66
positively the efforts made by Paraguay to define these conducts as crimes, it should
be emphasized that, in these international proceedings, the facts of the case have
been categorized as forced disappearance and torture, by both the State and the
Court.
92.
The disparity in the categorization of the facts at the domestic and
international level was reflected in the criminal proceedings.74 However, the Court
recognizes that the illegal and arbitrary detention, torture and forced disappearance
of the victims have not remained in total impunity through the application of other
categories of crime. Moreover, in relation to the general obligation established in
Article 2 of the Convention and the specific obligations contained in the interAmerican conventions on the issue mentioned above, the State undertook to define
torture and forced disappearance of persons as crimes in a manner that was
consistent with the definitions in these instruments. However, the Court considers
that, although the definition of the offenses of torture and “forced disappearance” in
force in the Paraguay Penal Code would allow certain conducts that constitute acts of
this nature to be punished, their analysis reveals that the State has defined them
less comprehensively than the applicable international norms. International law
establishes a minimum standard with regard to the correct definition of this type of
conduct and the minimum elements that this must observe, in the understanding
that criminal prosecution is a fundamental way of preventing future human rights
violations. In other words, the States may adopt stricter standards in relation to a
specific type of offense to expand its criminal prosecution, if they consider that this
2. The public official who shall hide or fail to provide information on the whereabouts of a person
or a corpse shall be punished with up to five years’ imprisonment and a fine. This shall apply
even when his status as a public official has no legal validity.
Article 309.- Torture
First:
Anyone who, with the intention of destroying or seriously damaging the personality of
the victim or of a third party, and acting as a public official or in collaboration with a public
official:
1. Shall execute a punishable act against:
(a) Physical integrity, pursuant to articles 110 to 112;
(b) Liberty, pursuant to articles 120 to 122 and 124,
(c) Sexual autonomy, pursuant to articles 128, 130 and 131,
(d) Minors, pursuant to articles 135 and 136,
(e) The legality of the exercise of public functions, pursuant to articles 307, 308, 310 and
311, or
2. Shall subject the victim to grave mental suffering, shall be punished with at least five years’
imprisonment.
Second: The first paragraph shall apply even when the status of the public official:
1. Has no valid legal basis, or
2. Has been unduly assumed by the author.
74
For example, the judgment delivered in first instance in the proceeding opened in the case of
Carlos José Mancuello qualifies certain acts as “torture and inhuman and degrading treatment” even
though, when determining the appropriate classification of these acts, they were categorized as crimes of
injury, coercion and abuse of authority, by applying the most favorable criminal norm owing to the
inexistence of the crime of torture. Also, although it mentions the disappearances of the victims, it
analyzed the existence of the corpse as evidence of death and this ad an impact on the classification of
the crime. This disparity also arises in the content of the extradition request issued by the court of first
instance in the proceedings opened in the case of the Ramírez Villalba brothers.
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