This week the bill was debated in a public hearing. that modifies and expands article 289 of Law 1160/97 Paraguayan Penal Code referring to the “false complaint”, which aims to establish prison sentences of up to 6 years in addition to financial compensation for cases where the accused has been deprived of his freedom.
Read more: Controversial Esgaib project: increase penalties and criminalize “false reporting”
Although the initiative was presented by Esgaib, who led the hearing in his capacity as president of the Justice Commission, he himself acknowledged that the initiative came from his advisor, the lawyer José González Macchi, who was not present for the debate.
“Dr. González Macchi who prepared the project did not come” and “I do not believe that he would have presented this without having analyzed what you had mentioned,” Esgaib said during the hearing, without being able to answer the questions raised.
The initiative proposes adding a paragraph to article 289 of the Penal Code, establishing that: “when the false complaint has caused the application of a measure restricting the freedom of the accused within a criminal process, the custodial sentence will be up to 6 years; and the composition will be required“.
Given this, the representative of the Public Ministry, Rubén Riquelme, suggested seeking more precise wording regarding other measures that affect the falsely reported, such as a personal, real precautionary measure or a firm sentence, among other recommendations.
Subsequently, one of the representatives of the Ministry of Public Defense, the lawyer Martin Muñoz He also joined in warning about the need for clearer wording regarding what restrictive measures of freedom the reform refers to.
He mentioned that it would be necessary to establish whether it includes a “precautionary measure, one of the adolescent criminal process or a criminal sanction that is not final, You have to be careful because it is very broad and can cause problems when interpreting, especially when using this aggravating circumstance of false reporting.”said Muñoz.
He also warned of the possibility of a “over-legislation” of the issue and even a contradiction with article 124 of the Penal Code (CP), which establishes the possibility of higher penalties.
“Another problem is already legislated – we respectfully believe – by the application of article 70, which says that when an action involves several punishable acts within that same action, a penalty of 50% of the punishable act in question. After 5 years of punishment, in this case, 2 and a half more years can be applied if there is a contest of punishable acts.” If the acts of deprivation of liberty and false accusation are configured.
He emphasized that with the current law, the expected maximum sentence could even reach 7 and a half years, while the reform proposed by Esgaib establishes a maximum of 6 years, clarifying that even they as public defenders always seek the lesser sentence, but they could not fail to notice the contradiction.
“With the deprivation of liberty (article 124), first paragraph of the Penal Code and the false complaint (art. 289), there would be two punishable acts. The consequence of that is what a prosecutor can request and the maximum expectation of punishment that a judge can apply in an oral trial is 7 and a half years. In other words, less than the 6 years (which is proposed in the bill), the penalty will be lower,” said Muñoz.
The representative of Ministry of Justice (Executive), Zoraida Gómez agreed with the assessment of the pre-opinionists that “This issue is already legislated”but in any case, if we want to insist, it could be included as an addition to article 289.
Muñoz also warned that it should be taken into account, so as not to violate other constitutional rights such as the right to “petition the authorities”, since it must be analyzed “To what extent can we place the responsibility for a deprivation of liberty on the complainants? It must be taken into account that this decision is finally requested by a prosecutor and ordered by a judge.
Given the accusations, Esgaib He insisted that he “believes” that his initiative is different, since it aims to “save the unfair situations that exist with false complaints” and “will prevent and discourage malicious people.”
This, as he said, “will no longer be that he made a complaint and it ended, there will be that there was a penalty (deprivation of liberty) or he could not see his son for two or three years because of a false complaint, (the one who reported falsely) will have another penalty and (will have to give) compensation.”
Adrián Arévalos, president of the Association of Public Defenders of Paraguay (ADEPY) clarified to the legislator that there is no real proof that the increase in penalties discourage the commission of punishable acts, however, he pointed his criticism and recommendations to other technical aspects of the bill.
More than three ways to demand composition
The other aspect that the lawyers asked to take into consideration is that both the Penal Code, the Criminal Procedure Code and the Civil Code already establish composition mechanisms (economic reparation, including from the State), and this reform would add another aspect to the existing legislation.
While the public defender Eleno Quiñónez He considered that the aspect of the composition is what draws his attention the most about the project; Although there are other laws that establish procedures, there are almost no cases of compensation to existing victims.
Quiñónez asked to consider more carefully that “the composition (financial compensation) made by the author of the false complaint does not exclude civil liability: that is, the victim can seek a composition (in the Penal Code), go to Civil (Jurisdiction) for moral damage and seek compensation from the State, because the Procedural Code talks about that and we must also look at the issue of the responsibility of the public officials” who dictated the measures, he warned.
This is even regardless of the fact that article 288 of the Criminal Procedure Code establishes that the costs of a trial may also be imposed. “when the accusations are false or the complaint has been reckless,” as it would be in the case of a possible false report.
Both Esgaib on behalf of the Justice Commission and his colleague Jorge Ávalos Mariño (PLRA), representing the Legislation Commission and the Chartist Jose Rodriguez by the Constitutional Affairs Commission, They requested written suggestions in order to analyze possible modifications to the project.
There is an apparent rush to deal with this project, since it was included in the agenda of past sessions, but it was barely possible to stop its treatment; precisely requesting this prior public hearing.
