Convention Abbreviation:
CAT
COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
Paraguay
189. The Committee considered the second periodic report of Paraguay
(CAT/C/29/Add.1) at its 289th, 290th and 292nd meetings on 2 and 5
May 1997 (CAT/C/SR.289, 290 and 292), and formulated the following
conclusions and recommendations.
1. Introduction
190. Paraguay ratified the Convention against Torture in 1990. It
has not made the declarations under articles 21 and 22 of the Convention.
It is also a party to the Inter-American Convention to Prevent and
Punish Torture.
191. Paraguay's initial report, submitted on 13 January 1993, was
considered by the Committee at its eleventh session, in November 1993.
Its second periodic report, which was submitted on 10 July 1996, complies
with the guidelines on the form and content of periodic reports which
the Committee adopted in 1991.
2. Positive
aspects
192. Paraguay has not adopted any "clean slate" or amnesty
act.
193. Article 5 of the Paraguayan Constitution gives constitutional
rank to the prohibition of torture and cruel, inhuman or degrading
treatment or punishment and stipulates that there is no statutory
limitation on judicial proceedings intended to punish those offences.
194. Under article 137 of the Constitution, international treaties,
conventions and agreements, including the Convention against Torture
and the Inter-American Convention to Prevent and Punish Torture, once
approved and ratified, form part of Paraguayan domestic law and rank
higher than the laws and immediately below the Constitution.
195. The guarantees applicable to arrest and detention, which are
set forth in article 12 of the Constitution, provide a legal framework
that can and should help to prevent torture.
196. The constitutional provisions governing states of emergency are
consistent with the non-derogability provision contained in article
2, paragraph 2, of the Convention against Torture.
3. Factors
and difficulties impeding the application of
the provisions of the Convention
197. Nearly five years after the promulgation of the Constitution
of Paraguay, there has been no implementation of the decision to establish
an ombudsman, whose mandate, duties and functions provide an opportunity
for effective action to promote and protect human rights and prevent
torture and other cruel, inhuman and degrading treatment through systematic
inspection of the places where those offences are reportedly practised.
The Constitution also authorizes the ombudsman to protect torture
victims, investigate reports and complaints of torture and publicly
condemn or report its occurrence.
198. There has been insufficient activity on the part of the Public
Prosecutor's Department, as may be inferred from the report considered
by the Committee, which states that between 1991 and the date of completion
of the report, criminal proceedings had been instituted in respect
of physical ill-treatment by public officials in only 15 cases.
4. Subjects
of concern
199. There is no definition of torture in existing legislation and
the definition contained in the draft Penal Code at the current stage
of its consideration by Parliament does not meet the obligation imposed
on the State party by article 4 of the Convention in relation to article
1 thereof. The definition contained in the original form of the draft
was inadequate and the current one is even more so.
200. The Committee has been informed by reliable sources that although
the infliction of torture and ill-treatment is no longer, as in the
past, an official State policy, it is still practised by public officials,
particularly in police stations and primary detention centres, in
order to obtain confessions or information which are accepted by judges
as grounds for instituting proceedings against the victims. The Committee
is also concerned about information received from the same sources
concerning the frequent physical ill-treatment of soldiers during
their compulsory military service.
201. Another subject of concern to the Committee is information from
the above-mentioned sources that paramilitary groups in the service
of major landholders have been evicting people from land they have
occupied for many years and that this activity appears to be tolerated
by the State.
202. The existence of a legal arrest warrant does not, under any circumstances,
justify torture. However, the fact that many arrests are made without
a previously issued warrant from the competent authority and in cases
other than those involving persons caught in flagrante delicto facilitates
the practice of torture and cruel, inhuman or degrading treatment
as a result of the clandestine circumstances in which it takes place
and because the victims may remain at the disposal of their captors
for longer than the 24-hour period within which detainees must, according
to article 12, paragraph 5, of the Constitution, be brought before
the competent judge.
203. With regard to the right of torture victims to redress and fair
and adequate compensation, including the means for as full rehabilitation
as possible, as provided for in article 14 of the Convention, the
Committee is concerned that the report submitted by the State party
makes no mention of the existence of programmes for the compensation
and physical and mental rehabilitation of victims, thus leading it
to believe that there are no such programmes. As to the right to fair
and adequate compensation, the Committee is concerned that the State
party has only subsidiary responsibility for the actions of its officials,
as stated in article 106 of the Constitution, which makes victims
responsible for laying claim to the assets of their torturers in order
to exercise that right; the State may be required to assume responsibility
only if such assets are non-existent, insufficient or cannot be found.
204. The Committee is also concerned that domestic law includes insufficient
provisions prohibiting the expulsion, refoulement or extradition of
a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture,
as stipulated in article 3 of the Convention. Article 43 of the Constitution
extends such protection only to those granted political asylum.
205. Lastly, the Committee is concerned that domestic law contains
no provisions on the universal prosecution of torture or on judicial
cooperation for that purpose.
5. Recommendations
206. The provisions on torture should be separated from the new Penal
Code, currently under somewhat lengthy consideration in Parliament,
and all matters related to torture and other cruel, inhuman or degrading
treatment or punishment should be included in a special act containing
the provisions necessary to give effect to the provisions of the Convention.
In particular:
(a) Torture should be defined in terms consistent with article 1 of
the Convention and, since Paraguay is also a party to the Inter-American
Convention to Prevent and Punish Torture, the definition should include
a specific statement that: "Torture shall also be understood
to be the use of methods upon a person intended to obliterate the
personality of the victim or to diminish his physical or mental capacities,
even if they do not cause physical pain or mental anguish", as
established by article 2 of that Convention,3 which the Committee
has taken into consideration in accordance with article 1, paragraph
2, of the United Nations Convention against Torture;
(b) The practice of torture should in itself be punishable by law,
independently of any effects on or consequences for the victim and
without prejudice to any increase in penalties, in view of the seriousness
of such effects or consequences;
(c) Provisions to facilitate the prosecution of the use of torture
at the international level should be included in accordance with the
Convention and the provisions of article 143 of the Constitution,
which includes recognition of international law and the international
protection of human rights among the guiding principles of Paraguay's
international relations.
207. The provisions establishing the post of ombudsman should be implemented
promptly, and the act regulating his functions and setting forth the
principles embodied in chapter IV, section I, of the Constitution
should be promulgated promptly.
208. Rules and instructions on the matters referred to in article
11 of the Convention should be issued, and systematic procedures for
the supervision and monitoring of compliance therewith should be established
and maintained in order to eliminate the practice of torture and other
cruel, inhuman or degrading treatment or punishment.
209. Physical conditions in prisons should be improved and the conditions
of prisoners in detention should be made compatible with human dignity.
210. Systematic programmes of education and information regarding
the prohibition of torture should be developed and fully included
in the training of the officials referred to in article 10 of the
Convention.
211. The declarations under articles 21 and 22 of the Convention should
be made.
212. The Committee hopes that it will soon receive the official information
on the enforcement of penalties against public officials who have
engaged in the practice of torture and other cruel, inhuman and degrading
treatment which the representatives of the State offered to provide
during the Committee's consideration of the report of Paraguay.
213. Lastly, the Committee recommends that the third periodic report
of Paraguay be submitted by the 10 April 1999 deadline.
