Report No. 106 (2011) IACHR. Petition No. 1082-03 (Paraguay)

CourtInter-American Comission of Human Rights
Case TypeAdmissibility
Petition Number1082-03
Report Number106
Respondent StateParaguay
Alleged VictimReinaldo Barreto Medina y Florencio Florentín Mosqueira
Report No. 106/11

11


REPORT No. 106/11

PETITION 1082-03

ADMISSIBILITY

REINALDO BARRETO MEDINA AND FLORENCIO FLORENTIN MOSQUEIRA

PARAGUAY

July 22, 2011

I. SUMMARY
  1. On September 3, 2003 the Inter-American Commission on Human Rights (hereinafter, “the Commission”) received a petition lodged by Reinaldo Barreto Medina and Florencio Florentín Mosqueira (hereinafter, “the petitioners”). The petition alleges that State of Paraguay (hereinafter, “the State” or the “State of Paraguay”) is responsible for the violation of the petitioners´rights to juridical personality, personal liberty, fair trial, freedom from ex post facto laws, freedom of association, equality under the law, and judicial protection, as contained in Articles 3, 7, 8, 9, 16, 24, and 25 of the American Convention on Human Rights (hereinafter, the “Convention” or the “American Convention”) in relation to Articles 1.1 and 2 of that treaty.


  1. The petition indicates that as a consequence of their union involvement, the petitioners were included, in June 2000, in the criminal prosecution of directors of the Banco Nacional de Trabajadores [Workers’ National Bank] (BNT) and of the company PEGASUS S.A. The petitioners claim that as members of the Central Sindical de Trabajadores del Estado [Federation of Government Workers’ Unions] (CESITEP), they were prosecuted as accomplices in the crimes of fraud and betrayal of trust, for signing loans and promissory notes with BNT, which led to the collapse of BNT. The petitioners were sentenced to four years in prison.


  1. The petitioners indicate that they were punished for a crime defined in the 1997 Criminal Code, and not according to what is set forth in the 1914 Criminal Code, the code in force at the time the facts occurred. The petitioners also indicate that they were prosecuted under the 1890 Procedural Code when they should have been prosecuted under the new Criminal Procedural Code, which took effect on 1 March 2000.


  1. The State argues that not all remedies under domestic law have been exhausted. The State claims that delays in court rulings have occurred because of problems with the composition of the Appeals Tribunal and because of the complexity of the case, given the number of defendants and the reiterations of appeals filed by the petitioners.


  1. Concerning this, the State indicates that domestic law allows for a few more remedies, which must be exhausted by the petitioners. These include the extraordinary appeal for annulment and the appeal for revision, appeals not available under the 1890 Procedural Code but available under the new Procedural Code that is currently in force. The State claims that yet another additional appeal remains, which would challenge the constitutionality of a ruling by the Supreme Court of Justice if the ruling is injurious to the petitioners.


  1. Pursuant to the provisions of Articles 46 and 47 of the American Convention, as well as Articles 30 and 36 of its Regulation, and having analyzed the positions of the parties, the Commission has decided to declare the petition admissible. Therefore, the IACHR has decided to notify the parties of its decision and to continue with an analysis of the merits of the alleged violations of Article 7 (right to personal liberty), 8 (right to fair trial), 9 (freedom from ex post facto laws), 16 (freedom of association), and 25 (right to judicial protection) as it relates to 1.1 (the obligation to guarantee rights) and 2 (the duty to adopt measures under domestic law) of the American Convention. The Commission has also decided to notify the parties of its decision, to publish it, and to include it in its Annual Report to the General Assembly of the Organization of American States.


II. PROCEEDINGS BEFORE THE COMMISSION


  1. On September 3, 2003, the Commission confirmed receipt of the petition. On December 29, 2004, the Commission opened proceedings on the petition and gave the State two months to file its observations regarding the admissibility of the case. On March 29, 2005, the State filed its response to the petition, which was transmitted to the petitioners on May 2, 2005.


  1. The petitioners filed additional observations on September 18, 2008, February 9, 2009, March 12, 2009, November 13, 2009, and September 21, 2010. These observations were duly transmitted to the State.


  1. The State, for its part, filed its observations on January 22, 2009, July 20, 2009, and August 14, 2009. These observations were duly transmitted to the petitioners.


III. POSITIONS OF THE PARTIES


  1. Position of the petitioners

10. The petitioners indicate that in April 1996, while holding the offices of Secretary of Finance (Florencio Florentín) and Secretary-General (Reinaldo Barreto Medina) of the Central Sindical de Trabajadores (CESITEP), they signed loan applications and promissory notes with Banco Nacional del Trabajo (BNT) to enable the company PEGASUS S.A. to conduct two construction projects commissioned by the Government. They claim to have signed the loan applications and promissory notes under mandate by the General Assemblies of their respective union federations as a guarantee of compliance with the obligation assumed with BNT.


  1. The petitioners indicate that in 1997 a criminal case was filed against the directors of BNT and of the company PEGASUS S.A. for the crimes of fraud, criminal deception, and others. They state that three years after prosecution had begun in the case, and after it had reached the full trial phase, the alleged victims were included in the case and that, as members of the Central Sindical de Trabajadores del Estado (CESITEP), they were prosecuted as accomplices in the crimes of fraud and betrayal of trust, charged with having diverted funds from BNT to the company PEGASUS S.A., in April 1996, and that this had led to the collapse of BNT.


  1. The petitioners believe there was anti-union persecution against them for having called a general workers’ strike on the same day they were included in the criminal proceedings. Likewise, they indicate that they were not given equal treatment, as several representatives of other labor unions were not included in the criminal case despite also having done business with BNT and the company PEGASUS S.A. and having assumed the same commitments as the petitioners.


  1. The petitioners claim that their right to defense was violated in that they were unable to control the evidence presented and the proceedings during the summary phase of the trial. Likewise, they state that they were prosecuted for crimes defined in the 1997 Criminal Code and not in the 1914 Criminal Code, which was the applicable law, given that the deeds for which they are being charged (diversion of funds) occurred in April 1996.


  1. The petitioners manifest that on October 8, 2001, the trial judge determined that the petitioners had diverted funds to the company PEGASUS S.A., thus leading to the failure of the Banco Nacional de Trabajadores and therefore sentenced them to four years in prison. On October 11, 2001, they were sentenced to house arrest, as a precautionary measure, a sentence they served for two years and three months, after which they regained their freedom. The petitioners claim to have been the object of imprisonment for debts, which goes against the provisions of the American Convention.


  1. The petitioners add that on October 22, 2001 they appealed both the guilty verdict and the precautionary measure that restricted their freedom before an appeals court. The petitioners claim that during those appeal proceedings a series of improper delays and illegal actions took place, which include: (a) the provision for delivering the file in photocopy form while the Criminal Procedural Code orders the file to be presented in original form; (b) the unjustified reduction of the procedural time frames for filing the appeals; and (c) the denial of...

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