US embassy cable - 05ASUNCION395

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