|j) Expert opinion of Luis Emilio Escobar Faella, former Attorney General of Paraguay
The witness is a lawyer and served in the judicial branch of government for 25 years. He was Paraguay’s Attorney General for five years.
The new criminal justice system affords equal access to the accused and to the victim. Under the new system, the Public Ministry is in charge of criminal investigations, as established in the 1992 Constitution.
The new criminal justice system also establishes a criminal court judge and a separate sentencing court that is a collegiate body versed in the law. In this new criminal justice system, the fact that a crime is committed by a juvenile becomes a “mitigating circumstance.” The new Code of Criminal Procedure established a special proceeding for juveniles, which was to remain in effect until such time as the child and adolescent code was adopted. We now have that code.
The new Child and Adolescent Code also introduced such concepts as legal counsel on approval, review of behavior-related measures and, most importantly, a drastic reduction in the period of time that a child could be sentenced to serve in prison. Under the new Child and Adolescent Code, the maximum period of confinement to which a child can be sentenced is eight years. Both the Penal Code and the Child and Adolescent Code make provision, in many cases, for fines in lieu of deprivation of liberty. The Penal Code introduces the concept of fines based on number of days, which takes into account the convicted person’s ability to pay the fine. The Child and Adolescent Code established a method that has to do with the adolescent’s actual capacity to pay the fines.
However, these reforms have not been implemented in practice. The old provisions and the current provisions make it possible for the system to be “completely undermined” in practice. This is particularly true in the case of juveniles, where every rule has been violated.
The new Penal Code embodies modern doctrines, emphasizing the human being as the bearer of all rights and the penal system as the ultima ratio. Under the new penal system, courts are much more inclined to order alternative measures, sometimes at the prosecutor’s request, so that preventive imprisonment does not become –as it was under the old system- punishment before conviction.
When judicial proceedings were still pending or still in progress, petitions of habeas corpus were never granted. The assumption was that the factual issue of failure to comply with deadlines was a problem of the system’s operation. However, in today’s Paraguay, three years is considered a reasonable period for proceedings to be completed. If not completed within that time frame, the defendants have to be released.
It was and still is possible that a released juvenile might be returned immediately to prison or to the institution from which he was released, this time on a new charge. He may never have been actually free. So, in practice, there was a dual judicial system, one run by the police, who not only detained people but often released them in exchange for money or for political reasons.
When the witness was attorney general, he received many complaints during his visits to the Center. The juveniles complained that part of their “ill-gotten gains” would end up in the hands of the police and that when they got out, if they didn’t follow the police’s orders, they would be sent back to prison. Proceedings and preventive detention could be ordered on the basis of a simple police report; in other words, a judge would institute proceedings and order immediate preventive detention simply on the word of the police.
C) Evidence Assessment
Evaluation of the Documentary Evidence
80. In this case, as in others,1 the Court accepts the probatory value of those documents that were submitted by the parties at the appropriate procedural moment or as evidence to facilitate adjudication of the case and which was neither disputed nor challenged and the authenticity of which was not questioned.
81. Regarding to the newspaper clippings, this Court has held that even though they are not documentary evidence proper, they may be assessed when they reflect publicly-known or notorious facts, statements of State officials, or when they corroborate facts established in other documents or testimony taken in the proceeding.2
82. As for the testimony and expert opinions given at the Office of the Chief Notary Public of the Government of Paraguay, like those given in the presence of a person with legal authority to authenticate documents (supra paragraphs 44, 45 and 46), this Court evaluates them in the body of evidence and admits them to the extent that they fit the purpose of the proposed examination, have neither been disputed nor objected to, and are not contradicted by the other evidence submitted in this case.
83. This Court deems that the statements made by relatives of the alleged victims, who have a direct interest in this case, cannot be evaluated separately; instead, they must be evaluated within the context of the body of evidence in the case. Both for the merits and for reparations the testimony of the alleged victims’ next of kin is useful to the extent that their testimony can provide additional information on the consequences of the violations that may have been committed.3
84. The testimony of Pedro Iván Peña and Raúl Esteban Portillo supplied by the representatives (supra paragraphs 48 and 72), consists of the questions posed by Ms. Viviana Krsticevic, Executive Director of CEJIL, and the witnesses’ answers, which appear in a document dated March 25, 2004, and are not in the form of a statement sworn in the presence of a person with legal authority to authenticate documents (affidavit). No party either disputed or objected to these questions and answers, so that the Court will admit them as documentary evidence and will evaluate them in the body of evidence.
85. The State objected to the expert testimony given by Mr. Carlos Arestivo on the grounds that “Mr. Arestivo was a member of a nongovernmental organization called ‘Tekojojá,’ which was one of the original claimants in the case […], so that the expert testimony taken cannot be objective and impartial.” The State therefore requested that the Court “not take that evidence into consideration when arriving at its judgment.” Although the State objected to the expert testimony given by Mr. Carlos Arestivo (supra para. 51), this Court is admitting it insofar as it fits the intended purpose of the examination. It will take the State’s objections into account and assess this testimony as part of the body of evidence following the rules governing reasoned judgment arrived at freely and on the basis of admissible evidence, within the relevant legal framework.4
86. The State also objected to the statement given by Mrs. Silvia Portillo Martínez on the grounds that it “was not given in the presence of a person with legal authority to authenticate documents, in violation of the provision contained in the Rules of Court […] in the pertinent part.” The State asked the Court “not to consider this piece of evidence when arriving at its judgment.” Although the State objected to Mrs. Silvia Portillo Martínez’ statement (supra para. 51), this Court is admitting it to the extent that it fits the purpose of the examination. It will take the State’s objections into account and assess the evidence in the context of the body of evidence as a whole, applying the rules governing reasoned judgment arrived at freely and on the basis of admissible evidence, within the relevant legal framework.5
87. As for the statements given at the Office of the Chief Notary of the Government of the Republic of Paraguay, presented by the State, the Commission asserted that the “responses are irrelevant given the terms in which the dispute in the instant case was framed.” The Commission argued further that one of the questions in the statement of Fernando Vincente Canillas Vera was “contrary to the provisions of Article 42(3) of the Rules of Court, which states that “Leading questions shall not be permitted.” The Commission also objected to the assertion made by witness Fernando Vicente Canillas Vera to the effect that the two inmates who died in the cellblock were, “[a]ccording to their friends’ testimony, [...] the ones who jammed the lock and burned the mattresses.” The Commission’s contention was that the witness’ statement “is unsupported and refers to facts that the witness himself obviously was not present for; instead, his allegations supposedly come from unnamed third parties.” The Court will take the Commission’s comments into account and is admitting into evidence the expert opinion of Fernando Vicente Canillas Vera to the extent that it fits the purpose of the examination and will assess it in the body of evidence as a whole, applying the rules governing reasoned judgment arrived at freely and on the basis of admissible evidence.6
88. The Commission also asserted that one of the questions asked of Estanislao Balbuena Jara was “contrary to the provisions of Article 42(3) of the Rules of Court, which states that “Leading questions shall not be permitted.” Here, the Court will admit the opinion of Estanislao Balbuena Jara to the extent that it fits the purpose of the examination. It will take the Commission’s objections into account and assess the testimony in the body of evidence as a whole, applying the rules governing reasoned judgment arrived at freely and on the basis of admissible evidence.7
89. The Commission also objected to the statement of Mrs. Teresa de Jesús Almirón Fernández, as her answers “are premised on the assumption that all the Center’s former inmates […] were criminals, which is not the case.” The Court will admit the opinion of Teresa de Jesús Almirón Fernández into evidence to the extent that it fits the purpose of the examination. The Court will take the Commission’s objections into account and assess the testimony in the body of evidence as a whole, applying the rules governing reasoned judgment arrived at freely and on the basis of admissible evidence.8
90. The Court believes that the compact disc and documents presented by the State on May 4, 2004, on the occasion of its oral arguments at the public hearing on preliminary objections and possible merits, reparations and costs (supra paragraphs 56 and 74) will be useful in resolving the instant case, as will the documentation presented by witness Teofista Domínguez during the testimony she gave at the public hearing held on May 3, 2004 (supra paragraphs 56 and 74), especially inasmuch as they were neither contested nor objected to, and their authenticity or veracity was never called into question. It will therefore add this compact disc and documents to the body of evidence, in application of Article 45(1) of the Rules of Court.9
91. Law No. 2169 of June 27, 2003, which concerns the age of majority in Paraguay, is considered a useful document for the adjudication of the instant case and will therefore be added to the body of evidence, pursuant to Article 45(1) of the Rules of Court.10
92. As regards the documents requested pursuant to Article 45 of the Rules of Court, and presented by the Commission, the representatives and the State (supra para. 61), the Court observes that the parties did not provide all the documentary evidence requested for better adjudication of the case with regard to the preliminary objections and eventual merits, reparations and costs.
93. On the subject of the documents and information that the Court requested of the parties and that they did not provide, the Court notes that the parties are required to provide the Court any evidence it requests, whether it be documents, testimony, expert testimony or opinions, or evidence of any other kind. The Commission, the representatives and the State have an obligation to provide all the evidentiary materials requested for better adjudication of the case, so that the Court has the maximum amount of information and materials to enable it to ascertain the facts and arrive at a reasoned judgment.
94. As for the documents requested pursuant to Article 45 of the Rules of Court and duly provided, the Court is adding them to the body of evidence in the instant case in application of the provisions of the second paragraph of that article.11
95. Because it does not have complete information as to the identity of all the possible victims in the instant case, the Court will concentrate exclusively on the alleged victims named in the application, in the Court’s order of June 21, 2002, and in the list supplied by the Commission on November 19, 2002. The Commission’s list supplied information about the persons who were inmates at the Center in the period from August 14, 1996 to July 25, 2001. The State did not challenge the Commission’s list.
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