PARAGUAY'S CRIMINAL PROCEDURE CODE: ITS FLAWS AND

UNCLAS SECTION 01 OF 03 ASUNCION 000395

SIPDIS

SENSITIVE

STATE FOR WHA/BSC AND INL
STATE PLEASE PASS TO USAID LAC/AA
JUSTICE FOR OPDAT(VAKY/YOUNG),OIA, OCRS
TREASURY FOR OTA
SOUTHCOM FOR POLAD DAN JOHNSON
NSC FOR KIM BREIER

E.O. 12958: N/A
TAGS: PGOV PREL PTER KJUS PA
SUBJECT: PARAGUAY'S CRIMINAL PROCEDURE CODE: ITS FLAWS AND
OPPORTUNITIES FOR REFORM


1. (SBU) Summary: Following an assessment of the ability of
prosecutors and related investigators from the Attorney
General's Office to develop and prosecute effective
money-laundering and terrorism-financing cases under the
existing Paraguayan Criminal Procedure Code (Code),EmbOffs
have undertaken focused efforts to advance Code reform. Over
the last nine months, the Department of Justice's Office of
Overseas Prosecutorial Development, Assistance and Training
(OPDAT) Resident Legal Advisor (RLA) Scott Thorley and
Resident Enforcement Officer (REA) Joe Parker of Treasury's
Office of Technical Assistance (OTA) have fostered awareness
of the many procedural pitfalls built into the Code. A
series of high-profile kidnappings and the resultant public
outcry over security has created an opportunity for the
Embassy to reinforce the need for Code reform with
legislators. Recently, the Embassy sponsored a visit to
Puerto Rico by five lead prosecutors from units that
prosecute sophisticated or complex economic criminal
violations and five judges representing most of the differing
strata and functions of the criminal court in Paraguay to
observe U.S. judicial proceedings. This visit, as part of a
series of training efforts, has yielded a unified view among
participants regarding Code modifications needed to build
effective cases. Formal changes in the Code will require
careful appeals to key legislators to adopt the proper
legislation. End Summary.

Assessment and Training Details
--------------

2. (SBU) In winter and spring of 2004, RLA reviewed the
Criminal Procedure Code to assess its utility for prosecuting
money-laundering and terrorism-financing cases. The outlook
was disheartening, revealing several flaws, including:

-- A requirement that authorities notify a target and his/her
attorney before opening a criminal investigation;

-- The inability to employ modern investigative techniques
(including undercover investigations, informants, wiretaps,
controlled deliveries, certain types of surveillance without
notice, and more);

-- The imposition of excessive and burdensome documentation
requirements on prosecutors;

-- A requirement for most investigations to be completed
within six months;

-- Excessive focus on an overly complex and burdensome
investigation instead of the trial;

-- A requirement that all cases go to trial;

-- The lack of an effective plea-bargaining procedure; and

-- A host of other, more technical but equally troublesome
obstacles.


3. (SBU) Key legislation for modification of Paraguay's
money-laundering law is still before Congress. However, even
when that law is adopted, the flaws in the Code just
described could obstruct effective investigations and
prosecutions. To plant seeds for the need for criminal
procedure reform, RLA and REA undertook a number of
initiatives, including:

-- A training conference May 27-29 in Asuncion for 50
prosecutors (including Attorney General Oscar Latorre and
most of his Deputy Attorneys General),investigators and
judges. Among several capacity-building topics was a full
day on pitfalls in the Code and how to work within a flawed
system.

-- A detailed review of the Code in August 2004 by an
Assistant U.S. Attorney who is an expert in Latin American
criminal procedure. He found that Paraguay's Code was
perhaps the most restrictive and unworkable in the
hemisphere, but helped us come up with a plan to build
awareness and grassroots support for meaningful Code reform.

-- A conference for 50 investigators, prosecutors and judges
on the subject of Code reform in November 2004. We filmed
the conference with the goal of reaching a wider audience by
distributing copies to prosecutor offices throughout
Paraguay. Throughout the next year, we plan to visit and
review as many of the prosecutor units as possible to review
the film's message relating to Code reform and to give other
training on effective investigations of economic crimes.

Public Security Concerns Create Reform Opportunities
-------------- --------------

4. (SBU) In late 2004, a series of high-visibility local
kidnappings opened the door to further Embassy input to the
legislature on Code reform. In November 2004, key
legislators appealed to the Embassy to recommend
modifications to the Code that would empower more effective
investigations and prosecutions. To meet that request, the
Embassy produced a list of basic concepts that should be
included in a revision of the Code.

The Procedural Code Debate
--------------

5. (SBU) In this connection, a Paraguayan Senate Commission
led by Senator Bader Rachid and composed of 12 members was
formed to study revision of the Code. The Attorney General's
Office and members of the judiciary are prominently featured
on the Commission, with each offering a widely divergent view
of what should be included in a Code revision. The
representatives from the Attorney General's Office developed
a draft to rewrite the Code that adopted most of our
persistent recommendations for pronounced enabling
modifications. Meanwhile the judiciary, advised by a human
rights-oriented NGO, the Institute for Comparative Studies of
Criminal and Social Sciences (INECIP),argued against
substantive changes.


6. (SBU) Faced with this philosophical divide that could have
bound up the work of the Commission, RLA organized a visit
for a delegation of influential prosecutors and judges to
Puerto Rico for the purpose of exposing them to U.S.
prosecutions of heads of criminal organizations. The
training effort took place March 7-11 in San Juan, Puerto
Rico, and included the following:

-- Observation of portions of a federal death penalty trial;

-- Extended visits with federal magistrate judges;

-- Visits with District Court judges;

-- Observation of guilty plea and other non-trial proceedings;

-- Extended visits with the U.S. Attorney's Office;

-- A visit with the Federal Public Defender;

-- Observation of proceedings in the Puerto Rico state court
system;

-- Visits with state judges, and more.

Each of the above visits were accompanied by contextual
explanations to help the participants interpret what they
were seeing and how the proceedings promoted fairness and
efficiency, and also to understand how the system guaranteed
the rights of the parties -- perhaps even more deeply than
the "guarantista" system to which they are accustomed.


7. (SBU) On March 16, following the participants' return to
Paraguay, they held a training "post mortem" regarding
procedural reforms that both the judges and the prosecutors
could agree on. Surprisingly, there was remarkable unanimity
of opinion that major reform -- much closer to that desired
by the Attorney General's Office -- should and would be
supported. The judges explained their change in perspective
based on what they had seen -- a justice system that had
addressed and found solutions to many of the ills plaguing
Paraguayan justice.


8. (SBU) On March 17, the five participant judges involved in
the Puerto Rico training visited for an hour and a half with
the President of the Paraguayan Supreme Court, sharing what
they had learned about the accusatory system's strong points.
The judges reported that President Fretes listened with much
interest and stated that, based on trust and previous
satisfactory results working on legislation with the Embassy,
the judiciary should move toward more extensive Code reform
based on what the participant judges had learned.


9. (SBU) Efforts have been, and will continue to be made, to
work out differences with INECIP, the official advisors on
Code reform to the judiciary. At the root of the
philosophical division over the extent of Code revision may
be INECIP's initial authorship of the present Code, and their
professed desire to see it changed as little as possible.


10. (SBU) Comment: Our focused efforts with judicial
officials on the need for genuine procedural reform have
yielded a genuine opportunity for significant modifications.
Ultimate success, however, will depend on several factors.
First, prosecutors and judges need to work in collaboration
to produce a draft text for modifications that will
facilitate meaningful reform. Second, Paraguayan legislators
must be convinced of the efficacy of this legislation and act
to adopt it. This effort will prove challenging.
Collaboration between prosecutors and judges does not come
naturally. On the other hand, politicians no doubt will
inject personal or political considerations that could send
this project astray. In the weeks and months ahead, Embassy
will strive to keep sights of all players on the ball -- a
criminal justice system that functions effectively to
facilitate criminal investigations and prosecutions thereby
delivering a more just and safe society. End Comment.
KEANE