REASONED OPINION OF JUDGE RICARDO GIL LAVEDRA
1.
In the brief time available to issue my concurring opinion with the decision of
the Court, I should like to refer, very briefly, to certain significant aspects
that, in my view, are raised by the judgment in this case, “Bulacio, Walter
David,” as well as to make several general comments on the matter. The
most significant themes, in my view, are: the way in which the parties have
arrived at a “friendly settlement,” in light of the text of the Rules of Procedure
of the Court; criminal punishment as a component of reparations for the
violation of the human rights of the victim; the obligations of the judges to
conduct the criminal proceeding on the basis of the right to judicial protection
(Article 25 of the American convention) and full effectiveness of the decisions
of the Court regarding domestic legal impediments.
2.
Chapter V of the Rules of Procedure of the Inter-American Court of Human
Rights sets forth the ways in which the proceedings before it can be concluded
in advance. Thus, Article 52 regulates the hypothetical situation of a decision
by the applicant not to continue the case (number 1), or the acquiescence of
the respondent (number 2). Article 53, in turn, considers cases of friendly
settlement, compromise, or any other occurrence likely to lead to a
settlement of the dispute.
None of the above hypothetical situations is binding for the Court, which as a
body for protection of human rights can decide not to accept the proposals
made by the parties and decide to continue its consideration of the case
(Article 54).
In this case, the Inter-American Commission, the representatives of the next
of kin of the victim, and the State submitted to the Court a document in which
the State acknowledged its international responsibility, based on a joint
account of the facts, with certain differences with respect to how it had been
set forth in the application. In brief, the parties settled the factual dispute
amongst themselves and the respondent acknowledged its responsibility for
those facts.
Specifically, the parties agreed that Walter David Bulacio had been illegally
imprisoned, that neither his family nor a juvenile judge had been informed of
this event, that the State had not exercised custody adequately, which
contributed to his death, and that subsequently his next of kin did not have
access to an effective legal remedy. These facts determined the international
responsibility of the State for violation of Articles 2 (domestic legal effects), 4
(right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8
(right to fair trial), 19 (rights of the child), and 25 (judicial protection), and
they asked the Court to rule on appropriate reparations.
It is not clearly a case of a decision by the applicant not to continue the case,
nor is it clearly one of acquiescence to the terms of the application. The
situation before us is set within the context of Article 53 of the Rules of
Procedure and what makes it admissible is, precisely, that there is an
acknowledgment of international responsibility and that it does not differ
substantially from the points that were being debated, and “full reparation”
was offered.