces with a direct or indirect relation to the subject be investigated? Finally, since a Specialised Unit of the Public Prosecutor’s Office was in charge of investigations into enforced disappearance, had historical cases been prosecuted and would they be brought to trial? If so, what would be the applicable legislation, given that enforced disappearances was only criminalised in 2012? The Expert offered the delegation the possibility to reply in writing, given the substantive nature of the questions.
Regarding historical cases of enforced disappearance, an Expert asked how many persons had disappeared in Paraguay. The State's figures came from the Truth and Justice Commission, which no longer existed due to its time-limited mandate. Were official figures from that era acknowledged by the State and would there be any further investigation into those cases? Was the case of German citizen Federico Tatter who was disappeared during the dictatorship still being considered by Paraguay’s justice system since it related both to Paraguay and Argentina?
Responses from the Delegation
The Head of the Delegation began the response by expressing gratitude for the tribute paid to the prominent jurist and Paraguayan human rights defender Oscar Paciello, who had been part of the drafting commission of the National Constitution of Paraguay as well as a pioneer in ensuring historical, significant reparations for the victims of the dictatorship and for the recognition of their rights.
With regard to the question of the mandate of the new Ombudsman a delegate said Paraguay saw in protection and promotion of human rights a key component of policy-making. The new Constitution enshrined the concept of human dignity and made reference to the figure of the Ombudsman being under the national Constitution. The Lower House had proposed a list of candidates for examination, but the list was withdrawn due to a delay, and was being re-submitted. No date for the appointment of a new Ombudsman could be provided yet.
Regarding the recognition of the competence of the Committee according to Articles 31 and 32 of the Convention, a delegate said there had been an awareness-raising campaign to ensure that all relevant stakeholders and organs could take part in the work of the Executive and give their opinion. No response could be provided before that consultation had been concluded.
Another member of the delegation, on the suspension of rights in some regions of Paraguay during a state of emergency, stated that no right had been suspended and no instance of violations of rights had been recorded.
Concerning the National Defence and Security Act and subsequent acts punishing terrorism, a delegate said the Government was able to take extraordinary measures to ensure the security and well-being of all persons in the country by addressing security threats. The amendments to that Act gave the authorities the necessary tools and legal back up to address threats through a holistic approach to security, but did not confer absolute authority to the Government on such threats.
The programme for the protection of the victims of the deprivation of liberty was run by the Public Prosecutor's Office for people at risk and victims of a crime. The Public Prosecutor's Office was working on the reform of a law on organised crime and on dealing with witnesses during legal processes to ensure that technical standards for the correct functioning of the programme were met and designating responsibility for protection within the Ministry of Justice. The possibility of setting up a body exclusively responsible for the protection of victims and witnesses was under consideration.
Regarding the Anti-Abduction Unit and its ability to establish investigations for offences committed under the dictatorship, a delegate said the Ministry of Justice was responsible for the instruction of national police officers. The Public Prosecutor's Office acted on the basis of a law that worked through specialised units in this area. The Truth and Justice Unit was also under its authority, in charge of categorising and establishing the cases to be investigated as well as those pending. So far 50 cases requiring further investigation had been established. In June 2014, the Public Prosecutor's Office approved a timeframe to deal with pending cases with strategic guidelines to deal with human rights abuses. The emphasis was placed in cooperation with human rights units to improve the investigation process.
Turning to cases of enforced disappearances that took place during the dictatorship, as well as those that took place after 1989, a delegate said progress had been made and one of the alleged perpetrators had received a fine. An agreement had been signed and in terms of the findings on the fate of the person, it was judged in terms of "neglect", which went beyond the Paraguay Criminal Code. The Executive had been looking into the cases of 54 conscripts involved with the army during the state of emergency.
Investigations into enforced disappearances, and cases of torture, committed during the dictatorship were indeed dealt with by a unit under the Public Prosecutor's Office. It had been decided to merge different offences in order to streamline the process, allowing for 27 sets of remains to be exhumed and identified. A crime alleged to have been committed by a military officer while carrying out his duty could only be judged by military tribunals a delegate confirmed.
It was important to protect and conserve components of collective memory as judicial evidence, such as the whereabouts of remains, graves or mass grave sites. There was work underway to ensure that the evidence could be protected, as warrants could be required to access properties that had become private since then.
On the issue of Dr. Giménez Goiburu and Capitán Federico Tatter a delegate reiterated the apologies made in 2010 vis-à-vis victims of terrorism during the dictatorship and said they were still seeking the remains of their missing persons. Within the Ministry of Justice there was a unit responsible for seeking those disappeared, and supporting work by the Argentine team, in particular looking at the review of the Condor Plan and studying DNA samples of the disappeared to be used in the process of exhumation and identification.
The case of Dr. Giménez Goiburu was being investigated within the Condor investigation, however the facilitator of information between the two dictatorships, established to be over the age of 75 could not go to prison, only house arrest. The investigation of Capitán Federico Tatter had been carried out in Germany and benefitted from law providing for immunity for people carrying similar offices. The Inter American Court of Human Rights found additional compensation should be given in Giménez Goiburu's case, where the man responsible had passed away and justice had to be sought amongst subordinates.
Concerning cooperation with Argentina on investigations into crimes committed between 1954 and 1989 and the failure to cooperate with DNA research as requested, a delegate said that it was down to the Public Prosecutor's office to explain the delay in responding to Argentina’s request, and explain the various administrative steps taken. There was a terror archive providing extensive information on this issue within the review of the Condor Plan.
A delegate expanded on the criminalisation of enforced disappearance saying its multiple offence nature involved arbitrary deprivation of freedom without any guarantee, followed by the fact that relevant authorities were not informed of the detention, thus depriving the victim of the rights it had, including of the right to habeas corpus, making impotent any legal safeguard. Such deprivation of freedom was followed by assault of violence which in many cases led to the death of the person and to its silencing. The Truth and Justice Commission worked not only on physical disappearances, but also on ensuring non recurrence, particularly on religious grounds or any other.
Regarding sentencing for the crime of enforced disappearance, a delegate explained there was a clear system for the judge to measure the sentence on the basis of circumstances surrounding the case and on the basis of the perpetrator’s attitude to the crime, which could make the sentence harder. There were a number of measures to be evaluated before handing down the sentence.
Concerning obedience in investigations and the responsibility of subordinates carrying out illegal orders, a delegate explained that a superior who was aware of the act carried out and did not file a complaint or report could be deemed a direct participant to the act and be sanctioned accordingly. On the non-applicability of the statute of limitations, the constitution was very clear that it did not apply along the lines of genocide or torture. The Penal Code set out an on-going offence without a need to have it enshrined or investigated at the time when it was committed. In order to ensure its effectiveness, there was a system to lodge complaints and pressing charges.
That the reference to "political" homicide was not extended to other offences was related to extrajudicial killings, explained a delegate, while in enforced disappearances there was no need to make reference to a politically motivated crime. Enforced disappearance was a stand-alone offence.
Public officials involved in an investigation were indeed suspended of their functions, even if there were alternatives to preventative detention, such as restraining orders or suspension of work that might have been requested by the Public Prosecutor's Office
Follow-up questions from Experts
On the case of Dr. Giménez Goiburu, could the delegation confirm that the only person to have been detained was under house arrest? With regard to the Gómez and Cristian Núñez cases, there were issues in terms of legacy and reparations to family members. Had any measures been taken to identify perpetrators?
When was the offence of enforced disappearance tried by a martial or by a civilian court and what the criteria for establishing the responsibility of the commanding officer, an Expert asked. There was still lack of clarity on the roles and responsibility in terms of avoiding suspected investigators influencing the process, and therefore a golden opportunity to provide clarity and enable the Committee to fill the gaps.
An Expert looked forward to receiving answers in writing from the delegation to questions regarding figures and statistics, and to crimes committed in the past, as some of the answers had been confusing.
Response from the delegation
Paraguay committed to provide the Committee with the information requested within 48 hours after the meeting, particularly regarding the pending investigations. A delegate from the Ministry of Foreign Affairs said written answers about the law of national defence and domestic security would also be submitted.
In some instances those responsible had passed away, which meant that investigations were conducted amongst lower-level officials from the dictatorship. On the issue of obedience to orders, in 1976 in the context of repression during political manifestations, an execution was ordered by a police officer who was found guilty and convicted, a delegate noted.
The new criminal policy would allow the Public Prosecutor's Office to represent society during public criminal action. The law protected victims and oral witnesses as long as it did not harm investigations. Victims were informed of their rights when first involved in the proceedings. An investigation was carried on allegations of torture and enforced disappearances under the dictatorship, with 220 victims in Paraguay, 102 in Argentina and seven in Brazil, amounting to 329 in total, and further investigations were foreseen.
Military officials obliged to carry out illegal orders could present a report to the immediate superior of their immediate superior or to the Directorate for Human Rights. That also applied to police forces who could complain to General Director for Human Rights within the Ministry of Interior.
On the case of Marcelino Gómez, the perpetrator received an army fine and an investigation involving interviews was conducted, leading ultimately to an outcome report that was presented to families in May 2014 during an event with human rights authorities and civil society, noted a delegate.
A delegate made a presentation about SIMORE, the public monitoring system of human rights recommendations made to Paraguay, which was coordinated jointly by the Ministry of Justice and Ministry of Foreign Affairs. It brought together all recommendations given to Paraguay by the Inter American Commission and Court of Human Rights and by United Nations Treaty Bodies and could be accessed by anyone. There was also a private access for public officials enabling them to upload information even if the information accessible was the same. Admittedly, not all recommendations have been followed up or monitored, but the ones that were followed by the State could be accessed using SIMORE.
There had been no complaints of enforced disappearances since 1999. Drafting a Full Stop Law could have caused impunity of perpetrators of torture, instead the Government had centralised documentation and cooperation with the Supreme Court.
Follow-Up Questions from Experts
Given that the law did not contain specific provisions of non-refoulement, would it be worth including safeguards, asked an Expert, also asking whether the emblematic element for Paraguay of habeas corpus could it be suspended under some circumstances.
An Expert asked whether records were held at all detention centres, including police detention centres, detention centres, detention centres prior to expulsion of foreigners and psychiatric hospitals, and whether those were centralised and harmonised? How was compliance ensured in record keeping? There were training programmes for police officers on enforced disappearances, but were there any such programmes for public prosecutors and lawyers?
An Expert asked for more information on the illegal adoption of children, particularly those from indigenous communities, and whether charges had been brought when they had violated the law?
Clarification was requested on the 50 and 20 ongoing cases of enforced disappearance currently being investigated. At which stage were the cases and did he understand correctly that 27 sets of remains had indeed been identified, but how and when where those given to the family?
Responses from the Delegation
The delegation said it was not possible to provide information on implementation of non-refoulement given the lack of provisions in that area.
Communication with family members of a detainee was enshrined in law. Detention in any part of Paraguay was immediately communicated to family members, and within six hours the Public Prosecutor’s Office was informed of the detention. The Public Prosecutor’s Office used information available for communication to family members. If not complied with, there were forms of remedy by law. The application of habeas corpus was preparatory, preventative and generic. Family members and lawyers were notified initially by phone and the prison management also notified them, as well as the public prosecutor's responsible.
Concerning the responsibility for proper keeping of records of persons detained and consequences of non-compliance, a census was carried out on all detained persons when information had been made available to the Ministry and family members. All information concerning offences for which they had been tried had been harmonised using software available to police and penitentiary. There were officers to care for the files and training was received on how to update them.
Regarding compensation to victims of enforced disappearances for political or ideological reasons, torture or deprivation of liberty without due process, between 1954 and 1989, a delegate said the relevant law had been amended six times since 2002, but there were no statistics as to under what category had victims been compensated. He could confirm that more than 8,000 victims had received compensation since 2002.
A delegate answered the Committee’s concerns about insufficient resources for identification of victims with regard to genetic data, confirming that new officers were going to be appointed through a public competition, but resources had not been spared to ensure investigations, and a further US$150,000 had been assigned to fund the DNA data bank. A new agreement would be signed within the next two weeks.
Returning to the issue of historical cases and the 27 sets of remains of victims, a delegate said that from the outset of the investigation, there had been many searches which had not produced results, hence the Government was trying to build further knowledge and appreciated Argentina's help and tools to undertake identifications. Upon request from Argentina, a thorough search had been carried to retrieve the remains of Mr. Irurzun, but the case had to be dropped on the basis of an "anthropometric measurement". The results did not show the whole picture. Due to a documentary that was being made on the “May 14 Group” the Government had to stop investigations. Investigations were not linear and had many obstacles. A delegate listed a number of people tried and convicted for crimes committed under the dictatorship and said those cases were categorised as enforced disappearances, unlawful disappearances and extrajudicial executions.
There were annual training courses on investigating cases of torture and punishment led by several specialised human rights departments. A new area for criminal complaints was being set up to enhance human rights awareness. An international human rights seminar for public prosecutors and lawyers would take place in October 2014.
Concerning the applicability of habeas corpus when denied by authorities and if a person was already detained, a delegate said a report was requested calling on the person to be brought before an authority by a deadline, otherwise the judge would be obliged to establish whether the person was held. If the judge denied the person was being held, the situation was verified by together with civil society. However agreements were required to carried such mapping of blood samples, as required by the Argentinian forensic team, which took time.
The issue of child abductions had been raised at the Truth and Justice Commission, particularly when related to indigenous Aché peoples, the Tupí–Guaraní indigenous peoples. The Commission had classified them as genocide. There were no specific investigations on alleged such offences underway. Judicial and administrative measures of compensation were insufficient and did not perhaps meet international standards, but it had been recommended that national secretariat for human rights to give compensation to victims under the dictatorship be established. Pending a decision by the Congress, and if such body were to be established, it would be guided by Committee recommendations.
Regarding adoptions in the context of enforced disappearances, a delegate confirmed that there were measures for prosecution on all offences for illicit acquisition of children, especially for wrongfully issued certificates, both under domestic and international law.
With respect to the confusion on identification of deceased persons, a delegate explained the remains were being held because they needed to be identified. The genetic database needed to be verified, but before that a genetic map where the different events occurred had to be established.
Concluding Remarks
JUAN JOSÉ LÓPEZ ORTEGA, Committee Expert and Co-Rapporteur for the Report of Paraguay, highlighted very positive results of the dialogue, without prejudice to the written replies that would be provided. Paraguay had an impeccable definition of the crime of enforced disappearance, something not all States Parties had, and that was something it should be proud of. The Committee would make recommendations on how it could improve its system and thus fully implement the Convention.
ALVARO GARCÉ GARCÍA Y SANTOS, Committee Expert and Co-Rapporteur for the Report of Paraguay, said he was grateful for the generosity of the delegation given the sensitivities around enforced disappearances in Paraguay. It was extremely important to make necessary adjustments to legislation, including through the appointment of a new Ombudsman, as well as recognition of universal jurisdiction. Personal testimonies were most effective and showed the pain of victims, he noted.
VICTOR NÚÑEZ, Minister of the Supreme Court of Justice of Paraguay, said Paraguay’s authorities were very open to facilitating and promoting any investigation both from the period of the dictatorship and after. He thanked the Committee Experts, expressing gratitude for the respect shown and promising to highlight to authorities the issue of the long overdue appointment of an Ombudsman, which was also a concern for Paraguay.
EMMANUEL DECAUX, Chairperson of the Committee, thanked the delegation for its availability, finding that issues of history had been addressed, but also specific perspectives on political and legal issues were given. He recalled that further responses to questions could be provided in writing within 48 hours.
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CED14/006E