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Center for the Administration of Justice

Florida International University

**PARAGUAY'S REFORM OF CRIMINAL PROCEDURE:**

**A MAJOR USAID ACHIEVEMENT**

![](media/image2.jpeg){width="3.5in" height="1.9868055555555555in"}

Luis Salas

December 10, 2002

TABLE OF CONTENTS

[1. Introduction 2](#introduction)

[2. Why Criminal Procedure Reform 3](#why-criminal-procedure-reform)

[3. USAID's Law Reform Experience 4](#usaids-law-reform-experience)

[4. The Paraguayan Law Reform Process
6](#the-paraguayan-law-reform-process)

[5. The Key Aspects of the Reform 8](#the-key-aspects-of-the-reform)

[6. Implementation Model 8](#implementation-model)

[7. The Implementing Institutions 11](#the-implementing-institutions)

[7.1. The courts 12](#the-courts)

[7.2. The prosecution 12](#the-prosecution)

[7.4. The Police 15](#the-police)

[8. Results of the Reform 16](#results-of-the-reform)

[8.1 Reduction of caseloads and backlogs
16](#reduction-of-caseloads-and-backlogs)

[8.2. Pretrial release 16](#pretrial-release)

[8.3. Convictions and Acquittals 17](#convictions-and-acquittals)

[8.4. Duration of the Process 18](#duration-of-the-process)

[8.5. Participation of victims in the Process
19](#participation-of-victims-in-the-process)

[8.6. Transparency of proceedings 20](#transparency-of-proceedings)

[8.7. Reduction of corruption 20](#reduction-of-corruption)

[9. Sustainability 21](#sustainability)

[9.1. Civil society 21](#civil-society)

[9.2. Outreach Efforts 21](#outreach-efforts)

[9.3. Other Rule of Law donors and donor coordination
22](#other-rule-of-law-donors-and-donor-coordination)

[10. Problems 22](#problems)

[10.1. Resources and budgetary allocations
22](#resources-and-budgetary-allocations)

[10.2. Politicization of the justice system
23](#politicization-of-the-justice-system)

[10.3. Interagency coordination 24](#interagency-coordination)

[10.4. Service of Process 24](#service-of-process)

[10.5. Appearances by defendants and witnesses
24](#appearances-by-defendants-and-witnesses)

[10.6. Postponements and continuances
25](#postponements-and-continuances)

[10.7. Delegation of key responsibilities
25](#delegation-of-key-responsibilities)

[10.8. Statistics 25](#statistics)

[11. International Assistance to the Sector
25](#international-assistance-to-the-sector)

[11.1. USAID 25](#usaid)

[11.2. United Nations Development Program (UNDP)
26](#united-nations-development-program-undp)

[11.3. The Inter-American Development Bank (IADB)
27](#the-inter-american-development-bank-iadb)

[11.4. GTZ 27](#gtz)

[11.5. European Union 28](#european-union)

[12. Summary of the Paraguayan Criminal Process
28](#summary-of-the-paraguayan-criminal-process)

[12.1. Types of Procedures 29](#types-of-procedures)

[12.2. Fundamental Guarantees 29](#fundamental-guarantees)

[12.2.1. Legality 30](#legality)

[12.2.2. Double jeopardy (Non bis in idem)
30](#double-jeopardy-non-bis-in-idem)

[12.2.3. Neutral and detached magistrate
30](#neutral-and-detached-magistrate)

[12.2.4. In dubio pro reo 30](#in-dubio-pro-reo)

[12.2.5. The right to counsel 30](#the-right-to-counsel)

[12.2.6. Privilege against self-incrimination
31](#privilege-against-self-incrimination)

[12.2.7. Searches and seizures 31](#searches-and-seizures)

[12.2.8. Other guarantees 32](#other-guarantees)

[12.3. The Prosecutorial Function and Discretion
32](#the-prosecutorial-function-and-discretion)

[12.4. The Stages of the Process 32](#the-stages-of-the-process)

[12.4.1. The preparatory stage 32](#the-preparatory-stage)

[12.4.2. Intermediate Stage 34](#intermediate-stage)

[12.4.3. Trial stage 34](#trial-stage)

[12.5. Appellate remedies 35](#appellate-remedies)

[12.6. Preventive Detention and Pretrial Release
35](#preventive-detention-and-pretrial-release)

[12.6.1. Requirements for preventive detention
35](#requirements-for-preventive-detention)

[12.6.2. Exceptions to pretrial detention and release
36](#exceptions-to-pretrial-detention-and-release)

[13. Conclusion 37](#conclusion)

Figures

1\. Program to Purge Cases: 1999 Inventory and 2001 Active
Cases..............................\.....10

2\. Cases Diverted from Trial: March 1 to December 31,
2000........................................ 13

3\. Number of Defendants Acquitted and Convicted in 1996, 2000 and 4
months of 2001.........18

4\. Duration of the Process for Selected Crimes: 1996 and
2000/01...................................19

Tables

1\. Public Ministry Approved and Disbursed Budgets by Year in Thousands
of US Dollars...\....23

Beginning first in Latin America in 1984, the United States committed
itself to supporting modernization of justice systems throughout the
world.[^1] While much of the early US assistance went to the
reconstruction of justice systems following civil wars, recent US Rule
of Law support in Latin America has focused on reform of criminal
justice systems including the judiciary, the prosecution and law
enforcement. Central to this effort has been the promotion of a shift
from inquisitorial systems of criminal procedure to adversarial systems
that are hearing-based rather than pleading or paper driven.[^2]

Shortly after the onset of democracy in Paraguay, the USAID Mission
chose to focus on reform of criminal procedure and invested a
considerable share of its limited resources in supporting adoption of an
accusatorial criminal justice model. Most Paraguayan justice
professionals judge the reform positively and the transition from one
system to another as one of the smoothest in the region. The purpose of
this paper is to review, albeit cursorily,[^3] the Paraguayan reform
effort and the role that USAID played.

The author of this report has engaged in USAID-sponsored missions to
Paraguay several times beginning in 1992. The current review was
undertaken during several site visits in 2002 and included interviews of
key justice reform actors and civil society opinion makers[^4] as well
as documentary review. INECIP[^5] personnel assisted the author in
compiling this review.[^6]

# **1. Introduction**

In a 1995 USAID report evaluating the evolution of democracy in
Paraguay, the author concluded that "Paraguay's road to democracy after
decades of military rule has not been easy but its accomplishments have
been noteworthy. Yet, democratic institutions remain underdeveloped and
fragile. If democracy is to be consolidated and deepened, the
institutions that support it will have to be strengthened. The judicial
system\'s role in supporting democracy through the efficient and
impartial administration of justice is particularly important." This
conclusion is as true now as it was seven years ago.

Paraguay's history has been characterized by instability and war. In the
War of the Triple Alliance (1865-1870), it faced the armies of
Argentina, Brazil and Uruguay and lost two-thirds of all adult males and
much of its territory. Fifty years later, it fought Bolivia in the Chaco
War of 1932-1935. General Stroessner led a coup in 1954 and governed,
though a combination of cooptation and repression, for the next 35
years. Another coup in 1989 ended his rule and signaled the beginning of
democracy for Paraguay. Democratic governance following the coup has not
been easy, as successive governments have faced crisis and challenges
that have delayed consolidation of democratic rule. Among these, the
most significant were the assassination of Vice President Luis María
Argaña, the release from prison of General Lino Oviedo, and the
resignation and flight into exile of President Cubas. In March 1999, the
President of the Senate, Luis González Macchi, assumed the Presidency
following Cubas' resignation and formed a coalition government that
collapsed in January 2000. González Macchi's rule has been characterized
by economic stagnation and political instability culminating in the
current Congressional decision to begin his impeachment trial.

The deterioration of the economy, political instability, and the
Argentinean crisis have contributed to a rise in crime and lack of
confidence in the ability the justice system to meet growing popular
concern about public safety. Conditions deteriorated so much in Ciudad
del Este, on the border with Argentina and Brazil, for example, that the
military was called on to patrol the city early in 2001. While crime has
been on the rise, it is still not comparable to the violence that
characterizes many Latin American countries. [^7] The continued
political instability and rising crime, however, have led many to
question the value of democracy and made Paraguay's democratic
development one of the most fragile in Latin America.[^8]

In spite of all of these challenges, Paraguayan reformers enacted far
reaching legal reforms.[^9] Of these, two of the most significant are
the 1992 Constitution and substitution of the inquisitorial system of
criminal procedure with an accusatorial one. The fact that the change
has been achieved as successfully as it has in a country recently
emerging from autocratic rule, with limited democratic traditions, a
weak economy, continuing political interference in judicial selection
and decision making, and rising criminality is one of the most
surprising features of the Paraguayan reform.

# **2. Why Criminal Procedure Reform** 

Paraguay's procedural system remained virtually unchanged from its
Spanish colonial roots and adoption of its first criminal procedure code
in 1890[^10] until enactment of the new adversarial code. Although some
changes were made in these 100 years, the basis of the system remained
rooted in the European civil law tradition.[^11] Criminal proceedings
were characterized by written pleadings and the secret nature of the key
stages of the process.[^12] The investigating judge acted as an
investigating magistrate during the pretrial stage of the criminal
proceeding.[^13] The system relied on a conception that all crimes must
be brought to trial, thus, eliminating prosecutorial discretion and
preventing the State from focusing its prosecutorial resources on the
most severe problems. Rather than being the main accuser and lead
investigator, the prosecutor was a passive depository of pleadings.
Defense counsel was notably absent throughout the most critical stages
of the proceedings. The result was an obscure, inefficient, lengthy
process in which the rights of the accused were routinely violated and
the majority of defendants lingered in prison while awaiting trial. It
is notable that prior to the adoption of the new procedural system, 90
to 95% of all inmates were pretrial detainees, the largest percentage in
Latin America.[^14]

After the onset of democratic rule in 1989, the inquisitorial system
became identified with the autocratic rule of Stroessner while the
accusatorial model was viewed as a key feature of a new democratic
justice model. Following adoption of the 1992 Constitution,
transformation of the criminal process became the primary goal of legal
reformers. Unlike other countries in which law reform was basically a
foreign initiative, Paraguayans primarily led this reform effort, albeit
with a substantial Argentinean influence.

# **3. USAID's Law Reform Experience**

The priority of US-funded code reform efforts in Latin America has been
modernization of criminal procedure due to the negative impact that
these antiquated codes have on human rights and a growing popular demand
to combat rising crime rates. National reformers argued against
prevailing criminal policies that relied on abstract legal theory and
ignored national realities. In this system, criminal proceedings were so
technical that writs and pleadings took on a greater importance than the
outcome of the dispute. The system\'s success depended on a cadre of
poorly trained and overworked instructional judges. Prosecutors were
assigned few tasks under the old system and were largely passive figures
in the process while the right to an efficient legal defense was largely
ignored. Police power and abuse was unchecked. Meanwhile, more than 80%
of prison inmates were pretrial detainees who had to wait an average of
two years prior to sentencing.

It was against this background that the first reforms were implemented.
Guatemala was one of the first countries to shift from the inquisitorial
to the accusatorial model.[^15] The reform encountered numerous
obstacles as proponents underestimated the level of opposition of
stakeholders and did not devote sufficient resources to adequately
implement the change. Uruguay, on the other hand, adopted oral
proceedings for its civil process with greater ease as it implemented a
massive training program, developed a gradual implementation plan and
its Judiciary received adequate financial support from the other
branches of government for implementation of the reform. These
experiences, combined with that of other countries, were not lost on the
Paraguayans as they planned their own reforms with the support of
consultants who had worked on similar changes in the hemisphere.

Reform is now the rule rather than the exception in Latin America. El
Salvador adopted the accusatorial model in its new code of criminal
procedure and modified its procedure for juvenile courts; Costa Rica
enacted a new accusatorial code of criminal procedure; Guatemala\'s
initial obstacles have been largely overcome and its code is
operational; Honduras\' code is now effective; Venezuela has also
followed suit while some of the most traditional countries, notably
Chile[^16], have also adopted the model, either fully or partially
(Argentina).[^17] Elsewhere, Bolivia and Colombia have also reformed
their procedures. Unfortunately, there are no empirical evaluations of
these reforms. The expectations of reformers have proven to be overly
optimistic in many countries and some of the major features of the
system, primarily expanded pretrial release and diversion opportunities,
have been rolled back while sanctions in the criminal code were
stiffened.

AID's law reform model rests on two basic assumptions: "first the
conclusion that one of the fundamental causes of sectoral performance
was the structure of the justice process, and, second, that any
improvement would necessarily require the rewriting of the basic
substantive and procedural codes that shaped it."[^18] Many lessons have
been learned from AID\'s support of law drafting. Among these, some of
the most important are:

-   Law reform is a lengthy reform strategy that challenges basic legal
    tenets rooted in a country's history and customs.

-   Law reform should be part of a comprehensive justice reform strategy
    that relies on objective assessments of specific areas of the
    justice system.

-   A danger of most reform initiatives is to approach law reform from a
    technical point of view and to ignore the political, cultural and
    economic aspects.

-   Foreign donors and national reformers have sometimes overlooked the
    vested interests that might be negatively affected by modernization
    of the legal system.[^19]

-   A critical component of any law reform strategy is to devise a sound
    implementation plan that estimates the costs of the reform, the
    potential effects on existing processes and institutions, takes into
    account local idiosyncrasies and devises an outreach strategy to win
    over the public and silence opponents. Of these, the most neglected
    component of an implementation strategy is a social marketing and
    outreach campaign aimed at lawyers and the public.

-   Finally, code reform cannot be successful in an environment in which
    poorly educated and inadequately compensated judges are selected for
    political reasons, there is limited judicial independence, and
    public corruption is widespread.

# **4. The Paraguayan Law Reform Process**

The adoption of the 1992 Constitution was a watershed event in the
Paraguayan democratization process. The Constitutional Convention,
composed of representatives from all political sectors, realized the
importance of an independent judiciary in sustaining a democratic
process and introduced reforms to achieve this.[^20] Thereafter, the
Congress enacted major legislative changes to the criminal justice
system. Of these, the most significant reform has been the abolishment
of the longstanding inquisitorial system of criminal procedure and its
substitution with an accusatorial model. The reform process, while not
complete, has been a major achievement of a coalition of national
reformers and donors, with USAID at the lead, who have remained
steadfast in their commitment to the reform.

Unlike other national reform processes in which the change emanated from
the Judiciary or academic circles, the Public Ministry[^21], whose
leader, Luis Escobar Faella, became the standard-bearer for the reform,
was the driving force for change. Faella proposed not only enactment of
legislation that specified the organization and role of the Fiscalía but
also defined its functions within the context of a new accusatorial
model in which the Ministry would bear the primary burden of leading the
investigation and prosecution of criminal cases. The absence of a
powerful Public Ministry at the time was fortuitous for reformers who
did not have to contend with opposition from bureaucratic stakeholders
seeking to protect their turf. Young new motivated prosecutors adopted
the reform with an almost missionary zeal. Their activism was rewarded
by substantial increases in budgetary allocations to the Ministry whose
growth has been the most impressive in the justice sector, from 684,000
guaranis in 1991 to 10 billion guaranis in 1995.

Eventually, the Supreme Court assumed leadership of the reform and
introduced the code of criminal procedure in the Congress. Since then,
the Court has remained steadfast in its support for the procedural
reform, arguing that it is the only viable response to growing caseloads
and backlogs.

U.S. support to the code reform effort began in 1992, as set forth in
greater detail in the section that follows, with an award to the Public
Ministry and the Supreme Court for \$142,000.[^22] Entering into an
agreement directly with the implementing institutions proved to be
critical in the early stages of normative reform and design of
implementation strategies.

Under the initial agreement between USAID and the Public Ministry, the
Fiscalía assigned prosecutors to work with foreign consultants, selected
by them, in drafting the legislation. A joint-team approach that relied
on the experience of consultants who had worked on prior reform efforts
with local prosecutors and judges knowledgeable of the local situation
also contributed to the success of the effort and overcame potential
accusations by opponents that this was a foreign code drafted by
Argentineans and funded by Americans.

Once the first draft of the proposed code was completed and published, a
process of public review and consultation began. The public review
process consisted of workshops in eight of the nine judicial regions in
the country. Lay persons, as well as lawyers, were invited to
participate. Rather than lecturing to participants, team members
encouraged dialogue and assured them that their feedback would be taken
into account in drafting the final version of the code. The consultation
process enabled reformers to overcome the absence of sufficient
empirical data to support their assumptions, generated attitudinal
change among participants, and established support networks. In addition
to these workshops, the public consultation and dissemination process
included radio and television programs as well as press interviews.[^23]
Finally, the draft was forwarded for review to a committee of judges and
experts.

The final draft was completed in 1996. The Supreme Court then forwarded
it to the Congress as its own legislative proposal.[^24] Introduction of
this legislation was followed by preparation of a proposed law detailing
the organization, structure and functions of the new Public Ministry in
accordance with its role under the new accusatorial system.

At the same time that this law drafting was going on, a German law
professor, originally funded by the United Nations Development Program,
prepared a Criminal Code.[^25] A joint legislative committee was
assigned to review the proposed legislation with the support of
consultants hired with USAID funding. The Criminal Code was enacted in
1997, followed by the Code of Criminal Procedure in 1998 and the Organic
Law of the Public Ministry in 2000.

Although the bulk of the criminal procedure draft remained largely
intact, some major changes were introduced during parliamentary review.
A major reform was elimination of a proposal that permitted the filing
of a criminal complaint by any citizen charging any public official with
the violation of human rights.[^26] The code also reduced the number of
situations in which a victim could initiate a private prosecution.[^27]

# **5. The Key Aspects of the Reform**

The current code of criminal procedure represents a major break with
Paraguayan legal custom and with ingrained European legal traditions.
The shift towards the accusatorial system required a number of major
changes, both in the mindset of operators as well as in the role that
the different justice institutions were to play in the process. A major
change was the establishment of a prosecutorial body to oversee the
investigation and prosecution of cases, something that was originally
assigned to "an investigating magistrate" who was part of the Judiciary.
The Judiciary's role in the new system shifts from being an active
participant in the process to a more neutral and passive role.
Assignment of the prosecutorial function to the Public Ministry,
although legally autonomous but most often functionally dependent on the
Executive, without an equally strong legal defense system creates an
imbalance in favor of the Government. The Constitution and the new code
guarantee a legal defense to all defendants and calls for the assignment
of public defenders to indigent defendants. As in many countries, this
has not happened in Paraguay although public legal defense has come a
long way since 1992.

Some of the other major changes are:

-   Establishment of a procedural system based on hearings in the
    presence of the parties, and in which the centerpiece is a public
    trial;

-   Rules mandating the duration of the different stages of the process
    with consequences for noncompliance;

-   Prosecutorial ability to determine charges and usage of non-trial
    case resolution alternatives;

-   Greater emphasis on pretrial release over incarceration;

-   Different procedures for cases that require specialized treatment
    (private prosecutions and procedures for indigenous communities for
    example);

-   Prosecutorial discretion in the filing of charges with oversight by
    victims and judges;

-   Participation of victims in the process.

# **6. Implementation Model**

The success or failure of reform processes have largely rested on the
implementation model adopted and the resources devoted to it. In many
countries, law drafters have declared victory after enactment of the
legislation and failed to take into account implementation issues,
especially those that require statistical analysis, case tracking
projections, personnel changes, or budgetary allocations. Oftentimes,
the donors have likewise claimed success and withdrawn support after
enactment. In either case, the reform process has been hindered or
derailed.

The Paraguayan experience is notable because of the amount of resources
devoted to implementation planning and the role that key actors in the
drafting process played in the subsequent stages. USAID's commitment to
this stage provided resources not available from local funds.

The Paraguayan Supreme Court, early on, became aware of the need for a
detailed implementation plan supported by legislation and regulations.
It assigned two judges and a foreign consultant to lead a team of
Paraguayan prosecutors and judges in drafting the requisite legislation,
which was eventually introduced in the legislature by the Supreme
Court.[^28]

The first point of the new legislation was to establish a five-year
transitional period[^29] during which all cases begun under the 1890
Code must be completed under its procedures. All cases filed after March
1, 2000 are processed under the new procedures regardless of when the
crime took place.[^30] Processing of cases under two procedures required
operation of two sets of courts. Establishment of parallel court
structures has advantages. The Paraguayan approach is similar to the
Uruguayan transitional model to deal with pending cases. Uruguayans
recognized that a side benefit to this transitional model is that it
allowed them to assign the youngest judges, knowledgeable in the new
system and its proponents, to processing cases under the new system
while allowing their more recalcitrant colleagues to continue operating
under the old model.

In order to overcome constitutional challenges regarding the
applicability of procedural or substantive norms that might benefit
accused persons differentially, the transitional legislation afforded
some of the most beneficial provisions of the new code to persons
processed under the old system. One of the primary examples is the
application of the new norms allowing for greater forms of pretrial
release to cases filed under the old system.[^31]

Another important provision of this transitional legislation establishes
the mechanism for purging cases in order to reduce overburdened courts
and clear backlogs. As can be seen from Figure 1, the program cleared
95.3% of the cases pending in Asunción courts in 1999. Of the 182,931
criminal cases pending before Paraguayan courts at the beginning of the
purge program, only 18,258 (10%) remained active by November 2001[^32].
The majority of these cases were cleared by closing of files (18.5%);
permanent dismissal (17.7%); running of statutes of limitations (14.9%);
provisional dismissal (6.8%); and termination of the criminal action
(5.7%).[^33]

FIGURE 1

Program to Purge Cases: 1999 Inventory and 2001 Active Cases

![](media/image3.wmf)

Source: Judicial Technical Office for the Implementation of the Reform
of the Criminal

System, "Informe de Avances de la Implementación del Nuevo Sistema
Penal",

August 2001.

One important speedy trial provision called for the final dismissal of
all cases, filed under the old system, that are not completed prior to
the five-year transitional period.[^34] While this appears, on its face,
to be a salutary requirement, it is now judged as overly broad,
especially because it may benefit a number of public officials accused
of corruption and human rights abuses.[^35]

Establishment of a transitional phase allowed public acceptance of the
new system to develop gradually. Another important feature of the
transitional legislation is the establishment of a high-level
interagency commission to lead the changeover. The Commission is
composed of the President of the Supreme Court, another Supreme Court
justice, and the Fiscal General and is charged with oversight of the
transitional process.[^36] Working groups, denominated Technical
Commissions, are formed with the participation of the Judiciary, the
police, and the correctional system and will facilitate each agency's
adoption of the new process and resolve potential disputes before they
arise.

Training of judges, prosecutors and public defenders continued to be a
priority during this transitional stage. Manuals were developed for
justice officials and distributed throughout the country. A diverse set
of methodologies were employed in the training. Eventually 137
prosecutors, 107 judges and 79 public defenders were trained in the new
system. Emphasis was placed on practical training that focused on trial
advocacy and case management including simulations in a Model Court in
which students' advocacy skills were critiqued. Ultimately, 549 justice
officials were trained in the Model Court including 150 judges, 122
prosecutors, 128 public defenders and 149 clerks. Inclusions of court
clerks ("secretarios") proved to be a significant innovation from other
Latin American experiences in which clerks, ignored during the training
and implementation stages, opposed the change or were ignorant of its
requirements.

Unlike other countries in which there was strong opposition from lawyers
and justice officials, the new code did not encounter formidable
organized opposition.[^37] There were several factors that contributed
to this. The first, and possibly most important factor, was the timing
of the reform which coincided with the end of a long dictatorial period
and the beginning of widespread democratic reforms. The old code was
equated with the repression of the Stroessner period while the new code
became synonymous with modernization and democratic development. The
Judiciary was overwhelmed with backlogs and delays that affected its
image and concluded that the prevailing system was incapable to meet
modern demands. The success of the case purging process in decreasing
backlogs and speeding up processing periods established a favorable
image for the new system.

# **7. The Implementing Institutions**

Implementation of the change over to the new code not only required
overcoming established legal traditions but also bureaucratic cultures
and organizational structures. Three key agencies of the criminal
justice system were primarily affected: the Judiciary, the prosecution
and public legal defense.

## 7.1. The courts

Three types of courts were established under the new system. [^38] The
guarantee courts ("tribunales de garantías") oversee the pretrial stages
and the investigatory actions of the Public Ministry while trial courts
("tribunales de sentencia") hear public trials, adjudicate guilt and
impose sentence. At the same time, "liquidation" courts continue to
operate under the old pleading-based system.[^39] Even courts of appeal
are affected by the operation of two simultaneous systems. In Asunción,
for example, 6 of the twelve appellate judges are assigned to two panels
that handle cases arising under the old system.[^40]

A computerized system for random case assignment has been established by
the Supreme Court. The Court also created a Public Assistance Office
("Oficina de Atención") to meet the emergency investigative needs of
prosecutors (for example, search warrants) that require immediate
attention. This office is staffed by support personnel and a duty-judge
who also rules on pretrial release and detention. Trials are commonly
held before three-judge panels.[^41]

## 7.2. The prosecution

The Public Ministry has been organized both territorially and
functionally.[^42] In the largest city, Asunción, it has 11
prosecutorial units ("unidades fiscales"), each composed of three
prosecutors and support staff. In order to meet the demands of cases
processed under the old system, liquidation prosecutorial units are
assigned to cases arising under the 1890 code. These temporary
prosecutorial units will cease to operate in 2003.[^43]

Case assignment is a function of an intake office that screens police
referrals or complaints filed directly with the prosecution by victims.
The screening office refers the case to the appropriate specialized unit
or to an ordinary prosecutorial office. If immediate action is required,
the file is sent to a duty-prosecutor charged with dealing with
emergencies and is subsequently referred to the appropriate office.
Caseloads are rsising with each prosecutor handling approximately
189[^44] new cases annually[^45] and an active average caseload of 433
cases with wide regional differences in 2001. At one extreme, for
example is the Amambay region with an average caseload of 136 cases per
prosecutor and at another Paraguari with 603 cases per prosecutor.[^46]

One of the main features of the new procedural system is the discretion
afforded to prosecutors. For example, prior to filing formal charges,
the prosecutor may divert the case through a referral of the victim and
defendant to conciliation, may suspend the case, close it permanently,
or may agree to a plea negotiation exercised through an abbreviated or
summary process.

FIGURE 2

Cases Diverted from Trial: March 1 to December 31, 2000

![](media/image4.png)

Source: Ministerio Público, ***Memoria de Gestión 2000-2001***,
Asunción, 2002.[^47]

Critics of the accusatorial system complain that in order for the system
to operate, especially if processing time periods are complied, is to
divert a substantial percentage of cases so that a reduced number of
cases go to trial. The extent to which prosecutors use these new
diversion procedures will determine success in reducing backlogs and
processing time periods. It appears that alternative measures are being
widely used. For example, during a ten-month period in 2000 (March to
December) prosecutors forwarded 3,819 cases to first instance courts. Of
these, some final resolution was reached in 1,590 (41.6%) cases.
Surprisingly an alternative to trial was utilized in 1,548 (97%) cases
while only 42 went to trial. Of the cases diverted from trial, the most
used diversionary measure, used in 55% of the cases that were diverted,
is abandonment ("desestimación"), which is utilized by prosecutors when
they have determined that no crime was committed or when there is some
legal obstacle to proceeding.[^48] In this, as in other cases, the code
requires that the prosecutor obtain judicial authorization before
utilizing the alternative measure.

Although the Paraguayan reform permits prosecutorial discretion in case
filing and disposition, it restricts it by requiring judicial
authorization. This is one of the main differences between the
Paraguayan model and the US system. The reason for these controls
responds to the European traditions that still characterize much of the
Paraguayan legal system, the potential opposition of judges if
prosecutorial discretion was left unfettered, and the potential for
abuse of this power if left unchecked.

**7.3. Public Legal Defense**

An accusatorial system is only effective if it establishes a balance
between an aggressive prosecutorial force and an equally aggressive and
capable public legal defense. Like many Latin American constitutions,
Paraguay's charter guarantees the right to counsel but this right is not
enjoyed fully in practice, primarily due to the small cadre of public
defenders employed by the Judiciary. For example, in Asunción there were
only 26 public defenders and only 102 nationally in 2001. This led the
authors of the U.S. State Department Human Rights Report for 2001 to
conclude that "(m)any destitute suspects receive little legal
assistance, and few have access to an attorney sufficiently in advance
of the trial to prepare a defense. In practice public defenders lack the
resources to perform their jobs adequately." Today there are about 150
public defenders nationally with 95 of them assigned to criminal
cases.[^49]

Given the large number of pending criminal cases and the indigence of
many defendants, the number of public defenders is insufficient. This is
aggravated by the need to supply public defenders to represent
defendants processed under the new system while continuing to represent
defendants under the old one. A difficulty in selecting and retaining
personnel is that there are salary disparities between prosecutors and
public defenders leading to dissatisfaction among the latter.

A critical issue in gauging the effectiveness of a legal defense is the
determination of the procedural point in which the right to counsel
attaches. The new code of criminal procedure calls for the right to be
effective after the Public Ministry acts or within 6 hours of being
notified of a detention or the 6 hours in which a judge must be
notified.[^50] The authors of the Code went further than most other
accusatorial systems by permitting the "accused and his/her defender
(to) intervene in all investigatory actions undertaken by the National
Police and (to) have access to all of the investigations, in accordance
with the provisions of this Code, except when the evidence is under seal
in accordance with the law."[^51] This broad access provision is curbed
however by a subsequent code section that, while requiring that the
prosecution "permit the presence of the parties in the actions which it
undertakes, ensuring that their presence does not obstruct the
investigation."[^52]

## 7.4. The Police

The police under Stroessner's rule was guilty of political repression
and human rights violations. In 1993, Congress enacted a new law that
created the National Police, and removed it from military control. The
national police force, numbering approximately 13,000, is under the
overall authority of the Ministry of the Interior, and has
responsibility for maintaining internal security and public order.[^53]
Police abuses of human rights, including extrajudicial killings, have
continued.[^54] Of special concern are police sweeps of minors, pressed
recruitment of conscripts into the armed forces and excessive force used
by police and security forces.[^55] In July 2002, the Government imposed
a state of emergency after violence broke out between police and
demonstrators seeking the ouster of President González Machi.[^56]

Compliance with the due process guarantees established by the Code will
require close cooperation between police and prosecutors and the
development of a certain degree of trust between these institutions.
While the code places general oversight responsibility over
investigations in the hands of prosecutors this does not mean that
police are hierarchically or operationally subordinate to prosecutors.
Adding to the natural distrust between police and prosecutors is the
prosecutorial plan to employ its own detective force.

The code sets forth some controls over police investigations: to notify
the Public Ministry of the receipt of criminal complaints within 6 hours
of having received them; to "act in a coordinated fashion when the
Public Ministry orders a preventive investigation;"[^57] within five
days of completing pretrial investigations, to forward all of their
evidence and case information to the Public Ministry;[^58] notify the
Public Ministry and judge of any arrests within six hours of the
detention;[^59] and an express prohibition of interrogations of
prisoners while in detention.[^60] Critics have complained of excessive
police discretion to make arrests in those cases in which "there are
sufficient indicia of a person's participation in a criminal act and the
act is one that permits preventive detention."[^61] Others argue that
the only effective means of controlling police behavior and improving
investigations is to establish a "civilian police" dependent on the
Public Ministry with exclusive responsibility over instigations of
serious crimes and to relegate the police to patrol and crime prevention
functions.[^62]

Like police forces elsewhere, Paraguayan police exercise a great deal of
discretion in determining the conduct of investigations regardless of
the code provisions that appoint prosecutors as the overseers of
criminal investigations. While this is partially due to the police
subculture, it is largely a product of police resources, its military
command structure and insufficient capability of prosecutors to oversee
criminal investigations.

# **8. Results of the Reform**

This section reviews some of the most important arguments that were made
to justify the reform and determine whether they have proven to be
accurate. The most significant ones were:

## 8.1 Reduction of caseloads and backlogs

One of the main criticisms of the inquisitorial system is that because
of its inefficiency delays were inevitable and led to the congestion in
the courts. The most important measure to reduce the backlog of cases
was to establish the program to purge caseloads described previously. As
a result of this measure, by November 2001 only 18,258 (10%) of the
182,931 criminal cases pending before Paraguayan courts when the Code
was first enacted remained active.

## 8.2. Pretrial release

One of the goals of the new procedure was to reduce the percentage of
prison inmates awaiting trial, the largest in the hemisphere, by
speeding up the process and using alternative pretrial release options.
While the prior practice favored pretrial detention, the new procedure
emphasizes pretrial release as the rule and detention as the exception.

Figures released by the Judiciary indicate that during the first year of
application of the new criminal procedure, 67% of the persons appearing
before the courts of Asunción were ordered detained pending trial. Of
the remaining 32.3%, only two cases required continued police
supervision. During the first 4 months of the second year (until June
2001), the percentage of persons ordered detained decreased to 46% none
of whom required police oversight for compliance.[^63] Even in the most
serious cases, culpable homicide, 6 of 37 defendants were released in
2000.

Prison statistics confirm the decrease in the use of pretrial detention.
The percentage of persons incarcerated in Tacumbú, the main men's
prison, for example, who were pretrial detainees decreased significantly
to the point that out of a total of 1,713 prisoners, some 958 (56%) were
pretrial detainees and 775 (44%) had been convicted. Of the latter, 55%
of judgments were final and the remainder was under appeal. "El *Buen
Pastor*" prison for women, which has the capacity to hold more than 200
inmates, had a population of 154 prisoners (according to statistics for
October 2001), of which 120 have been convicted and 34 were in
preventive detention. This led the Inter-American Commission on Human
Rights, which had previously condemned Paraguay for the treatment of
prisoners, to praise the significant reduction of pretrial
detainees.[^64]

## 8.3. Convictions and Acquittals

There is a general perception that the new system is more effective in
obtaining convictions by screening out the weakest cases and settling
others at an earlier stage. The Supreme Court's Technical Office
released comparisons of convictions and acquittals for 1996 under the
old code with cases in 2000 and part of 2001 with conviction rates
rising from 74.6% in 1996 to 92.1% in 2000 and 90.7% in four months of
2001 (Figure 3). While these statistics appear to support the premise of
higher conviction rates under the new code, the comparisons of 1996 with
2000, in which part of the year cases were under the old code, and
without separating those cases tried under the old system in 2000 and
2001, make the comparisons suspect. Another set of statistics released
by the Public Ministry also appears to support the conclusion of higher
rates of conviction under the new system. Of 58 defendants tried under
the new system in 2000, 9 (15.5%) defendants were acquitted and 49
(84.5%) were convicted. Of the latter group, only 1 was fined while 43
(74% received jail sentences, and 5 (8.6%) were sentenced to
probation.[^65]

## 8.4. Duration of the Process

One of the main purposes of the reform was to speed up the process and
reduce processing time. Figure 4 presents a comparison of four crime
groups and the average duration for each with sex offenses taking the
longest time from detention to trial, 1,151 days in 1996 and 247 days in
2001, and the average processing period for all crimes being 963 days
for 1996 and 242 in 2001. The decrease, both in numbers of days and in
percentage of time is significant with an overall reduction of 75% for
all crimes.

FIGURE 3

Number of Defendants Acquitted and Convicted in 1996, 2000 and 4 months
of 2001

![](media/image5.wmf)

> Source: Judicial Technical Office for the Implementation of the Reform
>
> of the Criminal System, "Informe de Avances de la Implementación del
>
> Nuevo Sistema Penal", August 2001

While the code has set forth processing periods aimed at reducing the
overall duration of the process, compliance problems continue to affect
the success of prosecutions and the celerity of the process. Human
rights activists have complained that cases are delayed "by days and
sometimes months" when the time periods really call for hours.[^66] Of
special concern is compliance with prescribed terms required for
notification of the judge or the Public Ministry, especially when
carried out by the police without a judicial order; the first appearance
before the judge; and the appointment of defense counsel.

FIGURE 4

Average Duration of the Process for Certain Crimes in 1996 and 2001

![](media/image6.wmf)

Source: Judicial Technical Office for the Implementation of the Reform
of the

Criminal System, "Informe de Avances de la Implementación del Nuevo
Sistema

Penal", August 2001

## 8.5. Participation of victims in the Process

While victims have generally not been considered parties to a criminal
proceeding, there is a modern trend to accord them a special procedural
status and the Paraguayan code reflects this view. The recognition of
the rights of victims is found in the legislation creating the Public
Ministry, which requires that the new agency include a Victim's
Assistance Office ("Dirección de Asistencia a la Víctima") in its
organizational structure.[^67] The most important recognition of victim
rights, however, is found in the Code of Criminal Procedure. Some of
these are:

-   dignified and considerate treatment, respect of privacy rights and
    personal safety;

-   being informed of the status of the case whenever requested;

-   the right to be heard at any point in which the case may be
    terminated or suspended;

-   the opportunity to challenge the dismissal of an action or the
    closing of an investigation by the prosecution;

-   to be informed of his/her rights when the complaint is filed.

The prosecution shall also take into account compensation of victims in
sentencing proposals, which may contain requirements for reparations of
damages. Finally, the victim may institute a private prosecution in
those instances allowed by law.

## 8.6. Transparency of proceedings

A claim of proponents of the adversary system is that it would result in
greater transparency and, thus, increased citizen involvement and
advocacy. This would appear to be an inevitable consequence of the fact
that all significant judicial actions, with some exceptions, must be
undertaken in public. A recent USAID-sponsored review of Rule of Law
accomplishments in Paraguay praised adoption of the new criminal
procedure code as a significant step in making the system more
transparent and accessible. The report quotes one private criminal
attorney as claiming that "the system went from *la oscuridad al sol*
(darkness to sunlight). The courtrooms and trials are open to the
public, and have space reserved to accommodate the press. Victims of
crime had never previously been able to access information concerning
their cases. Now, victims of violent crime are kept aware and informed
of case progress through a specialized prosecutorial unit, and are able
to attend and participate in judicial proceedings; these proceedings are
no longer a secret of the State. All interested parties can have access
to all documents reviewed by the judge, and defendants can confront and
rebut witnesses."

## 8.7. Reduction of corruption

Proponents of the new code also argued that the openness of the system
and its adversary nature would decrease judicial corruption. The
adversarial nature of the process and the role of the parties would,
they argue, make it much harder for corruption to take place since each
party would be a check on the actions of the others.

It is difficult to judge the impact of the new system on judicial
corruption. One area in which there has been some progress is in the
relations between the courts and the press. Paraguay's press has been
active in exposing public corruption, but has felt threatened by the
continuous use of slander and libel prosecutions against reporters and
media owners. Like most of its Latin American neighbors, Paraguay treats
libel and slander as privately prosecutable crimes and imposes criminal
sanctions for the commission of these offenses. Additionally, there does
not appear to be any clear differentiation between what can be said
about private persons and public figures. Consequently, the press
generally views usage of these measures as a means to silence the press
and protect corrupt political or economic leaders.

A current USAID project seeks to improve the quality of press coverage
of corruption and the justice sector while improving relations between
the courts and the press. This interchange, the first of its kind in
Paraguay and one of the first in the region, has improved the situation
but a great deal remains to be done. It is unlikely, however, for
example, that Paraguayan officials will decriminalize slander and libel.

Overall, Paraguay's citizens continue to complain about public
corruption. The perception of corruption extends far beyond Paraguay. At
different times, for example, Transparency International has ranked
Paraguay as one of the most corrupt countries in the world. In it latest
report, for example, this NGO characterized corruption in Paraguay as
"systemic." The onset of democracy has done apparently little to curb
corruption and some national observers complain that "corruption over
the last decade has, ironically, become 'more democratic', and now
pervades the entire spectrum of power. During the Stroessner era,
corruption was more of an elite monopoly."[^68] Public disenchantment
with the state of public integrity is revealed by surveys that show that
in 2000, 90% of Paraguayans felt that corruption had become a worse
problem than the previous year. While some improvements have been made
in the judicial sector, the 2001 US State Department Human Rights Report
for Paraguay complained that "although the Supreme Court continued to
undertake judicial reforms, the courts remain inefficient and subject to
corruption and political pressure."

# **9. Sustainability**

A key objective of any development initiative is to ensure
sustainability of the reform beyond the termination of foreign aid.
USAID's major assistance ended in 2000 with the completion of the
National Center for State Courts contract. Limited assistance is
currently supported under an IQC Task Order to improve press coverage of
criminal proceedings and relations between the press and the justice
system. The reform, however, has developed its own momentum and there is
substantial evidence of the sustainability of the change process.

## 9.1. Civil society

One of the main outcomes of the Paraguayan reform is the emergence of
civil society organizations supporting modernization of the justice
system. INECIP ("Instituto de Estudios Comparados en Ciencias Penales y
Sociales") is a not for profit Paraguayan organization founded in 1994
and led by many of the same persons who constituted the core of
reformers in the Judiciary and the Public Ministry. It has become
self-sufficient through training of lawyers in diverse legal areas while
also obtaining funding from international donors to implement research,
technical assistance and training projects.

## 9.2. Outreach Efforts

The Public Ministry and the Judiciary have continued to inform the
public about the results of the reform and to respond to criticisms. The
Supreme Court has recognized the need to improve relations with the
press and to tackle such critical issues as "free press v fair trial,"
i.e. the right of the people to be informed balanced against the rights
to due process of the accused. USAID current funding has supported a
series of working meetings between journalists and judges and Supreme
Court judges and media owners to reach agreement on controversial
issues.

## 9.3. Other Rule of Law donors and donor coordination

A key to the success of the Paraguayan reform is the entry of other
donors when USAID's assistance was winding down and the adoption of
complementary strategies. For the first 8 years of the reform process,
USAID was the only donor engaged substantially in this field. Others
have now entered the field, thus facilitating USAID's withdrawal and
ensuring continuity of reforms. Some of the major donors are GTZ,
European Union, Inter-American Development Bank and Taiwan).

While the entry of new donors in the Rule of Law arena adds to the
sustainability of a reform, often, the incorporation of new donors has
generated conflicts and duplication among the foreign actors. In
Paraguay, however, donor coordination, sponsored originally by USAID,
and active involvement of local stakeholders have largely prevented
this.

USAID was instrumental in establishing a formal donor coordination
mechanism in the justice area. Formal meetings began in 2000 but the
group has met irregularly since then. One of its major achievements has
been the establishment of a project database that provides a brief
summary of each project, its duration, cost and contact persons. This
data is displayed in a web page
([[http://216.250.201.131/cooperacionjusticia]{.underline}](http://216.250.201.131/cooperacionjusticia).

# **10. Problems**

Although the Paraguayan reform can be classified as one of the most
successful in the region, it still faces serious implementation
obstacles. Some of the most salient are:

## 10.1. Resources and budgetary allocations

While adoption of an accusatorial system will result in long-term
savings for the criminal justice system, in the short-term it has an
inevitable budgetary and resource impact. For example, Paraguay had to
make a substantial investment to strengthen a prosecutorial agency that
was previously a passive and largely ineffective agency. Likewise, a
substantial investment in infrastructure was required to ensure the
adequacy of sites for hearings and trials. As could be expected,
criminal justice agencies complain about the insufficiency of resources
allocated and also that even when their budget is approved by the
legislative branch its disbursement is decreased by the Executive
("Ministerio de Hacienda"). The following Table is indicative of the
problems faced by the Public Ministry, for example, in planning for and
spending its approved budget. In each of the four years (1998-2001), the
Public Ministry received less than it had been authorized in the budget
approved by the National Assembly. A similar situation is faced by the
Judiciary, which in 1997 only received 81% of its budget and 73% in
1998.[^69]

Table 1

# 

Public Ministry Approved and Disbursed Budgets by Year in Thousands of
US Dollars

  ------------ -------- ------ -------- ------ -------- ------ --------- ------
               1998            1999            2000            2001      

                                                                         

  Budget       Amount   \%     Amount   \%     Amount   \%     Amount    \%

  Approved     7,720    100%   19,100   100%   20,290   100%   17,902    100%

                                                                          

  Disbursed    6,698    87%    12,238   64%    15,661   77%    9,950     56%

                                                                          

  Difference   1,022    13%    6,862    36%    4,628    23%    7,953     44%

                                                                         
  ------------ -------- ------ -------- ------ -------- ------ --------- ------

Source: María Victoria Rivas, "Informe de Paraguay: Proyecto de
Seguimiento de los procesos de

reforma judicial en América Latina," Consulted on November 7, 2002,

<http://www.cejamericas.org/newsite/infoceja/PARAGUAY/INFOFINALPARAGUAY.pdf>,

A complicating factor in assignment of resources to the justice system
has been the interpretation of the constitutionally mandated requirement
that 3% of the national budget be devoted to the Judiciary. The
Executive considers that the 3% includes the budgets of the Supreme
Court, the Public Ministry, Electoral Justice and the Judicial Council
combined.[^70] The Supreme Court, on the other hand, has argued that the
3% constitutional requirement refers only to the ordinary court system
under the Supreme Court. The result is that in 1998, for example, the
budgetary assignment to all four judicial bodies exceeded the
constitutional requirement, 4% of the national budget was approved, and
the Supreme Court received 2.4%.

Regardless of the interpretation given, there is no question that the
resources assigned to the Judiciary, whether viewed as one or four
institutions, has grown significantly since the inception of democratic
rule in 1989 when the four justice institutions received 1.2% of the
national budget, a figure that grew to 4% nine years later.[^71]

## 10.2. Politicization of the justice system

While the drafters of the 1992 Constitution took great pains in
establishing mechanisms to depoliticize the Judiciary, political
influences continue to affect the selection, promotion and retention of
judges, a factor that affects the quality of justice and the commitment
of the judges to the reform.

The primary mechanism for the selection of judges is through a Judicial
Council ("Consejo de la Magistratura"), which holds an open competition
and forwards a slate of candidates to the Supreme Court for appointment
to fill vacant positions.[^72] While the objective of this system is
selection of personnel based on merit, political considerations continue
to plague judicial personnel decisions.

## 10.3. Interagency coordination

Implementation of as radical a change in justice system roles and
functions in a shift from an inquisitorial to an accusatorial system
requires a great deal of interagency coordination. Latin American
countries have little experience in inter- or intra-agency coordination
and this historical pattern can become a substantial barrier to the
success of any Rule of Law initiative. This is especially true for
criminal justice reforms in which a number of competing agencies,
dependent on the Executive and Judicial Branches, must cooperate to
ensure program success. Justice agencies, however, traditionally work in
isolation of each other and guard their information zealously.
Cooperation is the exception rather than the rule.

While a number of attempts have been made to improve coordination,
especially between the prosecutors and judges, it remains a problem. The
results of a strategic planning session in 2001 among prosecutors, for
example, revealed coordination as one of the main problems facing the
reform and participants complained that "coordination and cooperation
with the other agencies that compose the criminal justice system is
almost nonexistent" due to limited communications between agencies;
limited access to police information; clashes arising from confusion of
roles; and an absence of consensus in institutional policies.[^73]

## 10.4. Service of Process

Notification of parties and witnesses to ensure their appearance at
hearings and trials is a problem common to all accusatorial system
reforms and it is no less so in Paraguay. The system for service of
process is not centralized and each court is responsible for
notifications with a full-time employee assigned as process server under
the supervision of the judge or clerk. This practice permits corruption,
with lawyers offering bribes to processors so that service is completed,
postponed or lost. Additionally, even though the number of notifications
has increased significantly, the number of process servers has not
increased sufficiently to meet the additional demands.

## 10.5. Appearances by defendants and witnesses

In order for trials and hearings to begin and end on time, it is
necessary to have the defendant and witnesses present in the courtroom.
Critics have pointed out that oftentimes prisoners are not delivered to
the appropriate courtroom on the requisite date and time forcing judges
to grant continuances and postpone hearings. While there is a problem of
availability of transportation resources, poor coordination is a
contribution factor.

## 

## 10.6. Postponements and continuances

The aforementioned problems of notifications of witnesses and the
absence of parties at hearings and trials lead to delays in the process
and contribute to dissatisfaction with the reform among lawyers and
parties. Scheduling conflicts for judges or lawyers also contribute to
delays. Absence of clear and concise procedural or other sanctions to be
applied to those responsible for delays, such as dismissals resulting
from continuances or running of speedy trial provisions, permits the
practice to continue and opens an avenue for parties seeking delay to
benefit from the absence of controls.

## 10.7. Delegation of key responsibilities

One of the main criticisms of the prior system is that the judge
delegated many key judicial decisions, for example supervision of
depositions, to staff members while involving him/herself with routine
bureaucratic tasks. Adoption of the new code has not ended this practice
and judges continue to delegate judicial actions, primarily those in
which the judge acts as a guarantor of due process rights during the
pretrial stage (including even the most serious decisions regarding
pretrial release or detention), to their support personnel. While this
practice may be attributed to the amount of work assigned to penal
judges, it is also the result of poor court management techniques and
inadequate supervision of judges.

## 10.8. Statistics

A continuing problem impeding evaluations of the performance of the
Paraguayan justice system is the absence of reliable statistics on case
processing and outcomes.

# **11. International Assistance to the Sector**

The following section is an attempt to present the varied international
assistance furnished to the sector. While the aid has supported diverse
types of projects, the bulk of the funding has been directed at
supporting the adoption of the new procedural system and the
implementing institutions (the Judiciary and the Public Ministry).

## 11.1. USAID

AID has a longstanding commitment to modernization of the justice sector
in Paraguay. The first activity took place in March 1990 with a summary
review of the state of the justice system following the end of
Stroessner rule. Beginning in July 1990, Checchi and Co. Consulting,
Inc. undertook a number of discrete activities in support of justice
reform.[^74] In addition to the work of Checchi, AID awarded a \$50,000
grant to a local NGO (Instituto de Ciencias Penales) to complete the
work of the Checchi consultants leading to a proposal for a judicial
school. Additionally, USIA was awarded \$100,000 by AID for
international visits, academic specialists and American participant
programs. July 1991.

In 1992, AID entered into a bilateral grant agreement (between the
Supreme Court, the Public Ministry and USAID/Paraguay) of \$142,000 to
support judicial reform. The agreement was amended in 1993 and 1994 to
increase the original total to \$942,000 ("Judicial Reform Project").
This project ended in 1995. Among the major achievements were:
elaboration of a Judicial Reform Action Plan; development of an
automated jurisprudence database and a case tracking system for Supreme
Court cases; support to the Supreme Court library and limited commodity
assistance; establishment of a Human Rights Documentation Center to
preserve files and documents of the National Police and the Ministry of
the Interior under the Stroessner regime; code drafting (procedures for
the labor sector, a code of criminal procedure, a Criminal Code);
training of judges, prosecutors, and lawyers and drafting of a proposed
Judicial Career Law.[^75]

In 1996, a two-year contract was issued to the State University of New
York Foundation under an Indefinite Quantity Contract (IQC) for
\$868,000.[^76] The National Center for State Courts was awarded a
follow-on contract, which built on the achievements of the first and
focused primarily on law reform and implementation of legislative
changes, especially the shift from an inquisitorial system of criminal
procedure to an accusatorial model. NCSC worked in Paraguay from 1998 to
mid 2000 under a Rule of Law Indefinite Quantity Contract amounting to
\$1.164 million.[^77]

In 2001, the Paraguay Mission focused its attention on the role of the
media in relation to the criminal justice reforms with a special
emphasis on combating corruption and decreasing impunity. A Task Order
awarded to MSI under another IQC began execution in October 2000 and
ended in June 2001 in an amount of \$200,000 and a great deal of the
work being subcontracted to Florida International University and a local
NGO, INECIP.[^78]

## 11.2. United Nations Development Program (UNDP)

UNDP has carried out a number of limited assistance sectoral activities.
In the human rights area, for example, they have funded visits by
experts and one seminar. It also sponsored the initial visits of a
criminal law expert, which gave impetus to many of the law reform
projects currently under way. Currently it is conducting an evaluation
of justice reforms.[^79]

## 11.3. The Inter-American Development Bank (IADB)

The Inter-American Development Bank's history of assistance to the
justice sector is recent. From 1993 to March 2001, the Bank had approved
18 loans and 65 technical cooperation operations to support some aspect
of the justice sector in 21 of the Bank's borrowing member
countries.[^80] Of the \$418 million in loans, Paraguay received a total
of \$33.9 million (approximately 8%), and of the \$43 million in
non-reimbursable assistance, Paraguay received \$830,000 or 2% of the
total.[^81]

The Bank, as part of its "Modernization of the State Program" in
Paraguay, approved a five-year (1998-2003) Rule of Law loan for \$13.177
million. The funds supported non-infrastructure projects[^82] in the
Supreme Court and the Fiscalía. The Fiscalía received the smallest
portion, \$3.3 million or approximately 25% of the total, while the
Supreme Court received \$9.883 million. A separate sum was awarded for
the construction of court and prosecution buildings.

## 11.4. GTZ[^83]

Germany has been one of the largest bilateral donors to Paraguay's
modernization. During 1994-1998, for example, it devoted 87 million
German Marks to overall Paraguay assistance. In Rule of Law, the German
assistance agency, GTZ, is implementing a six-year (1997-2003)
multimillion million dollar project for penal law reform, to improve the
capacity of the Judiciary and Public Ministry to conduct planning and
evaluation reviews, training of justice personnel and lawyers and
introduction of innovations such as a Model Court in which reforms may
be tested.[^84] From 1998 to February 2003, \$4.5 million marks are
dedicated to support reform of the Paraguayan Penal Code. The project
has been extended an additional three years in an amount of €2.3
million. One of its major achievements has been training of justice
officials. In addition to traditional training methodologies, the GTZ
also supported establishment of a Model Court in which trial advocacy
skills could be acquired through simulations and critique.

## 11.5. European Union

The European Union was responsible for the implementation of one of the
most ambitious reform projects in Paraguay. The initiative, with funding
of €3.6 million[^85], focused on modernization of the State and
attempted reforms in public administration, the armed forces and the
justice system. In terms of the justice system, it focused on training
judges and prosecutors in seminars, establishment of an inspector
general's office for control of judicial misconduct, introduction of a
merit-based personnel system, coordination of foreign assistance, and
reform of methodologies and varied training that relied on usage of
mostly Spanish academics and judicial personnel. Eventually the project
was terminated following an evaluation that questioned the feasibility
of the design and the overly ambitious nature of the tasks as well as
other implementation obstacles.[^86]

# **12. Summary of the Paraguayan Criminal Process**

Latin American countries have traditionally been situated in the Roman
or civil law family. As such, perhaps its greatest characteristic is its
emphasis on detailed codification. However, development of comprehensive
codes is not unique to the civil law world. Its uniqueness derives from
an attempt, first forged in France after the Revolution, to curb the
power of judges and to clearly delineate the responsibility for
legislating to one branch of government and trial of cases to another.
For this conception to work, it required well-organized, clear and
complete dictates to be followed by the judiciary. After all, its main
goal was to curb discretion[^87].

European procedure, and the model later adopted by Latin American
countries, assigned to the judge in criminal cases the role of lead
investigator and divided the process into two stages: the investigation
and the trial. The first was characterized by its inquisitorial nature
(secrecy and reliance on written pleadings and orders); the second was
clothed with the adversarial features so common to the common law
(public, continuous and contested oral trial). In an attempt to curb
judicial abuse, a separate accusatory institution (denominated Public
Ministry) was created and charged with the prosecution of crimes.

By the 1990s, the Latin American system was criticized for its
arbitrariness and inefficiency and its detractors proposed the adoption
of an accusatorial model, prevalent in common law countries, as an
alternative to the prevailing procedures. This model relies on hearings
in which the parties confront each other and places the role of accuser
in the hands of a prosecutor while the function of judges is to act as
arbiters in the process. This is the system that prevails in Paraguay
today.

## 12.1. Types of Procedures

Cases are generally processed in three stages: a preparatory stage in
which the prosecution oversees the investigation; an intermediate stage
in which the case is prepared for trial and discovery is completed and a
third stage that concludes with the trial of the accused. While this
procedure is utilized for the majority of cases, special or
extraordinary procedures are also used. These are:

-   Procedures before justices of the peace in cases in which the
    potential sanction is less than 1 year, when a first instance judge
    is not available to deal with pretrial hearings, and in other cases
    of minor crimes;[^88]

-   Private prosecutions;[^89]

-   Abbreviated or summary process [^90]whereby the judge may make a
    final determination as to the guilt or innocence of the accused in
    the following instances: a) those cases in which the maximum
    potential sentence is less than five years imprisonment; b) when the
    accused admits his/her guilt and accepts usage of this method. The
    ultimate sentence cannot exceed the one sought by prosecution;

-   Juveniles;[^91]

-   Imposition of "special measures" when the accused is incompetent to
    stand trial;[^92]

-   Crimes affecting indigenous people;[^93]

-   Recovery of civil damages by the victim upon the conclusion of the
    criminal proceeding.[^94]

## 12.2. Fundamental Guarantees

Even a cursory reading of most Latin American constitutions and
procedural codes would lead the reader to conclude that human rights are
more than adequately safeguarded. Yet, Latin American countries have
been among the nations most often cited for such abuses. Latin statutes
and constitutions must be read with care since guarantees are not always
followed in practice but are often suspended. Thus, for example,
declaration of states of emergency in July 2002 and May 2000 in Paraguay
suspended many constitutional and procedural rights.

The following are the most important procedural guarantees in the
Paraguayan Code of Criminal Procedure.

###  12.2.1. Legality

In order to subject someone to criminal responsibility there must be an
antecedent statute that defines the conduct and sanctions the
behavior[^95]. The general application of this principle bars the
retroactive application of penal law unless it benefits the defendant.
Respect of this prohibition is particularly significant in criminal
procedure since retroactive application of legislation that is more
severe than its precursor could result in violation of fundamental
rights during the course of the process.

Finally, the principle of legality requires restrictive interpretation
of criminal laws and bars application of procedures by analogy when the
current law does not provide for the procedure being considered[^96].

###  12.2.2. Double jeopardy (Non bis in idem)

The Paraguayan Constitution and Code of Criminal Procedure prohibit
multiple trials of the defendant for the same offense.[^97]

###  12.2.3. Neutral and detached magistrate

Paraguay's Constitution and Code of Criminal Procedure establish a
guarantee for trial before neutral and detached magistrates assigned to
the ordinary courts. [^98]

### 12.2.4. In dubio pro reo

This procedural guarantee establishes that all reasonable doubt shall
accrue to the benefit of the accused.[^99] Every accused person enjoys a
presumption of innocence[^100].

## 12.2.5. The right to counsel

The right to counsel is guaranteed by Articles 16 and 17 of the
Constitution and Articles 6 and 75 of the Code of Criminal Procedure. It
calls for the right to apply from the first procedural act. This is
understood to mean the first action taken by the prosecution or any
action taken after the six-hour period that the prosecution has prior to
informing a judge of the detention of an accused or filing of a
complaint.

The right to counsel is an absolute right that cannot be waived and a
violation of the right will result in a declaration of nullity of all
subsequent actions. If the accused does not name counsel, the court
shall, *sua sponte*, name a public defender to represent him/her.[^101]

As a complement to the right to counsel, the Code provides for the
appointment of an interpreter and to be informed by the police, the
prosecution and the judges of the charges, the reason for the arrest and
to notify immediately the person he/she designates.[^102]

## 12.2.6. Privilege against self-incrimination

Paraguay's constitution and criminal procedure code guarantee to
criminal defendants the right to abstain from making any statements,
which might incriminate them and bar the introduction of coerced
confessions[^103]. However, the code requires that at several points,
the convening authority will take a statement from the accused, except
that the accused may refuse to testify.[^104]

Most violations of the privilege against self-incrimination occur during
police interrogations, which take place outside of the presence of
witnesses and in an inherently coercive environment. In order to prevent
abuse of the privilege by police, the Code bars that taking of statement
of accused persons by police.[^105] There are reports, however, that
indicate that police question witnesses and forward the evidentiary
products of the interrogation to the prosecutor or try to introduce it
at trial through the testimony of police investigators.[^106]

## 12.2.7. Searches and seizures

Paraguay recognizes the importance of the right to privacy in the home
with the exceptions that the law may allow[^107]. The protection,
however, primarily extends to domiciles or correspondence and does not
apply as broadly to other areas such as the person or vehicles. Thus,
police may require a citizen to identify him/herself with no reason and
may search their person or vehicle without resort to a search warrant so
long as he/she has "sufficient motives" to believe that the suspect has
in his/her possession or in a vehicle the fruits of the crime or for
weapons.[^108] In the case of domiciles, the Code and Constitution
require a judicially issued search warrant and set forth limitations in
its service.

## 12.2.8. Other guarantees

Other guarantees are: a) respect of human dignity[^109]; b) equality of
all citizens in criminal cases[^110]; c) public trials, although with
exceptions[^111]; d) oral nature of the proceedings[^112]; e) continuity
of proceedings[^113]; f) adversarial nature of the trial[^114]; g)
celerity[^115]; h) ban on the imposition of certain sanctions such as
the death penalty and cruel and unusual punishments[^116]; i) remedies
such as *habeas corpus*, "amparo" and unconstitutionality.

## 12.3. The Prosecutorial Function and Discretion

While the accusatory function belongs to the Public Ministry
(prosecution), the Paraguayan model does not allow that agency to
exercise unregulated discretion in deciding whether to file or dismiss
charges. The Code establishes that the prosecution may choose not to
proceed when: a) the crime is so insignificant or the participation of
the suspect is so minimal that there is no pubic interest in proceeding;
2) the criminal code or other laws permit it; 3) the sanction that may
be imposed is small; 4) the extradition or expulsion of the accused has
been ordered.[^117] In the first two instances, the Code requires that
the accused enter into an agreement with the victim to assume the
damages caused.

# **12.4. The Stages of the Process**

As mentioned previously, the criminal process is divided into three
stages: the preparatory stage in which the prosecution oversees the
investigation; an intermediate stage in which the case is prepared for
trial and discovery is concluded; and a third stage that ends with the
trial of the accused.

## 12.4.1. The preparatory stage

A major change introduced by the Code is a shift of the responsibility
for oversight of investigations from the judge to the prosecutor. [^118]
The judge's role during this stage is to control potential prosecutorial
or police abuse and to ensure the legality of investigative
actions.[^119] The purpose of this stage is to investigate the
allegations and reach some tentative conclusions as to the existence of
a crime and the culpability of parties.

Another major change in the new Code is to break the veil of secrecy
that characterized this stage under the old process. Although many
aspects of the investigation will remain secret, evidence will be turned
over to the accused. Additionally, the defendant, and/or his attorney,
may be present in all critical stages of the investigation. This code
goes further in allowing a defendant access to police investigations
when it permits his/her intervention, individually or through counsel, "
in all of the investigative actions of the National Police, in
accordance with the provisions of this Code, except when the information
is classified, in accordance with the law.[^120] A similar provision
applies to the prosecution, ensuring, however that the participation of
the victim or his/her attorney does not obstruct the
investigation.[^121]

This stage of the criminal proceeding begins after evidence of a crime
has been brought before the prosecutor, the police or a court. Once the
complaint is filed, the prosecutor initiates the investigation. In some
cases, the law requires that the victim file the complaint and prosecute
the crime privately[^122]. Police can also initiate the process if they
detain the defendant in *flagrante delicto*. Finally, the prosecutor can
proceed *ex oficio* based on the evidence at his/her disposal.

Arrest of the defendant can only take place, with the exception of those
cases in which he/she is detected *in flagrante delicto*, pursuant to an
arrest order from the prosecutor, which must be ratified by a judge
shortly thereafter. Upon arrest, the defendant must be brought before
the corresponding judicial official.

The Code provides a series of processing deadlines that must be met:

-   If the police initiate the process, they must notify the Public
    Ministry and the judge within 6 hours.[^123] Law enforcement is also
    under an obligation to forward to the prosecution the evidence they
    have gathered within 5 days;[^124]

-   If the accused is detained, his/her statement must be received and
    he/she must be brought before a judge within 24 hours[^125].

Before the conclusion of this stage, the prosecutor may exercise
discretion and determine whether to proceed with a formal accusation,
divert the case, or close the investigation without bringing formal
charges.[^126] Among the alternatives available to prosecutors are: a)
rejection of the complaint; b) dismissal; c) conditional suspension; d)
summary process; e) or conciliation. The prosecutor may also choose to
proceed with a formal accusation filed with the court.

The overall term for completion of this stage is six months with only
one postponement allowed in extraordinarily complex cases.[^127]

## 12.4.2. Intermediate Stage

Once the charges are filed, the judge will notify the parties and make
the case file available for review.[^128] During this term, the parties
may also present the relevant pretrial motions.[^129] The most important
event during this stage is a preliminary hearing at which the court
determines probable cause, establishes the validity of the accusation,
orders corrections, reviews the admissibility of evidence and sets the
trial.

## 12.4.3. Trial stage

Paraguay's code recognizes the principles of orality, confrontation of
witnesses, publicity, the adversary nature of the process and the need
for continuity. The trial is another significant improvement in the
Paraguayan process since it breaks with a tradition in which the trial
was a bureaucratic step in which the court reviewed the evidence
gathered during the instructional stage. Under the new system, once the
trial court receives the case file, the presiding judge must set the
time and date for the trial, which must take place within the next 10 to
30 days.

Significant differences remain between Paraguay's procedural system and
a common law adversarial one at trial. One of the most important
differences is the way in which evidence is obtained, introduced,
weighed and applied. Another difference is the standard of proof
required for conviction. Unlike common law countries in which proof of
the guilt of the accused must be shown "beyond a reasonable doubt,"
Paraguay continues with the civil law standard of proof that requires
evidence of guilt leading to "an intimate conviction" of the guilt of
the accused.[^130] The standard is also presented as "following one's
conscience."

Upon the conclusion of the trial, the court issues a ruling, this
consists of two parts: a finding of guilt or innocence based on a
detailed restatement of the facts and a sanction, in case of guilt.

# **12.5. Appellate remedies**

Paraguay continues to offer simplified procedures whereby ordinary
citizens may present requests for extraordinary relief (*habeas corpus*
and "amparo"). *Habeas corpus* has been recognized traditionally as a
rapid and simple means of securing a judicial review of detentions.
"Amparo", on the other hand, is a uniquely Latin American remedy which
partially replicates habeas corpus while also allowing challenges to the
constitutionality of laws and regulations[^131].

Unlike "amparo" and habeas corpus, which may be brought at any time, an
appeal is a review remedy that challenges final orders. It can only be
made in a limited number of cases since it allows the higher court
discretion to review any facts presented in the lower court as well as
new ones. Cassation is the most frequently used appellate remedy to
review final sentences. It is traditionally addressed to errors of
substantive or procedural law that may give rise to a reversal,
affirmation or modification of the original sentence.

# **12.6. Preventive Detention and Pretrial Release**

Although all Latin American codes favor pretrial release and proclaim
the presumption of innocence, in practice, pretrial incarceration is the
rule rather than the exception in Latin America and nowhere was this
truer than in Paraguay, which led the hemisphere in the percentage of
prisoners awaiting trial. Two of the main reasons for this are: an
attitude of judges favoring imprisonment as the easiest and safest
measure; and, legal limitations on release which sometimes make the
principle inoperable. The end result is that the majority, most often
over 70%, of inmates in jail are persons awaiting trial.[^132]

## 12.6.1. Requirements for preventive detention

Judges are authorized to order pretrial detention only when it is deemed
to be "essential" and the following factors are present:[^133]

-   proof as to the commission of a crime and evidence pointing to the
    guilt of the person to be detained;

-   the seriousness of the crime charged, taking into account the
    prescribed punishment;

-   flight risk or the potential for obstruction of the investigation.
    In analyzing the danger that the accused may flee, the judge may
    take into account: ties to the community; potential penalty; the
    importance of the harm caused and the defendant's attitude; and the
    defendant's behavior during this proceeding or prior ones.[^134]

Pretrial detention measures will end automatically within two years of
their imposition. This addresses a common problem of having the
defendant in detention for an inordinate amount of time awaiting trial
to the point that sometimes the pretrial detention period exceeded the
potential sanction.

## 12.6.2. Exceptions to pretrial detention and release

Pretrial detention may not be decreed in those cases initiated by
private prosecutions in order to avoid usage of the criminal process to
compel parties to a civil dispute to settle. Additionally, the Code does
not permit pretrial incarceration in those cases in which the potential
penalty is less than one year's imprisonment[^135]. Neither can pretrial
detention be ordered for persons over 70 years of age, women in their
last months of pregnancy, women who are breastfeeding or persons gravely
ill.[^136]

One of the most significant changes of the new code is the expansion of
potential alternatives to pretrial incarceration. The Code provides that
"so long as the danger of flight or of obstruction of the process can be
avoided" the judge shall preferably apply an alternative measure instead
of pretrial incarceration.[^137] The following alternative measures are
proposed:

-   house arrest;

-   placement in the custody of others who report to the court
    periodically;

-   periodic presentment before a judge or other judicial authority;

-   travel ban;

-   prohibition to attend certain places or events;

-   restrictions on communications with specified persons or
    institutions;

-   monetary bail, but it may not be imposed on persons unable to meet
    it.

Like pretrial detention, these measures will cease to be operative if
more than two years expire from the moment they are applied without a
trial being concluded. There are some exceptional circumstances in which
the law does not allow pretrial release of persons accused of extremely
serious crimes. For example, persons accused of narcotics trafficking
are not eligible for pretrial release.[^138]

# **13. Conclusion**

One of the most attractive reform endeavors for foreign donors is law
drafting. AID was the primary donor engaged in Latin American code
reform during the last decade. The results of AID\'s law reform
experience have been slow and costly. As AID concluded in its review of
lessons learned, "(n)ormative reform is the boldest and most difficult
Rule of Law strategy to undertake." Changing the legal framework of any
country "means in effect refashioning the core organs of the body
politic, a task even more delicate in many ways than an undertaking like
economic structural adjustment... While trustworthy foreigners might
tender advice here and there on such matters, the actual reform task
must be handled by the principal stakeholders themselves."[^139]

The focus of U.S. code reform initiatives in the region has been
adoption of an adversarial system of criminal procedure to substitute
the outdated and inefficient inquisitorial model that has prevailed
since the colonial period. Following the end of a 35-year dictatorship
in 1989, the USAID Mission in Paraguay adopted a shift to an adversarial
system as the cornerstone of their Rule of Law strategy. In doing so, it
joined in a partnership with young Paraguayan reformers who equated the
adversarial system with democracy and transparency and saw it as a
logical continuation of the reformist 1992 constitution.

The prevailing legal system in 1989 was outdated, corrupt, inefficient
and unable to meet rapidly growing caseloads. Reformers argued that
adoption of an adversarial system would overcome many of these problems
while making the system more transparent and accessible. The change
required an almost total overhaul of the criminal justice system. A new
criminal code was enacted in 1998 and the new procedural code went into
effect in 2000. Transitional legislation was enacted to facilitate a
gradual changeover to the new system. In addition to legal changes,
successful implementation rested on recognition of a new proactive role
for prosecutors and a more passive one for judges. Resources allocated
for the transition, albeit considered insufficient by justice leaders,
were considerable with the Judiciary's budget growing from 1.2% of the
national budget in 1989 to 4% nine years later while the Public
Ministry's budget grew at an even faster pace.

Substitution of deep-rooted legal traditions has not been easy and the
results of the assistance in other countries have been mixed with many
of the key reforms rolled back by a counter reform movement that has
blamed rising crime rates and an inefficient legal system on the new
procedure. Paraguay's transition appears to be one of the smoothest in
the region. The fact that this took place in a country without
democratic traditions, a long-history of corruption, political
instability and economic stagnation is surprising. The purpose of this
review, albeit a limited one, is to analyze the Paraguayan reform and
the role that USAID played.

Two and-a-half years after the system changed, the results have been
impressive.

-   There is general support for the reform among legal professionals;

-   As processing speeds have improved, judicial backlogs have been
    reduced;

-   The percentage of the prison population awaiting trial has been
    reduced from a high of almost 90%, the highest in all of Latin
    America, to less than 60%;

-   Conviction rates have risen as prosecutors have become more
    selective in the number and types of cases that go to trial;

-   Greater celerity in processing cases;

-   Victims are now an integral part of the process and their rights are
    recognized by law;

-   A consensual strategy based on interagency coordination and citizen
    outreach proved successful and continues, although not with the same
    driving force as previously.

Possibly the greatest evidence of the outcome of the reform is that
there has been no successful counter reform as has happened in many
other countries. While there are still many problems to overcome, there
is general agreement on the salutary effects of the reform. There are a
number of factors that contributed to the smoothness of the Paraguayan
transition:

-   It was a Paraguayan initiative that benefited from the experience of
    consultants who had worked on reforms in other Latin American
    countries and a partnership with USAID characterized by a minimum of
    donor interference.

-   The decision to award the first support contract directly to
    Paraguayan institutions offset potential claims of foreign
    interference while establishing a partnership between USAID and
    national stakeholders. Award of USAID funding also strengthened the
    hand of national reformers as leaders of the change;

-   In 1989 Paraguay was an isolated country. This isolation, combined
    with the weakness of institutions that had been an integral part of
    the Stroessner autocracy limited the potential opposition from
    within the Public Ministry or the courts;

-   The inquisitorial system was viewed as a feature of the Stroessner
    dictatorship while the accusatorial model was equated with
    democracy, transparency and modernization;

-   Almost all reform movements have been led by a combination of
    academics and judicial leaders. Paraguay is the only case in which
    the initial impetus arose from the ranks of prosecutors. Given the
    central role to be played by the prosecution in the new procedure,
    their support for the change was critical to its success;

-   Unlike other countries in which reformers withdrew after passage of
    the legislation, Paraguayans were conscious of the difficulties
    inherent in implementation and established a post-enactment strategy
    that rested on interinstitutional cooperation, clearance of backlogs
    prior to commencement of the reform, creation of parallel court
    systems in which both procedures would coexist for a predetermined
    period, and training. USAID support during this stage was critical
    to its success.

-   Beginning with public discussions of the proposed code to today, the
    Judiciary and the Public Ministry have emphasized the need to
    disseminate information on the progress of the reform. Thus,
    outreach became a key feature of the transition strategy. Relations
    with the press, however, were largely ignored or were strained and
    confrontational. The current USAID-supported initiative to improve
    relations between the press and the justice system may lead to
    greater understanding of the roles of each in a democratic process.

-   USAID Paraguay recognized that law reform is a long process and has
    remained steadfast in its support. The entrance of other donors,
    primarily the GTZ, at a time when USAID's assistance was winding
    down was fortuitous. USAID's leadership in fostering donor
    coordination is to its credit. Unlike other countries, Paraguay's
    reform has been unusual in the level of cooperation among donors and
    national implementing institutions. USAID's leadership in this
    effort has ensured the development of a partnership among donors and
    national stakeholders.

While Paraguay's law reform has come a long way since 1992, a great deal
remains to be done. A shift to an accusatorial procedural model is a
revolutionary change that requires overcoming substantial cultural as
well as technical barriers. This change requires some accommodations and
seldom has there been a total adoption of the accusatorial model. In
Paraguay, as in most Latin American countries, there is sufficient
distrust in prosecutorial forces, most of which are incipient and *de
facto* dependent on the Executive, to place unfettered discretion in
their hands. Thus, the Paraguayan model retains a substantial amount of
power in the hands of judges in overseeing what should be discretionary
actions by the prosecution. Victims are also accorded an oversight role
over prosecutorial discretion and may challenge their decision to
dismiss or close cases.

The Paraguayan code transfers the role of overseer of investigations
from the Judiciary to the prosecution. In doing so, it ignores the
reality that in every country, including and especially common law ones,
the investigation is carried out by the police and the oversight role
really becomes effective once the judicial process has begun and the
investigation is completed.

An instance in which the Code promises more than it can deliver is the
right to counsel. While persons of means will benefit from the extensive
right accorded to attorneys to be present at almost all stages of the
process, it is unlikely that indigents will enjoy the same rights due to
the insufficiency of defenders to meet the new demands.

Likewise, the code takes a bold step in precluding police
interrogations. However, as seen in practice police will not likely
terminate this practice easily, especially until they see a viable
alternative in emergency situations.

Due to the requirement of speedy and open trials, the accusatorial
system partially depends on diversion so that the majority of cases
never come to trial. Many other reforms have failed because judges and
prosecutors failed to exercise discretion and did not avail themselves
of alternative dispute resolution techniques. This did not apparently
happen in Paraguay where a substantial percentage of cases are resolved
prior to trial.

One of the main justifications for the new code is that it would speed
up a slow and cumbersome process. Thus, the code sets forth clear terms
for the completion of each step of the criminal process except during
the intermediate stage in which there is no term for the judge to
complete this stage and forward a criminal change for the trial to
commence. Finally, the drafters of the Code set forth a final
termination point of three years for the entire process to be completed,
a term that appears to be excessive in light of the other terms
contained in the process.

The drafters deserve praise for setting forth significant sanctions for
noncompliance with procedural requirements. Thus, evidence illegally
seized cannot be introduced as a result of a procedural and not
constitutional requirement. Persons in pretrial detention more than 2
years are automatically released and a six-month time period for
completion of the investigation with extinction of the criminal process
a result of noncompliance.

While the code represents a radical break with a pleading-based system,
in which the bulk of the process was reduced to writing, some remnants
of the past remain. The most worrisome is a provision that permits the
introduction of documentary material as evidence when testimonial
evidence should be used. An example is a lineup, the results of which
can be used as evidence by the prosecution in lieu of, or to strengthen
the validity of, in-court identification.

Recognition of the rights of victims as participants in the process is a
significant change in Paraguayan procedure but the code does not set
forth clearly the manner by which the victim will participate.

On balance, the reform and USAID/Paraguay's assistance to the justice
sector has been very successful. Not only in achieving reforms directly
attributable to the project, but also because it has been a key player
in promoting the development of a climate in which major reforms are
being discussed openly and have a real chance of success.
USAID/Paraguay's role as a catalyst for change should not be
underestimated.

### 

[^1]: In a 1999 report by the General Accounting Office, it was reported
    that Latin American countries received \$180,974 million in Rule of
    Law assistance during the period 1993-1998. Paraguay' share came to
    \$3.351 million or 1.85% of the regional total. See: General
    Accounting Office, Rule of Law Funding Worldwide for Fiscal Years
    1993-1998, June 1999, GAO/NSIAD-99-158.

[^2]: For a review of some of the most significant projects see: General
    Accounting Office, US Rule of Law Assistance to Five Latin American
    Countries, August 1999, GAO/NSIAD-99-195; Linn Hammergren, "Code
    Reform and Law Revision," U.S. Agency for International Development,
    PN-ACD-022, August 1998.

[^3]: Not enough time has elapsed for a thorough review of the
    Paraguayan reforms nor were there sufficient resources available
    from USAID to conduct an in-depth evaluation of the reforms.

[^4]: A list of all the persons interviewed is available upon request.
    The group included: four judges; four prosecutors; one public
    defender, one police high-level police official (Comisario
    Principal); six lawyers, and three foreign experts (José Luis
    Albiñana who directed the European Union State Modernization
    project; Gerardo Villalobos who led the SUNY and NCSC USAID
    projects; and Alberto Binder who was the primary Argentinean
    consultant during the drafting and transitional stages). A number of
    media owners and journalists were consulted during site visits and
    workshops. In addition, 5 representatives from nongovernmental
    organizations were interviewed (Kuña aty, FUMPARE, Asociación
    Americana de Juristas, DECIDAMOS, Centro para la Justicia y el
    Derecho Internacional-CEJIL).

[^5]: INECIP ("Instituto de Estudios Comparados en Ciencias Sociales y
    Penales") is a Paraguayan NGO, which has become the primary civil
    society proponent of the justice reform and has been a recipient of
    USAID funding. It is currently a subcontractor to Florida
    International University in the current journalism and
    anticorruption project described subsequently.

[^6]: In addition to the support furnished by INECIP in data gathering
    for this report, the author benefited from reading a number of
    reports, especially: María Victoria Rivas, "Informe de Paraguay:
    Proyecto de Seguimiento de los Procesos de Reforma Judicial en
    América Latina," Consulted on November 7,
    2002<http://www.cejamericas.org/newsite/infoceja/PARAGUAY/INFOFINALPARAGUAY.pdf>,.

[^7]: Crimes reported to police in Paraguay have risen from 9,548 in
    1991 to 23,035 in 2001. See: Ministerio Público, Dirección de
    Política Criminal y Criminología, "Hechos denunciados a la Policía
    Nacional: Total País: Período 1990-2001".

[^8]: For example, among Paraguayans, only 35% choose democracy as being
    preferable to other forms of government. This figure is lower than
    twelve other Latin American countries. When asked if they are
    satisfied with democracy, only 10% of Paraguayans responded
    affirmatively, the lowest percentage in the hemisphere, tied only
    with Colombia. Another especially worrisome result of surveys is
    that confidence in democracy dropped quickly between 1996 and 2001.
    Latinobarometro 1996-2001.

[^9]: The Criminal Code was enacted in July 1998; one year later (July
    1999) the Congress approved the Code of Criminal Procedure to take
    effect in March 2000; and in November 2000 the Organic Law of the
    Public Ministry was passed by the Congress.

[^10]: The authors, Ricardo Brugada and Ramón Zubizarreta, were Spanish
    immigrants who based their code on the Spanish and Argentinean codes
    of criminal procedure. In the case of Spain, the "Ley de
    Enjuiciamiento Criminal" of 1882 had replaced the legislation they
    had relied on.

[^11]: The Criminal Code was largely a copy of the Buenos Aires' Code
    with only a few changes. See: Ley del 24 de agosto de 1871. This
    legislation was replaced in 1910 by a Paraguayan Criminal Code
    drafted by Teodisio González. González was inspired by the Bavarian
    Code and European trends of his day.

[^12]: An overview of the prior and current systems is found in: Alfredo
    Enrique Kronawetter, "Paraguay," in Julio Maier, Kai Ambos and Jan
    Woishnik, ***Las reformas procesales penales en América Latina***,
    pp. 605-656, Buenos Aires: Ed. Ad Hoc, 2000; see also the
    "Exposición de Motivos del Anteproyecto de Código Procesal Penal
    para la República del Paraguay," INECIP, ***Código Procesal
    Penal***, Asunción: Servibooks Ed., 2002.

[^13]: For some of the historical rationales for the development of the
    inquisitorial system see: Francisco Tomás y Valiente, ***El derecho
    penal de la monarquía absoluta: siglos XVI, XVIIi y XVIIIi***,
    Madrid: Tecnos, 1992; Víctor Fairén Guillén, ***Temas del
    ordenamiento procesal***, vol. 2, Madrid, Tecnos, 1969; Juan Montero
    Aroca, "La garantía procesal penal y el sistema acusatorio,"
    ***Revista Jurídica Española La Ley***, 1994, pp. 973-984

[^14]: Elizeche Modesto, et al., \"Sistema Penitenciario y reacción
    estatal contra la Criminalidad,\" Cidsep U.C.A. Asunción 1990 p. 121
    quoting Elías Carranza, et al., ***El preso sin condena en América
    Latina y el Caribe***, ILANUD, San José, 1983.

[^15]: Steven E. Hendrix, "Innovation in Criminal Procedure in Latin
    America: Guatemala's Conversion to the Adversarial System,"
    ***Southwestern Journal of Law and Trade in the Americas***, volume
    5, pp. 365-419, 1998.

[^16]: See: Carlos Rodrigo de la Barra Cousino, "Chile: Adversarial v.
    Inquisitorial Systems: The Rule of Law and Prospects for Criminal
    Procedure Reform in Chile," ***Southwestern Journal of Law and Trade
    in the Americas***, volume 5, pp. 323-364, 1998; Andrés Baytelman,
    "Informe de Chile: Proyecto de Seguimiento de los procesos de
    reforma judicial en América Latina,"
    <http://www.cejamericas.org/newsite/infoceja/CHILE/InformedeChilecompleto.pdf>

[^17]: For a review of the countries see: Julio Maier, ***op.cit***.

[^18]: Linn Hammergren, ***op. cit*.,** p. 1.

[^19]: For example, political parties will resist attempts to
    merit-based personnel systems that reduce their patronage pool.
    Practicing lawyers and bar associations have tended to be among the
    staunchest opponents of legal reforms. For many, the justification
    is as simple as not wanting to learn new codes while for others this
    is seen as a interference in the operation of a system which they
    have learned to manipulate and from which they derive benefits. It
    is critical to identify the main possible opponents or unconvinced
    pressure groups from the very beginning and to involve them in the
    drafting process.

[^20]: Some of the major changes included establishment of a Judicial
    Council ("Consejo de la Magistratura") for the selection of judges,
    assumedly on the basis of merit, at all levels; expansion of the
    size of the Supreme Court and adoption of lifetime appointments for
    its members; amplification of the Court's jurisdiction to allow it
    to rule on the constitutionality of laws; award of 3% of the
    national budget to the Judicial Sector (Judiciary, Public Ministry,
    Electoral Justice, and Judicial Council). Another significant step
    toward modernization of the Judiciary was the establishment of the
    Public Ministry with functional and budgetary independence.

[^21]: The term Public Ministry is sued to refer to the prosecutorial
    agency, which in Paraguay is officially called the "Fiscalía."

[^22]: "Convenio para impulsar la reforma estructural de la justicia
    penal en Paraguay."

[^23]: For the importance that the courts place on public opinion see:
    Enrique A. Sosa Elizeche, "Restructuring of Justice Administration
    in Paraguay," ***Saint Louis Law Journal***, vol. 42, pp. 1153-1162,
    1998.

[^24]: Paraguayan law permits the Supreme Court to introduce legislation
    in the parliament on its own.

[^25]: Professor Wolfgang Shone.

[^26]: Article 70 of the proposed Code.

[^27]: Latin American criminal codes and codes of procedure, inspired by
    European traditions, typically classify certain crimes as "private
    action" crimes. The victim must pursue these crimes as a private
    prosecutor with little assistance from the State. Under Paraguayan
    law, the following crimes are classified as "private actions"
    crimes: assault, domestic violence, battery, unauthorized medical
    treatment, slander, libel, joy riding, and unauthorized entry into a
    private residence. See Article 17 of the Code of Criminal Procedure.

[^28]: Ley No. 1444, Ley de Transición que regula el período de
    transición al Nuevo sistema procesal penal,"
    <http://www.abogados.com.py/busqueda/codigos/procesal_penal/abo_1444.htm>,
    Consulted November 4, 2002.

[^29]: Article 1 sets the period as July 9, 1999 to February 28, 2003.

[^30]: Article 3.

[^31]: Other situations are set forth in Article 2.

[^32]: Poder Judicial, Programa de Depuración de Causas Penales,
    "Informe Global año 2001," Nov. 16, 2001.

[^33]: These figures represent 91,306 cases in Asunción and other major
    population centers. Of the 4,035 cases purged in Villarica, 51.5%
    were closed because the statute of limitations had run. Hugo
    Valiente, ***op. cit***., p. 91.

[^34]: Article 5.

[^35]: Recently, the Supreme Court upheld a constitutional challenge to
    this provision and set aside the statute of limitations provision.
    However, since constitutional rulings are only applicable to the
    parties, the practical implication of this decision is unclear.

[^36]: Article 11.

[^37]: In other countries, El Salvador for example, there has been
    strong opposition from the police while in others some lawyers have
    charged that the code is a transplant of a US system that the
    country is neither prepared culturally to accept nor financially
    able to manage it.

[^38]: There were 36 guarantee judges in 2001, 7 "execution" judges that
    oversee prison sentences, 48 trial judges and 39 appeals court
    judges.

[^39]: In Asunción, seven of the thirteen trial judges were liquidation
    judges charged with managing pending caseloads under the old system.
    See: Cristián Riego, "Informe comparativo: Proyecto Seguimiento de
    los procesos de reforma judicial en América Latina," Consulted on
    November 12, 2002,
    <http://www.cejamericas.org/newsite/infoceja/COMPARATIVO/informecomparativo_completo.pdf>

[^40]: In 2000, there were 551 judges in Paraguay with 232 assigned to
    Asunción.

[^41]: Trials involving private prosecutions are held by one-judge
    courts.

[^42]: There were 186 prosecutors assigned to criminal cases in the end
    of 2001. Ministerio Público, ***Memoria de Gestión 2000-2001***.

[^43]: In 2001, there were 142 prosecutors, 17 liquidation prosecutors
    and 30 assigned to juvenile cases.

[^44]: There are contradictory figures which show an average of 411
    cases per prosecutor and 756 new cases per prosecutor in 2001. See:
    Ministerio Público, "Informe sobre la distribución de las causas
    ingresadas a la mesa de entrada a Asunción- Año 2001: Censo
    Criminológico en el contexto del sistema judicial penal, la
    prevención del delito y la seguridad ciudadana," April 2002.

[^45]: During 2000, 35,305 cases were received by the Public Ministry
    with a decrease to 21,238 cases in 2001. Ministerio Público, ***op.
    cit***., p. 30.

[^46]: ***Ibid***, p. 31.

[^47]: The source is the: Ministerio Público, Fiscalía General del
    Estado, Dirección de Política Criminal y Criminología, "Situación
    procesal de las causas ingresadas en el año 2000 a la mesa de
    entrada de la Fiscalía General y a la Oficina de Distribución de
    Causas de la Corte Suprema, Asunción, Marzo-Diciembre del 2000,"
    diciembre del 2001. These statistics do not coincide with a similar
    graph presented in María Victoria Rivas, ***op. cit***. p. 19.

[^48]: Article 305, Code of Criminal Procedure, hereinafter referred to
    as CCP.

[^49]: Approximately 23 additional defenders await selection and
    appointment.

[^50]: Article 6 CCP.

[^51]: Article 297 CCP.

[^52]: Article 317 CCP.

[^53]: In 2001 there were approximately 11,000 police personnel.

[^54]: See: US State Department, "Paraguay", ***Country Reports on Human
    Rights Practices 2001***,
    <http://www.state.gov/g/drl/rls/hrrpt/2001/wha/8297.htm>, Consulted
    on November 7, 2002.

[^55]: See for example: Amnesty International, "Paraguay", ***Amnesty
    International Report*** 2002,
    <http://web.amnesty.org/web/ar2002.nsf/amr/paraguay!Open>, Consulted
    on November 7, 2002.

[^56]: Article 296 CCP.

[^57]: ***Ibid.***

[^58]: Article 300 CCP.

[^59]: Article 239 CCP.

[^60]: Article 90 CCP. The purpose of this provision is to withdraw the
    benefits of coerced confessions by excluding such testimony at trial
    in much the same way that the exclusionary rule operates in the
    United States. In practice, however, this ban will only be effective
    insofar as judges do not permit the introduction of evidence
    resulting from confessions. Human rights groups have complained that
    police routinely violate this provision and coerce confessions and
    statements from detainees and thereafter introduce them through
    their reports or introduce the fruits of the coerced statements. See
    for example: Inter-American Commission of Human Rights, "Follow-Up
    Report On Compliance with the Recommendations of the IACHR in the
    Third Report on the Situation of Human Rights in Paraguay,
    <http://www.cidh.oas.org/annualrep/2001eng/chap.5b.htm>, Consulted
    November 7, 2002.

[^61]: Hugo Valiente, "Detenciones ilegales y arbitrariedades,"
    Coordinadora de Derechos Humanos del Paraguay (CODEHUPY), ***op.
    cit.,*** p. 93.

[^62]: Hugo Valiente, "Tortura y otros tratos crueles, inhumanos y
    degradantes," Coordinadora de Derechos Humanos del Paraguay
    (CODEHUPY), ***op. cit.,*** 53-74, p. 73.

[^63]: Hugo Valiente, "Detenciones ilegales y arbitrariedades,"
    Coordinadora de Derechos Humanos del Paraguay (CODEHUPY), ***op.
    cit*** ., p. 89.

[^64]: Inter-American Commission of Human Rights, "Follow-Up Report On
    Compliance with the Recommendations of the IACHR in the Third Report
    on the Situation of Human Rights in Paraguay,
    <http://www.cidh.oas.org/annualrep/2001eng/chap.5b.htm>, Consulted
    November 7, 2002.

[^65]: Ministerio Público, Gabinete de Desarrollo Profesional, Dirección
    de Política Criminal y Criminología, "Informe complementario de la
    situación procesal de las causas ingresadas a la Fiscalía y
    asignados a los Jueces de Garantías en el año 2000: juicio oral y
    procedimiento abreviado," n. d.

[^66]: Hugo Valiente, "Detenciones ilegales y arbitrariedades,"
    Coordinadora de Derechos Humanos del Paraguay (CODEHUPY), ***op.
    cit.***, p. 86.

[^67]: Article 65, Ley Orgánica del Ministerio Público.

[^68]: The quote comes from a report by José Antonio Bergues of
    Transparency International's Paraguay chapter. Transparency
    International, Global Corruption Report 2001,
    <http://www.globalcorruptionreport.org/download/rr_s_america.pdf>,
    Consulted November 29, 2002.

[^69]: María Victoria Rivas, "La optimización de los recursos
    presupuestarios como garante de la independencia judicial," Reforma
    Legal y Judicial y control de la corrupción en América Latina y el
    Caribe, World Bank,
    <http://www.worldbank.org/wbi/governance/madrid2002/pdf/rivas.pdf>,
    Consulted November 7, 2002.

[^70]: Centro Paraguayo para la Promoción de la Libertad Económica y de
    la Justicia Social, ***Evolución del Presupuesto del Poder Judicial:
    1989 al 2000***, Asunción, 2000.

[^71]: ***Ibid***, p. 9.

[^72]: See: German Burgos Silva, "Estado y derecho en Paraguay: Estado
    de legalidad sin Estado de Derecho," Magazine DHIAL, Ed. No. 24,
    Nov. 20, 2001, <http://www.iigov.org/dhial/?p=dh24/dhial24_03.htm>

[^73]: Ministerio Público, ***op.cit***.

[^74]: This included technical assistance to code reform, design of a
    judicial school, improved court administration, and automation of
    legal information (funding was provided for a pilot effort in a
    criminal court).

[^75]: For example, in one period, 15 judges were sent to the U.S. under
    the auspices of USIS, 35 trainees attended AID-sponsored regional
    conferences; 1500 persons attended training events in country.

[^76]: "Assistance to the Government of Paraguay to Improve Access to a
    Strengthened Judicial and Legislative System," #AEP5468100600400.

[^77]: Task Order #813.

[^78]: "Improving Quality and Coverage of the Implementation of the
    Paraguay\'s Penal Laws in Media", #AEP-I-00-00-00009-00, Task Order
    #802.

[^79]: UNDP is a manager of Rule of Law projects funded by other
    institutions but exercises little technical oversight.

[^80]: Christina Biebesheimer and J. Mark Payne, "IDB Experience in
    Justice Reform: Lessons Learned and Elements for Policy
    Formulation," Inter-American Development Bank, Sustainable
    Development Department, Technical Paper Series, November 2001.

[^81]: The breakdown of Mercosur member countries is: Argentina \$26.7
    million; Brazil \$18.9 million; Paraguay \$34.7 million; Uruguay
    \$36.4 million. These figures include support to justice sector,
    violence prevention and citizen safety.

[^82]: Of these, the main activities were information systems,
    coordination mechanisms, human resources, financial management and
    others. See: Interamerican Development Bank Loan 934/C-PR; UNDP
    Project PAR 997/017, "Proyecto de Fortalecimiento Institucional del
    Poder Judicial".

[^83]:
    ###  Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ).

[^84]: "Apoyo a la Reforma Judicial Penal".

[^85]: Of which, €1 million euros has still to be spent. Project No.
    PRY/B7-310/IB/96/333.

[^86]: Andrea Costafreda, "Cómo mejorar la cooperación a la reforma del
    estado Paraguayo: Una evaluación crítica de la cooperación europea,"
    Magazine DHIAL, November 20, 2001,
    <http://www.iigov.org/dhial/dh24/dhial24_03.htm>, visited on
    November 1, 2002.

[^87]: John Henry Merryman, ***The Civil Law Tradition***, Stanford:
    Stanford University Press, 1985.

[^88]: Article 407-419, CCP.

[^89]: Article 422-426, CCP.

[^90]: Article 420-421, CCP.

[^91]: Article 427, CCP.

[^92]: Article 428-431, CCP.

[^93]: Articles 432-438, CCP.

[^94]: Articles 439-448, CCP.

[^95]: Article 17.3 of the Constitution and Article 1 of the CCP.

[^96]: Article 10, CCP.

[^97]: Article 17.4 of the Constitution and Article 8, CCP.

[^98]: Article 16 of the Constitution and Articles 2 and 3 of the CCP.

[^99]: Article 5, CCP.

[^100]: Article 17 of the Constitution and Article 4 of the CCP.

[^101]: Articles 6 and 97.

[^102]: Article75, CCP.

[^103]: Article 84, CCP.

[^104]: Articles 84-96, CCP.

[^105]: Article 90, CCP.

[^106]: See: María Victoria Rivas, Proyecto de Seguimiento de los
    Procesos de Reforma Judicial en América Latina, "Informe de
    Paraguay," pp. 43-44,

    <http://www.cejamericas.org/newsite/infoceja/PARAGUAY/INFOFINALPARAGUAY.pdf>

[^107]: Article 34 of the Constitution.

[^108]: Articles 179 for persons and 181 for vehicles, CCP.

[^109]: Article 5 of the Constitution and 75(1) of the CCP.

[^110]: Articles 46 & 47 of the Constitution and 9 of the CCP.

[^111]: Article 1, CCP.

[^112]: ***Ibid.***

[^113]: ***Ibid.***

[^114]: ***Ibid.***

[^115]: ***Ibid.***

[^116]: Articles 132-134 of the Constitution.

[^117]: Article 19, CCP.

[^118]: Article 42, CCP.

[^119]: Article 42, CCP.

[^120]: Article 297, CCP.

[^121]: Article 317, CCP.

[^122]: Private actions require that the accuser make and prove the
    accusation. Many of the cases that require private prosecution
    involve matters of \"honor\" (libel and slander) and minor crimes
    involving apparently private disputes. These types of cases
    constitute a surprisingly large percentage of the caseloads with 27%
    (5,515) of the 20,427 cases presented before the Public Ministry in
    2001. Ministerio Público, Fiscalía General del Estado, Dirección de
    Política Criminal y Criminología, "Situación procesal de las causas
    ingresadas en el año 2000 a la mesa de entrada de la Fiscalía
    General y a la Oficina de Distribución de Causas de la Corte
    Suprema, Asunción, Marzo-Diciembre del 2000," diciembre del 2001.

[^123]: Article 289, CCP.

[^124]: Article 300, CCP.

[^125]: Article 240, CCP.

[^126]: Article 301, CCP.

[^127]: Articles 324-326, CCP.

[^128]: The parties have 5 days in which they can review the case file.

[^129]: Article 353, CCP.

[^130]: Article 174, CCP.

[^131]: It has been defined as a \"constitutional suit of summary
    nature, the object of which is to protect, in a special case and at
    the request of an injured party, private persons whose individual
    rights as established in the Constitution have been violated through
    laws or acts of the authorities, or when the laws or acts of the
    Federal authorities injure the sovereign of the States\". Helen
    Clagett, quoting Dr. Manuel Gual Vidal, "The Mexican Suit of
    Amparo", **Georgetown Law Journal**, vol. 33, pp. 418-437, at 418,
    1945. For a review see: Hector Fix Zamudio, "A Brief Introduction to
    the Mexican Writ of Amparo", ***California Western International Law
    Journal***, vol. 9, pp. 306-348, 1979.

[^132]: Research conducted by ILANUD (a Costa-Rican based United Nations
    criminology institute). See: Elías Carranza, ***op.cit***., p. 25.

[^133]: Article 242, CCP.

[^134]: Articles 243-244, CCP. In weighing the danger that the defendant
    will obstruct the course of the proceedings, the judge may take into
    account suspicions he/she may have that the defendant will destroy,
    alter or suppress evidence or that the accused will influence
    witnesses.

[^135]: Article 237, CCP.

[^136]: Article 238, CCP.

[^137]: Article 245, CCP.

[^138]: Ley No. 1340 Que modifica la Ley No. 357/72 que reprime el
    tráfico ilícito de estupefacientes y drogas peligrosas y otros
    delitos afines y establece medidas de prevención y recuperación de
    farmacodependientes, Comisión Interamericana para el Control del
    Abuso de Drogas (CICAD),
    [http://www.cicad.oas.org](http://www.cicad.oas.org/), Consulted on
    November 12, 2002.

[^139]: United States Agency for International Development, "Weighing in
    on the Scales of Justice: Strategic Approaches for Donor Supported
    Rule of Law Programs," USAID Program and Operations Assessment
    Report No. 7, 1994, Consulted on November 12, 2002,
    <http://www.usaid.gov/democracy/techpubs/weighingin.pdf>.