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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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Paraguay Table of Contents