Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt: Mission to Paraguay

Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, on his mission to Paraguay (23 - 30 March 2011)

(...)

F. Right to conscientious objection

54. The Special Rapporteur welcomes the fact that the right to conscientious objection on ethical or religious grounds is explicitly recognized in article 37 of the Constitution. Furthermore, the relatively high number of conscientious objectors in Paraguay demonstrates that the constitutional guarantee of conscientious objection to compulsory military service is currently respected in practice. Nonetheless, the Human Rights Committee regretted, in its concluding observations on Paraguay of October 2005, that access to information on conscientious objection appeared to be unavailable in rural areas and recommended proper dissemination of information about the exercise of the right to conscientious objection to the entire population. [17]

55. Law No. 4.013, as promulgated on 18 June 2010, established a new procedure on the recognition of conscientious objectors and provides for an alternative civilian service. Whether this law will lead to infringements of the right to conscientious objection – a fear voiced by some civil society organizations – remains to be seen. Several provisions of Law No. 4.013 have been identified as problematic by certain stakeholders, including by associations of conscientious objectors. For example, it is unclear what would happen if objectors did not meet the deadline, pursuant to article 4, of 20 days to establish their objection since notification of conscription into the army. Civil society organizations questioned the impartiality of the composition of the National Council for Conscientious Objection, given the participation of a representative of the Ministry of Defence. Furthermore, the formulation of article 20 is unclear and may imply that those who do not duly comply with alternative service might be obliged to do military service. In addition, article 21 was criticized as unconstitutional since it may retroactively apply to those who declared their objection before Law No. 4.013 was promulgated, thus possibly having a punitive effect, which would be contrary to the spirit of article 129 of the Constitution. Furthermore, article 23 of Law No. 4.013 on “civil defence” in a state of national defence or situation of international armed conflict might be interpreted as implying that conscientious objectors would be required to participate in activities of a military nature.

56. The Special Rapporteur would like to reiterate that conscientious objectors should be exempted from combat but could be required to perform comparable alternative service of various kinds, which should be compatible with their reasons for conscientious objection. [18] They could also be asked to perform alternative service useful to the public interest, which may be aimed at social improvement or at the development or promotion of international peace and understanding. The decision concerning their status should, when possible, be made by an impartial tribunal set up for that purpose or a by a regular civilian court, with the application of all the legal safeguards provided for in international human rights instruments. There should always be a right to appeal to an independent, civilian judicial body. The decision-making body should be entirely separate from the military authorities, and the conscientious objector should be granted a hearing, be entitled to legal representation and be able to call relevant witnesses. With regard to strict time limits for applying for conscientious objector status, the Special Rapporteur recalls that conscientious objection may develop over time, sometimes even after a person has already participated in military training or activities; strict deadlines should therefore be avoided.[19] The Special Rapporteur appreciates the clarification made by the Government that the new alternative service will have no punitive purpose or effect.

VI. Conclusions and recommendations

(...)

58. (...) To date, Paraguay has respected conscientious objection to military service, and it is to be hoped that this practice will continue under Law No. 4.013.

(...)

64. Against the background of these general observations, the Special Rapporteur encourages the Government:

(...)

(g) To continue to recognize the right to conscientious objection in law and in practice; this includes the independent functioning of the newly established National Council on Conscientious Objection, ensuring fair and transparent procedures while maintaining non-punitive principles for alternative non-military civilian service.

(...)

Notes

[17] CCPR/C/PRY/CO/2, para. 18.
[18] See E/CN.4/1992/52, para. 185, and A/HRC/6/5, para. 22.
[19] See E/CN.4/2006/5/Add.1, para. 138.

Source: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Sessio…