IACHR refers case on Paraguay to the Inter-American Court

March 30, 2021

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) filed the case of Alejandro Nissen Pessolani regarding Paraguay on March 11, 2021, before the Inter-American Court of Human Rights. The case refers to the international responsibility of the State for the violation of Mr. Nissen's judicial guarantees in the context of the proceedings against him by the Impeachment Jury for Magistrates (Jurado de Enjuiciamiento de Magistrados, "JEM"), which determined the removal of his position as Criminal Prosecutor.

Mr. Nissen was a prosecutor in the city of Asunción and mainly carried out investigations related to corruption cases. In March 2002, a complaint was filed against him alleging poor performance of his duties. The JEM issued a sanctioning sentence ordering his removal from office in April 2003, and in 2004, the Supreme Court of Justice rejected an action of unconstitutionality filed by the alleged victim.

In its Merits Report, the IACHR analyzed the following components of the judicial guarantees applicable to disciplinary proceedings against prosecutors: (i) the right to have a competent, independent and impartial judge; (ii) the right to defense and the principle of congruence; (iii) the right to have duly motivated decisions, the principle of legality and the right to freedom of expression; and (iv) the right to appeal the decision and to judicial protection.

The Commission established that there is insufficient information to indicate that the members of the Jury would have a subordinate or dependent relationship with the parties in the process, or that they lacked guarantees of stability that would result in a lack of independence, or to determine a violation of the guarantee of impartiality.

Regarding the right of defense and the principle of congruence, the Commission determined that the sentence modified the factual basis of the accusation by incorporating new facts in relation to two grounds, so that the victim could not exercise any defense in this regard. The Commission observed that this substantial modification resulted in the possibility of imposing, as indeed occurred, the maximum sanction against Mr. Nissen. In addition, the Commission considered that the legal time limits established for the trial by the JEM were not complied with.

With respect to the principle of legality, due motivation and freedom of expression, the Commission noted that the victim was removed from his position in accordance with the grounds set forth in Article 14(n) of Law No. 1084, which punishes providing information or making statements or comments to the press or to third parties about the trials in his or her charge when they could disrupt the proceedings or affect the honor, reputation or presumption of innocence established in the Constitution; or maintaining controversy about trials in progress.

The Commission reiterated that for a restriction on freedom of expression to be permissible, it must comply with the three basic conditions established in Article 13(2) of the American Convention. That is, it must be clearly and precisely defined by law; have a legitimate objective justified by the Convention; and be necessary in a democratic society for the achievement of the ends sought, suitable for achieving the objective sought, and strictly proportional to the end pursued.

The Commission concluded, first, that the law used to punish Mr. Nissen was formulated in vague and ambiguous terms, in a manner incompatible with the principle of legality. It also pointed out that the decision that removed him from office did not specifically and clearly identify the facts and evidence, which is incompatible with the duty to state reasons, since it prevented an adequate understanding of the assessment made by the JEM and the reasons that led to the dismissal.

Secondly, the Commission considered that the scope of the law applied did not allow for an adequate balance between the right to freedom of expression and the duty of reserve and prudence of the prosecutors, necessary to protect the independence of their function. Third, it found that in its decision the JEM did not determine which statements were made by the victim, the dates, contexts and media in which they were made, and how they would violate the rights of the persons involved in the investigations carried out by Mr. Nissen Pessolani.

Finally, the Commission pointed out that the scant grounds for the sanctioning decision did not make it possible to prove that the restriction on freedom of expression was legitimate, appropriate, necessary and strictly proportional to the purpose pursued. Consequently, it concluded that an arbitrary restriction was imposed on the exercise of freedom of expression, through the imposition of a subsequent liability that failed to comply with the requirements of the American Convention.

Based on these grounds, the Commission established that the State of Paraguay violated Mr. Nissen Pessolani's rights to have reasoned decisions, to the principle of legality and to freedom of expression.

On the other hand, in relation to the right to appeal the decision and to judicial protection, the Commission observed that the remedy of reconsideration and clarification provided for in the regulations did not allow for a comprehensive review of the JEM's decisions. Furthermore, it considered that, although Mr. Nissen filed an action of unconstitutionality, this remedy was ineffective to protect the victim's rights.

Finally, the Commission reiterated that when the tenure of judges is arbitrarily affected, the right to judicial independence is violated in conjunction with the right of access to and tenure under general conditions of equality in public office, established in Article 23(1)(c) of the American Convention. It also recalled that the guarantees of enhanced stability for judges are also applicable to prosecutors to ensure independence in the exercise of their positions. Based on this, and taking into account the violations established in the disciplinary proceedings against Mr. Nissen, the Commission concluded that the State violated the victim's right of access to public office under conditions of equality.

In view of the foregoing, the Commission concluded that the State of Paraguay is responsible for the violation of the rights to judicial guarantees, principle of legality, freedom of expression, political rights and judicial protection, enshrined in Articles 8(1), 8(2) b), 8(2) c), 8(2) h) 9, 13(1), 13(2), 23(1) c) and 25(1) of the American Convention on Human Rights, in relation to the obligations established in Articles 1(1) and 2 of the same instrument, to the detriment of Alejandro Nissen Pessolani.

In its Merits Report, the Commission recommended that the State:

  1. Reinstate the victim in a position similar to the one he held, with the same remuneration, social benefits and rank comparable to the one she would have held today if he had not been dismissed. In the event that this is not the will of the victim or that there are objective reasons that prevent his reinstatement, the State must pay compensation for this reason, which is independent of the reparations for material and moral damages included in recommendation number two.

  2. Make full reparations for the consequences of the violations declared in the Merits Report, including both material and non-material damages.

  3. Conduct training in the area of the Impeachment Jury for Magistrates in relation to the guarantee of defense, the principle of legality and freedom of expression that are relevant in the exercise of its disciplinary function, in the terms indicated in the report.

  4. Adopt legislative, administrative or any other measures necessary to ensure that disciplinary proceedings against prosecutors are compatible with due process standards for justice operators. Specifically, the necessary measures should be taken to ensure that the processes guarantee the right to appeal the sanction ruling and judicial protection.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 077/21