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imprisonment and an additional fine. The Penal Code of Paraguay that
entered into force in November 1998 reappraised the unjust penalty by
establishing a maximum sanction of up to one year’s imprisonment or a fine.
The new Code is more favorable because it reduced the minimum and the
maximum sanctions;
c)
Although it is true that the prison sentence imposed on Ricardo Canese
did not exceed the limited established in the new penal legislation, it is
necessary to consider whether the sanction should be reduced proportionately
to the reduction in the sanction established by the legislator. The most
favorable sanction must be applied, even when the person has been
condemned, since the legislator has reappraised the unjust penalty, because
he considers that a lesser sanction should be imposed for the same conduct;
d)
Mr. Canese should benefit from the most favorable sanction under the
new penal Code; in other words, the sanction can be imprisonment or the
payment of a fine, but both sanctions cannot be applied without violating the
Convention, “as happened in this case;”
e)
Since the minimum penalty for the offense of slander under the 1914
Penal Code was applied to Ricardo Canese, according to the pro reo principle,
the minimum penalty established by the new legislation should be applied to
him. As of the entry into force of the new Penal Code, there is a more
favorable sanction that should have been applied to Ricardo Canese. “Ricardo
Canese requested the application of the new penal legislation for different
reasons, including procedural issues, [so that] the mere request should have
been sufficient for the judicial authorities, de oficio, to modify the sanction to
the most favorable one;” and
f)
The State violated Article 9 of the Convention to the detriment of
Ricardo Canese, in relation to the general obligation to respect and guarantee
the rights established in Article 1(1) thereof.
Arguments of the representatives of the alleged victim
169.
Regarding Article 9 of the Convention, the representatives stated that:
a)
They endorsed the arguments submitted by the Commission. They
also emphasized that the concrete application of the penal normative violated
the principle of legality and retroactivity. In this respect, they indicated that
Mr. Canese was “applied the most onerous sanction non-retroactively,” even
when he had requested the retroactive application of the new Penal Code and
Code of Criminal Procedure, both in force as of 1998. These Codes were less
harsh for two reasons: first, because they established the sanction of a fine
that was alternative and not additional to imprisonment, so that the person
convicted for the offense of slander could not be sentenced to the two types
of sanctions simultaneously and, second, because the minimum and
maximum sanctions were reduced;
b)
When sentencing Mr. Canese, the judge imposed the minimum
sanction of those established in the previous code. However, the minimum
sanction for the offense of slander under the new legislation should have been
applied; namely, a fine equal to 180 days. Mr. Canese filed several appeals
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