|Considerations of the Court
144. Given the particularities of the instant case, the Court believes it would be appropriate to examine jointly the question of the right to life and the right to humane treatment of the inmates, adults and children deprived of their liberty at the Center between August 14, 1996 and July 25, 2001, and of the two children transferred from the Center to the Emboscada Regional Penitentiary.
145. Article 4(1) of the American Convention provides that:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
146. The pertinent part of Article 5 reads as follows:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated regarding for the inherent dignity of the human person.
4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
147. The Court must point out that in the instant case, the alleged victims of a significant number of the violations being claimed are children who, like the adults, “have the same rights as all human beings [...] and also special rights derived from their condition, and these are accompanied by specific duties of the family, society, and the State.”91 This is the requirement under Article 19 of the American Convention, which provides that “Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.” This provision must be construed as an added right which the Convention establishes for those who, because of their physical and emotional development, require special protection.92
148. As it examines this case, this Court will take this factor into particular account and will decide the question of the alleged violations of other Convention-protected rights in light of the added obligations that Article 19 impose upon the State. To establish the content and scope of this article, the Court will take into consideration the pertinent provisions of the Convention on the Rights of the Child, which Paraguay ratified on September 25, 1990 and that entered into force on September 2, 1990, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), which Paraguay ratified on June 3, 1997 and which entered into force on November 16, 1999. These instruments and the American Convention are part of a very comprehensive international corpus juris for the protection of children that the Court must honor.93
149. The examination of the State’s possible failure to comply with its obligations under Article 19 of the American Convention should take into account that the measures of which this provision speaks go well beyond the sphere of strictly civil and political rights. The measures that the State must undertake, particularly given the provisions of the Convention on the Rights of the Child, encompass economic, social and cultural aspects that pertain, first and foremost, to the children’s right to life and right to humane treatment.
150. Therefore, in the instant case the Court will not rule on the possible violation of Article 19 of the American Convention separately; instead, it will include its decision on the Article 19 violation in the chapters pertaining to the other rights whose violation has been alleged.
151. This Court has held that all persons detained have the right to live in prison conditions that are in keeping with their dignity as human beings and that the State must guarantee their right to life and their right to humane treatment.94
152. The State has a special role to play as guarantor of the rights of those deprived of their freedom, as the prison authorities exercise heavy control or command over the persons in their custody.95 So there is a special relationship and interaction of subordination between the person deprived of his liberty and the State; typically the State can be rigorous in regulating what the prisoner’s rights and obligations are, and determines what the circumstances of the internment will be; the inmate is prevented from satisfying, on his own, certain basic needs that are essential if one is to live with dignity.
153. Given this unique relationship and interaction of subordination between an inmate and the State, the latter must undertake a number of special responsibilities and initiatives to ensure that persons deprived of their liberty have the conditions necessary to live with dignity and to enable them to enjoy those rights that may not be restricted under any circumstances or those whose restriction is not a necessary consequence of their deprivation of liberty and is, therefore, impermissible. Otherwise, deprivation of liberty would effectively strip the inmate of all his rights, which is unacceptable.
154. Invariably, deprivation of liberty frequently affects the enjoyment of human rights other than the right to personal liberty.96 An inmate’s right to personal privacy and to the privacy of his family life may be restricted. This restriction of rights is a consequence or collateral effect of the deprivation of liberty, but must be kept to an absolute minimum97 since, under international law, no restriction of a human right is justifiable in a democratic society unless necessary for the general welfare.98
155. By contrast, other rights –such as the right to life, the right to humane treatment, freedom of religion and the right to due process- cannot be restricted under any circumstances during internment, and any such restriction is prohibited by international law. Persons deprived of their liberty are entitled to have those rights respected and ensured just as those who are not so deprived.
156. This Court has held that the right to life plays a key role in the American Convention as it is the essential corollary for realization of the other rights.99 When the right to life is not respected, the other rights vanish because the bearer of those rights ceases to exist.100 States have the obligation to ensure the conditions required for full enjoyment and exercise of that right.101
157. The right to humane treatment is a fundamental right that the American Convention protects by specifically prohibiting, inter alia, torture and cruel, inhuman, or degrading punishment or treatment; it also lists the right to humane treatment among those nonderogable rights that may not be suspended during states of emergency.102
158. The right to life and the right to humane treatment require not only that the State respect them (negative obligation) but also that the State adopt all appropriate measures to protect and preserve them (positive obligation), in furtherance of the general obligation that the State undertook in Article 1(1) of the Convention.103
As the Court previously indicated (supra paragraphs 151, 152 and 153), in order to protect and ensure the right to life and the right to humane treatment of persons deprived of their liberty and in its role as guarantor of those rights, the State has an ineluctable obligation to provide those persons with the minimum conditions befitting their dignity as human beings, for as long as they are interned in a detention facility. The European Court of Human Rights has likewise held that:
under [Article 3 of the Convention], this provision the State must ensure that a person is detained in conditions which are compatible regarding for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance.104
160. In the case of the right to life, when the person the State deprives of his or her liberty is a child, which the majority of the alleged victims in the instant case were, it has the same obligations it has regarding to any person, yet compounded by the added obligation established in Article 19 of the American Convention. On the one hand, it must be all the more diligent and responsible in its role as guarantor and must take special measures based on the principle of the best interests of the child.105 On the other hand, to protect a child’s life, the State must be particularly attentive to that child’s living conditions while deprived of his or her liberty, as the child’s detention or imprisonment does not deny the child his or her right to life or restrict that right (supra para. 159).
161. Articles 6 and 27 of the Convention on the Rights of the Child include within the right to life the State’s obligation to “ensure to the maximum extent possible the survival and development of the child.” The Committee on the Rights of the Child has interpreted the word “development” in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development.106 Regarding to children deprived of their liberty and thus in the custody of the State, the latter’s obligations include that of providing them with health care and education, so as to ensure to them that their detention will not destroy their life plans.107 The United Nations Rules for the Protection of Juveniles Deprived of Their Liberty 108 provide that:
13. Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the deprivation of liberty.
162. In the case of the right to humane treatment of a child deprived of his or her liberty, the State’s obligations are intimately related to quality of life. The standard applied to classify treatment or punishment as cruel, inhuman or degrading must be higher in the case of children.109
163. In keeping with the foregoing, the United Nations’ Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) provide that:
Juveniles in institutions shall receive care, protection and all necessary assistance-social, educational, vocational, psychological, medical and physical-that they may require because of their age, sex, and personality and in the interest of their wholesome development.110
164. In the instant case, the Court must establish whether the State, in fulfillment of its role of guarantor, took measures to ensure to all inmates at the Center –adults and children alike- the right to live with dignity and thus help them build their life plan, even while incarcerated.
165. In the chapter on facts proven (supra paragraphs 134.3, 134.4 and 134.24) the Court concluded that the Center did not have the proper infrastructure to house the inmates and that the Center was overpopulated, which meant that inmates lived in a state of constant overcrowding. Inmates were confined in squalid cells, with few sanitary facilities; many did not have beds, blankets and/or mattresses, which forced them to sleep on the floor, take turns with their cellmates or share what few beds and mattresses there were (supra paragraphs 134.9 and 134.10).
166. It has been shown in the instant case (supra para. 134.4) that the overpopulation and crowding were exacerbated by the fact that the inmates were ill-fed, had few opportunities for exercise or recreation, and were not given prompt and proper medical, dental and psychological care (supra paragraphs 134.6 and 134.7).
167. Among the methods of punishment used at the Center were solitary confinement, torture and detention incommunicado, as a means to impose discipline over the inmate population (supra para. 134.16). These methods of discipline are strictly prohibited by the American Convention.111 And while it has not been shown that all inmates at the Center experienced solitary confinement, torture, or detention incommunicado, the mere threat of conduct prohibited by Article 5 of the American Convention, when sufficiently real and imminent, can itself be in conflict with that article. In other words, creating a threatening situation or threatening an individual with torture may, in some circumstances, constitute inhumane treatment.112 In the case sub judice, the threat of those punishments was real, creating a climate of relentless tension and violence that was inimical to the inmates’ right to live with dignity.
168. Similarly, the subhuman and degrading detention conditions that all the inmates at the Center were forced to endure inevitably affected their mental health, with adverse consequences for the psychological growth and development of their lives and mental health.
169. It has also been established that the inmates at the Center who had been charged but never convicted were not held in quarters separate from convicted inmates. All inmates were subjected to the same treatment, and no distinction was made for whether they were convicted or not (supra paragraphs 134.20 and 134.21). This created a climate of insecurity, tension and violence in the Center. The State itself has admitted that the accused and the convicted were not housed separately and has attributed the situation to “a lack of means.”113 Finally, inmates were not given effective opportunities to reform and find their place in mainstream society (supra para. 134.24).
170. The Court can therefore conclude that conditions at the Center were never of the kind that would have enabled those deprived of their liberty to live with dignity; instead, the inmates were forced to live permanently in inhuman and degrading conditions, exposed to an atmosphere of violence, danger, abuse, corruption, mistrust and promiscuity, where the rule that prevailed was survival of the fittest, with all its consequences. Indeed, in his ruling on the petition of generic habeas corpus filed on behalf of the inmates at the Center, the Civil and Commercial Law Judge of First Instance, Ninth Rotation (supra para. 134.28) found that “the allegations of a) physical, psychological or moral violence exacerbating the conditions under which the inmates were held, [and] b) the threat to the personal safety of the juveniles interned [at the Center] ha[d] been proved.”
171. These facts, attributable to the State, constitute a violation of Article 5 of the American Convention, to the detriment of all the inmates interned at the Center.
172. The Court must now establish whether, in the case of the children interned at the Center, the State fulfilled the added obligations it has under Articles 4, 5 and 19 of the American Convention, based on the existing international corpus juris regarding the special protection that children require. One such obligation is provided for in Article 5(5) of the American Convention, whereby States are required to keep minors subject to criminal proceedings separated from adults. And, as previously noted (supra para. 161), another obligation of the State is to provide children deprived of their liberty with special periodic health care and education programs. These obligations follow from a proper interpretation of Article 4 of the Convention, in combination with the pertinent provisions of the Convention on the Rights of the Child and Article 13 of the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights, which Paraguay ratified on June 3, 1997 and which entered into force on November 16, 1999. Such measures are of fundamental importance inasmuch as the children are at a critical stage in their physical, mental, spiritual, moral, psychological and social development that will impact, in one way or another, their life plan.
173. In the instant case it has been shown (supra paragraphs 134.6 and 134.7) that the children interned in the Center did not even have the proper health care that any person deprived of his or her liberty must have, and were thus denied the regular medical supervision that would ensure the children’s normal growth and development so essential to their future.
174. It has also been proven that the State did not provide the children interned at the Center with the education they needed and that the State was required to provide as part of its obligation to protect the right to life, in the sense previously explained, and as required under Article 13 of the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights. The education program offered at the Center was unsatisfactory, as it did not have adequate resources and teachers (supra para. 134.12). The State’s failure to fulfill its obligation in this regard has all the more serious consequences when the children deprived of liberty are from marginal sectors of society, as is true in the instant case, because the failure to provide an adequate education limits their chances of actually rejoining society and carrying forward their life plans.
175. As for compliance with Article 5(5) of the Convention, it has been established (supra para. 134.16) that on a number of occasions, children were transferred to adult prisons either as a form of punishment or because of overcrowding at the Center, and that at those adult penal institutions the children shared physical space with adults. This exposed the children to conditions highly prejudicial to their development and made them vulnerable to others who, as adults, could prey upon them.
176. In light of the brief answering the application, where the State admitted responsibility “with regard to the detention conditions incompatible with human dignity” and the other facts established in this chapter, the Court can conclude that the State did not effectively fulfill its role as guarantor of the rights of the child, in this special relationship of subordination between the State and the adult/child deprived of liberty. The State failed to take the necessary positive measures to ensure to all inmates decent living conditions. It also failed to take the special measures of protection that are required of it where children are concerned. Furthermore, it was the State that allowed its agents to threaten, infringe, violate or restrict nonderogable rights that may not be violated or restricted under any circumstances or in any way, by exposing all the inmates at the Center to cruel, inhuman and degrading treatment and to unfit living conditions that were prejudicial to their right to life, their growth and development and their life plans. By its failings, the State violated Articles 4(1), 5(1), 5(2) and 5(6) of the American Convention, in relation to Article 1(1) thereof and, in the case of the children, Article 19 of the Convention as well. These violations were committed to the detriment of all inmates at the Institute in the period from August 14, 1996 to July 25, 2001, whose names appear on the list submitted by the Commission on November 19, 2002 (supra para. 36), which is attached to the present Judgment.
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