Legal System and Legal Research in Paraguay

By Larissa M. Fernández A.

Larissa M. Fernandez holds a law degree from the Faculty of Juridical and Diplomatic Sciences of the Catholic University “Our Lady of the Assumption”. At the same institution, she was a collaborator and writer at the Legal Review of the Faculty of Juridical and Diplomatic Sciences. In 2021, she obtained a scholarship to study Public Policy from the Universidad Comunera where, alongside her studies, she was a lecturer assistant in Political Philosophy; Political Science; and Law and Public Policy. She currently works as an Associate at one of the leading law firms in Paraguay, where she advises numerous important national and multinational companies operating in the Paraguayan market.

Published July/August 2023

(Previously updated by Tania Zacarias Breuer in February 2012)

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1. Introduction

Paraguay is a Latin American country with over 200 years of independent existence, and over 500 years of forging its identity as a nation since its discovery and the founding of its first colonial cities by the Spanish Crown. At the beginning of the 19th century, Paraguay became a nation after a long process of emancipation from the Spanish Crown. On the night and early morning of May 14 and 15, 1811, Paraguay achieved its independence and realized the libertarian dream, led by young people, soldiers, and leaders of its society.

Throughout its relatively short existence, Paraguay has been shaped by various forms of government and revolutions, from triumvirates, boards of governments, consulates, and dictatorships to presidential forms of government. Similarly, its legal system has changed in accordance with the emerged beliefs and ideologies during the time, starting with the colonial ordinances of the Viceroyalty of the Río de la Plata, passing through liberal laws and authoritarian systems, to its latest national constitution, promulgated in 1992 by the National Constituent Convention, a national assembly that brought together various sectors of society and is now the supreme law of the Republic of Paraguay. More than 30 years after its promulgation, it has not undergone significant modifications.

Currently, Paraguay is a republic that adopts representative, participatory, and pluralistic democracy as its form of government, where sovereignty resides in the people who exercise their power through suffrage. The state exercises its power through the division of its powers into the legislative, executive, and judicial branches in a system of balance, separation, and reciprocal control.

Paraguay has a positive legal system that structures its hierarchy based on the order of norms, which are ranked in the following way: the Constitution of the Republic of Paraguay, the treaties, agreements, and international conventions approved and ratified, the laws passed by Congress, and other legal provisions of lower hierarchy sanctioned and promulgated by competent bodies.

The legal system of Paraguay has also changed throughout its history. Before its independence, Paraguay adopted the colonial ordinances of the Viceroyalty of the Río de la Plata. The Spanish colonization had a significant impact on the country’s cultural and social development, which can still be seen today in the country’s language, religion, and customs. The country’s independence in 1811 marked the beginning of a new era, during which Paraguay went through different phases of development, culminating in the current system of government and legal system based on the principles of democracy, rule of law, and human rights.

After Independence. First Provisional Government: Following its independence until 1812, Paraguay established a first provisional government as a temporary government.[1] This board aimed to achieve complete independence from foreign powers and prevent foreign interference in the country’s internal affairs and businesses. It granted the right to vote to all citizens and held the first congress of democratic origin and formation.

On June 17, 1811, the elected congress resolved to organize the state and declared Paraguay as an independent republic. Two months later, congress convenes and promulgated the “Governmental Regulation” which established the structure and form of government of Paraguay.

First Consulate: In October 1813, resolved to establish the Consulate as the form of government.[2] Though the Governmental Regulation had some limited separation of the classic functions of power, it did not provide a declaration of rights and guarantees for the governed and mostly regulates the functions of consuls.

Dictatorship: Later, the Congress of the First Consulate proclaimed Dr. José Gaspar Rodríguez de Francia as the “Dictator” of the Republic, and Paraguay entered a period of temporary and perpetual dictatorship (1814-1840) under the rule of José Gaspar Rodríguez de Francia until his death.

During this dictatorship period, the congress was dissolved, and Paraguay closed its borders, preventing the entry and exit of nationals and foreigners, as well as commerce with the outside world, except with express authorization from the Dictator. The motive for closing the borders has been attributed to various reasons, including protection of national security and the preservation of the country’s independence.

With regards to the exercise of power during this period, all decisions, both executive and legislative and/or judicial, were entirely exercised by the dictator, who even resolved legal issues in the appeal and final instance.

Triumvirate: After the death of Paraguay’s Dictator in September 1840, the country reorders its administration. In the absence of an executive, a Triumvirate was established on January 22, 1841, with the mission to convene a general congress to establish a definitive government. After the Congress was convened on March 12, 1841, it was decided to establish the institution of the Consulate for up to three years and to reopen the borders to establish relations with other governments.

Second Consulate: The Second Consulate (1841-1844) played an important role in modernizing Paraguay’s government and society, laying the groundwork for future developments in the country.[3]

During the Second Consulate period, a national currency (the guaraní), was established, which would be minted by the general treasury of the State. In 1942, it decreed the freedom of slaves and prohibited slavery, adopting progressive measures for its elimination. Additionally, it issued the “Provisional Statute for the Administration of Justice” and its complementary document, the “Regulation for Justices of the Peace,” both of which enshrined judicial independence in the face of any other power and the way in which legal issues were resolved among the inhabitants of Paraguay. Furthermore, the police department was created, responsible for maintaining social order, preventing, and repressing crimes, and reforming customs. For this purpose, it regulated it functions in a document called the “Police Regulation.”

Presidentialism: On March 13, 1844, Carlos Antonio López was elected as the first President of Paraguay by the National Congress, which was in session at the time. Meanwhile, the Congress enacted the “Law that establishes the political administration of the Republic”. Although it established the division of powers (executive, legislative, and judicial), there was a predominance of the executive over the other powers, as it granted extensive powers to the president of the republic in military matters, in his relationship with the church—even granting him the power to appoint bishops and to manage relations with the Holy See—and even in judicial matters, as he was granted the power to pardon or commute sentences.

The ‘Law that establishes the political administration of the Republic’ reaffirmed what was established in the provisional statute of administration of justice, which had set forth the basic principles of judicial independence and the operation of justice through justices of the peace, ordinary mayors, commissioned judges, civil and criminal judges, and a supreme judge who heard appeals. The new Constitution, which sought to strengthen the system of checks and balances among the three branches of government, further reinforced these principles.

Official Constitutions.Paraguay has ratified four constitutions. The first was in 1870, promulgated after 59 years of national independence. The Paraguayan Constitution of 1870 was the first official constitution of the country, and it was enacted after the end of the devastating War of the Triple Alliance (1864-1870) which devastated the country. It was drafted by a constituent assembly and established the basic framework for the country’s political system.

This constitution was one of the most democratic, considering that by the end of the 19th Century humanist philosophy became prevalent. This philosophy originated in the 1776 U.S. Declaration of Independence and the U.S. Constitution of 1787 and crossed over as a fundamental principle in the 1789 Declaration of the Rights of Man and the Citizen, during the French Revolution.

The second Constitution was the political charter of 1940, originating with a Coup D’état on February 18, 1940, when General José Félix Estigarribia fully assumed governmental political power. By virtue of that situation, executive order 2242 of July 10, 1940, brought the Constitution into force; both drafted and ratified by the Executive. The new Constitution was then submitted to a plebiscite on August 4, 1940. The third Constitution was ratified in 1967 with the participation of the four political parties legally in existence at the time. This constitution re-established a bicameral legislature.

In 1870, the country adopted a new constitution that established a system of government based on the separation of powers and enshrined several individual rights and freedoms. However, the legacy of the war and the dictatorship continued to cast a long shadow over the country’s legal system, and it would take several decades for Paraguay to fully restore the rule of law and establish a stable, democratic government.

Wars: The Chaco War and the Triple Alliance War were two significant conflicts in Paraguay’s history. The Chaco War, fought between Paraguay and Bolivia from 1932 to 1935, was a result of territorial disputes over the Chaco region, which was believed to have oil reserves.

In the other hand, The Triple Alliance War, fought from 1864 to 1870, was between Paraguay and a coalition of Argentina, Brazil, and Uruguay. The war was sparked by territorial disputes and economic competition. The war was one of the deadliest in South American history, with an estimated 400,000 deaths, and it had a profound impact on Paraguay’s economy and society. Paraguay was left devastated, with much of its population decimated, and its economy in ruins.

Paraguay experienced significant political instability in the aftermath of the Chaco War and the Triple Alliance War. Following the Chaco War, the military played a dominant role in Paraguayan politics, and there were several coups and attempted coups in the years that followed. During a period of political instability in the country, several military leaders assumed the presidency and heir regimes were characterized by authoritarian rule.

Dictatorship (Again): In the mid-20th century, Paraguay experienced another period of dictatorship under General Alfredo “Stroessner”, who ruled the country from 1954 to 1989. Stroessner led a military coup on May 4, 1954, and became president of Paraguay, in that time he established a military government, suspended the constitution, and dissolved Congress.

The power structure during the Stroessner dictatorship was highly centralized and concentrated in the hands of the president and his inner circle. The regime ruled through a combination of political repression, military force, and patronage networks, and tightly controlled all aspects of public life. After Stroessner’s fall from power, a new democratic constitution was adopted in 1992, which sought to establish a framework for democratic governance, protect human rights, and promote social justice.

In the Paraguayan legal system, the Constitution is the highest norm, and all other norms must be consistent with it. In hierarchical order, treaties, covenants and international agreements approved and ratified by the legislature, laws passed by Congress as well as other inferior dispositions that have been ratified, make up national positive law. The Paraguayan legal framework follows Hans Kelsen’s the hierarchical theory. Unlikely Anglo-Saxon law, Paraguayan legal system is primarily codified rather than based on judicial precedent.

3.1. Constitution

The National Constitution of the Republic of Paraguay, ratified in 1992, emerged as a beacon of hope for a nation that had suffered more than three decades of military dictatorship. Against this backdrop, the constitution’s ratification represented a crucial turning point for Paraguay’s democracy.

The Paraguayan Constitution contains a Preamble, a dogmatic and the organic part (sectioned ­as Part I and Part II; each of which is further divided into titles) and Final and Temporary Dispositions. The Preamble expresses the values and principles that inspired the representatives to promulgate the law. The dogmatic part or Part I (articles 1 to 136), contains the fundamental declarations, rights, duties, and guarantees that underpin the legal system of Paraguay; and the organic part or Part II (articles 146 to 291) establishes the structure and organization of the Paraguayan state. It outlines the different branches of government, their powers and responsibilities, and the rules for their operation. This part also establishes political and administrative structure and the mechanisms for amending the constitution. The Final and Temporary Dispositions, comprised of 20 articles that include final considerations such as the derogation of the constitution that was valid until that time.

The new constitution boldly declared that both Spanish and Guarani, the language of the Guarani natives and the first inhabitants of Paraguay, would be recognized as official languages. This decision was a significant departure from the 1967 constitution, which only recognized Spanish as the official language. In fact, the constitution went a step further, mandating that public schools must provide education in both languages.

The impact of the National Constitution has been profound. It not only recognized the value of Paraguay’s indigenous culture, but it also established religious freedom and removed Roman Catholicism as the state religion. This marked a significant shift from its predecessor, in which the President of the Republic was required to profess the Catholic faith.

3.2. Treaties, Covenants, and International Agreements

The Constitution of the Republic of Paraguay provides a mechanism for the incorporation of international treaties, covenants and agreements into its domestic legal system, establishing a connection between international law and domestic law. However, for an international instrument to have legal effect in Paraguay, it must be recognized and incorporated into the country’s domestic legal system. Once signed by the executive branch and ratified by the legislative branch, the international treaty becomes binding under international law and its domestic law. Paraguay’s Ministry of Foreign Affairs provides some of the mentioned documents.

From the perspective of international law, the incorporation of into the national legal system of Paraguay ensures that the country complies with its obligations under the treaty. It also provides a mechanism for individuals to access the protections and remedies offered by international law. Overall, this process highlights the interconnectedness of international and domestic law, and the importance of recognizing and enforcing international legal obligations at the national level.

The 1992 Paraguayan Constitution recognizes the importance of international law and establishes mechanisms for incorporating it into the country’s domestic legal system, showing a commitment to upholding international legal obligations and promoting international cooperation.

In that sense, the Constitution acknowledges and recognizes the jurisdiction of international organizations, courts and tribunals, and embraces the interconnectedness from the international and national law. Furthermore, the incorporation of treaties into the domestic legal system of Paraguay provides a mechanism for individuals to access the protections and remedies offered by international law. As referred, here are some of the international organizations acknowledged and recognized by Paraguay

3.2.1. MERCOSUR (Regional Unification)

On March 26, 1991, Paraguay signed and ratified the Treaty of Asunción, with the objective of creating a Common Market through Customs Union between the Argentina, Brazil and Uruguay countries, known as Mercado Común del Sur (by its Spanish acronym MERCOSUR).

MERCOSUR‘s goal is to create a free trade zone between member countries, allowing the circulation of goods, services, and production materials without any barriers. In addition to trade liberalization, the customs union seeks to adopt a common commercial policy among its members, coordinate macroeconomic policies, and harmonize legislation in all areas. However, MERCOSUR has been criticized for its imperfect customs union, as each member country has established some exceptions to the external common tariff and trade liberalization.

Despite these challenges, MERCOSUR has made significant progress in regional integration and trade liberalization, with member countries engaging in numerous agreements to reduce trade barriers and promote economic growth.

3.3. Laws and Other Lower-Hierarchy Laws

In Paraguayan legislation, there are different ways of regulating law. The nature of the regulation as well as its scope varies according to the authority from which it emanates. There are differences between laws, decrees and norms in terms of their nature, function and process of creation. These differences are detailed below:

Laws: Laws are legal provisions of a general and binding nature, which emanate from the legislative branch (National Congress) and apply throughout the national territory. The elaboration and approval of a law follows a legislative process that includes discussion and voting in both chambers of Congress, and its subsequent enactment by the Executive Branch. Once enacted, the law is published in the Official Gazette and enters into force on the date established in the law.

Decrees: Decrees are legal norms issued by the Executive Branch (President of the Republic) that normally have a regulatory function, i.e., they complement or develop what is established in a law. Decrees cannot contradict the provisions of a law, and their scope of application is limited to the sector or area established in the decree. The elaboration and issuance of a decree does not require the legislative process, but it must be published in the Official Gazette for its entry into force.

Norms: Norms are legal provisions of a technical nature, issued by administrative authorities and regulating the functioning of a specific sector. Examples of norms are regulations, resolutions and ordinances. These norms can be issued by different authorities, such as ministries, municipalities, state enterprises, among others, and their scope of application is limited to the sector or area established in the norm. The elaboration and issuance of a norm does not require the legislative process, but it must be published in the Official Gazette for its entry into force.

Codes of the Republic. The Republic of Paraguay has several codes that govern different areas of society and life in the country. Below is a list of some of the most important codes:

  • Civil Code: regulates civil and commercial relations between individuals and establishes rules in areas such as property, inheritance, contracts and civil liability and other matters.
  • Criminal Code: establishes the rules and criminalities applicable to crimes and offences committed in the country.
  • Civil Procedural Code: regulates the judicial process in civil matters.
  • Criminal Procedural Code: regulates the judicial process in criminal matters.
  • Labour Code: regulates labour relations between employers and workers.
  • Electoral Code: establishes the rules for organizing and conducting elections in the country.
  • Childhood and Adolescence Code: regulates the rights and duties of children and adolescents in the country.
  • Customs Code: Regulates the import, export, and transit of goods through the national territory.

Jurisprudence is the collection of judgments handed down by the members of the judiciary on a given subject matter. It plays an important role in the Paraguayan legal system because, although its application is not mandatory, in praxis they serve to support legal arguments and can determine a legal judgement. It is useful to define “grey areas” in the law, to interpret specific rules and to reinforce black letter law through decisions issued by judges.

Paraguay currently has a Jurisprudential Information System of the Judiciary of the Republic of Paraguay, which has been designed as a tool for the analysis and dissemination of the rulings issued initially by the Chambers that make up the Supreme Court of Justice since 1995, systematising them through the methodology of summarisation and indexing.

Doctrine is the body of teachings, theories and principles that are interpreted as valid in legal matters and can serve as a guide to understand the spirit or principle of a particular legal rule or provision, providing insights into how the law may evolve over time. Even though doctrine is not considered a formal source of law in Paraguay, it serves as a tool for interpretation and understanding of legal provisions, and it can be used to support legal arguments in court.

4. The Republic of Paraguay’s Form of Government

As its form of government, the Republic of Paraguay has adopted a representative, participative and pluralist democracy, founded on the principle of human dignity. Sovereignty lies in the people and is manifested through suffrage.

The government is embodied by the Legislative, Executive and Judicial powers in a system based on independence, balance, coordination and reciprocal control among the respective branches; no branch of government may attribute to itself, or grant to the other branches, additional powers or the totality of public power. An important innovation in the Constitution of 1992 is that it expressly establishes that dictatorship is outside the confines of the law.

Paraguay’s political and administrative structure is divided into departments, municipalities and districts, which enjoy political, administrative and normative autonomy in local matters. They also enjoy autarkic autonomy in matters pertaining to the collection and investment of its resources, within constitutional limitations.

The city Asunción is the capital and the seat of all three branches of government. It is a municipality independent of the other 17 departments. Three Departments are situated in the extensive western region of the country, covering 52% of the national territory. The 14 Departments are in the eastern region, these being the most populated.

Each Department has a Governor, who represents the Executive Power in the execution of national policy, and a Departmental Assembly. These are elected by a direct vote of the citizens within each respective department, in coincidence with general elections. These authorities were created by the last Constitution in force.

Municipalities are local government entities with juridical personality. They have political, administrative and normative autonomy, as well as autarkic autonomy in the collection and investment of their resources. The municipal government is headed by a Mayor and a Municipal Assembly, and is elected by direct vote. An important innovation in the Constitution of 1992 is that it establishes that 70% of real estate tax income remains in each municipality, 15% goes to the respective Department, and the remaining 15% is distributed among the municipalities with the lowest income.

5. Structure of Paraguayan Government

5.1. Executive Power

The Executive Power in Paraguay is vested in the President of the Republic, who is directly elected by the people and serves a five-year term without the possibility of immediate reelection. The President has numerous responsibilities, including representing the State, overseeing the country’s general administration, complying with and enforcing the Constitution and laws, directing external relations, and serving as Commander in Chief of the Armed Forces. In addition, the President has the exclusive power to grant pardons for sanctions imposed on individuals by the Judicial Power. The President may also veto laws sanctioned by Congress, and is responsible for preparing the annual National Budget of the Nation through the Ministry of Finance, which must be submitted for approval to Congress.

The President of the Republic leads a Cabinet of Ministers, which is composed of various ministries and secretariats that oversee different areas of government. The current structure of the Cabinet of Ministers is as follows:

Each ministry and secretariat has its own directorates and administrative units, which have specific functions within their area of competence. Some of the most important are: (i) the National Customs Directorate: responsible for collecting customs taxes and regulating international trade in the country; (ii) National Directorate of Transport: responsible for regulating land and river transport in the country, and for granting licenses and permits to drivers and transport companies; and, National Directorate of Migration: responsible for regulating the entry and exit of people from Paraguayan territory, and for granting residence and work permits to foreigners who wish to live and work in the country.

5.2. Legislative Power

The Legislative Power in Paraguay is exercised by the National Congress, which is made up of two chambers: the Chamber of Senators (High Chamber) and the Chamber of Deputies (Low Chamber). The members of both chambers are elected directly by the people in general elections, with senatorial elections being national and elections for deputies being departmental.

In addition to the functions of the congress expressed in the previous point, the Congress has several functions, including receiving oaths of office, conceding or rejecting the President’s authority in certain cases, and receiving the States or Governments’ Chief. The President of the Chamber of Senators and the President of the Chamber of Deputies preside over meetings of Congress as President and Vice-President, respectively. The Congress meets annually in ordinary sessions from July 1 of each year until June 30 of the following year and recesses from December 21 to March 1.

Fifteen days before the annual recess, each Chamber designates a specific number of Senators and Deputies by absolutes majority, who make up the Permanent Congressional Committee during the recess. Congress may also convene for extraordinary sessions or prolong its sessions if at least a quarter part of its members so decide, if a resolution is issued by at least two-thirds of the Permanent Commission of the Congress, or by an Executive Order. Both chambers function individually, as well through in unicameral or bicameral committees, and when possible the committees are conformed in proportion to partisan representation in both chambers.

Democratically elected former Presidents of the Republic are lifelong senators, with voice but without vote. This is an innovation of the 1992 Constitution, differing from the preceding constitution in which senatorial status was not granted to former presidents. The manner in which presidents came to power is also emphasized when it comes to this senatorial status. This status also grants immunity.

Regarding immunities, no legal action may be taken against any member of Congress for opinions expressed in the exercise of office, nor can any member of Congress be detained, unless deemed to be in flagrant violation that deserves corporal punishment.

5.2.1. The Chamber of Deputies

The Chamber of Deputies is based on the representation of Paraguay’s departmental political divisions. It is composed of 80 members, who are elected for a five-year term by direct vote and elected by the people in departmental electoral colleges. Asunción, the capital, constitutes an electoral college with representation. In addition, the departments are represented by at least one principal deputy and one substitute deputy. The distribution of seats is based on the population of each department (region) of the country, and prior to each election, the Superior Tribunal of Electoral Justice establishes the number of seats allocated to each of them.

The Chamber of Deputies has exclusive competence to introduce bills relating to departmental and municipal legislation, to appoint or propose magistrates and officials and to agree on the intervention of departmental governments, etc.

5.2.2. The Chamber of Senators

The Chamber of Senators, is composed of 45 principal members and 30 substitute members, directly elected by the people from a single national constituency by a period of five years by direct vote. The Chamber of Senators is exclusively empowered to table bills regarding the ratification of treaties and international agreements, to approve promotions for members of the armed forces and the national police, to approve the designation of Ambassadors and Plenipotentiary Ministers abroad, to approve the designation of the President and the directors of the Paraguayan Central Bank, etc.

5.3. The Judiciary

The Judiciary is responsible for the administration of justice, likewise for safeguarding the National Constitution by interpreting it, complying with it and assuring its compliance. It is important to note, however, that the Executive and Legislative Powers also have attributes related to compliance with the law, creating a situation in which the police and the penitentiary system respond to two branches of government. In cases of jurisdictional conflict, the branch, which administers public institutions, has jurisdiction.

The judicial power has also been organised through Law 879/1981, called the “Code of Judicial Organisation”, which clearly and concisely delimits all the attributions and duties of all the members of this power of the state. Since this law was passed in 1981, before the promulgation of the 1992 Constitution, several of its provisions have been modified to adapt them to Paraguay’s new supreme law, however, a larger parts of it are still in force. It also serves as a complement to the 1992 Constitution, as it regulates its scope.

Within the Paraguayan judicial system, the judicial power is exercised by the Supreme Court of Justice, which is the highest judicial authority in Paraguay; and its executed by courts, i.e., the Court of Auditors; the Courts of Appeal; the Courts of First Instance and others.

In addition, the Supreme Court of Justice has complements auxiliaries, i.e., the Public Prosecutor’s Office; the Ministry of Public Defence; the Police; Lawyers; Attorneys; Notaries and Notary Publics; Auctioneers; Experts in general and Translators; and Justice Officials. All of them assist the courts and tribunals in carrying out their functions.

The Constitution of Paraguay also groups within its chapter on the Judiciary other institutions that act on a daily basis within the judicial sphere: the Council of the Judiciary, whose main function is the administration and control of applications for the post of judicial magistrate; the Public Prosecutor’s Office, which acts as the representative of society before the jurisdictional bodies through its prosecutors; the Electoral Justice, whose main function is the organisation, execution and adjudication of all electoral matters in Paraguay.

5.3.1. The Supreme Court of Justice

The Supreme Court of Justice is the highest court in the country and oversees all judicial bodies while deciding on cases of jurisdictional conflict or liability. The Supreme Court has nine members and all its members hold the title of Minister who must meet certain requirements set out in the constitution: To be over 35 years of age, to hold a Doctor of Law degree, to be of high repute, to have practised as a lawyer or to have been a judge or to have taught law for a period of not less than ten years. The members of the Supreme Court are appointed by the Chamber of Senators with the agreement of the Executive. They take an oath of office before Congress. They can only be removed from office by impeachment or at the mandatory retirement age of 75.

The Supreme Court of Justice is organized into three chambers: the Civil Chamber, which hears commercial and civil matters; the Criminal Chamber, which is competent to hear criminal matters and also acts as the final instance in administrative proceedings; and the Constitutional Chamber, which reviews the constitutionality of the rules in force and the judicial decisions handed down in all proceedings.

Each year the Supreme Court of Justice elects a president and two vice-presidents from among its members, who may not be members of the same chamber. The president and vice-presidents, in addition to their jurisdictional functions, are the heads of the highest instance of the superintendence of justice, which oversees the administrative, financial and disciplinary organisation of the judicial branch, whose decisions are made by the aforementioned complementary and auxiliary justice officials, in addition to the officials that make up each area of the judicial branch.

5.3.2. Tribunals and Courts

The Paraguayan Judiciary has several courts and tribunals for various areas of Paraguayan justice, including civil and commercial, labour, children and adolescents, criminal, and administrative litigation, among others. Currently, the Paraguayan system has a three-instance appeal system for the majority of jurisdictions: the first instance, where the judges of first instance intervene; the second instance, where the appeal courts intervene; and finally, the third instance, which is exercised by the Supreme Court of Justice.

The system of jurisdictions is determined by jurisdictions, which are determined by the subject matter, the territory or place where the lawsuit is filed, and the amount of money demanded in the lawsuit. Currently, through Law No. 4610/2012, which amends and extends Law 4017/2010, the implementation of the electronic file, the electronic signature and the digital signature in the processing of judicial proceedings has begun. Judges and members of the courts are designated by the Supreme Court of Justice from shortlists of three candidates, which are proposed by a body established in the 1992 Constitution called the Consejo de la Magistratura.

On the other hand, in Paraguay, the revision of the system of jurisdictions is constantly raised at the legislative level and within the Supreme Court of Justice in order to achieve an efficient administration of justice. The most recent one dates from 2019 through Law Nº 6379, which creates specialised courts for economic crimes and organised crime in the jurisdiction of the criminal jurisdiction, the former dealing with facts related to money laundering, fraud, breach of trust, among others; the latter dealing with facts related to trafficking, commercialisation of narcotics, arms trafficking and criminal organisations. The Senate is also analysing the draft bill for the creation of the Agrarian and Environmental Jurisdiction, which dates from 2022.

5.3.3. Oral Trials

When the new Constitution entered into force in June of 1992, society as a whole, but especially the legal community, was convinced that this was merely the first step in a transition towards a complete reform of the criminal justice system in Paraguay.

As a second step, some legal and legislative institutions, conscious of the evident need to structurally reform the criminal justice system, jointly began the meticulous task of verifying and individualizing the problems which led to the inefficient, slow, and time consuming nature of the system in place at the time. These institutions also began making legislative proposals aimed at changing the conservative and outdated criminal justice system and policy.

Legislative reform of the criminal justice system in Paraguay began with the passing of Law 1160/97, establishing the new Criminal Code that entered into force on November 26, 1998, whose effective application required an urgent change in the old Criminal Code of 1889 and its Code of Criminal Procedures, since these contained figures that were incompatible with the 1992 Constitution, the clearest example being the possibility of imposing capital punishment, this being abolished and prohibited by Article 4 of the 1992 Constitution of Paraguay. Also, the Code of Criminal Procedures of 1889 was repealed and updated to a new Code of Criminal Procedure. Among the main differences between the previous Code of Criminal Procedure and the new one is that previously the action and jurisdiction being fused and subject to the authority of the Judge.

The judge had to carry out the investigation, obtain evidence for the conviction and judge at the same time, in addition to the obligation of the person on trial to prove his innocence. For the new criminal system this changes completely, since the tasks of investigating and judging are separate, the former a competence of the Ministry of the Attorney General and the latter exclusively a competence of the jurisdictional body as an impartial body that observes the evidence for the prosecution and the defence in order to judge in accordance with the law. Furthermore, the defendant is exempted from the responsibility of proving his guilt, transferring this responsibility to the prosecuting body, i.e., the Public Prosecutor’s Office.

On the other hand, the Code of Criminal Procedure, Law 1286, was approved and promulgated in 1998, the entry into force and application of which has produced an important transformation, both normative and cultural. This transformation does not only refer to the change that involves imposing the burden of action and proof, investigation and accusation on the part of the prosecutors of the Public Prosecutor’s Office, but also a reform that guarantees and protects the person on trial in his or her conduct. A maximum time limit has been established for the duration of criminal proceedings, guarantees have been granted for the effective exercise of the defence at all stages of the procedure for those facing criminal proceedings, with warnings to declare the entire process null and void in the event of non-observance or violation of the right to defence; in addition to delimiting the way in which evidence is obtained and produced during the course of the trial.

Also, thecurrent Constitution, by stating that trials may be oral and public, in the form and manner determined by law, evidently served as the basis for the introduction of the main innovations in the Code of Criminal Procedure.

The Code of Criminal Procedure establishes three procedural phases: the preparatory or preliminary phase, in charge of the Public Prosecutor’s Office; the intermediate phase, a determined time in which the participants can question the accusation, refine and question the diligences and conclusions of the investigation or pave the way for the oral and public trial, this being the third phase.

The application of the oral and public trial within the criminal justice system constituted a major advance in the administration of criminal justice in Paraguay. This phase is characterised by a debate between the parties involved. This phase is in charge of a Tribunal that functions as a collegiate body, made up of three judges, who pass sentence after studying the evidence presented on the basis of objective criteria.

5.3.4. Other Organs of the Judiciary

The 1992 Constitution also provides for the formation and creation of other institutions which, although they are not under the direction of the Supreme Court of Justice or the courts and tribunals of Paraguay, their activities are closely related to the life of the Judiciary. That is why this Constitution places these institutions within its chapter dedicated to this organ of the state. They are the Magistrates Council, the Public Prosecutor’s Office, and the Electoral Justice.

Magistrates Council: This institution was created by the current constitution and its main function is to organise and propose shortlists of three candidates to fill vacancies in positions related to the Judiciary, from the shortlist for the Supreme Court of Justice, judges of first and second instance, prosecutors of the Public Prosecutor’s Office and public defenders.

It is integrated by eight members: one Supreme Court Justice, one representative from the Executive Power (responding to the current administration party), one Senator, one Deputy, two attorneys, one professor from the College of Law of the National University of Asuncion and one professor from a college of law of a private university. These last four are chosen by a direct vote among their colleagues.

Public Prosecutor’s Office: Another institution contemplated in the 1992 Constitution is the Public Prosecutor’s Office, regulated by Law 1562/2000. The main characteristic of this institution is that it represents society before the jurisdictional organs of the State. It is considered an auxiliary body of justice and is exercised by the General Prosecutor, Assistant prosecutors, and Agents. The term of office is five years and is eligible for re-election.

Its structure is determined by three levels. The main head of this institution is the General Prosecutor of the State. At the second level are the assistant prosecutors, who exercise the role of coordinators of lower prosecutors and who are divided by judicial district and types of crimes investigated. At the third level are the prosecutors, who are the ones who really carry out the exercise of protecting society in all jurisdictions, especially in the criminal jurisdiction and in the jurisdiction for children and adolescents.

Criminal jurisdiction is sub-organised in prosecutors’ offices that investigate: (i) ordinary punishable acts, and (ii) specific acts, e.g., drugs, human trafficking, economic crimes, organised crime, crimes against indigenous peoples, violence against women, among others.

General Prosecutor of the State is designated by the Executive Power with the approval of the Senate, and proposed in shortlists of three by the Magistrates Council. Prosecutors are designated in the same manner as judges, for five-year terms of office and are removed from office by the Magistrates Jury of Judgment. They swear into office before the Supreme Court of Justice.

Electoral Justice: The Electoral Justice is included in the structure and organisation of the Judiciary and is conformed by the High Court of Electoral Justice, the Tribunals, as well as the Courts and Electoral Offices.

The electoral justice system has exclusive jurisdiction over all matters related to the calling, judging, organisation, management and oversight of acts related to general, departmental and municipal elections, as well as those related to the rights and titles of those elected. It also addresses issues related to plebiscites, as well as the functioning of political parties and movements.

The Electoral Justice works in parallel with the Judiciary, and its acts cannot be reviewed by the latter, according to Article 273 of the Constitution. The highest authority of this institution is the High Court of Electoral Justice, composed of three members who have the title of Ministers. Their appointment, term of office and removal from office are the same as for the Members of the Supreme Court of Justice.

Magistrates Jury of Judgment: Although this institution does not have its own section within the 1992 Constitution which regulates its functioning, duties and attributions, as is expressed in the institutions mentioned above, it is the Constitution itself, in Article 253, which creates it and designates its functioning and composition by establishing the form of removal of magistrates. It is also specifically regulated by law, the latest modification and regulation of which is contained in Law 6814 of 2021.

This institution is in charge of studying and reviewing the removal of judicial magistrate, judges of first and second instance, public prosecutors, public defenders and bankruptcy trustees. The main grounds for removal are mainly stipulated in the national constitution and the code of judicial organisation, and among the most important offences are the commission of crimes or misconduct in the office. This institution has eight members: two Supreme Court Justices, two members of the Council of Magistrates, two Senators and two Deputies, all of whom must hold law degrees.

5.4. Other Organs of the State

5.4.1. The Ombudsman

Another new institution created by the 1992 Constitution, the Ombudsman is a parliamentary commissioner whose main function is to defend human rights, as well as to address popular demands and protect the interests of the community. This figure does not have a judicial function or exclusive competence, however, by defending the interests of the people, it has the faculty to represent any inhabitant of the Republic of Paraguay before any state or private body and to exercise its legal representation free of charge. The most important aspect of the Ombudsman is to watch over the respect and fulfilment of human rights.

The Ombudsman enjoys autonomy and can only be removed from office by impeachment. It has a term of five years, with the possibility of re-election, and is appointed by the Chamber of Deputies from a list of three candidates proposed by the Senate.

5.4.2. The General Comptroller of the Republic

The General Comptroller of the Republic of Paraguay is an autonomous and independent entity, responsible for carrying out the financial control of the State and ensuring transparency in the use of public funds. Its functions include the audit of public accounts, the prevention and detection of irregularities and the promotion of good governance practices. The General Comptroller and the Sub-Comptroller are appointed by the President of the Republic and approved by the Senate, and holds office for a term of five years.

5.4.3. The Public Force

The Public Forces of the Republic of Paraguay is constituted exclusively by the military and police forces, each of them with distinct functions and missions. The Armed Forces of the Nation is a national military institution whose primary objective is to safeguard territorial integrity and defend the legally constituted authorities.

In terms of its organisation, the President of the Republic is the Commander-in-Chief of the military forces and, with the approval of the Senate, carries out the promotions and nominations of military commanders. The military are subject to their own laws and regulations and may not be affiliated to political parties or movements or participate in any political activity. The Armed Forces also have a Military Court that deals with military offences and misdemeanours committed by members on active duty, although its decisions can be appealed before the ordinary courts.

On the other hand, the National Police is a professional and obedient institution in charge of maintaining public order, protecting the rights and security of individuals and entities, and preventing crime. It is headed by a senior officer of its permanent corps, appointed by the President of the Republic with the approval of the Senate. Police officers on active duty are also prohibited from political affiliation or participation. It is worth mentioning that the 1992 Constitution brought important modifications to the National Police, including a change in its crime investigation unit, which came under the Judicial Branch.

The security forces in Paraguay play a critical role in guaranteeing national security and maintaining the rule of law. While the Armed Forces focus on territorial defence and maintaining the authorities, the National Police is in charge of internal security and law enforcement. Both institutions operate in a professional, obedient and apolitical manner, as dictated by the Constitution and legal provisions.

5.4.4. The Central Bank of the State

The Central Bank of Paraguay (by its Spanish acronym, BCP) is the country’s central monetary authority responsible for implementing monetary policy, regulating the financial system, and maintaining the stability of the Paraguayan economy. It reports to the Executive Power and the Congress. The BCP also plays a key role in maintaining the stability of the Paraguayan guaraní, the national currency, Paraguay’s financial system and promoting economic growth and development.

5.4.5. Impeachment

In Paraguay, impeachment is a legal process that allows for the removal of high-ranking government officials in cases of deficient fulfilment of their official duties, crimes committed in the exercise of their official duties, or for common crimes. The process is established by article 225 of the Constitution and applies to officials such as the President, Vice President, Ministers of the Executive Power, Supreme Court Justices, General Prosecutor, Ombudsman, General Comptroller of the Republic, Assistant Comptrollers, and members of the Superior Tribunal of Electoral Justice.

The Chamber of Deputies initiates the impeachment process with a two-third majority vote, and the accused is publicly tried by the Chamber of Senators, which requires another two-third majority vote for impeachment. The accusation must be supported by evidence of the alleged wrongdoing.

If the complaint is admissible, the accused official is notified and given a chance to present a defence. The Senate then convenes as a court of impeachment, with the President of the Senate presiding over the proceedings. In case two-thirds of senators vote in favour of impeachment, the accused official is removed from office, banned from holding public office for a period if a felony has been committed the case is then remitted to the corresponding jurisdiction.

Paraguay has experienced several impeachments in its history. In 2012, President Fernando Lugo was impeached and removed from office by the Senate over his handling of a land dispute that led to deadly clashes between police and farmers. The impeachment was controversial, with some critics arguing that the process was rushed and lacked due process.

In 2021, another impeachment process was initiated against President Mario Abdo Benítez over his government’s handling of the COVID-19 pandemic and the signing of a controversial energy agreement with Brazil. However, the impeachment proceedings did not reach the required two-thirds majority in the Senate and the President remained in office.

Ministries

7. Basic Bibliography

  • Constitution of the Republic of Paraguay 1992, Available here (SP) and here (EN)
  • Constitution of the Republic of Paraguay 1870
  • Ossorio, M. “Diccionario de Ciencias Jurídicas Políticas y Sociales”, El mayor portal de gerencia. Datascan, S.A. Availablehere.
  • Ana Maria Diaz,. “El primer ciudadano: Paraguay 1811-1814”, Cahiers des Amériques latines [En ligne], 46 | 2004, mis en ligne le 13 août 2017. Available here.
  • Cardozo Efraím (2011) Paraguay Independiente. Asunción: Servilibro.
  • Lezcano Claude, L. “Reglamento de Gobierno de 1813” p. 169 – 174. Available here.
  • Carrillo Gómez, E.J.M. (2022) “Treaties in the Constitution of the Republic of Paraguay.” Available here.
  • López, G.M. (1970) “Estado y Constituciones en Paraguay: Un Análisis de las cartas magnas de 1844, 1870 y 1940”. Universidad Católica Argentina. Facultad de Derecho y Ciencias Sociales del Rosario. Instituto de Historia. Available here.
  • Argaña, Luis María. “El Amparo: sus antecedentes y la Ley N° 340: su fundamentación parlamentaria, repertorio de jurisprudencia sobre amparo constitucional”, Editorial Litocolor S.R.L. Asunción, Paraguay, 1986.
  • Camacho, Emilio; Lezcano Claude, Luis. “Comentario a la Constitución”, Editora Intercontinental, 1998.
  • Casco Pagano, Hernán. “Derecho Procesal Civil”. Editoria Litocolor, S.R.L. Asunción, Paraguay, 2002.
  • Casañas Levi, José Fernand. “Manual de Derecho Penal, Parte General”. Editora Intercontinental. Asunción, Paraguay. Primera Edición 2000. Reedición 2003.
  • Lezcano Claude, Luis. “El control de Constitucionalidad en el Paraguay”, La Ley, 2000.
  • Mendonca, Daniel. “Cómo hacer cosas con la Constitución. Una introducción al análisis constitucional”, Editorial El lector, Asunción, 1999.
  • Mendonca, Juan Carlos. “La garantía de inconstitucionalidad”, El Lector, 2000.
  • Villagra Maffiodo, Salvador. “Principios de Derecho Administrativo”. Editorial El Foro, Asunción, 1981.

[1] The members of this provisional government were Captain Juan Valeriano Zeballos, Dr. José Gaspar Rodríguez de Francia and Bernardo de Velazco.

[2] First Consulate. The consulate was composed by two representatives, Fulgencio Yegros and Gaspar Rodríguez de Francia, who governed jointly on an annual basis from 1813 to 1814, in four-month shifts and undertook the responsibility of ensuring the preservation, defense and security of the Republic of Paraguay.

[3] The Second Consulate was composed of Carlos Antonio López and Mariano Roque Alonso.