Pleadings of the State 199. In the case of Article 2 of the Convention, the State argued that prior to 1998 Paraguay did not have a criminal justice system that emphasized guarantees and that provided a special proceeding for juveniles; nor did its juvenile justice code conform to international standards governing this subject; however, its fulfillment of its obligation to adopt domestic measures was “beyond question,” given the new laws that began to be introduced with penal and judicial reform in Paraguay starting in 1997, one year after the present case was submitted to the Commission.
200. In the case of Article 8 of the Convention, the State reasoned that:
a) in the petition of generic habeas corpus it filed, the Tekojojá Foundation, the original complainant, acknowledged that the minors were lawfully deprived of their liberty;
b) it complied with its obligation under Article 8(2)(e) of the Convention, to provide legal counsel to the inmates at the Center. Most of the inmates at the Center turned to the Ministry of Public Defense to be assigned defenders, who provided legal assistance to ensure effective procedural guarantees and due process of law; and
c) the Commission has utterly failed to demonstrate that the State violated Article 8(2)(c) of the Convention, a right that every accused person has to be provided with adequate time and means for the preparation of his defense.
Considerations of the Court 201. Given the particulars of the instant case, the Court will analyze Articles 2 and 8(1) of the American Convention in combination and in relation to Articles 19 and 1(1) thereof. The Court will spell out the State’s obligations under Article 2 of the Convention and then analyze them in the context of the judicial guarantees that the Convention provides for children in conflict with the law.
202. First, this Court has already established that the alleged victims or their legal representatives can assert or invoke new rights in their brief of pleadings and motions (supra para. 125), which was done in the case of Article 2 of the American Convention.
203. Article 2 of the Convention provides that:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
205. In general international law, it is a universally accepted principle of customary law that a State that has ratified a human rights treaty must make the necessary amendments to its domestic laws to ensure proper compliance with the obligations it has undertaken.116 The American Convention establishes the general obligation of each State party to adapt its domestic laws to the Convention’s provisions, so as to guarantee the rights therein protected.117 This general obligation of a State party means that the provisions of domestic law must be effective (principle of effet utile).118 This means that the State must adopt all measures so that the provisions of the Convention are effectively fulfilled in its domestic legal system, as Article 2 of the Convention requires.119 206. The Court has held that the general duty set forth in Article 2 of the American Convention implies the adoption of measures on two fronts: on the one hand, the suppression of rules and practices of any kind that entail violation of the guarantees set forth in the Convention; on the other, the issuance of rules and the development of practices leading to the effective observance of said guarantees.120 207. In the case sub judice, the representatives alleged noncompliance with Article 2 of the American Convention. The grounds upon which it based its assertion included the following: a) the relevant domestic law did not establish the subsidiarity principle and did not stipulate that preventive detention was to be reserved for exceptional cases; b) the pattern of abusive violations of children’s rights makes it incumbent upon the State to adopt adequate measures for their protection; and c) the obligation to ensure the free and full exercise of human rights is not satisfied merely because a system of laws is in place whose purpose is to make compliance with this obligation possible; it also means that the State in fact ensures the existence of an effective guarantee of the free and full exercise of human rights.
208. Under Paraguay’s 1981 Minor’s Code, children came under the jurisdiction of the regular criminal justice system as of the age of 14. The State itself acknowledged that “prior to 1998 Paraguay did not have a criminal justice system that emphasized guarantees and that provided for special criminal proceedings for juveniles, much less a [juvenile justice code that] conform[ed] to international standards governing this subject.” The Court must point out that while the new Code of Criminal Procedure enacted in 1998 provides for special juvenile proceedings, those regulations make no provision for a specialized jurisdiction for juvenile offenders. So no specific forum was established in Paraguay for children in conflict with the law until Policy Decision No. 214 of May 18, 2001, which regulates the functions of the judges in juvenile trial and sentencing court (supra para. 134.57); nor was any special procedure established that would be appropriate for questioning children in conflict with the law.
209. The guarantees set forth in Articles 8 of the Convention are equally recognized for all persons, and must be correlated with the specific rights established in Article 19 in such a way that they are reflected in any administrative or judicial proceedings where the rights of a child are discussed.121 While procedural rights and their corollary guarantees apply to all persons, in the case of children exercise of those rights requires, due to the special condition of minors, that certain specific measures be adopted for them to effectively enjoy those rights and guarantees.122 210. This Court has held that one obvious consequence of the importance of handling matters that pertain to children differently, and specifically those matters having to do with some unlawful behavior, is the establishment of specialized jurisdictional bodies to hear cases involving conduct defined as crimes and attributable to juveniles.123 The Convention on the Rights of the Child provides that States shall seek to promote “the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law.”124 211. According to the relevant international standards on the subject, the special jurisdiction for children in conflict with the law in Paraguay, and its related laws and procedures should feature, inter alia, the following: 1) first, the system should be able to provide measures for dealing with such children without resorting to judicial proceedings;125 2) should judicial proceedings be necessary, the juvenile court should be able to order a variety of measures, such as psychological counseling for the child while on trial, control over the way the child’s testimony is taken, and regulation of the public nature of the proceedings; 3) it should also have a sufficient margin of discretion at all stages of the proceedings and at the different levels of juvenile justice administration126; and 4) those who exercise discretion should be specially qualified or trained in the human rights of the child and child psychology to avoid any abuse of the discretionary authority and to ensure that the measures ordered in any case are appropriate and proportionate.127
212. Those elements, whose purpose is to recognize the child’s general vulnerability vis-à-vis judicial proceedings and the greater impact that the experience of standing trial has on a child, were missing from the pertinent Paraguayan laws, at least until 2001.
213. For the foregoing reasons the Court concludes that by failing to establish, until 2001, a specialized court jurisdiction for children in conflict with the law or a proceeding other than the one followed in the case of adults and that adequately provided for their special status, the State violated Articles 2 and 8(1) of the Convention, both in relation to Articles 19 and 1(1) thereof, to the detriment of the children who were interned at the Center in the period from August 14, 1996 to July 25, 2001.
214. On the other hand, the Court welcomes the work that the State has accomplished through its recent legislative, administrative and other reforms (supra para. 134(57)), as those reforms take on special importance vis-à-vis the protection of juvenile offenders. In the case sub judice, it is not for this Court to decide whether the current laws are compatible with the American Convention.
215. The Court notes that in the instant case, both the Commission and the representatives have alleged patterns or systematic practices that violated Article 8 of the American Convention, to the detriment of all the inmates interned at the Center in the period between August 14, 1996 and July 25, 2001. The Commission, on the one hand, alleged that the practice meant, inter alia, that inmates were not given a hearing within a reasonable period, and spent long periods in preventive detention. The representatives, for their part, alleged that a routine practice existed that was a violation of international standards for the protection of the child and involved, inter alia, the following: a) unwarranted delays in rendering final judgments on cases; b) unsatisfactory legal counsel provided to the children; and c) a failure to investigate those responsible for the detention conditions at the Center. Both the Commission and the representatives reason, therefore, that the State bears the burden of proof in the case of these practices that, they allege, violated Article 8 of the Convention; in other words, the State must show proof of individual cases in which such violations of the judicial guarantees of the inmates at the Center did not occur.
216. This Court deems that general facts related to certain judicial guarantees of the inmates at the Center have been established (supra para. 134.18 a 134.24), such as the slow pace of the inmates’ cases and the poor legal counsel provided to them. The foregoing notwithstanding, in order for the Court to determine whether a violation of specific judicial guarantees provided for in Article 8(2) of the Convention has occurred, the Commission and/or the representative of the alleged victim must provide the information necessary for the State, if it can, to demonstrate to this Court that it has complied with the obligations that arise out of that provision. In the instant case, that information on individual cases was not provided.
217. Although the Court has frequently used patterns of conduct or practices as a means of evidence to determine that human rights were violated, it has always done so when the finding is supported by other specific pieces of evidence. In the case of Article 8 of the American Convention, the Court needs information about each individual victim and how his case was dealt with in the domestic courts. The Inter-American Court was not given that kind of information in the instant case.
218. This Court therefore finds that Article 8(1) of the Convention, in relation to Articles 19, 2 and 1(1) thereof, has been violated to the detriment of the children who were interned at the Center in the period from August 14, 1996 to July 25, 2001. However, this Court does not have sufficient information to determine whether the State violated Article 8(2) of the Convention in the case of specific alleged victims.