18
53.
The Commission and the State also submitted, respectively, the sworn
statements of expert witnesses Emilio García Méndez and Máximo Emiliano Sozzo,
both rendered in writing before a notary public (supra 28), in accordance with the
March 6, 2003 Order of the Court (supra 27).20 Said statements are summarized as
follows:
a)
Expert opinion of Emilio García Méndez, Doctor in Law, attorney, expert in
legislation on children and adolescents
The intensity and frequency of police abuse continues to be a matter of concern in
Latin America. It is reasonable to propose the hypothesis that there is a strong
causal relationship between frequency and intensity of police abuse and arbitrary
detentions, and between the latter, in turn, and the concept of “protection,” as it
appears in the “minor-oriented” juridical culture.
With respect to arbitrary police arrests in Argentina, there would seem to be a strict
and restrictive criterion for adults and a much more lax and discretionary one for
minors.
For almost 70 years, from 1919 until the adoption and ratification of the Convention
on the Rights of the Child in 1989, arbitrary detentions of minors were not only a
customary practice, but they also coexisted peacefully with legal doctrine and
legislation in force.
The 1989 Convention on the Rights of the Child has paradoxically made it possible to
understand the flagrantly unconstitutional nature of all the legal support for
“protection-repression” of poor children in Argentina. In this regard, the basis for
organization of the policy of social assistance to poor children and rebellious and
marginalized adolescents was a systematic violation of the most basic constitutional
provisions.
For a police detention to be in accordance with international human rights standards,
the grounds for imprisonment of a person (whether adult or minor) must be
previously set forth formally in a law, obviously in accordance with the National
Constitution.21 Secondly, the procedures for detention must be objectively defined by
law. Third, even if police detentions are in accordance with what is set forth in the
law, they cannot be arbitrary, that is, they must be reasonable, foreseeable, and
proportional to the specific case. Unrestricted respect for the right to fair trial of
every person arrested must also be ensured. In the case of minors, it is furthermore
indispensable for the family to be informed immediately or as soon as possible of the
measure and of the reasons for the measure, as an essential safeguard for protection
of their rights.
The main obstacles for respect of the human rights of children are not due only to
ambiguous and defective juridical techniques but rather, mainly, to a stereotyped
20
Cf., Sheets 801 to 807 and 815 to 831 of the main file on the merits at the Secretariat of the
Court entitled “Caso Bulacio. Fondo. Tomo IV”.
21
As, for example, Article 18 of the Constitution of Argentina.