104
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.175 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.176 This general obligation of a State party
means that the provisions of domestic law must be effective (principle of effet
utile).177 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.178
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.179
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
175
Cf. Case of Bulacio, supra note 56, para. 140; Case of the “Five Pensioners”, supra note 55, para.
164; and Case of Cantos, supra note 59, para. 59.
176
Cf. Case of Bulacio, supra note 56, para. 142; Case of the “Five Pensioners”, supra note 55, para.
164; and Case of Cantos, supra note 59, para. 59.
177
Supra note 176.
178
Supra note 176.
179
Cf. Case of the “Five Pensioners”, supra note 55, para. 165; Case of Baena Ricardo et al. .
Competence, Judgment of November 28, 2003. Series C No. 104, para. 180; Case of Cantoral-Benavides,
supra note 153, para. 178.
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