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IACHR
Press Release
Rapporteurship on the Rights of Persons Deprived of Liberty Wraps up Visit to Paraguay
September 15, 2014
Asunción, Paraguay – The Rapporteurship on the Rights of Persons Deprived of Liberty of the Inter-American Commission on Human Rights (IACHR) carried out a working visit to Paraguay from August 25 to 29, 2014. The delegation was headed up by Commissioner James Cavallaro, in his capacity as Rapporteur for the Rights of Persons Deprived of Liberty, and made up of staff of the IACHR Executive Secretariat. The purpose of the visit was to verify the general situation of the Paraguayan prison system, to identify the main shortcomings it faces, and to make recommendations to the State. The Inter-American Commission is grateful to the Paraguayan State for its cooperation in the activities and for the level of organization of the visit. In addition, it values the unlimited access it was afforded to the places of detention and the facilities offered that made it possible for the Rapporteurship to meet freely and in private with persons deprived of liberty.
The authorities and officers of the State with whom the delegation met during its visit were Vice Minister for Foreign Affairs Federico González, Minister of Justice Sheila Abed, Vice Minister of Justice Carla Bacigalupo, Deputy Prosecutor of the Specialized Unit on Human Rights of the Public Ministry Teresa Aguirre, Minister of Public Defense Noyme Yore, and public defenders from different regions of the country; the members of the National Mechanism for the Prevention of Torture (MNP); the technical team of the Justice entrusted with the Human Rights Bureau of the Supreme Court of Justice, Alicia Pucheta de Correa; the chairman of the National Commission for Study of the Reform of the Criminal Justice and Prison System of the National Congress, Senator Enrique Bacchetta; and members of the Committee on Human Rights of the Senate and Chamber of Deputies.
The delegation also met with the Coordinator of the Office of the U.N. High Commissioner for Human Rights in Paraguay and with various civil society organizations devoted to monitoring the situation of persons deprived of liberty, such as the Coordinadora de Derechos Humanos de Paraguay (CODEHUPY), Servicio Paz y Justicia – Paraguay (SERPAJ Py), Instituto de Estudios Comparados en Ciencias Penales y Sociales (INECIP), Coordinadora por los Derechos de la Infancia y la Adolescencia (CDIA), Asociación Panambi (Asociación de Travestis, Transexuales y Transgéneros), Fundación VENCER, and Articulación por Curuguaty. It also had an opportunity to meet with family members of persons deprived of liberty. The Rapporteurship visited the National Penitentiary of Tacumbú, the “Buen Pastor” National Women’s Penitentiary, the Itauguá Integral Educational Center, and the “Padre Juan Antonio de la Vega” Regional Penitentiary of Emboscada.
As regards promotion activities, on August 25 a presentation was made of the “Report on the Use of Pretrial Detention in the Americas,” which included the participation of the Minister of Justice and key representatives of the Judiciary, civil society organizations, and the National Mechanism for the Prevention of Torture. On August 27 a training workshop was held on inter-American standards related to the rights of persons deprived of liberty and in particular the guarantees and principles on the use of pretrial detention.
The Rapporteurship observes that in general Paraguay has a legal framework favorable to the protection of the rights of persons deprived of liberty, which is grounded mainly in the 1992 Constitution and the international human rights instruments adopted by the Paraguayan State. At the same time, it notes that in recent years, through statutory changes, some fundamental guarantees provided for under those international treaties have been reduced.
In Paraguay there are 14 prisons for adults, two of which are exclusively for women. Paraguay also has six educational centers for children and adolescents and two community farms. In general, the prisons in the Republic of Paraguay are minimum- and medium-security facilities. According to the information provided by the Ministry of Justice, as of August 25, 2014, the prison population in Paraguay comes to 10,637 persons, 9,858 (92.7%) of whom are men and 779 (7.3%) women. According to the information provided by the State, approximately 7 of every 10 persons deprived of liberty in Paraguay have not been convicted.
While Paraguay has a small prison system compared to other countries of the region it is beset by extremely serious structure problems that have been found consistently by international human rights bodies, including the IACHR, over the last 15 years, and the continuation of which has been observed by the Rapporteurship during its visit.
The Rapporteurship values the recognition by the high-level authorities of the Government of Paraguay of the important shortcomings that affect the prison system, as well as the will expressed by the Government to overcome the conditions of detention of persons deprived of liberty. In particular, on a positive note the Rapporteurship finds that said will is expressed specifically in public policies aimed at improving the infrastructure and living conditions of the prison population, the design of programs for reinsertion, the establishment of a program of studies in the prison school, and the follow-up on the procedural status of the prisoners, all aspects included in its “Institutional Strategic Plan for the Reform of the Prison System.” In addition, it takes note of the implementation in 2013 of the National Prison Census, Paraguay’s second, so as to have a baseline for designing public policies. The Rapporteurship was also informed of initiatives that will be taken soon with the same aim in mind, such as creating an “intermediate center” to house young offenders with addiction problems; as well as the initiative to create a National Council on Criminal Justice Policy.
At the same time, the Rapporteurship wishes to highlight some gains made by the Paraguayan State. A fundamental step was taken with the creation of the National Mechanism for the Prevention of Torture (MNP), by Law 4288/2011, thanks to an intense effort by civil society organizations, State institutions, and international organizations. With this initiative Paraguay carries out the mandate of the Optional Protocol of the Convention against Torture, on having a state organ at the national level with functional independence and autonomy to carry out its aims. The IACHR takes note that since the Committee of the MNP was installed, in December 2012, an intense effort has been under way to structure the institution to perform its functions and to carry out its work of seeking to prevent and fight torture and abusive treatment.
According to the information received, during its first year the MNP has been engaged in constant monitoring of the detention centers, has made periodic visits, and has drawn up reports and recommendations. In particular, according to its annual report, in 2013 the MNP conducted 16 scheduled visits, 15 monitoring visits, and 27 interventional visits. It also issued several reports based on the visits made which contain specific recommendations to the various relevant authorities. The research studies performed have had to do with both general situations and specific incidents, as well as structural causes and problems in the Paraguayan prison system. The Rapporteurship also appreciates that different state agencies have carried out the recommendations issued by the Mechanism.
Nonetheless, during the visit the Rapporteurship found the persistence of serious structural problems. The Rapporteurship observes that in recent years Paraguay’s security policies, as in other countries of the region, have been characterized by repressive measures such as adopting legislation defining new crimes; adopting stiffer penalties; abusive use of pretrial detention; and the absence of alternatives to deprivation of liberty. Abandonment of the jails by the State has increased levels of insecurity, rather than reducing them. Citizen security involves the interrelationship among several actors, conditions, and factors, including the history and structure of the State and society; government policies and programs; the observance of economic, social, and cultural rights; and the regional and international context. Therefore, their realization cannot be reduced simplistically and misleadingly to speeches announcing harsher criminal justice policies and the massive incarceration of persons as the only response to perceptions of high levels of insecurity.
The criminal justice policy of States must be preventive, with policies and programs geared to crime prevention. Among those policies, programs aimed at improving the prison system are especially important, in particular those aimed at promoting and strengthening work and education in the prisons, treatment for narcotics addiction problems, as well as suitable means for bringing about the social reinsertion of the prisoners.
In this context, the Rapporteurship would like to indicate three main areas of concern, which are: (1) the excessive use of pretrial detention, (2) the undignified conditions of detention and improper management of prison and educational centers, and (3) the situation of groups at particular risk of suffering violations of their human rights.
Pretrial detention
According to information provided by the Ministry of Justice, as of August 25, 2014, 75.4% of the 10,637 inmates in Paraguay are on trial, compared to only 24.6% who have been convicted, representing one of the highest rates of pretrial detention in the region. The Rapporteurship also notes with concern that in recent years, and particularly since 2011, there has been a steady increase in the use of pretrial detention in Paraguay. In the last year alone, according to the information received, of the 1,647 persons who entered the prison system, 1,460 were deprived of liberty and held in pretrial detention.
The Rapporteurship of the IACHR considers the excessive use of pretrial detention to be extremely worrisome, as it tends to erode the principles of the presumption of innocence, necessity, and proportionality, without proper motivation, among other guarantees that should govern the use of this procedural mechanism. In this regard, the Rapporteurship reiterates that pretrial detention is an exceptional measure, precautionary in nature and not punitive, appropriate only to ensure that the defendant will not impede the effective development of the investigations or pose a danger of flight. The improper application of pretrial detention violates what is perhaps the most elemental judicial guarantee in the area of criminal justice, namely the presumption of innocence, expressly recognized without any exception whatsoever by international human rights instruments. During its visit the Rapporteurship received information indicating that as a matter of practice judges opt to decree pretrial detention in order to show efficiency and avoid complains by society, the media, and the political authorities themselves. In addition to the foregoing is the chilling effect on judicial officers given the threat of decisions by the official body that sits in judgment of judges (Jurado de Enjuiciamiento de Magistrados) to suspend or remove judges who grant alternative measures.
The Rapporteurship observes that the excessive use of pretrial detention appears to be related primarily to statutory provisions, case-law, and practices rooted in the officers of the Paraguayan justice system. As for statutory provisions, while the Code of Criminal Procedure in its original text approved by Law 1286/98 pulls together a set of provisions in keeping with the 1992 Constitution and international standards on the use of pretrial detention, changes incorporated since then pose serious concerns in light of inter-American standards. Of special concern is the amendment of Article 245 of the Code of Criminal Procedure, incorporated by Law 4431/11, by which an attempt was made to restrict access to measures other than deprivation of liberty. The broad majority of actors interviewed by the Rapporteurship identify that legislative amendment as one of the key factors determining the increase in the prison population held in pretrial detention. Accordingly, the IACHR urges the Paraguayan State to bring its procedural legislation into line with international human rights standards, either by changing the legislative provisions, or by judicial interpretation.
In addition, the Rapporteurship is concerned about the unduly prolonged terms of pretrial detention, beyond the period considered in those situations for which it is authorized, and the minimum times established by the Constitution and the Code of Criminal Procedure. In this respect, the Rapporteurship received information according to which while the Constitution establishes that pretrial detention may not exceed the minimum penalty applicable, and the Code of Criminal Procedure provides that in no case shall it be more than two years, due to a restrictive interpretation by the Judiciary persons in pretrial detention cannot gain their liberty despite having been held for the times established by law. In that regard, the Rapporteurship calls on the Judiciary to exercise its power to review for compliance with international treaties, and in particular for compliance with Paraguay’s international obligations in the area of human rights; to adopt the measures necessary to ensure that no person remains in detention beyond the time strictly necessary for the specific purposes for which the measure was issued, mindful of the principles of exceptionality, necessity, and proportionality; and that in no case should it exceed the maximum term of preventive detention established expressly by law.
In addition, the Rapporteurship takes note of the establishment of a “National Commission for the Study of the Criminal Justice System Reform”, made up of representatives of the various institutions of the State, for the purpose of analyzing possible reforms to the Criminal Code and the Code of Criminal Procedure. In this context the Rapporteurship urges that the statutory shortcomings identified be fixed, that the fundamental guarantees already established in those statutory provisions be respected, and that action be taken in view of Paraguay’s international obligations in respect of human rights. It also calls on the State to have fully participatory procedures that guarantee a wide-ranging debate of the reforms proposed, involving academia, civil society organizations, and relevant state institutions, such as the National Mechanism for the Prevention of Torture.
Conditions of detention
As regards the conditions of detention, the Rapporteurship observes with great concern that the main effect of the excessive use of pretrial detention in Paraguay is overcrowding of the prisons. According to information provided by the Ministry of Justice, on August 25, 2014, the total capacity of the prison system was 6,637 persons, whereas the total number of persons deprived of liberty came to 10,637, with overpopulation of 200% in some prisons.
During its visit, the Rapporteurship found that as a result of overcrowding, the Paraguayan prison system has serious shortcomings, such as deplorable building conditions, insalubrious sanitary facilities, food scarcity, and even persons without cells or beds who are exposed to the elements and sleep on the ground. In the specific case of the Tacumbú Penitentiary, one would observe that 300 to 350 persons, called “pasilleros” (“hall people” or “corridor people”), are living in undignified conditions. The Rapporteurship urges the State to earmark and execute an adequate budget aimed at needs in food, health, hygiene, and drinking water for the prison population, and adapting the physical facilities and in particular to take decisive measures to provide for adequate conditions of confinement for the “pasilleros” at Tacumbú and at any other prisons in Paraguay in which inmates are living in similar conditions.
At the prisons visited the Rapporteurship observed that a large number of persons deprived of liberty have drug addiction problems. According to the information received, this situation is common in all the other prisons, where addicts do not receive adequate treatment, are living in confines not suited to their recovery, and at a very high social, personal, and economic cost. All this is even more serious if one considers that according to the information received it is the prison staff who provide access to drugs.
In this context, it was noted the presence of a profound inequity between prisoners who have economic resources and those who do not. In practice, this means that persons deprived of liberty who have no economic resources are totally marginalized and face the reality of hunger when in the custody of the State. The Rapporteurship considers that this troubling situation of inequity favors the existence of deeply-rooted corruption that compromises everything ranging from access to basic conditions of detention to the assignment of cells and beds or adequate food; to services, visitors, phone communications, and access to spaces for private visits, among others. Those systems of corruption are also manifested in the enjoyment of additional privileges that come with having more money or resources. At the same time, at the detention centers visited the Rapporteurship observed radical differences in the prison administration visible in the levels of hygiene, availability of basic elements, food, and the enforcement of disciplinary regimes, which require the adoption of a uniform and integral prison policy in line with international standards. In addition, the information received suggests the generalized absence of study programs, except some private initiatives of limited scope, and the lack of opportunities for prisoners to work; accordingly the Rapporteurship encourages the State to make progress implementing the programs designed to ensure the inmates’ occupational health.
One aspect of special concern in relation to the disciplinary regime is the information received on bodily punishment and other abusive treatment by prison officials. Accordingly, for example, prisoners from the “Padre Juan Antonio de la Vega” Regional Penitentiary of Emboscada, with whom the Rapporteurship met, referred to beatings by prison guards. They said that while the physical assaults had diminished with the removal of the prison director in April 2013, such acts continue to be part of the treatment they receive at that prison. The Rapporteurship emphatically recommends the State to take decisive measures to prevent and eradicate any cruel, inhuman, and degrading treatment; and to ensure that the exercise of the disciplinary functions at the centers for the deprivation of liberty is duly regulated and in keeping with international standards.
The Rapporteurship was also informed of the use of transfers between prisons as a way to control internal order. In this respect, the Rapporteurship urges the Government of Paraguay to take measures aimed at limiting transfers until after judicial review, and to prevent them from being used as a disciplinary sanction. In addition, it is recommended that the State consider the proximity of the prison to the prisoner’s family, the prisoner’s physical condition, and the prisoner’s involvement, if appropriate, in education or work programs as fundamental criteria when ruling on transfers. It also recalls that in keeping with the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, of the IACHR, transfers should not be carried out in order to punish, repress, or discriminate against persons deprived of liberty, their families, or their representatives.
Groups about which there is special concern
The Rapporteurship expresses its special concern about the situation of populations at a particular risk of suffering violations of their human rights in the context of deprivation of liberty, such as children and adolescents. One situation that has received great attention from the Inter-American Commission recently refers to the deaths of four adolescents in the last five months at the Itauguá Integral Educational Center. During its visit the Rapporteurship went to that Center, where it observed the serious shortcomings that are said to have resulted in these very regrettable deaths. In particular, it observed the overcrowded conditions in which nearly 93% of adolescents and children are held in pretrial detention, the precarious sanitary conditions, the lack of adequate educational and occupational programs, as well as the use of isolation cells that have been prohibited. It also received information according to which the adolescents at that Educational Center suffer abusive treatment and beatings at the hands of the educators who are in charge of their direct care. It also received troubling information on the application of police control measures imposed on all the adolescents at the Center, such as remaining for a prolonged period of time, during the early morning hours, with their bodies to the ground and under the custody of polices.
In this respect, the Rapporteurship reiterates its appeal to evaluate the different aspects of the conditions of confinement at this establishment and to adopt, as soon as possible, the corrective measures needed, in keeping with international standards on the deprivation of liberty of children and adolescents. The Rapporteurship urges the State to organize its institutional apparatus especially mindful of the principle of specialty, according to which the system for the protection of children’s rights should be governed by rules, an institutional structure, procedures, interventions, and professionals with the necessary characteristics, specificities, and qualities that enable them to respond adequately to the particular conditions of children and to ensure the effective observance and defense of their rights. In particular, it calls on the competent authorities to adopt the measures necessary to ensure that the institution entrusted with administering the system for the deprivation of liberty of children and adolescents in Paraguay is not under the Bureau of Prison Establishments (Dirección de Establecimientos Penitenciarios). That institutional structure, as the Rapporteurship has observed, does not ensure the existence of an exceptional and specialized system of juvenile justice that respects and ensures the rights of children and adolescents, and that offers them the special protection they deserve because of their age and their stage of development.
In addition, the Rapporteurship expresses its concern over the situation of transgender persons held in centers of detention. In particular, during its visit the Rapporteurship observed the deplorable conditions in which transgender persons are confined at the National Penitentiary of Tacumbú, some of whom occupy a closed space, with no ventilation or electricity, in conditions of overcrowding, and subject to different forms of violence and discrimination ranging from physical and verbal assaults to multiple instances of rape. In view of this situation, the Rapporteurship recalls that the principle of equality and non-discrimination implies, among other things, that under no circumstance shall one discriminate against persons deprived of liberty on grounds of their gender identity or sexual orientation. Accordingly, the Rapporteurship notes that in consideration of the State’s special position as guarantor vis-à-vis persons deprived of liberty, including transgender persons, in addition to respecting their life and personal integrity the State has the obligation to ensure minimal conditions of detention compatible with human dignity.
Finally, as regards the prison situation of women, the Rapporteurship received encouraging information at the office of the director of the Buen Pastor Penitentiary that suggests that beyond the limited resources and major shortcomings affecting this prison, it appears that positive changes are taking place. Nonetheless, it expresses its concern over the information according to which at this and other prisons in Paraguay intrusive vaginal searches and other acts of forced stripping are used as a means for ensuring security. In this context, the Rapporteurship recalls that the State has the duty to implement public policies that take into account the reality and specific situation of women in the criminal justice and prison systems, and to prevent such acts that constitute a type of institutional violence.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
Modified September 15, 2014, 12.15 pm
No. 97/14