SEPARATE CONCURRING OPINION OF JUDGE AD HOC
EMILIO CAMACHO PAREDES
RICARDO CANESE V. PARAGUAY
I share the conclusions of this judgment, and consequently support it.
However, the issues raised and the responsibilities determined have prompted some
reflections that I feel obliged to set forth in this opinion.
1.
Filing a criminal prosecution does not entail criminal conduct, because injuria
and slander are classified in the penal legislation (Arts. 150 and 151, Act 1160) and
(370-slander- and- 372–injuria- of the former Penal Code); in other words, the
proceeding was initiated on the basis of legal provisions that were in force at the
time, and are still in force in the current penal legislation. Consequently, the
Paraguayan State cannot be blamed automatically for having initiated criminal
proceedings. The initiation and the proceedings of the case must be examined
carefully, as the Inter-American Court of Human Rights has done, together with the
conduct of the judges who allowed serious procedural irregularities to be committed
that affected the fundamental rights of the appellant, and which, in this specific case,
show that an external determination could prevail over the proper administration of
justice.
2.
Personal freedom and, particularly, freedom of movement (Art. 41 of the
Constitution) and Article 22 of the Convention were seriously restricted by preventing
him [Ricardo Canese] from leaving the country, despite the permission he requested
repeatedly. The attitude of the judicial agents who repeatedly denied him permission
to leave the country was illegal and unconstitutional, openly arbitrary and
unjustifiable, in the case of a person who had convincingly demonstrated his domicile
in the country, and that he was airing a matter of public interest. Moreover, the case
related to a candidate to the presidency of the country, a municipal councilor,
exercising his profession and with all his family residing in the country.
The judge of first instance did not allow the case to be opened to evidence!
The judge did not allow the proposed witnesses to testify. Furthermore, the
complainants were not cited and, even so, the proceeding went forward.
3.
The following are the most relevant judicial decisions for an adequate
understanding of the case:
In final judgment No. 17 of March 22, 1994, the judge of first instance
condemned him [Canese] to four months’ imprisonment and a fine of 14.950.000
Gs.; in decision and judgment No. 18 of November 4, 1997, the Third Chamber of
the Court of Criminal Appeal modified the sentence and condemned him to two
months’ imprisonment and a fine of 2.969.000 Gs. for slander, absolving
him of injuria.In decision and judgment No. 179-May 2, 2001- the Supreme Court of
Justice, confirmed the conviction imposed by the Court of Appeal.In decision and judgment No. 1362 of December 11, 2002, the
Supreme Court of Justice. Admitted the appeal for review and annulled
judicial decisions: S.D: 17-22-III-94 of the First Criminal Court of First
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents