Report No. 8 (2010) IACHR. Petition No. 12.374 (Paraguay)

• Report Number: 8
• Year: 2010
• Petition Number: 12.374
• Alleged Victim: Jorge Enrique Patiño Palacios y otros
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Respondent State: Paraguay

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REPORT No. 8/10

CASE 12.374

ADMISSIBILITY

JORGE ENRIQUE PATIÑO PALACIOS et al.

PARAGUAY

March 16, 2010

1. SUMMARY

1. On February 26, 2001, the Inter-American Commission on Human Rights (hereinafter "the Commission") received a petition lodged by César Patiño Mignone and Alba Palacios de Patiño (hereinafter “the petitioners”) on behalf of their son, Jorge Enrique Patiño Palacios (hereinafter “the alleged victim”) claiming violation of the alleged victim's human rights in the jurisdiction of the Republic of Paraguay (hereinafter “Paraguay,” the Paraguayan State,” or “the State”). The petition claimed violations against Jorge Enrique Patiño Palacios and his family with respect to the right to life, the right to a fair trial, and the right to judicial protection enshrined, respectively, in Articles 4, 8, and 25 of the American Convention on Human Rights (hereinafter "the American Convention" or "the Convention"), all in conjunction with the obligations to respect and ensure the rights guaranteed in Article 1(1) of the American Convention.

2. The petitioners indicated that their son, Jorge Enrique Patiño Palacios, then 20 years old, had died after three days in intensive care because of a gunshot to the head he received on October 21, 1994. They claim that there had been police and judicial irregularities during the investigation of the incident as well as an unwarranted delay in processing the case, which had made it impossible to solve the murder of the alleged victim and punish the perpetrators.

3. The State argued that there had been no omissions on the part of either the police or the court that heard the case, since the actions required by national law in cases of violent death had been ordered, including the intervention of experts and witnesses. It also claimed that the petitioners had not exhausted the remedies available under domestic law before presenting the case to the Commission, despite having been extensively involved throughout the proceeding and not having been prevented from employing the relevant procedural mechanisms. It stated that the reason why the judicial process had taken several years was that it had been prosecuted under the old written and inquisitorial system of criminal procedure.

4. After analyzing the positions of the parties, the Inter-American Commission concludes that it has jurisdiction to rule on the petitioners’ claim, which is admissible under Article 46 of the American Convention. The Commission decides to proceed with its analysis of the merits of the alleged violations committed against the family of Jorge Enrique Patiño Palacios by the State of Paraguay, under Articles 8 and 25 of the American Convention in association with the general obligation enshrined in Article 1.1 thereof. In addition, it declares inadmissible the alleged violations against Jorge Enrique Patiño Palacios under Article 4 of the Convention. Therefore, the Commission decides to publish this report and include it in its Annual Report to the OAS General Assembly.

2. PROCESSING BY THE IACHR

5. On February 26, 2001, the petitioners filed the petition with the Executive Secretariat of the Commission. The IACHR forwarded the petition to the Paraguayan State on April 3, 2001 and asked it to submit a response within three months. The petitioners submitted additional information to the Commission on June 21, 2001, and the State presented its response in communications dated July 10 and August 1, 2001. The petitioners submitted additional observations on August 14, November 4, and November 26, 2001; April 22, 2002; August 5 and 13, September 15, October 28, and December 22, 2003; March 16, 2004; January 11 and July 20, 2005; January 24, 2006, and September 18, 2007, all of which were duly forwarded to the State.

6. The State sent additional observations on September 6 and October 11, 2001; May 23, 2003; June 28, November 14, and December 20, 2007; May 20 and July 28, 2008, as well as on May 11, 2009.

3. POSITIONS OF THE PARTIES

A. The Petitioners

7. According to the petitioners, on October 21, 1994, Jorge Enrique Patiño Palacios went to visit his friend Miguel Rodríguez Trappani at his home and while being there he received a gunshot to the head. They claim that, at the time of the incident, there were only three people in the house: Jorge Enrique Patiño Palacios, Miguel Rodríguez Trappani, and the latter’s father, Miguel Rodríguez Alcalá Casal.

8. The petitioners state that the alleged victim, Jorge Enrique Patiño Palacios, died from a gunshot wound on October 24, 1994, after being three days in the intensive care unit of the Sanitorio Americano hospital. The petitioners assert that their son was murdered by one or both of the Rodriguez’s and maintain that the motives for the murder were political but that the authorities made it look like a suicide.

9. The petitioners claim that various irregularities occurred by the police and in the judicial handling of the case. They maintain that the police did not take the required actions to gather the evidence, such as questioning the family and neighbors, and this, they assert, worked in favor of the defendants. They add that the police arrived at the scene almost three hours after the incident. Furthermore, they state that the Criminal Division was the only department of the National Police to have conducted investigations, and the only immediate evidence was an expert analysis of the skin tissue surrounding the bullet entry hole, which was done before the alleged victim underwent surgery to stop the bleeding.

10. They argue that the Criminal Division acted without the knowledge of a judge, in violation of the constitutional requirement to “investigate under court direction,” and that the police report was not submitted to judicial authorities until December 13, 1994, when it should have been sent within a maximum period of 72 hours.

11. They also argue that, because of the “influence of the suspects in the political, economic, and social spheres,” they were able to prevent the immediate involvement of the judge, José Benitez Rivera, who should have assumed control of the judicial and police investigation and ordered an autopsy of the body of Jorge Enrique Patiño Palacios immediately. Instead, the autopsy was done eight months after his death, at the request of the petitioners’ lawyer.

12. In their petition, Mr. and Mrs. Patiño question the actions of the Attorney General, Aníbal Cabrera Verón, who, they claim, favored and protected Miguel Rodríguez Trappani “by hiring him and keeping him on as a court official in the Office of the Attorney General,”¹ which, they say, impaired the impartial conduct of the other members of the Attorney General’s Office. Furthermore, the petitioners contend that the prosecutor, Fabriciano Villalba, was biased and partial in his actions because, having forced the disqualification of the previous prosecutor for the case, he never assumed his role in the proceedings, except to issue his decision in favor of Miguel Rodríguez Trappani. They also state that the Attorney General failed to consider an important part of the Criminal Division’s report.

13. The petitioners state that on June 15, 2001 a judgment was issued in the criminal case involving the death of their son². Ruling on the basis of various expert findings, the court concluded that “Jorge Patiño did not commit suicide.” It also found that “certainty of a person’s guilt in a case of punishable homicide cannot be determined by simple process of elimination."³ It decided to acquit Miguel Alejandro Rodríguez Trapani on this basis, given that his father, Miguel Rodríguez Alcalá Casal, had died during the trial.⁴

14. The petitioners indicate that they appealed this judgment and that on March 16, 2004, the appeals court had confirmed the lower court decision. On May 10, 2004, they lodged an action of unconstitutionality, which was rejected on June 11, 2004, on the argument that even if the Constitutional Court did not share the courts' criterion for interpretation, an action for unconstitutionality could not be brought to win an argument. They add that, on May 11, 2004, they...