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EPIC --- Privacy and Human Rights Report 2006

Republic of Paraguay

Constitutional Privacy Framework

Privacy, in its various forms, is granted constitutional protection in Paraguay. Under Article 36[3978] of the National Constitution, the privacy of documents and communications are protected, so that they can only be disclosed in specific cases established by the law[3979] and pursuant to a judge's order. Territorial privacy is protected under Articles 33[3980] and 34[3981] of the National Constitution. These articles protect intimacy and dignity, and they establish that the search of private property can only be done pursuant to a judge's order in the specific cases established by the law.

Article 135[3982] of the Constitution establishes the procedural right of habeas data that protects information privacy by granting all citizens the right to access information related to them in public and private records, or databanks, and inquire about the use made of that information. This article also grants the right to request the deletion or modification of the information if it is false, erroneous, or misleading. Among these various forms of privacy protection, habeas data has been used the most by petitioners to gain access to information held in public and private records. The Supreme Court has stated that habeas data protects the rights to intimacy, inviolability of private correspondence and information, and the right to protect one's dignity and private image.[3983]

Data Protection Framework

Even though habeas data is a constitutional guarantee, the exercise of which must be regulated by law,[3984] there is no pending bill that would regulate the exercise of this right. However, there is nothing that prevents a plaintiff from requesting access, correction, or deletion of his data before judicial authorities, because the right is recognized in the Constitution.[3985]

In 2002, Congress passed Law No. 1969 which modifies Law No. 1682 in order to regulate the collection of, use of, and access to private information. The object of these two laws is to regulate the collection, storage, distribution, publication, modification, and in general the use of personal data contained in archives, registries, and databanks from either public or private sources. They also establish that financial, patrimonial, or commercial information shall only be disclosed if expressly authorized by the individual to whom the information refers, unless this information is available from public sources, such as judicial complaints. Private providers of personal data[3986] must abide by these laws. Individuals who intend to have their information corrected may directly file a complaint before the civil and commercial courts, since there is no administrative authority with a specific jurisdiction over data providers.[3987] Article 1 of Law No. 1969 specifically excludes databases of media sources in order to protect the freedom of speech and information.[3988]

Wiretapping and Other Government Surveillance

The violation of intimacy and the interception and recording of communications are considered criminal offenses under the Penal Code.[3989] Also, the Criminal Procedure Code[3990] authorizes a judge to order the interception and seizure of communications addressed to a subject under criminal investigation, as well as the wiretapping of communications, regardless of the technical means required. However, the authorization for tapping and seizure can only be granted as an exemption when they are required during the investigation. All judicial orders authorizing the interception of communications must be based on the law and demonstrate with strong evidence ("basado en pruebas conducentes") the need for using such means. Failure to do so will make the evidence obtained inadmissible.

Regarding the collection of evidence,[3991] the Penal Code[3992] expressly states that in order to ensure constitutional guarantees,[3993] no evidence obtained in violation of the provisions of the Code of Criminal Procedure may be opposed in a trial to the other party to support the results of the prosecutor's criminal investigation.

According to the U.S. State Department’s Report on Human Rights Practices, there were credible allegations in 2006 that some government officials occasionally spied on individuals and monitored communications for partisan or personal reasons. On May 26, 2006, government officials raided the home of Colonel Heriberto Galeano, former commander of the Presidential Escort Regiment and former commander of the First Infantry Division, as part of an investigation into his involvement in illegal telephone tapping operations from his home. The prosecutor claimed most of Galeano's communications equipment had been removed prior to the raid, indicating that he had been tipped off about the pending raid.[3994]

Voting Privacy

Voting in Paraguay is compulsory for those between the ages of 18 and 75.[3995] The penalty for not voting is a fine.[3996] In 2001, Paraguay entered into an agreement, which was partly funded by the United States, to hold a rehearsal election using electronic voting (e-voting) technology. The test of e-voting was made possible through two agreements signed between the Superior Court of Electoral Justice of Paraguay and the Organization of American States, as well as with the Electoral Superior Court of Brazil, which provided technical support and the ballot boxes used in the voting process. The rehearsal project was conducted in seven municipalities, each involving the participation of 1.56 percent of the voter population. Citizen participation in the voting process increased from an average of 54 percent to 78 percent in some locations. Voters were universally supportive of e-voting.

Open Government

In July 2001, Congress passed Law No. 1728[3997] to regulate Article 28 of the Constitution about the access to information available in public records. Although the law states that access should be freely granted, several complaints from civil society[3998] persuaded the Executive Branch to veto the law, arguing that the procedure for obtaining information was extremely complicated and the exceptions to the information that might be provided were too broad. In August 2001, following the Presidential Veto, a bill proposing new text for a Law of Access to Public Information was presented to Congress by an alliance of several non-governmental organizations,[3999] which have been very active at promoting the right to freedom of information.[4000] Congress has not yet approved the bill.[4001]

International Obligations

Paraguay ratified the 1948 Universal Declaration of Human Rights,[4002] the 1966 International Covenant on Civil and Political Rights,[4003] and the American Convention on Human Rights (ACHR).[4004] The ACHR provides that every person has "the right to have his honor respected and his dignity recognized." Additionally, "no one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. And everyone has the right to the protection of the law against such interference or attacks."

[3978] Constitución de la República de Paraguay, 1992, available at <http://www.georgetown.edu/pdba/Constitutions/Paraguay/para1992.html> (in Spanish); <http://www.oefre.unibe.ch/law/icl/pa00000_.html> (English non-official translation). Article 36 of the National Constitution states that documentary patrimony of a person is inviolable. It can only be intercepted when specifically provided by law, otherwise the evidence obtained in infringement of these provisions shall not be considered in a trial.
[3979] Violations to personal correspondence and private documents are allowed in specific cases and only if they are established by law, in particular the Penal Code, the Civil Code, and the Taxation Law.
[3980] Article 33 states that the right to the protection of a person's intimacy, dignity, and private image is guaranteed.
[3981] Article 34 states that all private places are inviolable.

[3982] Article 135 provides: "Every person may access the information about himself or his properties held in public records, or in private records of a public character, as well as to know the use and purpose of this information. Every person may request, before the competent judge, the update, rectification, or deletion of the information if it were to be erroneous or to illegally affect his rights."
[3983] See Manuel Ramirez, Derecho Constitucional Paraguayo 735 (Editora Litocolor SRL 2000); Maria del Rosario Stanley Chamorro s/ Habeas Data, Supreme Court, Ruling 649, June 25, 1996. One of the most important cases relates to the era of the Stroessner dictatorship when people affected by the dictatorship and human rights activists used this constitutional guarantee to uncover the Archivos del Terror, one of the most important databases in Latin America regarding dictatorships and the violation of human rights. Martin Almada, a human rights activist who was imprisoned for political reasons during the Stroessner dictatorship, found out about the archives and, in 1992, was the first person to file an action of habeas data before a court after the adoption of the new Constitution. See Miguel H. Lopez, "Archivo del Terror en Paraguay," Adital/Argenpress, January 6, 2003 <http://www.adital.org.br/site/noticia.asp?cod=5104&lang=ES> (in Spanish).

[3984] Article 131 of the National Constitution.
[3985] Article 45 of the National Constitution.

[3986] Among private companies, Informconf is one of the major providers of personal and credit data in Paraguay.
[3987] Interview with Primitiva Gomez, In House Counsel, Informconf S.A., January 5, 2005, available at <http://www.informconf.com.py>.
[3988] Law No. 1969 that Regulates the Disclosure of Private Information, Article 1, available at <http://www.informconf.com.py/informconf/site/downloads/Ley_1682.pdf> (in Spanish).

[3989] Article 143 of the Penal Code punishes the violation of intimacy. Articles 144, 145 and 146 regulate the interception and recording of private communications. Article 144 punishes with two years of jail or a fine anyone who, without authorization and by technical means, listens, records, or makes accessible to third parties someone's word not intended to the listener or the public. Article 145 punishes with a fine anyone who stores and makes accessible to third parties confidential information only intended to him or herself. Article 146 punishes with one year of imprisonment or a fine anyone who, without the sender's or addresSee's consent, opens a letter or, by technical means, becomes aware of the content of a letter not intended to his or her knowledge.
[3990] Criminal Procedure Code, Articles 198, 199, 200.

[3991] Gonzalez Macchi Jose Ignacio, "Preguntas Básicas obre el Nuevo Código Procesal Penal" (Intercontinental Editora, 2000).
[3992] Penal Code, Article 174.
[3993] National Constitution, Article 36, supra.

[3994] US Department of State, Report on Paraguay, Country Reports on Human Rights Practices 2006, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78901.htm>.

[3995] The World Fact Book, available at <http://www.cia.gov/cia/publications/factbook/geos/pa.html#Govt>.
[3996] Nobody, however, has ever been compelled to pay the fine.

[3997] Law No. 1728, available at <http://www.bibliojuridica.org/libros/3/1156/31.pdf> (in Spanish).
[3998] Cristian Nielsen, "La Prensa de Paraguay ante el Barranco de la Censura," Medios y Libertad de Expresión en las Americas, August 27, 2001, available at <http://www.libertad-prensa.org/nielsen.html> (in Spanish).
[3999] Consumers and Users Association of Paraguay (ASUCOP) is a non-governmental organization that has performed remarkable work to defend and increase awareness of consumers' rights.
[4000] Propuesta de Ley de Acceso a la Información Pública, August 22, 2001, available at <http://www.probidad.org/regional/legislacion/2001/006a.html> (in Spanish).
[4001] Interview with Juan Vera, President, ASUCOP, January 5, 2005, available at <http://www.asucop.org>.

[4002] Signed and ratified on December 10, 1948. Declaración Universal de los Derechos Humanos, available at <http://www,un.org/spanish/aboutun/hrights.htm> (in Spanish).
[4003] Signed on December 16, 1966; ratified on June 10, 1992. Pacto Internacional de Derechos Civiles y Políticos, available at <http://www.aidh.org/uni/Formation/02Pacte2_e.htm> (in Spanish).
[4004] Signed on November 22, 1969; ratified on August 18, 1989. Convención Americana sobre Derechos Humanos. Pacto de San José de Costa Rica, available at <http://www.oas.org/juridico/spanish/firmas/b-32.html> (in Spanish).