3
acknowledged, as expressly established in Article 128 of the Paraguayan
Constitution.In this case, the criminal conviction can be seen as an indirect
limitation of freedom of expression, which violated Article 13 of the
American Convention.6.
Prohibition to leave the country and reasonable duration. Eight years
elapsed from the final decision of first instance, until a final judgment was
handed down. The arguments indicated in the judgment show that there
existed a clear restriction to leave the country during almost eight years;
this constituted a flagrant and arbitrary violation of the presumption of
innocence (Art. 17(1)), of individual liberty and security (Art. 9 of the
Constitution) and the right to a defense (Art. 16 of the Constitution); all
these rights recognized in Article 8(1) and 8(2) of the Convention. He [Canese]
received a completely different treatment to other defendants, who, for the most
part, enjoy procedural guarantees; also his right to equality was disregarded (Arts.
46 and 47 of the Constitution). On this point, the attitude of the judicial agents
involved is striking, because, systematically and repeatedly they denied his requests
for permission to leave the country, reaching the inadmissible extreme of
maintaining a precautionary measure for more time that the maximum sanction
possible; in these proceedings, the latter was only 18 months at first and then
nothing – when the Court of Appeal revoked the sanction of imprisonment, and the
Supreme Court of Justice annulled the whole proceeding.
7.
The judges did not apply the Constitution or the iura novit curia principle, as
they should have done; they should have rectified the proceedings and not
conformed to what the defense did or did not do. That argument is inadmissible
when fundamental rights are at stake, which even involved the responsibility of the
Paraguayan State, that was a party jointly and severally as established in article 106
of the Constitution. Moreover, the decisions of second and third instance did not
consider the conduct of the judges who permitted a precautionary measure to
continue for many years.
8.
In our opinion, the precautionary measure, which was arbitrary, illegal and
irrational, was the measure that caused most harm. The CIVIL PROCEEDING WAS
NOT EXHAUSTED; consequently, in principle, compensation for nonpecuniary damage could not be established coercively, because it would
have established a jurisdiction parallel to the ordinary jurisdiction, creating a
supplementary judiciary, in violation of Article 137 of the Constitution, which
establishes the priorities within the legal system. This could even have led to an
erroneous use of international human rights treaties. International treaties and
conventions are ranked below the Constitution and, it is especially evident that, in
the instant case, it was not a matter of denying a right, but of indicating that the civil
action for compensation should have been filed, and that the Paraguayan State is
able to guarantee this type of trial, as shown by the case of Napoleón Ortigoza,
Hilario Orellado et al., 3 where the Paraguayan State was condemned to pay many
millions of guaranis for compensation and non-pecuniary damage, as a result of civil
actions following the annulment of the judgment by the Supreme Court of Justice.
3
This is established in a final judgment of the Supreme Court of Justice.
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