Comparative law and justice/Paraguay

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Flag of The Paraguay.


Basic Information[edit]

Map of the Paraguay
Map of the Paraguay

Geographical Information

Paraguay’s official name is the Republic of Paraguay. It is located in central South America and is landlocked between Argentina to its south and Bolivia and Brazil to its north. Paraguay's total landmass is 406,752 sq km; it is about the same size as California. In comparison to the world it is the 59th largest country [1]

Major Rivers and Mountains

Paraguay has two major rivers that serve to define the countries boarders, provide drainage, and also work as a transportation route; they are the Río Paraguay and Río Paraná. Río Paraguay is the largest river at 2,600 kilometers in length, 2,300 km of it is navigable and 1,200 km of it either borders on or passes through Paraguay. One of its main functions is to divide the country into two regions, the Paraneña region and the Chaco region. The Paraneña region is a mixture of grassy plains, wooded hills, tropical forests and, valleys. Small rivers dominate this part of the countries natural features. This part of the country experiences a subtropical climate. It is humid, with abundant precipitation throughout the year and only moderate seasonal changes in temperature. [2] The Chaco region covers more than 60% of Paraguay’s total land area and is home to less than 2% of the population. [3] This part of the country is made up of mostly low, marshy plain near the river, and dry forest and thorny scrub elsewhere. [4] This region has a tropical wet-and-dry climate. It has seasons that flood and parch the land. Chaco temperatures are usually high, the averages dropping only slightly in winter. [5] Río Paraná is the second largest river at 4,700 kilometers long. The river is navigable by most boats depending on the season. Seasonal conditions may allow larger boats to navigate through this river, but seasonal conditions may also limit the river’s navigational value and lead to floods. [6] The country has several mountain ranges, the biggest is Cordillera del Amambay. Its highest peak measures 700 meters, and is located in the Cerro Corá National Park in Pedro Juan Caballero. [7]

Demographics

The Capital of Paraguay is Asunción and it is also the largest city in the country. The population there is 1,482,200. The second largest city is San Lorenzo and it has 227,876 inhabitants. The third largest city is Capiatá and 198,553 people live there. [8] The total population of Paraguay as of July 2010 is 6,995,655. 36.7% of the population is 14 years old or younger, of this percentage 1,304,115 are male and 1,260,560 are female. 58.1% are from the ages of 15 to 64, in this age group 2,043,509 are male and 2,023,317 are female. 5.2% of the population is 65 years and over, out of this percentage 168,554 are male and 195,600 are female. [9]

Religion

In Paraguay freedom of religion is guaranteed under the constitution, but it recognizes that Catholicism plays a special role in national life. Relations between church and state are very close for example; one of the requirements to become president in Paraguay is that you must be Roman Catholic. [10] In Paraguay 89.6% of the population is Roman Catholic, 6.2% are Protestant, 1.1% are Christian 1.9% are of other religions and 1.1% do not follow any religion. [11]


Ethnic Groups and Language

The key ethnic group in Paraguay is Mestizo which is a mix of Spanish and Amerindian, 95% of the population is part of this ethnic group. [12] The other 5% are pure Amerindian, black, European or Asian [13] The Mestizo group came about through intermarriage between the Guarani-speaking Indians of the region and the Spanish settlers; this created the Mestizo society within a few generations. One of the things that resulted from this was that the dominant language remained Guarani while the rest of the dominant social institutions and culture remained Hispanic.[14] Paraguay has two official languages which are Spanish and Guarani. 50% of the population speaks Guarani and Spanish, 40% only speak Guarani, and 6% only speak Spanish. [15] Guarani is one of Paraguay’s most important identity traits since this is one of the very few places in the world where the language is still spoken.

Brief History[edit]

This is a picture of Aldredo Stroessner. He was the 46th president of Paraguay and one of Paraguay's many dictators.

Europeans first arrived in the area in the early 16th century and the settlement of Asuncion (which is now the capital) was founded in 1537. [16] Paraguay was one of the first countries in South America to achieve its independence. [17] Paraguay gained its independence from Spain in 1811 in the War of the Triple Alliance which lasted from 1865 to 1870. This war was between Paraguay and Argentina, Brazil, and Uruguay. It was devastating to the country because in it Paraguay lost two-thirds of all its adult males. [18] After the war the economy stood still for the next half a century. In the Chaco War of 1932-1935, large, economically important areas were won from Bolivia. [19] A peace treaty signed in Buenos Aires in 1938 gave Paraguay most of the Gran Chaco region. Included within the borders of Bolivia was the port of Puerto Suarez, which allowed access to the Paraguay River. [20] In 1989 the 35 year dictatorship of Alfredo Stroessner ended. During his time Stroessner associated himself with the famous Condor Plan of the other totalitarian governments of South America, which produced thousands of victims. A period of democracy began with the fall of Stroessner. In 1898 the first democratic elections were held and in 1992 a new national constitution was adopted, which established fundamental liberties not recognized in the previous constitution and also established a democratic system of government which is still being used today. [21]

Economic Development[edit]

Paraguay has a market economy attributed to a large informal sector. The informal sector includes re-export of imported goods to surrounding countries and also the activities of thousands of street vendors. Also a large part of the population makes a living from agricultural activities[22] Paraguay’s Gross Domestic Product for 2009 was $14.95 billion; its GDP per capita in 2009 was $2,350.[23]The World Bank reports that in 2001 per capita household consumption (in constant 1995 US dollars) was $1,510. [24] The currency for Paraguay is the Guarani, which is composed of 100 Centimos or cents. [25] The key industries in Paraguay are sugar, cement, textiles, beverages, wood products, steel, metallurgic and, electric power. Its key exports include soybeans, feed, cotton, meat, edible oils, electricity, wood and leather. The key imports are road vehicles, consumer goods, tobacco, petroleum products, electrical machinery, tractors, chemicals and, vehicle parts.[26]

Health and Education[edit]

In comparison to the world the infant morality rate is ranked at 88 with 24.68 deaths per 1,000 live births. The life expectancy rate for males is 73.19 years and for females it is 78.49 years as of this year (2010[27] In a poor country like Paraguay education is the primary way of achieving social mobility. Unfortunately the changes in the presidency over the years have stunned progress in public education. [28] Despite the political and economical factors that effect Paraguay’s education, the literacy rate for males is 94.9 % and for females it is 93%. The school life expectancy for both males and females is 12 years.[29]

Governance[edit]

Family of Law

Paraguay would be categorized as having a legal system based on Civil Law. The Paraguay constitution was promulgated on June 20, 1992. [30] This constitution established a democratic system of government and improved protection of fundamental rights. [31] The legal system of Paraguay is based on Argentine codes, Roman law, and French codes. [32]

History of Government

Paraguayan corpses during one of the battles in the War of the Triple Alliance.

In 1811 after 35 years of being governed by the Spaniards in Argentina, Paraguayans were sick of paying high taxes to the Spanish and they rebelled against them to become an independent country. The first political leader of the new independent country was José Gaspar Rodríguez de Francia, who turned out to be the first dictator in Paraguay’s long tine of dictators. During his time in power Francia tried to create an organized society, which he told his people could be achieved if they gave up some freedom. He ended up closing schools, post offices, and newspapers. He also sent out secret police to the streets to spy on the citizens and report those who disagreed with him. In 1864 Paraguay was involved in the War of the Triple Alliance which was against Brazil, Argentina, and Uruguay. By the end of the war Paraguay had lost much of its territory but most importantly it had lost over half of its citizens. After Francia and until 1932 there were over 30 different presidents, which averaged out to be about one every two years. This made the country very unstable. In 1954 General Alfredo Stroessner established a dictatorship that would last 35 years. Even though this made the country more stable, Paraguayans did not have any power in their government and there was a lot of corruption and dishonesty going on in the government. In 1989 the government was overthrown and Andres Rodriguez was elected president. Rodriguez changed a lot of the laws which gave the citizens more freedom. Paraguay was changing at this time and in 1992 Paraguay adopted a more democratic constitution that spread the government’s power between different branches of government instead of giving all the power to the president. This constitution replaced the highly authoritarian constitution that had been in force since 1967. [33] In 1993 Paraguayans elected a new president under the new constitution for the first time.[34] In this election Paraguayans had an important break from the military by electing Juan Carlos Wasmosy as the first civilian president in nearly half a century. [35]

Current Government

Map of the 17 Administrative Departments in Paraguay.

Paraguay is now a republic with a democratic representative system of government. The country is divided into 17 administrative departments which are similar to states. Each department is lead by a governor. The capital city is separate and is also headed by an elected governor.[36]The government is divided into three branches which are the Executive, Legislative and Judicial Branch. Paraguay’s government has been changed a lot by many dictatorial régimes. The 1992 constitution gives the executive branch a lot of power. The executive branch is composed of the president who is currently President Fernando Armindo Lugo Mendez and the vice president which is Federico Franco. The president is also assisted by a council of ministers and a council of state who is designated by the president. [37] After the president is done with their term they are constitutionally guaranteed the position of Senator for life, but they can only speak and not vote. [38] The legislative branch is made up of a bicameral National Congress which is composed of a senate of 45 members, and a Chamber of Deputies of 80 members. The President, vice president and the members of the bicameral National Congress are elected by the popular vote. The president and vice president are elected on the same ticket and are elected for a 5-year term. The bicameral Congress is elected at the same time as at president through a proportional representation system. The Deputies are elected by department and the Senators nationwide. [39] The Judicial branch is the Supreme Court of Justice which is made up of nine judges proposed by the Council of Magistrates and approved by the Senate and president. The Supreme Court is the highest judicial court in the country. The court is divided into three chambers, Constitutional, Civil and Commercial and Criminal, each with three members. [40]



Elections[edit]

The Constitution states that every Paraguayan citizen who is 18 -75 years old and who resides in the national territory is eligible and required to vote. If someone does not vote a fine may be imposed. Citizens can elect and may also be elected without restrictions other than those established in the Constitution. The constitution also gives these same voting rights in municipal elections to foreigners with permanent residence papers. [41] General Elections are held every five years. Elections are conducted using secret ballots. In 2003, for the first time, Paraguay used electronic voting terminals to collect about half of all ballots cast. In light of past polling place irregularities, many believe that electronic voting will be less susceptible to manipulation.[42]

Judicial Review[edit]

The role for judicial review in Paraguay is set aside for the Supreme Court under the Constitution. The Supreme Court has the power to declare any legal provision or Court decision unconstitutional under Article 132. The Supreme Court has the power to hear and resolve cases that involve the unconstitutionality of statues, and decide whether the case is unconstitutional or not. Cases that are thought to be unconstitutional can be filed before the Constitutional Chamber or they can be brought upon to any other court and at any moment during a case. Then those cases will be submitted to the Supreme Court. [43]

Courts and Criminal Law[edit]

The legal system in Paraguay is an inquisitorial system. The Supreme Court is the highest law of the land. Supreme Court justices are appointed by the President. They must be native-born Paraguayans, at least thirty-five years of age, possess a university degree of Doctor of Laws, have recognized experience in legal matters, and have an excellent reputation for integrity. The Supreme Court has jurisdiction over cases of constitutional questions. After the Supreme Court comes five appellate tribunals which are, civil and commercial, criminal, labor, administrative, and juvenile. [44] The lower courts and justices of the peace handle three of these tribunals which are, civil and commercial, criminal, labor, and juvenile cases. In many rural communities, one justice of the peace handles all judicial matters. The law provides for the use of three-judge tribunals instead of juries to rule on procedure, determine guilt or innocence, and decide sentences. One judge presides over misdemeanor cases when the maximum punishment does not exceed two years in prison and in civil cases. In Paraguay, justice of the peace courts are judicial bodies with minor civil and criminal jurisdiction in each of the 223 municipalities distributed throughout the 17 provinces that make up the nation. One of the main functions of these courts is solving family disputes.The military has its own judicial system, and the Supreme Court of Military Justice oversees military cases. [45]

Corruption in the Courts

The Supreme Court appoints lower-court judges and magistrates based on slates of three candidates submitted by the eight-member Magistrate's Council. [46] There is also a lot of corruption involved in choosing the court personnel. Jobs are usually provided as a political favor. [47] It is easy to get away with this for a couple of reasons. Filling a complaint about corruption is not easy, because of corruption these complaints typically end up “lost” after they get handed in. Also according to a report called an Assessment of Corruption in Paraguay by Cohen, Berthin and Mizrahi “It is virtually impossible to fire or even transfer corrupt public employees. The most negative consequences for corrupt behavior are brief suspensions or the “freezer” (indefinite paid leave)”. Another reason why some government officials are corrupt is because they are badly paid. In 2004 the President of Paraguay made about $ 3,000 a month, Supreme Court members made $2,500 and the administrative staff members made $300-500 a month. [48]

Role of Lawyers and Rights of Defendant

The Constitution guarantees all defendants the right to an attorney, at the expense of the public if necessary. This right is usually violated when the defendants receive little or no legal assistance or when defendants are not given access to an attorney with enough time for the lawyers to prepare a defense. Part of the reason for this is because there are few public defenders and the defenders do not have the resources to perform their jobs efficiently. [49] Lack of resources also allows some people to get away with committing crimes because the law requires prosecutors to indict accused persons within 180 days of arrest but lack of resources makes this very difficult. In Paraguay defendants enjoy a presumption of innocence and a right of appeal. In order to be convicted, a majority opinion is required from the judges. [50] Article 18 of the constitutions which sets the restriction on questioning says that no one should be forced to testify against himself, spouse, partner or blood relatives. .[51] According to the Library of Congress -Federal Research Division, “The Penal and Criminal Procedures Code of 2000 requires expedited oral hearings for all persons accused of a crime. Prosecutors must bring charges against a detained person within 180 days. Defendants are presumed innocent until proven guilty. Both the defense and prosecution may call witnesses. There is no trial by jury; the judge determines both the innocence or guilt and the punishment for any crimes committed.” [52]


Punishment[edit]

Corporal punishment in Paraguay is unlawful as a sentence for crime. The Constitution prohibits cruel, inhuman and degrading treatment under article 5. [53] Paraguay’s new constitution also got rid of the death penalty, the penalty of exile, and life sentences. It established that the maximum penalty that an individual could be sentenced to is 25 years in prison. [54]

Prison Conditions

The prison conditions in Paraguay are very inhumane. There are several problems with the prison conditions in Paraguay, one of the problems is overcrowding. Hundreds of people have no cell space and must sleep in hallways or outside, exposed to the elements. Some prisoners have one bathroom that they must share with 200 or more people. Researchers have found that this overcrowding puts prisoners on edge which tends to generate violence. Fights between inmates and guards are frequent and often fatal. There is also lack of basic needs for survival in these prisons such as food or healthcare, some prisons do not even have doctors. When there is food there are no utensils available to eat the food with. Another major problem in the corrections system is the presence of corruption. One reason for corruption comes from the poor conditions that guards are assigned to in the detention centers. Their job does not offer any benefits that would make the position attractive. Salaries are very low; they make about $ 230 per month. Sometimes the government has owed them several months of pay. Because of this they turn to corruption in order to make some money. Prisoners have told researchers that they have to pay for medicine, or to be able to see a doctor, for food, and beds, and to be allowed family visits. Findings of the Human Rights Ombudsman confirm that officials are responsible for trafficking drugs, alcohol and prostitution on prison grounds. Another form of corruption involves the guards threatening inmates with physical harm or solitary confinement. Instead of rehabilitating inmates prisons actually promote criminality. Miguel Gomez of the Paraguayan Supreme Court’s Human Rights office told researchers that the penal system does not give the released prisoners help in getting a job after release. “There is no effective system for reinsertion into society in any penitentiary.”. [55]

Women & Juveniles in Prison

Women prisoners live under the same conditions as them, but the main problem in their prisons has to do with prostitution. Female detainees are forced to prostitute themselves by prison officials. Another big problem is that not only are these women putting up with these conditions but so are their children who live in the prisons with them. Conditions for juvenile offenders are a lot better than what the adults endure. The difference in treatment comes from international standards of treatment of youths. They have better living conditions and the detention centers focus more on rehabilitation. Some detention centers have on-site bakeries and gardening programs that provide opportunities for constructive detainee activity. There are also strong educational programs, which have high attendance rates. Guards in these prisons do not carry weapons. [56]

Law Enforcement[edit]

The first police force was first established by José Gaspar Rodríguez de Francia following the country’s independence from Spain. He used the police to enforce his complete control of the state. Following his orders, the police maintained a spy network that generated an atmosphere of fear in the country for anyone who was suspected of talking badly about the government. Now the police is a centralized and multiple uncoordinated organization under the administration of the Minister of Interior. The police force is made up of two main elements, one which serves the capital and another that serves the rest of the country. There is also a separate highway police that patrols the countries roads. All police training takes place in Asunción. Basic training takes place in the Police College, where a five-year course in modern police techniques is offered. [57] Paraguy’s police force has been underfunded and undertrained. There has also been lots of corruption problems. Reports have indicated that Police officers were involved in drug trafficking and kidnapping. [58]

Crime Rates and Public Opinion[edit]

Crime has been increasing over the recent years in Paraguay. Crime is often directed at those who are thought to be wealthy. Most of the crime in Paraguay is non-violent, but there has been an increase in the number of weapons being used in crimes. The types of crime that are typical in urban and rural areas are robberies carjacking, car theft and home invasions. In the larger cities the most common crimes are pick pocketing and mugging. [59] According to the Overseas Security Advisory Council, “street crimes like pick pocketing and mugging are prevalent in Asunción, particularly in the downtown area, at the omnibus terminal, and on public buses. Criminals occasionally drug their victims during the commission of crimes. Victims of these crimes often offer the perpetrators rides, only to be unknowingly drugged. Victims then wake up hours later unable to recall anything about the incident. Additionally, Incidents of pilferage from checked baggage at both Paraguayan airports and bus terminals have been reported.” [60] Other types of crimes that are common in Paraguay are corruption, smuggling, and drug trafficking. It is difficult to find crime statistics on Paraguay because the country did not start publishing their statistics on crime to organizations like Interpol until 1995.[61] The reported homicide rate in 2000 According to the INTERPOL data was 11.57 per 100,000 people. For robbery, the rate was 2.76, for aggravated assault the rate was 55.1, the rate of larceny was 8.16, for burglary the rate was 22.19 and, for motor vehicle theft the rate was 48.13. [62] One of the reporting problems that might make these numbers less reliable is the lack or training and resources available to the police of this country. Another factor that may influence the reports is the tolerance for corruption by the police. [63]

Public Opinion on Crime

Public opinion surveys, as well as interviews conducted by researchers at the Human Rights Program at Harvard Law School, indicate that many Paraguayans believe that “criminality in the country is reaching near-crisis proportions”. According to this analysis, “a recent La Nación (the nation) poll regarding citizen experiences with criminality reveals the extent of victimization. According to that study, 66.82% of those surveyed said they had been victim of a crime; 37.07% within the last twelve months. Some 31.05% had suffered robbery, and another 11.85% attempted robbery.” [64]

Rights[edit]

Family Law[edit]

The legal age for marriage in Paraguay is 16 years old for both men and women. According to Paraguay’s Civil code, Men and Women have the same rights and responsibilities within the home, and in relation to parental rights. Men and women in Paraguay have equal rights to inheritance. Polygamy is prohibited by law in Paraguay. [65] There are three types of marriages in Paraguay, civil, religious and consensual. Civil marriages require getting a license from the state. Religious marriages are traditional church weddings and consensual marriages are when the couple agrees to be married. In the families the women have a lot of responsibility. They are responsible of the household. They are the primary caretakers of the children. If a divorce occurs the children remain with their mother. After a couple a divorced, there is little legal pressure on the father to pay support. [66] A lot of people in Paraguay arevery family oriented. In part because living with relatives is the financially smart thing to do. Elders are also included in the family life and are considered to be an important part of the family. [67]

Adoption

The requirements for adoptive parents in Paraguay is that they must be citizens or legal permanent residents of Paraguay. They must reside in Paraguay but there is no period of residency requirement. They must also be between the ages of 25-50, people with contagious diseases or mental illnesses cannot adopt, single men can also not adopt. According to the Intercountry Adoption website children who are eligible to be adopted have to meet the requirements of the Hague Adoption Convention. The process of being eligible for adoption is the following, “When a child is abandoned or becomes an orphan, the Adoption Center is notified and must first attempt to find a relative to care for the child. If no relative can be found, the child remains under the authority of the Adoption Center until a judicial declaration is made that the child is adoptable. At that time, the court will usually release the child into the custody of the prospective adoptive parents until the final adoption decree is signed. A child is assigned to prospective parents based on the Adoption Center's judgment of the best interests of the child”. [68]

Inheritance

The laws that govern inheritance in Paraguay are the Civil code, the Civil and Commercial Procedure Code and the Child and Teenage Code. The laws created by these codes affect everyone who owns property. There are no distinctions made based on nationality, race, religion, gender or for foreigners. The law states that the law of the deceased’s permanent residence applies. The Civil and Commercial Court of the deceased’s permanent residence deals with inheritance issues. Inheritance cases that are not contested take about 4 to 6 months. [69]

Human Rights[edit]

The Fundamental rights that are protected by the Paraguayan legal system are stated in the constitution. Section 1 of the constitution includes freedoms from arbitrary and unlawful deprivation of life, disappearance, torture and other cruel, inhuman, or degrading treatment or punishment, arbitrary arrest, detention, or exile, denial of fair public trial, arbitrary interference with privacy, family, home, or correspondence. Section 2 includes freedom of speech and press, of peaceful assembly and association, of religion and freedom of movement within the country, foreign travel, emigration, and repatriation. Section 3 is about the individuals’ political rights which include the right of citizens to change their government. Section 5 protects against discrimination based on race, sex, religion, disability, language, or social status. Section 6 is about the workers’ rights which include the right of association, the right to organize and bargain collectively, prohibition of forced or compulsory labor, status of child labor practices and minimum age for employment, acceptable conditions of work and trafficking of persons. In Paraguay the police are known for violating these fundamental rights the most. They have committed extrajudicial killings, and there are has been many incidents of torture and abuse of convicted prisoners. Other problems that are occurring have to do with arbitrary arrests and detention, lengthy pretrial detention, corruption and inefficiency in the judiciary, and infringements on citizens' privacy rights. Police also have been known to use force against nonviolent demonstrators. [70]

Social Inequality[edit]

Paraguay’s current constitution guarantees equality for all individuals and prohibits discrimination. Men and women are equal in the civil liberties they have, their ownership rights and they share the same rights and responsibilities within the home. [71] Even though everyone is supposed to be treated equally in Paraguay, there is a lot of gender inequality. Men are considered to have all the authority in their homes and in public. Men have higher paying jobs then women and women’s jobs are undervalued. Most women work in low-skilled jobs or are stay at home mothers. When it comes to their rights, if women speak up about something they think is wrong they are told that they are not behaving in a feminine manner. [72]

There are also problems with violence and discrimination against women, abuse of children, and discrimination against persons with disabilities and indigenous people. The most frequently occurring violation of women’s rights has to do with sexual and domestic abuse. Spousal abuse is common, and the Penal Code criminalizes it only if it can be proven that the abuse is habitual, and it is only punishable by a fine. According to the US Department of state’s reports, a government survey determined that from January to August, 1 woman was killed every 12 days by a family member or other acquaintance. Between January and August, the Secretariat of Women's Affairs registered 533 cases of violence against women, a 25 percent increase over the same period in 2000. According to these surveys, between January and August 2000, 63 percent of the cases of violence against women were rapes”. When it comes to children’s rights abuse and neglect and sexual exploitation are all problems. Trafficking for teenage girls is also a serious problem. There are also many children who suffer from malnutrition, disease and lack of access to education even though the constitution says that they are entitled to equal treatment in education and health care. Indigenous people are neglected in Paraguay. They have Low wages, long work hours, infrequent payment (or nonpayment) of wages, job insecurity, and lack of access to social security benefits. Due to the fact that they have weak organizations and lack of financial resources, their participation in the political and economic system is not taken seriously. Another problem that the indigenous people have is lack of shelter and medical care. [73]

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