3
attainment of convenient and agreed-upon solutions –when and insofar as possible-,
to resolve the dispute based on the will of the litigants, and not only on the decision
of the court as a third party. Opting for this alternative in the process –whether
completely setting aside the court proceeding, or making certain acts or stages of
this proceeding unnecessary- significantly contributes to the opening of feasible
avenues to attain the goals sought by justice with respect to human rights. There
have been other such acts in previous cases, not only in proceedings before the
Inter-American Commission, where the possibility of a friendly settlement sponsored
by that body of the system exists explicitly, but also during proceedings instituted
before the Court.
10.
In the agreement signed by the parties, the Court is asked to “decide on the
points of law discussed in this case regarding application of Article 7 of the American
Convention on Human Rights [which refers to various aspects of the right to personal
liberty and its abridgments and restrictions] within the framework set forth by the
Honorable Inter-American Court of Human Rights in its Advisory Opinion Nº 17.” This
request entails –and the Judgment deems it so- the possibility that the Court may
issue “considerations regarding the conditions of detention of children and,
specifically, imprisonment of children” (para. 122). The starting point for said
considerations would be the facts that gave rise to the application –the specific facts
that Walter David Bulacio was the victim of-, but their content and significance would
go beyond the specific case. Of course, the authority of the Court to examine said
issues and to issue a ruling on them stems from Article 2 of the Convention,
regarding steps that a State must take to fulfill its human rights treaty obligations.
11.
In this regard, the Court itself has set forth its criteria in the aforementioned
Advisory Opinion OC-17/2002, which can serve as a reference point for regulations
regarding juvenile offenders and other minors subject, for any reason, to protection
by the State. The principles and provisions cited in that Opinion, as well as
statements therein, provide a diverse set of governing principles that contribute to
the establishment of international standards regarding the matter we are discussing.
The collegiate body whose establishment is required may take into account said
standards to issue such reflections and recommendations as it may deem pertinent.
12.
In my view, this constructive request of the parties, contained in the second
clause of the February 26, 2003 agreement, does not mean that the State declines
its regulatory authority regarding this matter, which originates in the State’s own
rights and obligations, nor does it impede or limit its carrying out such reforms as it
may deem pertinent and that are in accordance with its domestic and international
duties, based on the national legal system and the San José Covenant. Surely said
reforms will be more extensive and detailed than those set forth, in an illustrative
and non-exhaustive manner –since they are human rights provisions, always open to
progress-, in the Judgment to which I attach this Opinion. They will also follow the
same direction as others already carried out, on which the State has provided
information and which are mentioned in the Judgment (para. 108.b). The advisory
body to be set up (para. 144) may provide valuable assistance for progress in this
area of the legal system and of the respective practices.
13.
In its regulations regarding offenses by minors and the respective legal
reaction, the State legislates and acts on various aspects of a whole, which is justice
rendered by a public authority established on the basis of certain principles and
concepts of a democratic society. This expression of justice –or this control function
of the State- must not only ensure, as it should, the public interest, but also ensure
respect for the legitimate interests and rights of private individuals, in accordance