REASONED CONCURRING OPINION OF
JUDGE SERGIO GARCÍA RAMÍREZ
IN THE JUDGMENT ISSUED BY THE
INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE
BULACIO V. ARGENTINA CASE
ON SEPTEMBER 18, 2003
1.
I concur with the members of the Court in the Judgment to which I attach this
Separate concurring opinion to specify, from my own perspective, the scope of
certain concepts included in that Judgment, in light of the background and the
request submitted jointly by the parties to the Inter-American Court regarding
certain points of law and the measures applicable to minors.
2.
It is important to point out that the Inter-American Court has had the
opportunity to rule on these matters when exercising both its advisory function and
its contentious jurisdiction. A recent instance of the former was its August 28, 2002
Advisory Opinion OC-17/2002, on the Juridical status and human rights of the child,
in response to a request by the Inter-American Commission on Human Rights. The
latter applies to the instant Judgment issued in the Bulacio vs. Argentina Case. The
Court is studying other contentious matters also pertaining to issues with respect to
minors.
3.
Thus, the Inter-American Court has been able to address a prominent theme
that today raises numerous questions and controversies, with respect to a large
number of inhabitants of the countries of our Continent, where youths are a
substantial population. It also addresses a subject regarding which, especially in
recent years, there have been innovations stemming from new trends of thought and
reflected in various legislative and institutional reforms. This includes the 1989
Convention on the Rights of the Child and other instruments pertaining, specifically,
to offenses attributed to minors and the judicial system in charge of hearing this type
of cases, such as the 1985 United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (the Beijing Rules), the 1990 United Nations
Standard
Minimum
Rules
for
Non-custodial
Measures
(the Tokyo Rules), and the 1990 United Nations Guidelines for the Prevention of
Juvenile Delinquency (the Riyadh Guidelines).
4.
In this framework, driven by an in-depth modification of the circumstances in
which minors live and the actions, in this regard, of social and State bodies, there
has been an important evolution of juridical institutions and ideas. We have had to
review previous positions and adjust viewpoints and suggestions. I stated this, from
my standpoint, in my Concurring opinion to Advisory Opinion OC-17/2002.
5.
In that Concurring opinion, I stated the need to go beyond the debate
between schools of thought and to arrive at synthetic solutions, adopting the best of
each doctrine, that which is beneficial and can therefore be lasting, and thus seek to
alleviate the situation of minors and contribute to their true protection and genuine
development. In other words, “the time has come to leave behind the false dilemma
and recognize the true dilemmas that are present in this field.” “On the one hand,
this synthesis would retain the intention of protecting the child, as a person with
specific needs for protection, who should be looked after with measures of this type,
rather than with the characteristic solutions of the criminal system for adults,” as
clearly follows from the 1989 Convention, the Beijing Rules, the Riyadh Directives,
and the Tokyo Rules. On the other hand, this synthesis “would include the basic