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Paraguay Criminal Procedure
Sources of procedural criminal law are the Constitution, special
laws, the Penal Code, and the Code of Penal Procedure. These
sources govern pleading and practices in all courts as well as
admission to the practice of law.
The entire court system was under the control of the national
government. In addition to the judiciary, which was a separate
branch of government, the Ministry of Justice and Labor was also
involved in the administration of justice. It was responsible for
judicial officers attached to the attorney general's office. These
officials were assigned to the various courts and represented the
government in trial proceedings. The ministry was also responsible
for the judiciary's budget and the operation of the penal system.
At the apex of the criminal court system was the Supreme Court
of Justice, which was made up of five justices appointed by the
president. Below the Supreme Court of Justice, which was
responsible for the administration of the judiciary, was the
criminal court of appeal. Both courts were located in Asunción.
Courts of original jurisdiction were divided between the courts of
the first instance, which heard serious cases, and justice of the
peace courts, whose jurisdiction was limited to minor offenses.
There were six courts of the first instance in the country during
the 1980s. There were far more justice of the peace courts, but the
exact number was not publicly available.
Although theoretically a coequal branch of government, the
judiciary, along with the legislature, has traditionally been
subordinate to the executive. Members of the judiciary were
appointed by the president and served a five-year term coinciding
with that of the president. In practice, the courts rarely
challenged government actions. Under the law, the Supreme Court of
Justice had jurisdiction over executive actions, but it continued
not to accept jurisdiction in political cases as of mid-1988. The
independence of the judiciary was also made problematic by the
executive's complete control over the judiciary's budget. Moreover,
during the Stroessner regime, membership in the Colorado Party was
a virtual requirement for appointment to the judiciary; in 1985 all
but two judges were members. Many justices of the peace, in
particular, were appointed by virtue of their influence in their
local communities. During the mid-1980s, the government made an
effort to improve the public image of judges, suspending a small
number for corruption. It appeared, however, that more would be
necessary to promote public confidence in judicial independence.
The Constitution theoretically guarantees every citizen the
rights of due process, presumption of innocence, prohibition
against self-incrimination, and speedy trial. It protects the
accused from ex post facto enactments, unreasonable search and
seizure, and cruel and unusual punishment. Habeas corpus protection
is extended to all citizens.
Criminal actions can be initiated by the offended party or by
the police acting under the direction of a judicial official.
According to the law, police had to secure warrants to arrest
suspects or to conduct searches unless a crime was in progress
while the police were present. Police could detain suspects for
only twenty-four hours without pressing charges. Within forty-eight
hours, a justice of the peace had to be informed of the detention.
Upon receiving the charges of the police and determining that there
were grounds for those charges, the justice of the peace then took
action according to the gravity of the offense charged. In the case
of misdemeanors, the justice of the peace was empowered to try the
suspect and to pass sentences of up to thirty days in jail or an
equivalent fine. In the case of felonies, a justice of the peace,
although not possessing authority to try the case, performed
several important functions. If upon hearing the charges, the
justice of the peace determined that there were grounds to suspect
the individual charged, he informed the suspect of charges against
him or her, fixed a time within twenty-four hours to permit the
suspect to present an unsworn statement, established a time for
witnesses to make sworn statements, and determined a time for
inspecting the scene of the crime.
After investigation and the receipt of the suspect's unsworn
statement, the justice of the peace could order the suspect to be
held in preventive detention, if necessary for up to three days
incommunicado. This period was renewable for additional three-day
periods and was intended to prevent the suspect from communicating
with coconspirators still at large. Justices of the peace could
also order impoundment of a suspect's goods, except those needed by
his or her family.
Finally, the justice of the peace prepared the case for trial in
the criminal court of the first instance. This preparation was done
by assembling the evidence into a document known as the summary and
sending it to the higher court along with supporting documents such
as statements of witnesses. The investigative stage of criminal
proceedings was limited by law to two months--subject to a formal
petition for extension.
Despite these important responsibilities, many justices of the
peace were not qualified lawyers. Therefore, in several of the
larger cities, a special official, known as a proceedings judge,
took over the most difficult cases before sending the information
to Asunción for trial. These judges were empowered to release
suspects on bail--something a justice of the peace could not do.
Trials were conducted almost exclusively by the presentation of
written documents to a judge who then rendered a decision. As was
true for most Latin American nations, Paraguay did not have trial
by jury. Verdicts were automatically referred to the appellate
court and in some cases could be appealed further to the Supreme
Court of Justice. A portion of the trial was usually open to the
public.
The safeguards set forth in the Constitution and in legal
statutes often were not honored in practice. The police frequently
ignored requirements for warrants for arrest and for search and
seizure. Legal provisions governing speedy trial were ineffective,
and delays were legendary. Most accused persons were released
before trial proceedings were complete because they had already
been detained for the length of time prescribed for their alleged
offense. A 1983 United Nations study found that Paraguay had the
highest rate of unsentenced prisoners in the Western Hemisphere.
Moreover, defense lawyers, particularly in security and political
cases, were subjected to police harassment and sometimes to arrest.
Data as of December 1988
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