73
k)
Mr. Canese’s “freedom of movement” was only restricted after April
29, 1994, the date on which the Criminal Court of First Instance delivered the
judgment condemning him to imprisonment and a fine. “When the judgment
was confirmed by a court of [second] instance, the possibility of abandoning
the country was cancelled, because the judgment had ordered imprisonment
and a fine;”
l)
On two occasions, Mr. Canese has benefited from permission to leave
the country. On August 22, 2002 the Criminal Chamber of the Supreme Court
of Justice of Paraguay lifted the precautionary measure restricting freedom of
movement, “because restricting [Mr.] Canese’s freedom to leave the country
did not form part of the judgment against him;”
m)
Regarding the alleged violation of the principle of presumption of
innocence to the detriment of Mr. Canese, by prohibiting him from leaving the
country for “eight years,” it denies the affirmation in the application regarding
the duration of the personal precautionary measure, because the period
during which Mr. Canese was deprived “of freedom to leave the country” was
almost five years. However, Mr. Canese was never deprived of his freedom of
movement within the Republic;
n)
“Under the former procedural legislation, the regime of precautionary
measures of a personal nature was chaotic and not regulated by the basic
principles that govern such matters. However, with the adoption of the new
Code of Criminal Procedure, this regime has been transformed completely,
and now respects the principles of legality, exceptionality, necessity,
restriction or proportionality, and duration [...]. The Paraguayan State has
reformed its regime of precautionary measures, and its provisions now
include measures that provide an alternative or substitute for preventive
detention [...,] which may never exceed two years. Finally, detention and
preventive detention have been prohibited in criminal proceedings for a
private criminal action;”
o)
The alleged undue delay of the judicial bodies should be considered in
light of the time required by the different instances and the legal justification.
The First Criminal Trial Court received the private complaint on October 23,
1992, and delivered final judgment on March 22, 1994, so it took 17 months.
The Court of Appeal delivered judgment of second instance on November 4,
1997, taking 43 months. The final instance delivered its judgment on May 2,
2001, taking 42 months. This “adds up to a little more than eight years.” This
must be evaluated in light of the “criminal procedural norm regulating the
time for deciding the case in question; this was the ancient 1890 Code of
Criminal Procedure [...], which, evidently, did not respond to the criteria of a
reasonable time for the criminal proceedings;” and
p)
“The principle of the innocence of Mr. Canese” has been respected
throughout the criminal proceeding, because he was never deprived of his
civil and political rights and guarantees and they have never been restricted.
This can be verified from the copy of the case file, which confirms that he was
never deprived of freedom of movement within national territory, and never
restricted in any other personal or patrimonial way.
Considerations of the Court
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos