British Tobacco Productora de Cigarrillos Sociedad Anonima (Probat S.A.) v. Paraguay

The petitioners filed an appeal for legal protection, challenging the constitutionality of two administrative Decrees that regulated Article 8 and Article 11 of the FCTC. One of the decrees provided warning and labeling requirements for tobacco products, and the other one established that enclosed spaces with access to the public, workplaces, and public transportation were 100% smoke-free places.

The Court held that, even though the FCTC had become legally binding to Paraguay upon its ratification, the provisions implementing the treaty needed to be adopted first by a law enacted by Congress. According to the Court, the FCTC contained only “programmatic” clauses and not “self-enforcing” provisions. The Court stated that the Executive Branch’s decrees established duties, obligations, and restrictions not allowed under the National Constitution, the Law ratifying the FCTC, or the Sanitary Code. Further, one of the decrees established infractions and penalties, violating the principle of criminal legality, and was enacted in ignorance of a previous law that protected non-smokers, which was entirely in force. Therefore, both administrative decrees were declared unconstitutional, as the Executive Branch had issued them in violation of the separation of powers, among other principles.