138. Concerning the violation of Article 19 of the Convention, in relation to Article 1(1) thereof, the representatives argued that:
a) the State violated Article 19 to the detriment of the three thousand seven hundred forty-four children detained at the Center at one time or another in the period from August 14, 1996 to July 25, 2001, and those who were subsequently sent to adult prisons;
b) the children interned in the Center were in constant danger and at high risk on three counts: they were children, they were deprived of their liberty and, from the socioeconomic standpoint, they were all very poor;
c) the special measures of protection for children imply not only an obligation to respect their rights, but also to guarantee those rights and to take positive measures, informed by the principles of nondiscrimination and the best interests of the child, to ensure that the children are protected from any form of abuse, whether in their relations with the public authorities, in their inter-personal relations or their relations with non-State entities;
d) at the time of the events, not one of the alleged victims had reached the age of majority. Under the law in effect in Paraguay at that time, the age of majority was 20, not 18;
e) the State did not cultivate public policies for the comprehensive protection of the child: it never adapted its local laws and denied children certain benefits. The new Child and Adolescent Code took effect in 2001 and was randomly enforced. The legal counsel that the Public Ministry provided to the inmates at the Center was in general substandard;
f) the State did not devise a system for children in conflict with the law that was tailored to their status as children and that was commensurate with international principles of juvenile justice;
g) the State’s acknowledgement of the alleged victims named in the Court’s order of June 21, 2002, is a contradiction and a “juridical aberration,” since the failure to adopt adequate measures of protection (legislative, administrative and judicial) affected everyone who was at the Center at the time of the events in question; in other words, it affected the deceased and injured inmates and all the other inmates as well; and
h) the State failed to cultivate policies that took into account the fact that some of the children were particularly deprived, both economically and socially.
139. As for the violation of Article 4 of the American Convention in relation to Article 1(1) thereof, the representatives argued that:
a) the State is responsible for the deprivation of the right to life of the twelve inmates who died;
b) a State does not fulfill its obligation to protect the right to life merely by refraining from depriving persons of their life arbitrarily; instead the protection of the right to life requires a more pro-active attitude on the State’s part, especially when the persons deprived of liberty are children. The State has an obligation to guarantee the life of any persons under detention. Therefore, once it has been shown that the alleged victim died in custody, it is up to the State to prove that it had absolutely nothing to do with the cause of death;
c) overcrowding, caused in part by the excessive use of preventive detention, breeds violence and aggressiveness;
d) the prison conditions that the State allowed to persist at the Center were totally at odds with instruments for the protection of children’s rights; the State did not take measures to prevent and avoid fires, such as installing a smoke alarm system, fire extinguishers and emergency exits;
e) the Center did not have proper equipment and its staff was neither sufficient in number nor properly trained;
f) the State ignored the repeated requests from national and international institutions asking it to establish detention conditions commensurate with the children’s human dignity;
g) the violent riots were preventable; and
h) the State is responsible for the deaths of the two adolescents who were transferred to the adult prison at Emboscada, as these young people were in the custody of the State. If the State did not have a proper place to house the children, it should have either ordered in-home detention or released the children, especially inasmuch as the majority of the children were in preventive detention.
140. Concerning the violation of Article 5 of the American Convention in relation to Article 1(1) thereof, the representatives alleged that:
a) the State failed to comply with its duty to respect and ensure the right to humane treatment in the case of the three thousand seven hundred forty-four children detained at the Center in the period from August 14, 1996 to July 25, 2001, their next of kin, the thirty-eight children who were either burned or otherwise injured in the successive fires at the Center, and the children who were transferred to adult prisons;
b) the endless violence to which the State subjected the children at the Center was a pattern of systematic human rights violations contrary to the international standards for the protection of children; as a consequence, the burden of proving whether any of these conditions applied to all the inmates is reversed;
c) the conditions of detention at the Center included, inter alia: overpopulation; overcrowding; commingling of inmates awaiting or standing trial with those already convicted; lack of sanitary conditions; poor diet; lack of proper medical, dental and psychological care; lack of adequate education programs; lack of recreation, lack of fire safety and prevention measures; too few and poorly trained guards; no control of physical and mental violence; inhumane treatment and torture, which included the existence of a torture chamber and solitary confinement cell; lack of disciplinary and criminal investigation of cases of mistreatment and torture, with the result that such cases went unpunished; and transfer of children to adult prisons as a form of punishment or because of lack of space;
d) the children who were transferred to adult penal institutions endured conditions that were even worse than those at the Center: the overcrowding was worse; they had neither ventilation nor natural light; they were forced to urinate and defecate on the floor and were tortured; and
e) the State violated the mental integrity of the alleged victims’ next of kin because of the fear, suffering and anxiety they suffered over the conditions under which the inmates were living and in their efforts to ascertain the condition and whereabouts of their children after the successive fires that left a number of inmates dead or injured, or transferred to adult prisons.