In the Bulacio Case,
the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”), composed of the following Judges*:
Antônio A. Cançado Trindade, President;
Sergio García Ramírez, Vice-President;
Hernán Salgado Pesantes, Judge;
Oliver Jackman, Judge;
Alirio Abreu Burelli, Judge; and
Ricardo Gil Lavedra, Judge ad hoc;
also present,
Manuel E. Ventura Robles, Secretary; and
Pablo Saavedra Alessandri, Deputy Secretary,
pursuant to Articles 29, 55, 56 and 57 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”) and Article 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), the Court issues the following Judgment in the instant case.
I
INTRODUCTION OF THE CASE
1. On January 24, 2001, pursuant to the provisions of Articles 50 and 51 of the American Convention on Human Rights, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) filed before the Court an application against the Republic of Argentina (hereinafter “the State” or “Argentina”) originating in complaint No. 11,752, received at the Secretariat of the Commission on May 13, 1997.
2. In light of the above, the Commission asked the Court to find that there was a violation of the rights of Walter David Bulacio under Articles 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty) and 19 (Rights of the Child), as well as Articles 8 (Right to Fair Trial) and 25 (Right to Judicial Protection) to his detriment and that of his next of kin, all of them in combination with Article 1 (Obligation to Respect Rights) of the American Convention. The Commission also asked the Court to order the State to adopt various measures of pecuniary and non-pecuniary reparation (infra 82, 92, 107, and 147).
II
THE FACTS
3. The submissions by the Commission and by the Center for Justice and International Law (hereinafter “CEJIL”), the Centro de Estudios Legales y Sociales (hereinafter “CELS”) and the Coordinadora contra la Represión Policial e Institucional (hereinafter “CORREPI”), who also act as representatives of the next of kin of the alleged victim (hereinafter the “representatives of the alleged victim”), show the following facts:
1) on April 19, 1991, the Argentine Federal Police conducted a massive detention or “razzia” of “more than eighty persons” in the city of Buenos Aires, near the stadium Club Obras Sanitarias de la Nación, where a rock music concert was to be held. One of the detainees was Walter David Bulacio, a seventeen year-old, who after his detention was taken to the 35th Police Station, specifically to its “juvenile detention room”. At this place, police agents beat him. The detainees were gradually set free without any criminal charges being filed against them, and the reason for their detention is unknown. In the case of the minors, the Juvenile Correctional Judge on duty did not receive notice, as required by law No. 10,903 and, in the specific case of Walter David Bulacio, his next of kin were not informed either. During their detention, the minors were held under inadequate detention conditions;
2) on April 20, 1991, after having vomited in the morning, youth Walter David Bulacio was taken to the Pirovano Municipal Hospital in an ambulance, without informing his parents or the Juvenile Judge. The physician who examined him at the hospital pointed out that the youth showed injuries and he diagnosed a “cranial traumatism.” That same afternoon, the alleged victim was taken to the Fernández Municipal Hospital for an x-ray study and was taken back to the Pirovano Municipal Hospital. Walter David Bulacio told the physician who examined him that he had been beaten by the police, and that night he was visited at this hospital by his parents, who had shortly before heard from a neighbor what had happened to their son;
3) on April 21, 1991, minor Walter David Bulacio was transferred to the Mitre Sanatorium. The physician on duty reported to the 7th Police Station that “a minor with injuries” had been admitted and, therefore, that Police Station opened a police investigation for criminal injuries;
4) on April 23, 1991 the 9th National Juvenile Criminal Trial Court (hereinafter “the 9th Court”) took cognizance of the injuries suffered by Walter David Bulacio;
5) on April 26, minor Walter David Bulacio died. On April 30, 1991 the aforementioned Court declared that it did not have jurisdiction and it forwarded the case “against NN for injuries inflicted on Walter [David] Bulacio, followed by death” to the 5th National Criminal Trial Court (hereinafter “the 5th Court”), which heard crimes committed by adults. The parents of the alleged victims appeared as applicants before the 9th Court on May 3 in the case regarding the circumstances under which the detentions took place and the other crimes committed against Walter David Bulacio and other persons. The case was divided and the 5th Court retained the investigation regarding the injuries and death of Walter David Bulacio;
6) The 9th and 16th National Criminal Juvenile Trial Courts disqualified themselves regarding the detentions and other illegal actions against the other persons. On May 22, 1991 the Special Court of the National Criminal and Correctional Appellate Court issued a joinder of the case and forwarded it to the 9th Court, where it was called “Bulacio Walter s/muerte.” On May 28, said Court decided to prosecute Police Captain Miguel Ángel Espósito for the crimes of illegal denial of liberty, abuse of authority and non-fulfillment of the duties of a public official. In the course of seven months, roughly 200 persons rendered testimony and the case was kept under “secrecy of preliminary proceedings;”
7) on December 28, 1991 the applicants were given access for the first time to the testimony in the case file in the 9th Court and they requested that all the perpetrators be tried, including higher authorities than Police Captain Espósito;
8) on February 21, 1992 the Prosecutor requested that the case against Miguel Angel Espósito be “partially and definitively dismissed” regarding the death of minor Walter David Bulacio. The Prosecutor also requested “partial and provisional dismissal” of the case against Police Captain Espósito as regards illegal imprisonment. On March 20, 1992 the 9th Court ordered preventive detention of the indictee, Police Captain Miguel Ángel Espósito, for the crime of aggravated illegal imprisonment of Walter David Bulacio and others, a measure that “w[ould] not become effective in view of the fact that he has been released from prison;” it ordered an impounding; it ordered provisional dismissal of charges “with respect to the investigation of injuries followed by death of Walter David Bulacio, […] for which fact no person has been prosecuted” and it ordered provisional dismissal “with respect to the other facts [investigation regarding various allegations of injuries, threats, harsh treatment, unlawful harassment or coercion, theft or wrongful detention of property, misrepresentation of public document, requisition of means of transportation, and others mentioned by the Prosecutor [...] and inherent to the application of the applicant party], for which no person was prosecuted.” In response to an appeal by the counsel of the accused, on May 19, 1992 the National Criminal and Correctional Appellate Court (hereinafter “Appellate Court”) annulled preventive detention because “the considerations above impede making the accused responsible for application of an unconstitutional instrument [Memorandum 40] when [Miguel Ángel Espósito] may not have been aware of that” and “based on the fact that his behavior “was in accordance with practices customarily in force.” Analysis of the file shows that according to the Report by Police Captain Miguel Ángel Espósito, the official who made the arrests, he acted unofficially applying Memorandum No. 40 of the Directorate of Judicial Affairs of the Argentine Federal Police, issued on April 19, 1965. Said Memorandum was an internal communication by an official in charge of the Judicial Directorate of the Argentine Federal Police to another official in charge of the Directorate of Security, which “left in [the] hands [of Police Captain Espósito] the decision to act without consulting any court, the action being extra-judicial;”
9) on August 28, 1992 the 9th Court decided “to provisionally dismiss in the instant preliminary proceedings [...] and set aside the prosecution of Miguel Ángel Espósito [...] with respect to the facts for which he was investigated,” the latter being the “aggravated illegal imprisonment of Walter David Bulacio, now deceased, and the other persons mentioned in that decision.” Both parties appealed this decision: the defense counsel requested definitive dismissal and the applicant requested annulment of the dismissal and continuation of the investigation;
10) on November 13, 1992 the VI Court of the Appellate Court decided to “make definitive the dismissal [...] definitive” with respect to Miguel Ángel Espósito in this case, which led the applicants to object to the judges and even seek a political trial against them. The former was turned down by the VI Court of the Appellate Court and the latter “up to the time [of the application being filed before the Court] no decision ha[d] been reached;”
11) in 1993, the representatives of the next of kin of Walter David Bulacio filed a civil lawsuit against the Federal Argentine Police and Police Captain Miguel Ángel Espósito for the amount of $300,000.00 (three hundred thousand pesos). This case has been suspended until rendering of the criminal judgment;
12) the applicants filed an extraordinary appeal in the criminal case, which was turned down on February 12, 1993 by the VI Court of the Appellate Court, and an appeal of complaint against refusal to accept appeal, decided by the Supreme Court of Justice of the Nation on April 5, 1994, which found it to be in order and decided that the extraordinary appeal filed was in order, and annulled the challenged decision which it considered not to be a “valid judicial act,” as it lacked factual and legal grounds;
13) on July 7, 1994 the VI Court of the Appellate Court found that it “seem[ed] necessary to continue investigating the scope of the behavior attributed to the accused and it annul[led] the [provisional dismissal];”
14) “in view of the decision by the Supreme Court of Justice of the Nation”, the 4th National Juvenile Court (hereinafter “the 4th Court”) was designated to hear the case. On September 30, 1994 said Court ordered preventive detention of Police Captain Miguel Ángel Espósito for the crime of aggravated illegal imprisonment and set a $100,000.00 (one hundred thousand pesos) impounding. On February 7, 1995 the higher court confirmed preventive detention in response to an appeal filed by the defense counsel for Miguel Ángel Espósito. That same day, the next of kin of Walter David Bulacio supplied new evidence and requested reopening of the investigation on “injuries, unlawful coercion and torment followed by death.” The Public Prosecutor’s Office adhered to this request and on February 22, 1995 the 4th Court ordered that the investigation begin anew, ordering the gathering of the evidence requested;
15) on February 22, 1995 the preliminary proceedings were reopened and Fabián Rodolfo Sliwa, “a former officer who, according [to what he himself] said to the media, had witnessed the physical punishment of Walter [David] Bulacio by Police Captain Miguel Ángel Espósito,” was summoned as a witness. The defense counsel for Police Captain Espósito sought, unsuccessfully, to challenge the witness and filed an objection;
16) on May 22, 1995 the defense counsel for Police Captain Espósito filed a motion for “promoción de especialidad” and requested that a trial court for adults intervene, rather than the juvenile court that had been intervening since 1991, for which reason the 4th National Juvenile Court and the 5th and 32d National Criminal Examining Courts of First Instance were disqualified;
17) on August 24, 1995 the Appellate Court decided that the 4th Court should continue to hear the case;
18) between November, 1995 and February, 1996 the 4th Court took judicial steps to corroborate what witness Sliwa had stated in his testimony. Notwithstanding the above, said Court “provisionally dismissed” in the preliminary proceedings with respect to “the fact of injuries followed by death” suffered by minor Walter David Bulacio, on March 8, 1996. No person had been prosecuted for that fact. The defense counsel for Police Captain Espósito requested “definitive dismissal,” which was denied on March 19, 1996, and the “provisional dismissal” remained in effect and the preliminary proceedings were closed regarding illegal imprisonment, for which crime pre-trial detention had been ordered;
19) the main case file was forwarded to the “W” National Trial Court (hereinafter “W Court”), where on April 18 and May 16, 1996, respectively, the prosecutor, representing a group of victims, and the representatives of the parents of Walter David Bulacio filed charges and criminal prosecution in full trial against Police Captain Espósito;
20) on June 28, 1996 the defense counsel for Police Captain Espósito filed an objection challenging the prosecutor, as well as an objection regarding lack of jurisdiction. On July 2, 1996, the W Court overruled the objection challenging the prosecutor, and on March 26, 1998 the motion of “objection regarding lack of jurisdiction” was dismissed;
21) on December 2, 1996, the W Court reopened the motion regarding “lack of jurisdiction”, in which a statement was made on a “matter of law”, and the Appellate Court confirmed rejection of the objection on September 22, 1998. It also ordered the trial Court to “process the main proceedings with due promptness;”
22) on October 28, 1998 the defense counsel filed an extraordinary remedy for the Supreme Court of Justice of the Nation to definitively decide the issue of competence raised in the objection. On October 30, 1998 the defense counsel itself requested temporary suspension of said remedy and filed a motion of annulment. A decision was reached on this motion of annulment on April 29, 1999 and its rejection was reconfirmed on December 16, 1999. On May 18, 1999 the Appellate Court decided that the extraordinary remedy was not in order and it returned the file to Trial Court No. 48, former W Court (hereinafter “Court No. 48);
23) on December 27, 1999 a new motion of annulment was filed. The applicant and the Public Prosecutor’s Office requested that this remedy be dismissed. On March 9, 2000, Court No. 48, in turn, rejected the request for absolute annulment and for the dismissal to be declared definitive. The defense counsel appealed this decision. The Appellate Court denied the request and the defense counsel filed an extraordinary remedy for the Supreme Court of Justice of the Nation to adopt the final decision regarding annulment and dismissal. On December 7, 2000 the Appellate Court decided that the request for an extraordinary remedy was not in order;
24) on June 15, 2001, once the denial of the remedy requesting annulment had been declared final, the file returned to Court No. 48 to continue the proceedings with respect to the main case. On June 25, 2001 the defense counsel filed “objections requiring prior and special pronouncement”, which are being processed, seeking that the criminal action be declared extinguished due to statute of limitations and that the lawsuit be dismissed for lack of legal standing; and
25) on November 21, 2002 the VI Court of the Appellate Court decided that criminal action was extinguished. The Prosecutor’s Office appealed said decision, and at the time of the instant Judgment the parties have not informed this Court of any decision regarding the matter.
III
COMPETENCE
4. The Court is competent to hear the instant case, pursuant to Articles 62 and 63(1) of the American Convention. Argentina has been a State Party to the Convention since September 5, 1984, at which time it also accepted the obligatory jurisdiction of the Court.
IV
PROCEEDING BEFORE THE COMMISSION
5. On May 13, 1997 the Commission received an application filed by María del Carmen Verdú and Daniel A. Stragá, representing Víctor David Bulacio and Graciela Rosa Scavone, parents of the alleged victim, co-sponsored by the Coordinadora contra la Represión Policial e Institucional (hereinafter “CORREPI”), the Center for Justice and International Peace (hereinafter “CEJIL”) and the Centro de Estudios Legales y Sociales (hereinafter the “CELS”) (hereinafter “the applicants”).
6. On May 16, 1997 the Commission forwarded to the State the relevant parts
of the application and asked the State to provide the appropriate information
within 90 days. The State requested three consecutive extensions, which were
granted by the Commission. On December 3, 1997 the State requested that the
application be declared inadmissible, due to non-exhaustion of domestic remedies
and that none of the exceptions set forth in article 46(2) of the Convention
had been demonstrated. The applicants replied on February 26, 1998.
7. On May 5, 1998 the Commission adopted Admissibility Report No. 29/98, during
its 99th Special Session, and made itself available to the parties to attain
a friendly settlement.
8. On December 18, 1998 the applicants informed the Commission that the process of negotiating a friendly settlement with the State had ended, and they requested that it continue to process the case.
9. Between March, 1999 and September, 2000 the State and the applicants sent a number of briefs regarding exhaustion of domestic remedies, as well as important complementary information pertaining to the case.
10. On October 3, 2000 the Commission adopted Report No. 72/00, during its 108th Regular Session. In said report, it concluded that Argentina violated the rights to life (Article 4), to humane treatment (Article 5), to personal liberty (Article 7), to fair trial (Article 8), of the child (Article 19), and to judicial protection (Article 25), as well as the obligation to respect human rights (Article 1), enshrined in the American Convention, to the detriment of minor Walter David Bulacio. The operative paragraphs of said report set forth that the State must:
1. Adopt such measures as may be necessary for the facts stated above not to go unpunished, including a complete, impartial and effective investigation to establish the circumstances of the detention, injuries and death of Walter David Bulacio, and punishment of those responsible in accordance with Argentine legislation.
2. Adopt such measures as may be necessary for the next of kin of Walter David Bulacio, Víctor David Bulacio and Graciela Scavone de Bulacio, to receive adequate and timely reparation for the violations [...] found.
The Commission decides to forward [the] report to the State and to grant it two months time to comply with the recommendations made. Said term will begin on the date when the [...] report is forwarded to the State, and the latter may not publish it. The Commission also decides to inform the applicants that it has adopted a report under Article 50 of the American Convention.
11. The Commission forwarded said report to the State on October 24, 2000; however, the State did not respond to the recommendations made.
V
PROCEEDING BEFORE THE COURT
12. On January 24, 2001 the Commission filed an application with the Court regarding the instant case (supra 1).
13. The Commission appointed Robert K. Goldman and Víctor Abramovich as delegates and Raquel Poitevien as legal counsel. The Commission also accredited, as assistants, Viviana Krsticevic, of CEJIL, Andrea Pochak, of CELS, and María del Carmen Verdú, of the Coordinadora contra la Represión Policial e Institucional (hereinafter “CORREPI”), who also act as representatives of the next of kin of the alleged victim.
14. On February 6, 2001 the Secretariat of the Court (hereinafter “the Secretariat”), under instructions by the President of the Court (hereinafter “the President”), pursuant to the provisions of Articles 33 and 34 of the Rules of Procedure, asked the Commission to send, within 20 days, various information and documentation, as well as certain annexes to the application that were incomplete or illegible. On February 12 and 28, 2001, the Commission sent the documents that were requested.
15. In its March 20, 2001 note, the Court notified the State of the application and its annexes and, in turn, informed the State that it had the right to appoint an ad hoc Judge to participate in hearing of the case. On April 11, 2001 the State appointed Ricardo Gil Lavedra as Judge ad hoc, and Alberto Pedro D’Alotto as agent and María Teresa Flores as alternate agent. On July 4, 2001 the State appointed, in substitution of the aforementioned persons, María Rosa Cilurzo, as agent, and Andrea G. Gualde, as alternate agent. In a brief received on March 5, 2003 the State informed the Court of the appointment of Silvia Susana Testoni as its regular agent in substitution of Mrs. Cilurzo. Finally, on July 4, 2003 Horacio Daniel Rosatti was appointed regular agent in substitution of Mrs. Testoni.
16. In its July 18, 2001 brief, the State submitted its reply to the application and the respective annexes, several of which were illegible or lacked certain parts. The Secretariat of the Court requested of the State, several times, copies of the missing or illegible sheets of the annexes of the reply to the application. On October 14, 2001 the Secretariat was able to forward to the Commission the reply to the application and its annexes.
17. On November 2, 2001 the Commission requested of the President an opportunity to submit other acts in the written proceedings, pursuant to the provisions of Article 38 of the Rules of Procedure in force. On November 8, 2001 the President granted the parties an opportunity to submit briefs of reply and rejoinder, for which it gave each of the parties one month’s time. Said briefs were filed on December 7, 2001 by the Commission and on January 9, 2002 by the State.
18. On November 24, 2001 the Court asked the parties to submit their arguments regarding possible reparations, based on the principle of judicial economy and on Articles 31 and 44 of the Rules of Procedure of the Court. On December 20, 2001 the Commission requested an extension of the deadline to submit its arguments and evidence on possible reparations, in view of the situation in that country. An extension was granted until January 4, 2002 and the Commission submitted the document on that date. The State sent its observations and evidence regarding possible reparations on February 7, 2002.
19. On January 15, 2002 the Commission, after consulting with the State, requested postponement of the public hearing, in view of the circumstances in Argentina. The following day, the Secretariat informed the parties that the President had granted that request.
20. On April 18, 2002 the Commission reported that the criminal action in which the unlawful imprisonment of Walter David Bulacio was being investigated would be extinguished on May 16 of that year. On April 22, 2002 the President asked the State for its comments on that matter and these were submitted a week later, stating that there could be no extinguishment. On June 3, 2002 the State sent a copy of the judicial action by means of which the aforementioned case was activated.
21. On June 19, 2002 the Secretariat asked the State and the Commission to send the definitive list of witnesses and expert witnesses, whose statements and expert opinions they would propose at a future public hearing on the merits and possible reparations in the instant case. In its July 3, 2002 brief, the Commission reported that steps were being taken to reach a friendly settlement. On November 20, 2002 the Secretariat once again asked the State and the Commission to send the definitive list of witnesses and expert witnesses. On November 26, 2002 the State reported that the parties were taking steps to attain a friendly settlement, and it therefore requested that the scheduled public hearing be suspended. At that same date, the President ordered the Commission to send its observations regarding the petition by the State. On December 11, 2002 the Commission stated to the Court that it did not deem it appropriate at the time to suspend the public hearing. The following day, the Secretariat reiterated its request for the definitive lists of witnesses and expert witnesses offered by the parties. On the 16th, 18th and 20th of that month, respectively, the Commission and the State submitted the information requested.
22. In his December 20, 2002 Order, the President summoned the Inter-American Commission and the State to a public hearing to be held at the seat of the Court, commencing on March 6, 2003, with the aim of hearing the testimony of the witnesses and expert witnesses offered by the parties and their final verbal arguments. The written expert opinions of expert witnesses Osvaldo Héctor Curci and Osvaldo Hugo Raffo, offered by the State, were also admitted. Finally, the parties were informed that they could submit their final written arguments.
23. On January 23, 2003 the State forwarded the sworn testimony of the two expert witnesses offered (supra 22). On February 7, the Commission sent its comments on said testimony.
24. On February 5, 2003 the State sent a copy of Decree No. 161/2003, in which the President of the Republic of Argentina ordered the Procuración del Tesoro de la Nación to reach a friendly settlement in the instant case. The following day, the Secretariat, under instructions by the President, asked the Inter-American Commission for its comments on said decree. On February 14, 2003, the Commission pointed out that, after consulting with the representatives of the next of kin of the alleged victim, the latter “mantain[ed] their position regarding the importance of the public hearing convened for March 6, 2003.”
25. On February 27, 2003 the Commission received a copy of the agreement for a friendly settlement reached on February 26, 2003 between the State, the Commission and the representatives of the next of kin of the alleged victim, in which the State recognized its international responsibility in this case. It also asked that the expert opinion of Emilio García Méndez, offered as an expert witness for the public hearing, be received in writing by means of a sworn statement. The following day, the Secretariat requested the observations of the State. On March 3, 2003 the State submitted objections to the offers of evidence made by the Commission.
26. The Court held two public hearings, at which there appeared before the Court:
For the Inter-American Commission on Human Rights:
Robert K. Goldman, delegate;
Víctor Abramovich, delegate; and
Elizabeth Abi-Mershed, legal counsel.
For the representatives of the next of kin of the alleged victim:
Andrea Pochak, representative; and
María del Carmen Verdú; representative.
For the State of the Republic of Argentina:
Silvia Susana Testoni, agent
Andrea G. Gualde, alternate agent; and
Ambassador Juan José Arcuri.
Witness proposed by the Inter-American Commission:
Graciela Rosa Scavone.
Expert witnesses proposed by the Inter-American Commission:
Sofía Tiscornia; and
Graciela Marisa Guilis.
27. As a consequence of the friendly settlement reached by the parties and acknowledgment of its international responsibility by the State, on March 6, 2003 the Court held two public hearings (supra 26). In the first of these hearings, the parties read and delivered a document clarifying the meaning and scope of the terms of the agreement (infra 33). Once said hearing concluded, the Court noted that the controversy on the merits of the facts and their legal consequences had ceased, and it issued the following Order:
1. To hear the arguments of the Inter-American Commission on Human Rights and of the State of the Republic of Argentina regarding reparations in the instant case, as well as statements of the following witness [Graciela Rosa Scavone] and the following expert witnesses [Sofía Tiscornia and Graciela Marisa Guilis] offered by the Inter-American Commission on Human Rights[.]
[…]
2. To admit the expert opinions in writing of the expert witness offered by the Inter-American Commission on Human Rights, Emilio García Méndez, regarding legislation and domestic practices pertaining to minors and international standards applicable with respect to this matter, and of the expert witness to be designated by the State of the Republic of Argentina.
3. To order the State of the Republic of Argentina to report to the Inter-American Court of Human Rights, no later than march 13, 2003, the name of the expert witness mentioned in the previous operative paragraph.
4. To order that the expert opinions of the previous operative paragraph, rendered as written opinions, be certified by a notary public regarding contents as well as their signature.
5. To order the Inter-American Commission on Human Rights and the State of the Republic of Argentina, respectively, to take such steps as may be required to provide the written expert opinions that they offered.
6. To order the Inter-American Commission on Human Rights and the State of the Republic of Argentina to submit the expert opinions to the Inter-American Court of Human Rights no later than April 15, 2003.
7. To ask the Secretariat of the Inter-American Court of Human Rights to forward the expert opinions, once received in writing, to the Inter-American Commission on Human Rights or to the State of the Republic of Argentina, as appropriate, for them to submit whatever observations they deem pertinent within a non-extendable 30-day term from the date they receive notice.
At the start of the second hearing, the President informed the parties of the aforementioned Order and that the Court would continue with the reparations stage.
28. On March 14 of this same year the State submitted the curriculum vitae of expert witness Máximo Emiliano Sozzo, offered during the first public hearing (supra 26 and 27). Likewise, the Commission and the State submitted expert opinions on April 15, 2003, which were forwarded to the other party on April 21 and 22, respectively. The parties sent their observations thirty days later.
29. In light of the decision of the President of the Court (supra 22), the Secretariat, under instructions by the President, informed the parties on March 7, 2003 that the term for submitting final written arguments would conclude 30 days after they received the transcript of the public hearing. The latter was sent to the parties on May 30, 2003 and the final written arguments were sent by the Commission, the representatives of the next of kin of the alleged victim and the State on July 4 of the same year.
30. On July 9, 2003 the Secretariat, under instructions by the Court and pursuant to Article 44 of the Rules of Procedure, asked the representatives of the next of kin of the alleged victim and the State to send certain documents as evidence requested by the Court to facilitate adjudication of the case (infra 54 and 55). On July 16, 2003 the representatives of the next of kin of the alleged victim sent the evidence requested by the Court. On August 12, 2003 the State sent the documentation requested.
VI
ACKNOWLEDGMENT OF INTERNATIONAL RESPONSIBILITY AND FRIENDLY SETTLEMENT
31. As is evident from the friendly settlement agreement reached by the parties on February 26, 2003 and from the March 6, 2003 explanatory document, the State acknowledged its international responsibility in the instant case (supra 27 and infra 32 and 33).
32. The friendly settlement agreement signed by the State, the Inter-American Commission on Human Rights and the representatives of the next of kin of the alleged victim on February 26, 2003 sets forth that:
In the city of Buenos Aires, on February 26, 2003, the parties in case No. 11,752, “Walter David Bulacio,” being heard by the Inter-American Court of Human Rights, are present at the seat of the Bureau of Legal Affairs or “Procuración del Tesoro de la Nación.” The National Government is represented by the Head of the Bureau of Legal Affairs, Dr. Rubén Miguel Citara, the Minister of Justice, Security and Human Rights, Dr. Juan José Alvarez, and the Human Rights Director of the Ministry of Foreign Affairs, International Trade and Religious Affairs, Ambassador Horacio Basabe (hereinafter THE GOVERNMENT). On behalf of the Inter-American Commission on Human Rights, Commissioner Robert Goldman sent his consent regarding the content of the agreement, and Dr. Víctor Abramovich is also present, as Delegate of the Inter-American Commission on Human Rights (hereinafter THE COMMISSION). In addition, on behalf of the family of Walter David Bulacio, Dr. María del Carmen Verdú is present as representative of the family of Walter David Bulacio (hereinafter THE REPRESENTATIVE OF THE FAMILY) and Graciela Rosa Scavone de Bulacio, the mother of Walter David Bulacio, is also present. In the framework of the friendly settlement proposed by the Inter-American Commission on Human Rights and accepted by the National Executive Branch of Government by means of Decree Nº 161 of January 31, 2003, THE GOVERNMENT, THE COMMISSION AND THE REPRESENTATIVE OF THE FAMILY agree:
1) Notwithstanding the statements and arguments made by the parties and within the ambit of the friendly settlement proposed by the Inter-American Commission on Human Rights and accepted by Presidential Decree No. 161 of January 31, 2003, THE GOVERNMENT acknowledges responsibility for the violation of the human rights of Walter David Bulacio and his family, on the basis of the application filed by the Inter-American Commission on Human Rights. In this regard it places on record that Walter David Bulacio was the victim of a violation of his rights regarding the inappropriate exercise of the duty of custody and the illegitimate imprisonment, due to non-compliance with procedures and having seen the juridical consequences and the non-renounceable commitment of the Government and State of Argentina to fully comply with human rights standards to which it has committed nationally and internationally, it acknowledges international responsibility and undertakes to carry out the corresponding reparations that will be decided by the Honorable Inter-American Court of Human Rights.
2) THE GOVERNMENT, THE COMMISSION AND THE REPRESENTATIVE OF THE FAMILY ask the Honorable Inter-American Court of Human Rights to decide on the points of law discussed in this case regarding application of Article 7 of the American Convention on Human Rights; within the framework set forth by the Honorable Inter-American Court of Human Rights in its Advisory Opinion Nº 17.
3) Pursuant to the provisions of Article 2 of the American Convention on Human Rights, THE GOVERNMENT, THE COMMISSION AND THE REPRESENTATIVE OF [THE] FAMILY request that the Honorable Inter-American Court of Human Rights accept the establishment of consultation mechanism with the aim, as appropriate, of adjusting and modernizing domestic provisions with respect to matters pertaining to the case discussed, for which purpose experts and other civil society organizations will be summoned.
4) THE GOVERNMENT, THE COMMISSION AND THE REPRESENTATIVE OF THE FAMILY ask the Honorable Inter-American Court of Human Rights to hold the hearing on March 6, 2003 for the parties to submit their arguments and for the Honorable Court to establish the corresponding reparations, pursuant to acknowledgment of international responsibility by the Republic of Argentina in point 1 of the [...] agreement.
33. Regarding the explanatory document on the friendly settlement agreement, delegate Goldman, with the consent of the State and of the representatives of the next of kin of the alleged victim, read it at the first public hearing. Said document sets forth:
The representatives of the State of Argentina, the delegates of the Inter-American Commission on Human Rights and the representatives of the victims appear before the Honorable Inter-American Court of Human Rights to clarify the extent of clause one of the friendly settlement agreement dated February 26, 2003.
In this regard, the State acknowledges its international responsibility for violation of Articles 2, 7, 5, 19, 4, 8 and 25 of the American Convention, and therefore recognizes that it is willing to make full reparations.
The State recognizes that the arrest was illegal. This was so because it applied provisions that were later declared unconstitutional such as memorandum 40, which was contrary to international standards, and also because domestic provisions were breached that establish the obligation of police officials to notify the parents, and to inform the minors of the cause of their arrest, and for a Judge to intervene forthwith. As a consequence of the above, subparagraphs 1, 2, 3, 4 and 5 of Article 7 of the Convention were breached.
The State acknowledges responsibility for violation of the right to life and to humane treatment, under the terms of the agreement, due to inappropriate exercise of its duty of custody.
Based on the international responsibility for violations of Articles 4, 5 and 7, the State acknowledges responsibility for violation of Article 19, for not adopting protection measures required by status as a minor.
The State acknowledges violation of Articles 8 and 25. This is because, based on the specific circumstances of the case, international standards regarding reasonable terms have been surpassed and international standards regarding effective remedies have not been met.
Considerations of the Court
34. Article 52 of the Rules of Procedure of the Inter-American Court of Human Rights sets forth that:
[…]
If the respondent informs the Court of its acquiescence to the claims of the party that has brought the case, the Court, after hearing the opinions of the other parties to the case will decide whether such acquiescence and its juridical effects are acceptable. In that event, the Court shall determine the appropriate reparations and indemnities.
35. Article 53 of the Rules of Procedure provides that:
[w]hen the parties to a case before the Court inform it of the existence of a friendly settlement, compromise, or any other occurrence likely to lead to a settlement of the dispute, the Court may in that case and after hearing the representatives of the victims or their next of kin, decide to discontinue the hearing and strike the case from its list.
36. Article 54 of the Rules of Procedure establishes that:
[t]he Court, may notwithstanding the existence of the conditions indicated in the preceding paragraphs, and bearing in mind its responsibility to protect human rights, decide to continue the consideration of a case.
37. The Inter-American Court acknowledges that the agreement signed by the
State, the Commission and the representatives of the next of kin of the victim
(hereinafter “the next of kin of the victim”) is a positive contribution to
the development of these proceedings and to effectiveness of the principles
that inspire the American Convention on Human Rights. The Court highlights the
goodwill shown by the State of Argentina before this Court, as it did previously
in another case, which demonstrates the commitment of the State to respect for
and effective exercise of human rights.
38. This Court deems that there is a basic consensus among the parties, which
has led them to sign a friendly settlement agreement as well as an explanatory
document regarding that agreement, so that there is no doubt regarding its scope.
In light of said documents, the Court corroborates the willingness of the parties
to end the controversy with respect to the merits of the matter. In view of
the above, and as the Court had set forth in its March 6, 2003 Order, the controversy
between the State and the Commission has ceased regarding the facts that gave
rise to the instant case. In light of the friendly settlement agreement signed
by the parties and its explanatory document, and of the evidence supplied by
them, the Court finds that the State violated, as it has acknowledged:
a. The right to personal liberty, enshrined in Article 7 of the American Convention, to the detriment of Walter David Bulacio, who was illegally and arbitrarily detained by the police during a razzia operation without a court order, and by not having informed him of his rights as a detainee, nor having promptly notified his parents and the Juvenile Judge regarding his detention.
b. The right to humane treatment, protected by Article 5 of the American Convention, to the detriment of Walter David Bulacio, who was beaten by police agents and subjected to mistreatment, as stated in the application (supra 3).
c. The right to life, enshrined in Article 4 of the American Convention, to the detriment of Walter David Bulacio, as the State, which was in the position of guarantor, did not “appropriately exercise the duty of custody.”
d. The right to judicial protection and to fair trial, set forth in Articles 8 and 25 of the American Convention, to the detriment of Walter David Bulacio, for not having notified the Juvenile Judge immediately after his detention. It also denied those same rights to the next of kin of Walter David Bulacio by not providing them with effective judicial remedy to clarify the causes of the detention and death of Walter David, punishing those responsible and making reparations for the damage caused.
e. The right to special protection measures in favor of minors, enshrined in Article 19 of the American Convention, which were not adopted in favor of Walter David Bulacio, as a minor.
f. The general obligations of the State, set forth in Articles 1(1) and y 2 of the American Convention, regarding the rights breached to the detriment of Walter David Bulacio as well as his next of kin.
VII
EVIDENCE REGARDING REPARATIONS
39. Before examining the evidence received, in light of the provisions set forth in Articles 43 and 44 of the Rules of Procedure, the Court will state a number of points applicable to the specific case, most of which have been developed in the case law of this Court.
40. The principle of the presence of both parties to an action, which establishes respect for the parties’ right to defense, is applicable in probatory matters. This principle’s importance is based on Article 43 of the Rules of Procedure. The latter refers to the time when evidence must be offered, for equality among the parties to prevail.
41. In accordance with the usual practice of the Court, at the start of each procedural stage the parties must state, at the first opportunity granted them to do so in writing, what evidence they will offer. The Court, exercising its discretionary authority under Article 44 of its Rules of Procedure, may ask the parties to supply additional probatory elements, as evidence to facilitate adjudication of the case, without this constituting a new opportunity to expand or complement their arguments or to offer new evidence, unless the Court decides to allow this.
42. The Court has also pointed out before, regarding receival and assessment of evidence, that the proceedings before this Court are not subject to the same formalities required in domestic judicial actions and that admission of items into evidence must be done paying special attention to the circumstances of the specific case, and bearing in mind the limits set by respect for legal certainty and procedural balance among the parties. The Court has also taken into account international case law, as it deems that international courts have the authority to appraise and assess evidence based on the rules of competent analysis, and has always avoided rigidly setting the quantum of evidence required to reach a decision. This criterion is especially valid with respect to international human rights courts, which enjoy substantial flexibility in the assessment of evidence submitted to them regarding the respective facts, to establish the international responsibility of a State, in accordance with the rules of logic and based on experience.
43. Based on the above, the Court will now examine and assess the body of evidence in the instant case, following the rules of competent analysis and within the applicable legal framework.
A) DOCUMENTARY EVIDENCE
44. When it filed its application, the Commission included as evidence 32 annexes with that same number of documents (supra 1 y 12).
45. The State attached two annexes to its brief replying to the application (supra 16), which were the complete records of two cases processed under domestic jurisdiction. On September 20, 2001 the State also submitted a certified document issued by the court intervening in the domestic criminal case, stating that it did not have better copies of the records contributed as annexes in the reply to the application.
46. In its reply (supra 17), the Commission submitted two annexes with that same number of documents.
47. The State attached four annexes to its April 29, 2002 brief, and these
were four case records of domestic proceedings, and made observations on extinguishment
of the domestic criminal case mentioned by the Commission (supra 20).
48. On June 3, 2002 the State forwarded a copy of a note sent by the Human Rights
Secretary of the Nation’s Ministry of Justice and Human Rights, informing the
Bureau of Legal Affairs or “Procuración del Tesoro de la Nación” of the legal
acts carried out by the judge intervening in the case under domestic jurisdiction
(supra 20).
49. Once authorized by the President of the Court (supra 22), the State submitted the written statements of expert witnesses Osvaldo Héctor Curci and Osvaldo Hugo Raffo.
50. In its brief on reparations (supra 18), the Commission submitted four annexes with that same number of documents. The State, in turn, included three annexes, with that same number of documents, in its brief with observations on the reparations (supra 18).
51. On February 11, 2002 the Commission submitted three documents pertaining to the marriage certificate of the parents of Walter David Bulacio and the powers of attorney of the representatives of Lorena Beatriz Bulacio and María Ramona Armas de Bulacio.
52. On March 6, 2003, during the final arguments of the parties at the second public hearing (supra 26 and 27), the representatives of the next of kin of the victim submitted seven documents.
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). 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. 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 juridical culture regarding the meaning and scope of due protection to individuals whose vulnerability has, to a large extent, been artificially constructed.
Several elements make the Bulacio Case emblematic. First of all, existence
of effective regulations, including Memorandum No. 40, that violate the National
Constitution and international human rights treaties. Furthermore, persistence
of a more or less systematic policy of razzias, accepted, especially with respect
to youths, as a form of special prevention. In addition, there were high levels
of impunity of criminal police actions, especially with respect to minors. Finally,
in the Bulacio case a decisive aspect was the persistence of a culture of “protection”
which does not wish to, cannot, or does not know how to protect vulnerable sectors,
other than by setting aside or weakening their rights and guarantees.
Finally, an adequate interpretation of the guarantees set forth in the American
Convention for adults and minors is indispensable, in consonance with the conclusions
of Advisory Opinion OC-17/02, Legal Status and Human Rights of the Child, issued
by the Inter-American Court as orientation to channel State activity in terms
of strict respect for human rights of all persons.
b) Expert opinion of Máximo Emiliano Sozzo, attorney at law.
The Republic of Argentina has a federal political system in which a National State and 23 Provincial States coexist. Policies regarding crime are developed at both levels, with differing competences for each.
Through a 1994 Constitutional Reform, the city of Buenos Aires obtained the status of “autonomous government.” Nevertheless, said constitutional change did not bring with it the immediate establishment of criminal system institutions of the type that exist in the other Provincial States –police, criminal justice, enforcement of criminal judgment-.
During the period from 1991 to 2003, the crime control policy in the city of Buenos Aires was largely designed and implemented by the National State –with various exception-. In that same period, the police institution in this city has been the Argentine Federal Police. Since the establishment of the Federal Capital Police –its predecessor- it developed intervention techniques aimed at “crime prevention,” which have traditionally been grounded on legal instruments and regulations and shaped by cultural implementation of positivist criminology. These techniques include police presence and surveillance in public spaces and police detention of individuals without a court order. In the framework of the latter technique of police intervention, one can in turn highlight police detention of individuals without a court order, supported by police edicts.
As an institution, the police force, especially in the case of the Argentine Federal Police, was a complex organization with high levels of autonomy with respect to national and provincial governments. It was not until the 1990s that various attempts were made to have an impact on Argentine police institutions, seeking to address their traditional autonomy and modifying police regulations, organization, and culture.
“Detention to verify criminal record” was regulated until 1991, under federal jurisdiction, by Decree-Law No. 333/58, ratified by Law No. 14467 –the Organizational Law of the Argentine Federal Police-. The former authorized police officers to “detain, for purposes of identification under circumstances that justify the detention and for no longer than 24 hours, any person whose criminal record it is necessary to verify.” In 1991, the National Congress amended this organic law by means of Law No. 23,950. This law modified the purpose of the detention, which would not seek to check the person’s “criminal record” but rather to “verify identity.” “Detention to verify identity” has as a conditio sine qua non that the person does not “convincingly prove his or her identity,” and this sought to limit the cases in which imprisonment was in order. It was also necessary, pursuant to this law, for there to “be well-founded circumstances that lead to the presumption that someone has committed or might commit a criminal act or misdemeanor.” What is intended is for detention to take place when there is a well-founded presumption that a person has committed a crime or misdemeanor, and this must be based on objective criteria. However, “detention to verify identity” in the new legal text is also in order when there is a well-founded presumption that a person might in the future commit a crime or misdemeanor, which is the traditional generic police function of preventing crimes, one that is entirely subjective.
The legal amendment also established that detention time must be the “minimum required to ascertain identity,” and no longer than 10 hours. On the other hand, the new legal text granted the person detained to verify his or her identity the right to communicate immediately with a relative or person he or she trusts so as to inform them of his or her situation.” In this manner, the law seeks to ensure “transparency” of the police procedure. Finally, the new legal text imposes upon intervening police officials the obligation to “notify the competent correctional Judge on duty.” One observes the intention of generating a judicial control mechanism regarding the use of this police authority.
Since 1870, the Head of the Police of the Province of Buenos Aires –later on the Argentine Federal Police- drafted the police edicts, which are normative instruments specifying prohibitions and misdemeanor sanctions. The definitions of misdemeanors were stated arbitrarily, in vague and ambiguous terms, often describing typical personal traits of certain groups of persons –based on their sexual preference, social condition, or age- rather than behaviors. Offenders were apprehended, processed and convicted by police authority, without the intervention of a judicial institution. While there was the legal possibility of appealing to judicial control with respect to the police proceeding, the minimal time allowed to do so made it practically impossible. This police proceeding did not ensure the right to defense or minimum guarantees of due process. Punishment imposed could be a fine or arrest, not to exceed eight days. With the adoption of the 1889 Criminal Proceeding Code, that maximum increased to 30 days.
This normative structure was in operation until March 1998, by means of police edicts and the Rules of Procedure for Misdemeanor Proceedings issued by the Commander of the Federal Police.
After the 1994 amendment to the National Constitution and the adoption of the 1996 Constitution of the City of Buenos Aires, a scenario was established in which the political and juridical debate on the need to abolish the system of police edits took place.
In March 1998, the Code of Harmonious Urban Relations or “Código de Convivencia Urbana” of the City of Buenos Aires was unanimously adopted, as a legal instrument respectful of the principles of the Rule of Law, regulating behaviors that damage various juridical rights or place them at risk. The definitions of misdemeanors in this legal instrument, contrary to those contained in the police edicts, reflected a clear orientation toward the “act” rather than the “actor,” with a strongly “objectivizing” content regarding the offenses. As regards punishment, imprisonment is exceptional as a means to punish for misdemeanors. On the other hand, in that same month of March 1998, the legislative assembly of the city of Buenos Aires adopted the Law on Misdemeanor Proceedings, which completed the process of judicializing matters pertaining to misdemeanors. The police ceased to play its double role as “legislator” and “judge” regarding misdemeanors, and the possibility of police officers detaining persons outside the control of prosecutors was eliminated. Furthermore, the detainee must be “informed of the causes for his or her apprehension, of the charges against him or her, of the intervening judge and prosecutor, and of his or her rights.”
*
* *
54. On July 16, 2003 the representatives of the next of kin of the victim submitted the evidence requested by the Court to facilitate adjudication of the case (supra 30).
55. On August 12, 2003 the State submitted the documents requested by the Court as evidence to facilitate adjudication of the case (supra 30).
B) TESTIMONAL AND EXPERT EVIDENCE
56. On March 6, 2003 the Court heard the statement of the witness and the expert opinions of the expert witnesses offered by the Inter-American Commission. The Court summarizes the significant parts of said statements as follows:
a) Testimony of Graciela Rosa Scavone, mother of the victim
At the time of the events, Walter David Bulacio was 17 years old and was finishing secondary school. He was a good student and planned to study law and specialize in diplomacy. He also worked half time as a caddie at a golf field. His income depended on what his clients gave him; however, “it could be up to 20 pesos” daily, which he used, in part, to support his family.
The members of the family group were Víctor David Bulacio, Walter David’s father; the witness, Walter David’s mother; Lorena Beatriz Bulacio, Walter David’s sister; and Walter David Bulacio. They constituted a normal family. Both parents worked and supported the household.
Walter David left on Friday, April 19, 1991 about 8:00 p.m., for a concert. He told his mother that this type of concerts usually finished late and if that happened he would not come home that night, but go directly to work. He told her not to worry and that the next day, about 6:00 p.m., he would come home.
That Saturday she noticed that Walter David had not spent the night at home. The witness did her household chores. About 3:00 or 4:00 p.m. a boy came and said that Walter David had been arrested and they should go look for him. She went for her husband at work and from there they went to the police station, where they were told that Walter David was somewhere else. Finally, they found him at 11:00 p. m. or 12:00 p.m. of that same day, hospitalized.
Walter David’s body is buried in a private cemetery; at first, it was in a public one.
After her brother’s death, Lorena Beatriz Bulacio had many health problems. She suffered severe depression, then suffered bulimia and had to be hospitalized several times to save her life. She is currently 26 years old and is a young woman who “never goes outside her house.”
Víctor David Bulacio, Walter’s father, was hardworking and contributed to the family financially. When the events took place, he went crazy and his life fell apart: he began to be absent from work, until his employers fired him, for which reason he did temporary jobs; he began to take drugs and left the household. He would not see his daughter Lorena Beatriz, because he said that it caused him great pain to see her and the witness, and that “he could not bear it.”
Víctor David Bulacio also had temporary relations with other persons. As a result of one of those relations, he had two children: Matías Emanuel Bulacio and Tamara Florencia Bulacio, whom he and his new couple abandoned. Under those circumstances, Tamara Florencia, who was two and a half, was taken to live with Víctor David Bulacio’s mother and Matías Emanuel, who was a year and a half, was taken in by Lorena Beatriz Bulacio and the witness. These children remained “NN” for several years; before he died, Víctor David Bulacio requested recognition of his paternity of them. They then began to process the documents. Currently, Tamara Florencia and Matías Emanuel are in the process of being adopted, respectively, by the grandmother on their father’s side and by the witness, because the mother never returned. Now her mother-in-law and the witness are the legal representatives, respectively, of Matías Emanuel and Tamara Florencia.
Víctor David Bulacio suffered two heart attacks and had to undergo what seemed like a simple operation, after which he died. The physician himself explained to the witness that “her husband simply did not want to continue living. This happened a few days before the ninth anniversary of the death of Walter” David.
For María Ramona Armas de Bulacio, Walter David’s grandmother, he was her favorite grandchild and she suffered very much with his death. She represented the witness when she felt that she could not continue living, for example, participating in demonstrations.
The family fell apart after what happened to Walter David: some of the bothers and sisters of the witness died as a consequence of patterns of depression, and her brothers-in-law also suffered health problems; one of Víctor David Bulacio’s sisters suffered a brain embolism shortly after Walter David’s demise.
The response of the State, over all these years, was to “question the morality of the family.” They questioned what type of people the members of the family were and what type of person Walter David was: a criminal, a homosexual, a drug addict. She suffered these accusations regarding Walter David by a State attorney during a hearing at a courtroom.
She regrets very much having had to come before the Court, as she would have preferred if things had been solved in her country. She asked the Court, insofar as possible, to do something so that what happened to her son will not happen to any other youth. All she wants is “justice, nothing more.”
b) Expert opinion of Graciela Marisa Guilis, a psychologist, Coordinator of
the mental health team and a member of the Mental Health Team of the Centro
de Estudios Legales y Sociales on torture during the dictatorship.
The expert witness referred to the impact of the events suffered by Walter David
Bulacio on the household. At the time of the facts, Walter’s family had a traditional
structure. His death caused a disruption which established “a before and an
after in the form of existence of this family.” When someone loses a spouse,
he is called a widower; when someone loses a father or a mother, he is called
an orphan, but there are no names, in any language, to call someone who suffers
the death of a child. Only in Hebrew is there a term that characterizes this
situation, and that is “chacol”, the closest translation of which is the idea
of a dejectedness of the soul. This is the only name given to a father or mother
regarding the death of a child, and this is the catastrophic dimension of Walter
David’s death for his parents.
There is clearly mourning in the case of parents regarding the death of their children, but the component of State intervention, in this case, affected the type of mourning and the situation of the family. The State is supposed to be a guarantor, or a third party to whom one can appeal in the “social contract between the citizens and State institutions.” In face of an intrusion by the State, the family’s subjectivity is affected, that is, their life projects and, ultimately, their sense of belonging to that social space is affected, with the attendant psychological damage. This is why “only the State can return justice [and] a place in society to these next of kin,” by answering basic questions which any relative asks in a normal grieving process, such as: “how did it happen?,” “who was responsible?,” “under what circumstances did it occur?” Otherwise, the next of kin take upon themselves a feeling of guilt regarding the death of their beloved one. With respect to Walter David’s image, the family also endured suspicions that because he was an adolescent he was involved in alcoholism, drug addition or altered sexual behavior, allegations that were ultimately disproven.
According to the expert witness, she observed various effects in all members of the family, both in their bodies and in their psyche. Since 1996, due to obstruction of the investigation of what happened and lack of a judgment, all indicators and signs shown by the members of the household grew dramatically and their pathologies worsened. Furthermore, loss of their jobs was due to “the subjective conditions they were undergoing and [...] the burden this meant in their existence.”
With respect to Lorena Beatriz Bulacio, Walter David Bulacio’s sister, the expert witness pointed out that she was 14 at the time her brother died. The next year, Lorena Beatriz suffered a serious pattern of bulimia that persisted throughout almost all her adolescence; beginning in 1996, at age 19, she attempted suicide twice and was hospitalized for extended periods in neuropsychiatric centers. During the interviews with Lorena Beatriz, she stated that what kept her alive was for her “mother not to lose another child,” and at the same time she was afraid that someone might die, and therefore she preferred to die. Furthermore, her parents were so depressed that when they returned from work she had to care for them until the next day, when they went back to work, and thus every day. With respect to her father, Lorena Beatriz stated that he could not decide anything in his life, and even less so with respect to her two little siblings, for which reason she also had to take over the responsibility for them. Walter David was always a model or reference point for Lorena Beatriz. Currently, Lorena Beatriz is at a point of the utmost concern, as she is a woman who “at age 27” has not been able to go outside her house again, to establish emotional ties with another person, to study or work, and she has become “like a housekeeper [...] for her own family. She is the custodian of family life, to ensure that no one else dies or is depressed.”
With respect to Víctor David Bulacio, the expert witness pointed out that his death coincided, nine years later, with the month that Walter David had died. During that period, he went through various situations “like going into and out of [...] depressive patterns which he attempted to overcome, to continue with the demand for justice for his son’s death.” He stopped working. Since 1996, he began to suffer more protracted periods of depression, lost his job, became careless about his personal hygiene, and was uninterested in life. He attempted suicide three times, one of them swallowing ground glass. Finally, Víctor David Bulacio suffered a heart condition that caused his death.
With respect to María Ramona Armas de Bulacio, Walter David’s grandmother, the expert witness stated that she was a very active participant in the demand for justice and truth regarding her grandson’s death. During several periods “she was the public face of this struggle,” which was not enough to avoid certain effects on her body: since 1996, she underwent seven operations and suffered a hiatus hernia, duodenal cancer and metastasis in the stomach. Any family has expectations regarding the future of its members; in the case of the grandmother, she idealized Walter David’s image very much.
With respect to Walter David, the expert witness stated that it has been “demonstrated by his school reports and by his friends, classmates and group members, [that he was] an excellent student.” This youth had projects, as any adolescent does. He planned to study law at the university; he worked and he contributed to his family financially. He was the first-born son, and as such, there were many expectations about him; he symbolized “continuity [of the parents] in life.”
The next of kin interviewed insisted on their pressing need to “close a process that has gone beyond the limits of mourning, even pathological.”
c) Expert opinion of Sofía Tiscornia, anthropologist, Director of the Political Anthropology and Institutional Violence Program of the Social Anthropology Section of the School of Philosophy and Arts of the University of Buenos Aires, and Director of the Study and Research Institute of the Ombudsperson’s Office of the City of Buenos Aires.
The usual practice for detention of individuals by the police in Argentina, especially in the city of Buenos Aires, is the so-called “razzias”, “detentions to verify criminal records,” which then became “detentions to verify identity,” as well as “detentions based on police edicts on misdemeanors or police codes on minor offenses.”
The term razzia means “a military incursion, a violent surprise attack on foreign territory” with the aim of despoiling; it comes from Algerian Arabic, and entered the French language in 1840, when France began its colonial campaign in Algeria. Currently the term razzia is applied to surprise police operations the objective of which is to surround a property, a town, a street, a rock concert, a neighborhood; to restrict the movements of those caught within this encircling action, forcing them to get onto police vehicles or collective public transportation and take them to police territory, generally to police stations. Razzias can be directed toward population groups regardless of their sex, age, or occupation, or toward sects, youths, or sexual minorities. In the specific case of Argentina, the sectors affected most by this type of “razzias” are the younger, poor and working-class sectors. During these procedures, “[individuals] are dispossessed of their fundamental rights” and, therefore, there is a process of dehumanization, where the police “demand obedience, unlimited compliance with orders and yelling [...], submission and subservience.”
In these police procedures there are several inconvenient aspects, including the fact that judicial control is usually belated or even non-existent. In the case of detentions to verify identities, the police generally submit to the judge, belatedly, a list of persons detained, stating as causes for detention: “loitering,” “wandering aimlessly,” “window watching;” and the time of entry and release of the detainees at the police station is not always stated, nor is their domicile. The judges conduct an “almost administrative” control of police detention, as this function has been entrusted to the correctional judges, who have the largest number of ongoing cases and the least structure within the Argentine Judiciary, for which reason it is utterly impossible to effectively control roughly 100,000 to 150,000 monthly detentions in the city of Buenos Aires. On the rare occasions when a judge has effectively controlled said detentions, the Office of the General Director of Police Stations of the Federal Police orders that “once a detention takes place, the detainee should be informed of his or her rights [...] and the judge should be informed immediately,” with which the number of detentions declines.
There is no direct relationship between these practices and effectiveness of protection of citizen security. The police arrest large numbers of persons jointly or individually, and it is only at the police station that they are “classified” as adults, youths, women, men. Said massive detentions take place under the a priori definition that there are certain persons who, according to the social defense program, per se may commit crimes. However, according to investigations carried out only 0.2% of the persons detained through these practices have arrest warrants.
Three main reasons give rise to these police practices: first, “repressive
and disciplinary control of population groups,” with the aim of setting an example
for poor, working-class and youth sectors, under the ideology of a dangerous
state without crime; second, these detentions are part of bureaucratic police
work with the dual aim of showing supervisors that they are working, and of
responding to pressure by the media or by certain sectors demanding greater
security; and third, they exercise control that allows them to establish minor
unlawful activities, peddling, prostitution and other occupations of the poor,
and also to charge fees in exchange for permits to practice those occupations,
thus contributing to the so-called “petty cash” of the police force.
With respect to the institutional framework and the rules governing these practices,
the police as an institution have a number of legal definitions: detention to
verify identity, police edicts on misdemeanors and resistance to authority.
Based on the behavior of the detainees, the police would fit that detention
within one of the legal definitions set forth; in the case of a child, they
applied Memorandum 40. Memorandum 40 was a secret communication between correctional
judges and the federal police. Its aim was to register minors detained by the
police in those actions: massive and widespread detention. Detention based on
Memorandum 40 continued, at the police station, by separating minors and adults.
Some children were brought before the Juvenile Judge, while others were simply
placed in custody or registered, then delivered or not to their parents. The
aforementioned legal definitions “somehow were the grounds for a basically illegal
police practice.”
The Bulacio Case has been “emblematic and [...] paradigmatic” in Argentina, primarily because Walter David Bulacio, who was detained at a rock concert, was part of the younger generation of the democratic ‘90s and this caused “a type of strong identification effect.” Given what happened to Walter David Bulacio, most Argentinean youths “felt that their image was reflected in [him],” as “what happened to Walter [David] Bulacio [...] could have happened to any [Argentine] youth [of his age].” Furthermore, a social movement of youths who are now thirty years old followed this case actively, which shows its generational continuity, expressed through student demonstrations, videos, movies, publications, and lectures.
As regards measures of reparation, she stated that it is important to maintain and expand remembrance of this case, which in any case already exists among a part of the population.
C) EVIDENCE ASSESSMENT
Assessment of the Documentary Evidence
57. In this case, as in others, the Court recognizes the probatory value of the documents submitted by the parties at the appropriate procedural moment or as evidence to facilitate the adjudication of the case, which was not disputed nor challenged, and whose authenticity was not questioned. On the other hand, pursuant to Article 43 of the Rules of Procedure, the Court admits the evidence submitted by the parties with respect to the supervening events that happened after the application was filed.
58. Pursuant to Article 44 of the Rules of Procedure, the Court includes the documents supplied during the public hearing held in the instant case -both the copies of the national identification documents and the birth certificates and provisional custody certificates of Matías Emanuel and Tamara Florencia Bulacio- in the body of evidence to facilitate adjudication of the case.
59. Once authorized by the President, the State submitted the expert opinions of expert witnesses Osvaldo Hugo Raffo and Osvaldo Héctor Curci (supra 22 and 49). Within the time allotted for this, the Inter-American Commission submitted its observations on the expert opinions of said expert witnesses. This Court notes that the statements of said expert witnesses sought to disprove certain facts regarding the merits of the case. Because of the international responsibility accepted by the State (supra 25, 27 and 31-38), the Court will not consider these statements within the body of evidence.
60. After the Commission submitted the expert opinion of Emilio García Méndez, pursuant to the March 6, 2003 Order of the Court (supra 27 and 28), the State filed its observations, within the time allowed for this purpose (supra 27 and 28), and pointed out that it deemed that the presentation of the facts and conclusions of the expert opinion are “based on dogmatic statements.” In this regard, the State argued that:
a) the deductions made by the expert witness regarding the link between abuse
in police practices and the phenomenology of said practices based on the Bulacio
Case are hypothetical; and
b) the expert witness seems to “ignore” the steps taken by Argentina to comply
with its international commitments regarding this matter, both before and after
the facts in the Bulacio case.
61. Likewise, after the State submitted expert opinion Máximo Emiliano Sozza, within the time allowed for this purpose (supra 27 and 28), the Commission stated that it “agree[d] with the historical, juridical and sociological analysis by the expert witness [...], however, it consider[ed] his answers to be at least ‘incomplete’.” In this regard, the Commission stated that:
a) even though there have been legislative changes in the city of Buenos Aires
regarding detentions to check police records and in the police edict system,
the expert opinion omitted the fact that in most Argentine provinces this type
of “arbitrary detentions” continues to be practiced;
b) likewise, the expert opinion does not state that the legislative changes
that took place in the city of Buenos Aires only involved modification of the
terms, but not of the powers granted to the police, a fact that has even been
stated by expert witness Sozzo in other publications of his;
c) the expert opinion does not mention the impact of the Bulacio Case on the
changes that he considers positive, which were in response to pressure by the
citizenry due to the impact of this case; and
d) in conclusion, “there is no substantial disagreement between the position
of the Argentine State and the position of the Inter-American Commission and
the representatives of the Bulacio family;” however, the legislative amendments
discussed “are not sufficient to avoid recidivism of cases such as that of Walter
David Bulacio.”
62. The Court has ascertained that the expert opinions of expert witnesses Máximo Emiliano Sozzo and Emilio García Méndez were contributed to the proceedings by means of the brief. The parties had a procedural opportunity to submit observations on the expert opinion offered by the counterpart, thus respecting the principle of the presence of both parties. Regarding these expert opinions, in accordance with the request by the parties (supra 27), the Court applied its discretionary criterion to allow submission of statements or declarations in writing. As it has done previously, the Court will not consider this procedural item to be full evidence but will, instead, assess its content within the context of the body of evidence and applying the rules of competent analysis.
63. With respect to the newspaper clippings, this Court deems that even though they are not documentary evidence proper, they may be assessed when they reflect publicly-known or notorious facts, statements of officials of the State, or when they corroborate what is set forth in other documents or testimony received during the proceedings. Thus, the Court includes them in the body of evidence as a means to establish the consequences of the facts of the case together with other evidence supplied, insofar as they are relevant.
Assessment of the Testimonial Evidence and Expert Opinions
64. On February 27, 2003 the Inter-American Commission, after consulting with the representatives of the next of kin of the victim, requested, in light of the agreement signed by the parties, that only the testimony of Graciela Rosa Scavone, the victim’s mother, and the expert opinions of Graciela Guilis and Sofía Tiscornia be heard. The Commission also adjusted the object of their testimony to matters pertaining to reparations, because of the agreement for a friendly settlement (supra 27).
65. During the second public hearing (supra 27), the State declared that it “desist[ed] from the objections raised” regarding expert witness Sofía Tiscornia and the written statement of expert witness García Méndez in its March 5, 2003 brief. Likewise, it asked “[the] Honorable Court to grant the Government of the Republic of Argentina the opportunity to submit, also in writing, a report by an expert who will address the same subjects as expert witness Sofía Tiscornia” (supra 27).
66. The Court admits the statement by Graciela Rosa Scavone (supra 56.a) insofar as it is in accordance with the object of the examination proposed by the Commission. In this regard, the Court deems that being a next of kin of the victim and having a direct interest in this case, her statements cannot be assessed in an isolated manner, but rather within the context of the body of evidence of the proceedings. Regarding reparations, the testimony of the next of kin of the victim is useful insofar as they can provide additional information on the consequences of the violations that may have occurred.
67. The Court admits the expert opinions of the expert witnesses offered (supra 53.a, 53.b, 56.b, and 56.c, and considers them to have probatory value because, as pointed out above (supra 42), as an international human rights court, it is not necessarily subject to the same formalities required under domestic law, but rather can assess the evidence supplied, including the expert opinions of expert witnesses, in such a way that they contribute to elucidate its consequences in the case. Furthermore, the Court highlights the fact that the expert opinions issued in the sub judice case were not challenged or disputed.
68. The Court will assess the probatory value of the documents, testimony, and expert opinions submitted in writing or rendered before the Court. Evidence submitted at all stages of the proceedings has been included in the same body of evidence, which is considered a whole.
VIII
PROVEN FACTS
69. The Court has examined the items of evidence and the respective arguments of the parties and, as a result of this examination, finds the following facts to be proven:
A) With respect to the practice of massive detentions
1. at the time of the facts, there were indiscriminate police detention practices, including the so-called razzias, detentions to establish identity and detentions in accordance with police edicts on misdemeanors. Memorandum 40 authorized policemen to decide whether or not to notify the Juvenile Judge of children or adolescents detained;
B) With respect to Walter David Bulacio
2. Walter David Bulacio was born on November 14, 1973 and he lived in the Province of Buenos Aires, Argentina;
3. Walter David Bulacio studied at a secondary school and worked as a caddie at a golf field, where he earned $400 (four hundred pesos), equivalent to US$400.00 (four hundred United States dollars) monthly;
4. on April 19, 1991 the Argentine Federal Police conducted a massive detention, including that of youth Walter David Bulacio, in the vicinity of the Obras Sanitarias de la Nación stadium, where a rock concert was taking place;
5. Walter David Bulacio died on April 26, 1991;
C) With respect to domestic remedies
6. the court case regarding the injuries to and death of Walter David Bulacio, as well as that regarding his detention and that of other persons, underwent various judicial actions, such as disqualifications, objections, and challenges which have led to delays in the proceedings. Judicial actions that stand out in this regard include separation and joinder of the case, successive conflicts over jurisdiction, which have even reached the Supreme Court of Justice of the Nation, as well as decisions regarding dismissal of charges or of the case, several times, and various remedies filed against those decisions. To date there is no definitive judgment by the judiciary regarding the set of facts investigated. No one has been punished for his responsibility in the facts;
D) With respect to Walter David Bulacio’s family
7. Walter David Bulacio’s next of kin were Víctor David Bulacio, his father; Graciela Rosa Scavone, his mother; Lorena Beatriz Bulacio, his sister, and María Ramona Armas de Bulacio, his grandmother on the father’s side, as well as two half-brothers, Matías Emanuel Bulacio and Tamara Florencia Bulacio, children of the second companion of his father, Víctor David Bulacio. His father, Víctor David Bulacio, died on April 4, 2000;
8. Walter David Bulacio’s father, mother, sister, and grandmother suffered pecuniary and non-pecuniary damage due to Walter David’s illegal detention and subsequent death. In this regard, the following damage stands out:
a) both parents fell into patterns of severe depression. The father lost his job and the ability to care for his children and he tried to commit suicide three times;
b) Lorena Beatriz Bulacio, Walter David Bulacio’s sister, suffered bulimia and tried to commit suicide twice. To date she is still psychologically affected by what happened to her brother and the rest of their family;
c) María Ramona Armas de Bulacio, who participated very actively in exposing the facts that affected her grandchild, also suffered grave physical and psychological consequences; and
d) these consequences to the physical and psychological health of the next of kin of Walter David Bulacio have continued over time.
9. persisting impunity in the instant case causes suffering to the next of kin of Walter David Bulacio;
E) With respect to representation of the next of kin before the inter-American system for protection of human rights and the expenses pertaining to said representation
10. the Coordinadora contra la Represión Policial e Institucional (CORREPI),
the Centro de Estudios Legales y Sociales (CELS) and the Center for Justice
and International Law (CEJIL), resorted to the inter-American human rights system
on behalf of the next of kin of the victim, and incurred expenses pertaining
to said actions.
IX
OBLIGATION TO REPAIR
70. Pursuant to what was stated in previous paragraphs, the State acknowledged its international responsibility for the violation of Articles 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 (Right to Judicial Protection), in combination with non-compliance with the obligation to respect rights (Article 1(1)) and with the obligation to adopt domestic legal measures (Article 2), to the detriment of Walter David Bulacio, and for violation of the same Articles 8 and 25 to the detriment of the next of kin of youth Walter David Bulacio, all of them in connection with Article 1(1) and 2 of the American Convention (supra 38). This Court has reiterated, in its case law, that it is a principle of International Law that any violation of an international obligation that has caused damage involves a new obligation: to adequately redress the damage caused. To this end, the Court has based itself on Article 63(1) of the American Convention, according to which,
[i]f the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party (not underlined in the original text).
71. As this Court has stated before, Article 63(1) of the American Convention reflects a customary rule that is one of the fundamental principles of contemporary international law regarding the responsibility of States. When an illicit act attributable to a State takes place, it incurs an international responsibility for violation of the international rule, with the consequent duty of redressing and putting an end to the consequences of the violation.
72. Reparation of the damage caused by breaching an international obligation
requires, whenever feasible, full restitution (restitutio in integrum), which
involves reestablishment of the situation before the violation. If this is not
possible, as in the instant case, this international Court must order adoption
of measures that, in addition to ensuring respect for the rights abridged, will
remedy the consequences caused by the infractions, and for compensation to be
paid for damage caused. The obligation to redress, which is regulated in all
its aspects (scope, nature, modes and establishment of beneficiaries) by international
law, cannot be modified by the State nor can it avoid complying with it by invoking
provisions of its domestic law.
73. With respect to the violation of the right to life and certain other rights (liberty and humane treatment, fair trial and judicial protection), since restitutio in integrum is not possible and bearing in mind the nature of the juridical right impaired, reparation is made, inter alia, according to international case law, by means of just indemnification or pecuniary compensation. It is necessary to add positive measures that the State must adopt to ensure non-recidivism of injurious acts such as those of the instant case.
X
BENEFICIARIES OF THE REPARATIONS
74. The Court will now summarize the arguments of the representatives of the next of kin of the victim and of the Inter-American Commission regarding the persons who should be considered beneficiaries of the reparations ordered by the Court.
Arguments of the representatives of the next of kin of the victim
75. The representatives stated that Walter David Bulacio deserves reparation in his own right, which under the circumstances of the instant case, would be inherited by his mother, Graciela Rosa Scavone, and his father, Víctor David Bulacio. Given the demise of the latter, Lorena Beatriz, Tamara Florencia and Matías Emanuel Bulacio, children of the deceased parent, also have rights through inheritance. It can be assumed that violation of the right to life causes direct pecuniary and non-pecuniary damage to the heirs of the deceased. The burden of proof that such damage did not occur lies, in this case, in the hands of the State. In this sense, Graciela Rosa Scavone (his mother); Víctor David Bulacio (his father); Lorena Beatriz Bulacio (his sister); and María Ramona Armas de Bulacio (his grandmother), all next of kin of Walter David Bulacio, are entitled to reparation in their own right, as a consequence of the violation of rights set forth in Articles 8 and 25 of the Convention.
Arguments of the Commission
76. Regarding the beneficiaries of reparations, the Commission stated that those who are entitled to them are: Walter David Bulacio, the victim, whose rights pass on to his heirs Graciela Rosa Scavone and Víctor David Bulacio, his parents, Lorena Beatriz Bulacio, his sister, and María Ramona Armas de Bulacio, his grandmother on his father’s side, who should receive compensation in their double role as heirs of the victim and as persons directly affected. In the case of Víctor David Bulacio, his rights pass on to his heirs Lorena Beatriz, Matías Emanuel and Tamara Florencia Bulacio, his children.
Arguments of the State
77. The State pointed out that while the Court has adopted criteria to establish the beneficiaries of the reparations, the State can contribute some provisions of its Civil Code and of domestic family law, which it believes should be taken into account to identify them. It also stated that to establish the beneficiaries of the reparations it would be necessary to take into account the closeness of family ties, the specific circumstances of relations with the victim, the conditions of the next of kin as witness to the facts, the way he or she became involved in attempts to obtain information, and the reply given by the State to the steps taken.
Considerations of the Court
78. The Court will now establish the person or persons who are the “injured party,” in the instant case, under the terms of Article 63(1) of the American Convention. The criterion followed by this Court was that of presuming that death of a person causes non-pecuniary damage to the closest members of his or her family, especially those who were in close emotional contact with the victim. In this regard, it is appropriate to note that Article 2(15) of the Rules of Procedure states that the term “next of kin of the victim” must be understood as a broad concept that includes all persons linked through close kinship, including the parents, siblings and grandparents, who might have a right to compensation, insofar as they meet the requirements set forth in the case law of this Court.
79. In light of the agreement for a friendly settlement, in which the State acknowledged its international responsibility, the Court notes that there is no controversy between the parties regarding who are the victims, beneficiaries, and next of kin in the instant case. It is the understanding of this Court that the violations of the American Convention were committed against Walter David Bulacio, Víctor David Bulacio (the father), Graciela Rosa Scavone (the mother), Lorena Beatriz Bulacio (his sister) and María Ramona Armas de Bulacio (the grandmother on his father’s side). All of them should be considered encompassed under the category of victims and entitled to reparations set by the Court, regarding both pecuniary damage, when appropriate, and non-pecuniary damage. As regards Walter David Bulacio and Víctor David Bulacio, their right to reparation will pass on to their heirs through inheritance, in the manner stated above (infra 85, 86, 103 and 104).
XI
REPARATIONS FOR PECUNIARY AND NON-PECUNIARY DAMAGE
80. In accordance with the probatory elements gathered during the various stages of the proceedings and in light of the criteria set forth by this Court, the Court will now analyze the claims filed by the parties during this stage of the proceedings, to establish reparation measures pertaining to pecuniary and non-pecuniary damage and other forms of reparation.
A) PECUNIARY DAMAGE
Arguments of the representatives of the next of kin of the victim
81. During the public hearing and in their brief with final arguments, the representatives of the next of kin of the victim asked the Court (supra 26 and 29) to consider the following points to establish compensation:
a) as the State has noted, there is an ongoing civil lawsuit; however, it has been a “non-effective judicial remedy” under the terms of Article 8 of the American Convention, as it depends on completion of the criminal proceedings, which have been ongoing for over ten years in domestic courts; furthermore, those with active and passive legal standing are not the same in the domestic and international proceedings, nor is the process for compensation the same;
b) the income that Walter David Bulacio would have obtained throughout his life as a golf caddie, under the criteria established by the Court, are estimated at US$201,240.00 (two hundred and one thousand two-hundred and forty United States dollars);
c) nevertheless, Walter David Bulacio “would not have worked all his life as a golf caddie,” since he intended to become a lawyer. This “chance lost” by Walter David Bulacio must also be fully compensated, taking into account that he was in his last year of secondary school and would surely have entered the university and, subsequently, would have entered the job market, where it “is reasonable and equitable” to start from an average salary of US$600.00 (six hundred United States dollars), to which it is necessary to add the annual complementary salary and to apply the criteria established by this Court, inter alia, personal expenses, interest, etc.;
d) with respect to damage to the family estate, it is necessary to take into account that part of Walter David Bulacio’s income “as a caddie at a golf club” was given to his mother, as well as the financial support that he would give his parents once he was a professional; and
e) the expenses incurred by the Bulacio family for the funeral and to buy the grave at the cemetery, estimated at US$3,000.00 (three thousand United States dollars), plus interest.
Arguments of the Commission
82. With respect to pecuniary damage, the Commission pointed out that:
a) while a civil lawsuit is ongoing with respect to financial compensation due for violations suffered by the victim, it depends on a criminal case in which no judgment has been issued after twelve years; therefore, it has not been possible to attain a judgment “that satisfies the requirements of justice;” on the other hand, the domestic civil lawsuit “will hardly satisfy said requirements,” taking into account that the facts have been classified merely as arbitrary detention;
b) estimation of the damage in cases pertaining to a violation of the right to life refers to income that the victim would have obtained during his working life. In this regard, the amount to be paid for Walter David Bulacio’s lost income derives from an average of what the victim earned at the time of the facts as a caddie in a golf course, that is US$400.00 (four hundred United States dollars) monthly, to which salary it is necessary to add an annual complementary salary during the rest of his probable lifespan, an amount which, after applying the criteria established by the Court for this item, adds up to US$201,240.00 (two hundred and one thousand two hundred and forty United States dollars);
c) the Court must take into account that it was foreseeable that Walter David Bulacio would obtain a secondary school diploma and enter the university, and that as an attorney his income would have increased approximately US$200.00 (two hundred United States dollars), and therefore US$100,620.00 (one hundred thousand six hundred and twenty United States dollars) should be added to the lost earnings, which would be part of compensation for “lost chance;” and
d) the next of kin incurred other expenses: US$1,000.00 (one thousand United States dollars) to cover funeral expenses for the victim, and US$2,000.00 (two thousand United States dollars) to cover expenses for a grave at the cemetery. The respective interest must be added to the aforementioned amounts.
Arguments of the State
83. With respect to the requests made by the representatives of the next of kin of the victim and the Commission, the State argued that:
a) there is an ongoing civil lawsuit under domestic jurisdiction in which the
family of the victim has claimed damages derived from the case; if the Court
sets pecuniary reparations, this would involve “discontinuance of the local
action;”
b) pursuant to the case law of the Court, establishment of lost earnings should
take into account what the family’s activities were and what were the consequences
of the death of the victim on them; on the other hand, the State objected to
the amount claimed for lost income of Walter David Bulacio; it is unrealistic
for him to have a salary of US$400.00 (four hundred United States dollars),
because as a caddie, as the internal file shows, “he did not work under a direct
relationship of dependence, for which reason he did not have fixed hours nor
a salary.” Furthermore, youth Bulacio would not spend only 25% of his income,
that is, US$100.00 (one hundred United States dollars) and save the rest;
c) as regards compensation for Walter David Bulacio’s “lost chance,” the Commission
conducts a purely hypothetical analysis when it states that he had a great probability
of increasing the amount of his income by completing secondary studies and beginning
a college career, and that it was foreseeable that he would enter the university
and obtain a higher degree; this Court has set forth that it is necessary to
have sufficient grounds to establish probable realization of the damage, and
in the instant case there is insufficient evidence to demonstrate “lost chance;”
and
d) the State declared that it will accept what the Commission demonstrates,
at the appropriate time, with respect to expenses incurred by the family.
Considerations of the Court
a) Lost earnings
84. The representatives of the victim and the Inter-American Commission requested compensation for the Walter David Bulacio’s lost earnings, based on the monthly salary that he received as a caddie at the golf course. This Court deems that it has been proven that youth Bulacio received a monthly income of $400 (four hundred pesos), equivalent to US$400.00 (four hundred United States dollars); however, it deems that given the nature of the activity he did not receive a complementary salary, as his income came from tips given by the clients. The Court also deems that it is reasonable to assume that youth Bulacio would not have carried out this activity the rest of his life, but there is no certain fact that makes it possible to ascertain the activity or profession that he would have exercised in the future, that it, that there are insufficient grounds to establish the loss of a definite chance, which “must be estimated on the basis of certain damage with sufficient grounds to establish the probable realization of said damage.” Due to the above, the Court decides to set, in fairness, US$100,000.00 (one hundred thousand United States dollars) as compensation for Walter David Bulacio’s lost earnings.
85. With respect to inheritance of the right to compensation in favor of Walter David Bulacio, this Court has developed applicable criteria to the effect that: the children, spouses and parents must receive the compensation. This Court points out that in the instant case, the victim was an adolescent and had neither children nor spouse; therefore, the compensation must be given to his parents. It has been proven before this Court that Víctor David Bulacio, the victim’s father, has died (supra 69.7), and therefore compensation must be paid in full to the mother of the victim, Graciela Rosa Scavone, since pursuant to the criteria set forth by this Court, “[i]f one of the parents has died, his or her part will accrue to that of the other.”
86. The criteria set forth regarding the beneficiaries of compensation for pecuniary damage in the previous paragraph will also be applied to distribution of compensation for non-pecuniary damage (infra 103).
b) Consequential damage
87. With respect to the expenses incurred by the next of kin of Walter David Bulacio for his burial, regarding which they did not contribute evidence, this Court deems it appropriate for the mother of the victim, Graciela Rosa Scavone, to receive US$3,000.00 (three thousand United States dollars).
c) Damage to Family Estate
88. This Court also notes that the next of kin of the victim lost their jobs or the possibility of conducting their daily activities due to the change in their personal circumstances because of the facts referred to in the instant case. They also incurred medical expenses to address the various ailings caused by these facts. Neither the representatives nor the Commission estimated the expenses involved by all this. The Court deems it fair to set the damage to the family estate at US$21,000.00 (twenty-one thousand United States dollars), which must be distributed in equal parts to Lorena Beatriz Bulacio, Graciela Rosa Scavone and María Ramona Armas de Bulacio.
89. Based on all the above, the Court sets the following amounts as compensation for pecuniary damage for the violations found:
Reparations for pecuniary damage
Lost earnings/
Damage to Family Estate Burial expenses Total
Walter David Bulacio US$100,000.00 US$100,000.00
Graciela Rosa Scavone US$7,000.00 US$3,000.00 US$10,000.00
María Ramona Armas de Bulacio US$7,000.00 US$7,000.00
Lorena Beatriz Bulacio US$7,000.00 US$7,000.00
TOTAL US$124,000.00
B) NON-PECUNIARY DAMAGE
90. The Court will now consider those injurious effects of the facts that are not financial or pertaining to the estate. Non-pecuniary damage can include suffering and distress caused to the direct victims and to their next of kin, and detriment to very significant values of persons, such as non-pecuniary alterations in the conditions of existence of the victim or the victim’s family. This damage can only be compensated by amounts set by the Court through reasonable application of judicial discretion.
Arguments of the representatives of the next of kin of the victim
91. The representatives argued that:
a) while it is presumed that there was non-pecuniary damage to the victim,
it is necessary to mention the fear and anguish which Walter David Bulacio must
have felt, in a situation of defenselessness during the hours from when he was
detained until he lost consciousness, during which he must have felt spiritual
suffering which must be compensated “adequately through his heirs apparent;”
b) the parents of the victim, Víctor David Bulacio and Graciela Rosa Scavone,
were seriously affected by the facts and, especially, by subsequent denial of
justice after the detention and death of their son. In the father’s case, his
physical and spiritual deterioration due to what happened to his son led to
several attempts to commit suicide;
c) with respect to Lorena Beatriz Bulacio, the victim’s sister, compensation
must be made for her spiritual suffering, which in her case generated grave
pathological psychological consequences; and
d) finally, María Ramona Armas de Bulacio, the grandmother of the victim, who
“undertook the family mandate of not allowing Walter’s case to be forgotten
by society,” must receive compensation “for her immense grief.”
Arguments of the Commission
92. Walter David Bulacio and his next of kin experienced moral suffering because of the facts in the instant case. Therefore, they have a right to reparation, as “it is clear [...] that Walter’s detention and death have had a catastrophic impact on the family;” the damage caused by the traumatic situation they suffered has left effects and scars, many of them “irremediable.” Furthermore, the next of kin of the victim have sought justice for almost twelve years, without attaining effective results, which has also brought them negative consequences. Specifically, the Commission pointed out that:
a) it is part of human nature that any person subject to aggression and maltreatment
experiences deep moral suffering, which extends to the closest members of the
family, especially those who were in close emotional contact with the victim;
b) Walter David Bulacio’s family “broke down” after the facts, family structure
was lost and there have been physical consequences, such as the various illnesses
suffered by members of the family;
c) the victim’s sister, Lorena Beatriz Bulacio, has suffered health problems,
has attempted to commit suicide several times, and has been incapable “of establishing
[an] emotional attachment outside the family;”
d) the grandmother on the victim’s father’s side deeply suffered Walter David
Bulacio’s death because she had a very close relationship with him; and
e) the situation of the next of kin has worsened due to lack of “an effective
response on the part of the system of justice,” because in this situation “the
pain and grieving become an unending process that does not cease to affect their
lives.” The members of the Bulacio family “have suffered tremendous anguish
due to the unending judicial process and [to] the impunity prevailing in this
case.”
93. Therefore, the Commission stated that it deemed fair for the Court to set the overall amount of US$200,000.00 (two hundred thousand United States dollars) as compensation for the non-pecuniary damage caused to the victim and his immediate next of kin: his parents, his sister and his grandmother on the father’s side.
Arguments of the State
94. The State made the following arguments:
a) the amount estimated by the Commission for this item constitutes 66.25% of the amount claimed for pecuniary damage, a percentage that is high if one takes into account that in Argentina the ratio of these two amounts varies between 20% and 40%;
b) the amounts claimed for non-pecuniary damage exceed those usually set by the Inter-American Court for this item, something that should be taken into account in the instant case;
c) both the content of the agreement reached for a friendly settlement, and the acknowledgments made therein, constitute in themselves “a satisfactory reparation;” and
d) the expert opinion of expert witness Graciela Marisa Guilis before the Court does not provide sufficient grounds to establish the impact of the facts on the next of kin of the victim, and her conclusions are not derived from the use of complex mechanisms for diagnosis, but rather from “recent knowledge” regarding the family of Walter David Bulacio.
Considerations of the Court
95. The Court deems that case law serves as orientation to establish principles regarding this matter, although it cannot be invoked as a an unambiguous criterion, because each case must be analyzed in accordance with its own characteristics. It should be added that in the instant case the State has acknowledged its international responsibility.
96. International case law has repeatedly established that the judgment constitutes per se a form of reparation. Nevertheless, due to the grave circumstances of the instant case, the intensity of the suffering caused to the victim and his next of kin, the change in the conditions of existence of the family and the other non-pecuniary consequences they suffered, the Court deems it pertinent for compensation to be paid, in fairness, for non-pecuniary damage. In previous cases, this Court has pointed out that when there is acknowledgment of responsibility by the State, evidence is not required to demonstrate the damage caused.
97. In the sub judice case, the representatives of the next of kin of the victim and the Commission referred to various non-pecuniary damage caused to Walter David Bulacio and his next of kin by the facts. Such damage includes physical and psychological suffering of the victim as a consequence of his detention and death; and the suffering caused by lack of communication of the detention of Walter David Bulacio to his parents, allegations that Walter David Bulacio was a youth with doubtful behavior, and lack of investigation and punishment of those responsible for what took place.
98. As the State has recognized, Walter David Bulacio was detained by agents of the State, and died one week after his detention, because of “an inappropriate exercise of the duty of custody” by the State (supra 32). It is part of human nature that a person subject to arbitrary detention experiences deep suffering, accentuated in the case of children. It is reasonable to conclude that such distress extends to the closest members of the family, especially those who were in close emotional contact with the victim. No evidence is required to reach this conclusion. As has been proven, the above also extends to the parents, to the grandmother on his father’s side and to his sister, Lorena Beatriz, who had close ties with Walter David Bulacio as members of an integrated family.
99. This Court deems that it was proven (supra 69.D.8) that the damage suffered by Walter David Bulacio’s father, mother, sister and grandmother includes, significantly, the deep depression of the parents and the loss of the possibility of caring for their children, in this case by the father. Walter David Bulacio lost his job and tried to commit suicide several times, as did the sister of the victim, who also suffered bulimia. Finally, María Ramona Armas de Bulacio, the victim’s grandmother, who participated very actively in the processing of the case, suffered grave physical and psychological consequences.
100. Despite the fact that compensation for future medical expenses was not included in the requests made by the Inter-American Commission and the representatives, the Court finds that compensation for non-pecuniary damage should also include, based on information received, case law and the proven facts, an amount of money for future medical expenses of the next of kin of the victim: Lorena Beatriz Bulacio, Graciela Rosa Scavone and María Ramona Armas de Bulacio, as there is sufficient evidence to demonstrate that the suffering of the latter originated both in what happened to Walter David Bulacio and in the subsequent pattern of impunity (supra 69.C.6, 69.D.9 and infra 119 and 120). The Court deems it appropriate to set as compensation for said component, in fairness, the amount of US$10,000.00 (ten thousand United States dollars) to be distributed in equal parts among Lorena Beatriz Bulacio, Graciela Rosa Scavone and María Ramona Armas de Bulacio.
101. It was demonstrated that there was impunity in the instant case (supra 69.D.9, which has caused and continues to cause suffering to the next of kin, who feel vulnerable and defenseless vis-à-vis the State, a situation that causes them deep anguish and does not allow them to carry out their lives in a normal manner.
102. Bearing in mind what has been stated regarding the damage caused, the Court sets the value of compensations for non-pecuniary damage, which must be paid to the next of kin of the victim, as follows:
Reparations for Non-Pecuniary Damage
Victim and next of kin Amount
Walter David Bulacio US$55,000.00
Graciela Rosa Scavone US$50,000.00 and what was set forth in paragraph 100
Víctor David Bulacio US$30,000.00
María Ramona Armas de Bulacio US$35,000.00 and what was set forth in paragraph
100
Lorena Beatriz Bulacio US$30,000.00 and what was set forth in paragraph 100
TOTAL US$210,000.00
103. Compensation for non-pecuniary damage to Walter David Bulacio will be distributed in the same terms as paragraph 85.
104. Compensation ordered in favor of Víctor David Bulacio, the father of the victim, must be distributed in equal parts among the surviving next of kin: his mother, María Ramona Armas de Bulacio; his wife, Graciela Rosa Scavone, and his three children: Lorena Beatriz, Tamara Florencia and Matías Emanuel Bulacio.
XII
OTHER FORMS OF REPARATION
105. The Court will now consider other injurious effects of the facts, which are not financial nor pertaining to the estate, and which could be redressed by acts carried out by the authorities, including investigation and punishment of those responsible and which vindicate the memory of the victim, provide consolation to his relatives and signify official reproval of the human rights violations that took place, and that involve a commitment to non-recidivism of facts such as those of the instant case.
Arguments of the representatives of the next of kin of the victim
106. With respect to the non-pecuniary measures of reparation, the representatives of the next of kin of the victim made the following comments:
a) the main reparation sought is for the State to adopt such measures as may be necessary to give legal effect to the obligation to effectively investigate the authors of the violations of the human rights of Walter David Bulacio, and specifically for the State to adopt such “energetic” actions as may be necessary to avoid extinguishment of the case, which “could deny effective application of the provisions of the American Convention,” and to ensure that the Bulacio family is included in the criminal case as a plaintiff. Furthermore, for the State to undertake such investigations as may be necessary to administratively try the authors of the violations of the human rights of Walter David Bulacio and for “police captain Espósito to be dismissed from the Argentine Federal Police.” Finally, for those who allowed impunity to prevail in the instant case to be investigated and punished, and for the State to avoid delays in the processing of the criminal case “through purely delay tactics by the defense counsel of the accused,” to order that the evidence offered by the Bulacio family over these 12 years be submitted, and to instruct the Public Prosecutor’s Office to “play a truly leading part” in the investigation;
b) the State should take such actions and legal steps as necessary for the detention places to be adequate and to have due permanent control. In this regard, they pointed out that minors are held at the police stations when they are detained, in places where adult detainees are also held. So as to ensure physical safety and decent lodging conditions in cases of detention of children and adolescents, it is necessary to forbid that they be held together with adults, and it should be specified that the detention centers be especially designed for this purpose, with permanent control by especially trained staff;
c) the State must order such actions and legal steps as may be necessary for the Argentine legal system to explicitly regulate causes for detention of children, pursuant to the terms of the American Convention, and establish a maximum period of detention and the respective notice to the next of kin and to a competent judge; and
d) the State must carry out “acts or works with public repercussion or scope such that they have [the] effect of preserving remembrance of the victims, reestablishment of their dignity, consolation to their relatives, and transmission of an official message [...] for non-recidivism of [said violations of human rights].” For this, it is necessary to promote and fund a documentary on the case of David Bulacio, by means of a public contest, with a jury constituted with consent by the next of kin of the victim, and to ensure its dissemination in the movie theaters and on television. It is also necessary for the international responsibility of the State for the illegal detention, torture, and death of Walter David Bulacio to be publicly and massively recognized, as well as its responsibility for not having investigated, for over ten years, what happened, and for not having identified those responsible. Acknowledgment of this responsibility must be published in the most important printed media of the country; and the State must use all effective means within its power for said symbolic measures to generate interest and involvement of the media.
Arguments of the Commission
107. The Commission asked the Court to order the State to make non-pecuniary reparations, as follows:
a) the State must adopt such measures as may be necessary to give legal effect to the obligation to investigate and effectively punish the authors of the illegal detention, torture, and death of Walter David Bulacio. In this regard, the State must ensure that extinguishment of the criminal case will be avoided, as well as unnecessary delays in its processing; it must also order that the evidence offered by the attorneys for the Bulacio family throughout the 10 years of the proceedings be supplied. It must also instruct the Public Prosecutor’s Office to play a “truly leading role” in the investigation, and to avoid lack of investigation of the case;
b) the State must adopt such actions and legal measures as may be necessary to ensure that places for detention of minors are adequate and have due permanent control. In this regard, the Commission deemed it necessary for the State to adopt a law pursuant to which detainees who are minors cannot be kept in police stations together with adults, and detention centers for the former must be entrusted to qualified staff for this task;
c) the State must adopt such legal, political, and administrative or other measures as may be required to ensure that detainees who are minors are rapidly presented before a judicial authority to review the legality of their detention;
d) the State must establish, pursuant to the agreement for a friendly settlement, a committee formed by experts on the subject to review and propose amendments to the laws and decrees, as well as orders, circular letters or institutional communications that make it possible to detain persons on police authority without objectively justifying causes, as well as mistreatment of detainees; and
e) the State must publicly acknowledge its responsibility in the instant case, specifically to recognize its international responsibility, publicly and massively, for the illegal detention, torture, and death of Walter David Bulacio, as well as its responsibility for not investigating, for 10 years, what happened and not identifying those responsible. It must publish an acknowledgment of its responsibility in the most important printed media of the country. It must also fund a documentary on the facts in the Bulacio case “for society as a whole to know the details of the violations and the acknowledgment of responsibility made at the time of the agreement for a friendly settlement;” and use all effective means within its power for these symbolic measures to generate interest and participation by the media.
Arguments of the State
108. With respect to the aforementioned requests, the State pointed out:
a) regarding the request for non-pecuniary measures of reparation, “with the signing by the [g]overnment of the agreement for a friendly settlement, the Republic of Argentina has completely fulfilled said requirements.” In this regard, the State argued that it has acknowledged international responsibility for the case, and this was made public through the country’s main newspapers. In view of the above, it asked the Court to find that the State has complied with the non-pecuniary reparations requested by Inter-American Commission and the representatives of the next of kin of the victim; and
b) there is progress regarding domestic legislation derived from the facts of the case: both the federal government and several of the provincial governments promoted and attained progress regarding legislation and its application. Said progress includes: the Appellate Court ratified the effectiveness of Law No. 10,903 and, therefore, annulled Memorandum 40, stating that “it finds itself under the obligation to reiterate that in all cases in which a minor is taken to a police station as a consequence of a misdemeanor or of the authority granted by the Organizational Law of the Federal Police, the [c]orrectional [j]udge on duty must be immediately notified for effective compliance with Law 10,903”. The Criminal Procedural Code of the Nation was amended, replacing the written and mediate proceeding by an oral and immediate proceeding. Police edicts were annulled “in the territory in which the facts took place.” The National Constitution was amended, providing constitutional status to the human rights treaties, including the American Convention on Human Rights and the Convention on the Rights of the Child. A bill was submitted regarding the subject matter at a federal level, “which has been supported by the UNICEF office in Argentina,” and seven other bills are being processed to regulate the legal system applicable to persons under the age of 18 who break the criminal law. Law No. 23,950 was approved, pursuant to which no person can be detained without an order by a competent judge, and the time to establish his or her identity will in no case surpass ten hours; and rules have been and continue to be amended, since 1991, in the various provinces of Argentina, “as a process of adaptation of rules to social reality.”
Considerations of the Court
109. The Court will now analyze other forms of reparation in light of the acknowledgment of international responsibility by the State regarding Articles 1, 2, 4, 5, 7, 19, 8 and 25 of the American Convention, under the following headings: A) Investigation and Punishment of Those Responsible, B) Guarantees of non-recidivism of the injurious acts, and C) Adjustment of domestic provisions with respect to those of the American Convention.
A) INVESTIGATION AND PUNISHMENT OF THOSE RESPONSIBLE
110. This Court has stated several times that:
[t]he State party to the American Convention has the duty to investigate human rights violations and to punish those responsible and the accessories after the fact. And all persons who considers themselves to be victims of said violations, as well as their next of kin, have the right to resort to justice to ensure that this duty of the State is fulfilled, for their benefit and that of society as a whole.
111. Active protection of the right to life and of the other rights enshrined in the American Convention is set within the framework of the duty of the State to ensure free and full exercise of the rights of all persons under the jurisdiction of a State, and it requires that the latter take such steps as may be necessary to punish deprivation of the right to life and other human rights violations, as well as to prevent abridgment of any of these rights by its own security forces or by third parties acting with its acquiescence.
112. This Court has repeatedly stated that the obligation to investigate must be carried out “in all seriousness and not as a mere formality, destined beforehand to be fruitless.” The investigation conducted by the State to comply with this obligation “[m]ust have a purpose and be undertaken by [it] as a juridical obligation of its own and not as a mere processing of private interests, subject to procedural initiative of the victim or his or her next of kin or to evidence privately supplied, without the public authorities effectively seeking the truth.”
113. The Court notes that since May 23, 1996, the date on which the defense counsel was notified of the request by the public prosecutor of a 15 year prison sentence against Police Captain Espósito, for the reiterated crime of aggravated illegal imprisonment, the defense counsel for the accused filed a large number of diverse legal questions and remedies (requests for postponement, challenges, incidental pleas, objections, motions on lack of jurisdiction, requests for annulment, among others), which have not allowed the proceedings to progress toward their natural culmination, which has given rise to a plea for extinguishment of the criminal action.
114. This manner of exercising the means that the law makes available to the defense counsel has been tolerated and allowed by the intervening judiciary bodies, forgetting that their function is not exhausted by enabling due process that guarantees defense at a trial, but that they must also ensure, within a reasonable time, the right of the victim or his or her next of kin to learn the truth about what happened and for those responsible to be punished.
115. The right to effective judicial protection therefore requires that the judges direct the process in such a way that undue delays and hindrances do not lead to impunity, thus frustrating adequate and due protection of human rights.
116. With respect to the extinguishment invoked with respect to an ongoing case under domestic law (supra 106.a and 107.a), this Court has stated that extinguishment provisions or any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible. The Court deems that the general obligations enshrined in Articles 1(1) and 2 of the American Convention require that the States Party adopt timely provisions of all types for no one to be denied the right to judicial protection, enshrined in Article 25 of the American Convention.
117. In accordance with the obligations undertaken by the States pursuant to the Convention, no domestic legal provision or institution, including extinguishment, can oppose compliance with the judgments of the Court regarding investigation and punishment of those responsible for human rights violations. If that were not the case, the rights enshrined in the American Convention would be devoid of effective protection. This understanding of the Court is in accordance with the language and the spirit of the Convention, as well as the general principles of law; one of these principles is that of pacta sunt servanda, which requires ensuring effective application of the provisions of a treaty in the domestic legal system of the States Party. (infra 142)
118. Pursuant to the general principles of law and as follows from Article 27 of the 1969 Vienna Convention on the Law of Treaties, domestic legal rules or institutions can in no way hinder full application of decisions by international bodies for protection of human rights.
119. It is also appropriate to emphasize that the State has acknowledged its international responsibility in the instant case for violation of Articles 8 and 25 of the American Convention, which protect the rights to fair trial and to judicial protection, respectively, to the detriment of Walter David Bulacio and his next of kin (supra 31-38). Furthermore, this Court has deemed proven (supra 69.C.6) that despite commencement of several judicial proceedings, to date -over twelve years after the facts- no one has been punished for his responsibility in them. Therefore, there exists a situation of grave impunity.
120. The Court deems that impunity is:
the overall lack of investigation, pursuit, capture, trial and conviction of those responsible for violations of rights protected under the American Convention, as the State has the obligation to combat said situation by all legal means within its power, as impunity fosters chronic recidivism of human rights violations and total defenselessness of the victims and of their next of kin.
121. In light of the above, it is necessary for the State to continue and conclude
the investigation of the facts and to punish those responsible for them. The
next of kin of the victim must have full access and the capacity to act at all
stages and levels of said investigations, pursuant to domestic legislation and
the provisions of the American Convention. The results of the aforementioned
investigations must be made known publicly, for Argentinean society to know
the truth about the facts (supra 96).
B) GUARANTEES OF NON-RECIDIVISM OF INJURIOUS ACTS
122. Pursuant to the requests by the parties, specifically the second clause of the agreement they signed, this Court will state some considerations regarding the conditions of detention of children and, specifically, imprisonment of children.
123. It is appropriate to mention that:
[…]
THE GOVERNMENT, THE COMMISSION AND THE REPRESENTATIVE OF THE FAMILY, ask[ed] the Honorable Inter-American Court of Human Rights to rule on the matters of law discussed in this case, regarding application of Article 7 of the American Convention on Human Rights; in the framework of the conclusions of the Honorable Inter-American Court of Human Rights in its Advisory Opinion Nº 17.
[…]
124. As has been pointed out previously, the Court recognizes the existence of the authority, and even the obligation, of the State to “guarantee its security and to maintain public order.” Nevertheless, the power of the State in this matter is not unlimited; its actions are subject to respect for the fundamental rights of individuals under its jurisdiction and observance of procedures according to the Law.
125. With respect to the power of the State to detain persons under its jurisdiction, this Court has pointed out, analyzing Article 7 of the American Convention, that there are material and formal requirements that must be observed in applying a measure or punishment that involves imprisonment:
no one may be imprisoned for causes, cases or circumstances other than those
defined by law (material aspect), but, also, strictly subject to procedures
objectively defined in the law (formal aspect).
126. Detainees “have the right to live in conditions of detention that are compatible
with their personal dignity and the State must guarantee the right to life and
to humane treatment.” The Court has determined that the State, being responsible
for detention centers, is the guarantor of these rights of the detainees, which
involves, among other things, the obligation to explain what happens to persons
who are under its custody. State authorities exercise total control over persons
under their custody. The way a detainee is treated must be subject to the closest
scrutiny, taking into account the detainee’s vulnerability; this guarantee function
of the State is especially important when the detainee is a minor. This circumstance
gives the State the obligation to exercise its function as guarantor taking
all care required by the weakness, the lack of knowledge, and the defenselessness
that minors naturally have under those circumstances.
127. Vulnerability of the detainee worsens when the detention is illegal or arbitrary. Then the person is in a situation of complete defenselessness, which causes a definite risk of abridgment of other rights, such as those to humane and decent treatment. The State must provide a satisfactory explanation for what has happened to a person whose physical conditions were normal when custody began, and during it or at the end of it they worsened. The State is also “under the obligation to create the necessary conditions for any remedy [in favor of the detainee] to be able” to attain effective results. This Court has emphasized that solitary confinement of the detainee must be exceptional, as it causes him or her moral suffering and psychological disturbances, as it places the detainee in an especially vulnerable situation and increases the risk of aggression and arbitrary treatment in prisons, and because it endangers strict observance of due legal process.
128. Likewise, the detainee and those with legal custody or representation of the detainee have the right to be informed of the causes and reasons for his or her detention at the time it occurs, which “constitutes a mechanism to avoid illegal or arbitrary detentions from the very moment of imprisonment and, at the same time, ensures the individuals right to defense” and it also contributes, in the case of a minor, to lessen the impact of detention insofar as possible.
129. Another measure that seeks to prevent arbitrary treatment or illegality is immediate judicial control, taking into account that under the rule of law the judge must guarantee the rights of the detainee, authorize taking precautionary or coercive measures, when strictly necessary, and generally seek a treatment that is consistent with the presumption of innocence in favor of the accused until his or her responsibility has been proven. “[A]n individual who has been imprisoned with no sort of judicial control must be set free or immediately brought before a judge, as the essential content [of said] Article 7 of the American Convention is protection of the liberty of the individual against interference by the State.”
130. The detainee also has the right to notify a third party that he or she is under State custody. This notification can be, for example, to a relative, an attorney and/or a consul, as may be the case. The right to contact a relative becomes especially important when detainees are minors. In this scenario, the authority carrying out the detention and in charge of the detention place for the minor must immediately notify the next of kin or, otherwise, their representatives for the minor to receive timely assistance from the person notified. In case of consular notification, the Court has pointed out that the consul “may assist the detainee with various defense measures, such as providing or retaining legal representation, obtaining evidence in the country of origin, verifying the conditions under which the legal assistance is provided and observing the conditions under which the accused is being held while in prison.” Notification regarding the right to establish contact with a relative, an attorney and/or consular information, must be made at the time the accused is imprisoned, but in the case of minors it is necessary to take such measures as may be required for notification to effectively take place. In case of notification to an attorney it is especially important for the detainee to be able to meet privately with him or her, as an inherent act in the detainee’s right to defense.
131. The detainees must be examined and given medical care, preferably by a physician chosen by themselves or by those who have their legal custody or representation. Results of any medical examination ordered by the authorities –and which must not be conducted in the presence of the police authorities- must be delivered to the judge, the detainee and his attorney, or to him and whoever exercises custody or representation of the minor according to the law. The Court has stated that deficient medical attention of a detainee violates Article 5 of the American Convention.
132. Police detention centers must meet certain minimum standards that ensure respect for the rights and guarantees set forth in the paragraphs above. As this Court has recognized in previous cases, there must be a record of detainees to enable control of legality of detentions. This requires entry, among other data, of: identification of the detainees, cause for detention, notification to the competent authority, and to those representing them, exercising custody or acting as defense counsel, if applicable, and the visits they have paid to the detainee, the date and time of entry and release, information given to the minor and to other persons regarding the rights and guarantees of the detainee, record of signs of beating or mental illness, transfers of the detainee, and meal schedule. The detainee must also sign and, if he or she does not, there must be an explanation of the reason. The defense counsel must have access to this file and, in general, to actions pertaining to the charges and the detention.
133. Walter David Bulacio was 17 years old when the Argentine Federal Police detained him. The Court set forth in its Advisory Opinion OC-17 that “[f]inally, taking into account international norms and the criterion upheld by the Court in other cases, ‘child’ refers to any person who has not yet turned 18 years of age.” In this regard, the Court points out that the instant case is especially grave because the victim is a child, whose rights are protected not only by the American Convention, but also by numerous international instruments, widely accepted by the international community, prominently including the Convention on the Rights of the Child. These instruments establish the duty of the State to adopt special protection and assistance measures in favor of children under their jurisdiction.
134. With respect to protection of the rights of children and adopting measures to attain said protection, the ruling principle is that of the highest interest of the child, based on “the very dignity of the human being, on the characteristics of children themselves, and on the need to foster their development, making full use of their potential.”
135. In this regard, several specific considerations have been made regarding detention of children, which as this Court has stated and is recognized in various international instruments, must be exceptional and for the briefest time possible.
136. To safeguard the rights of children detainees, and especially their right to humane treatment, it is indispensable for them to be separated from adult detainees. In addition, as this Court has established, those in charge of detention centers for children who are offenders or accused must be duly trained for the performance of their tasks. Finally, the right of detainees to communicate with third parties, who provide or will provide assistance and defense, goes together with the obligation of the State agents to immediately communicate to said persons the minor’s detention, even if the minor has not requested it.
137. The Court deems proven that at the time of the facts there were police practices in Argentina, including the so-called razzias, detentions to verify identity and detentions under police edits on misdemeanors. Memorandum 40 authorized police officers to decide whether or not they notified the Juvenile Judge regarding children or adolescents detained (supra 69.A.1). Razzias are incompatible with respect for fundamental rights, including presumption of innocence, existence of a court order for detention –except in situations of flagrancy- and the obligation to notify those in charge of the minors.
138. The State must respect the right to life of all persons under its jurisdiction,
enshrined in Article 4 of the American Convention. This obligation expresses
itself in special modes in the case of minors, taking into account the provisions
regarding protection of children set forth in the American Convention and in
the Convention on the Rights of the Child. The role of the State as guarantor
with respect to this right carries with it the obligation to prevent situations
that might lead, by action or omission, to negatively affect it. As this Court
stated previously (supra 110-121) and as it pertains to the concrete case, if
Walter David Bulacio was detained in good health and subsequently died, the
State is under the obligation to provide a satisfactory and convincing explanation
of what happened and to disprove accusations regarding its responsibility, by
supplying valid evidence. In its role as guarantor, the State does in fact have
the responsibility to guarantee the rights of individuals under its custody
as well as that of supplying information and evidence pertaining to what has
happened to the detainee.
C) ADJUSTMENT OF DOMESTIC PROVISIONS TO THE PROVISIONS
OF THE AMERICAN CONVENTION
139. With respect to the measures of reparation requested pertaining to Argentinean laws and regulations, the Court takes note of the efforts made by the State subsequent to the facts in the instant case (supra 108.b), to adjust its domestic system to the requirements of its international obligations regarding this matter.
140. A customary principle of international law establishes that a State that has ratified a human rights treaty must make such amendments to its domestic legislation as may be necessary to ensure full compliance with the obligations undertaken.
141. Pursuant to Article 2 of the American Convention, the States Party are under the obligation to adopt, pursuant to their constitutional procedures and the provisions of this Convention, such legislative or other measures as may be necessary to make those rights and liberties, protected under said Convention, effective.
142. The Court has pointed out several times before that this provision places the States Party under the general obligation to adjust their domestic legislation to the provisions of the Convention itself, to thus guarantee the rights enshrined in the Convention. Domestic legal provisions to this end must be effective (the principle of effet utile), which means that the State must adopt such measures as may be necessary for actual compliance with what is set forth in the Convention.
143. The general duty set forth in Article 2 of the American Convention requires adoption of two types of measures: on the one hand, elimination of all kinds of provisions and practices that breach guarantees set forth in the Convention; on the other hand, adoption of provisions and development of practices that lead to effective observance of said guarantees.
144. In the framework of the general obligation set forth in Article 2 of the
Convention, the Court accepts the terms of the agreement among the parties to
constitute a consultation mechanism, “with the aim, as appropriate, of adjusting
and modernizing domestic provisions with respect to matters pertaining to [detention
conditions for children], for which purpose experts and other civil society
organizations will be summoned,” to propose to the appropriate bodies provisions
aiming to update and modernize domestic provisions.
145. Furthermore, as it has ordered several times before, the Court finds that,
as a measure of satisfaction, the State must publish in the Official Gazette,
once only, chapter VI and the operative part of the instant Judgment.
XIII
LEGAL COSTS AND EXPENSES
Arguments of the representatives of the next of kin of the victim
146. The representatives asked the Court to order the State to pay legal expenses and costs, including those for two attorneys representing them in the domestic legal proceedings. This adds up to US$50,000.00 (fifty thousand United States dollars) each. With respect to the bodies intervening in the international proceedings, both before the Inter-American Commission and before the Court, they requested the following amounts: for CELS, US$15,000.00 (fifteen thousand United States dollars); for CEJIL, US$10,000.00 (ten thousand United States dollars); and for CORREPI, US$15,000.00 (fifteen thousand United States dollars).
Arguments of the Commission
147. The Commission asked the Court to order the State to pay the expenses and costs generated by processing of the case, both domestically and before the inter-American system, based on the following criteria:
a) the fees of attorneys María del Carmen Verdú and Daniel A. Stragá for their actions before the Argentinean and international courts during a ten-year period, as well as expenses for phone calls, photocopies, mail services, travel to Washington, D.C. and Costa Rica, are estimated at US$50,000.00 (fifty thousand United States dollars) for each attorney, adding up to US$100,000.00 (one hundred thousand United States dollars); and
b) the fees for the attorneys of CELS, CEJIL and CORREPI for their participation in the case once it began under international jurisdiction, are as follows: for the attorneys of CORREPI, US$ 11,000.00 (eleven thousand United States dollars); for the attorneys of CELS, US$ 11.100.00 (eleven thousand one hundred United States dollars) and for the attorneys of CEJIL, US$ 4.050.00 (four thousand and fifty United States dollars).
Arguments of the State
148. The State asked the Court to take into account the decision in the Alobotoe et al. Case, in that, considering that the State had explicitly acknowledged its international responsibility and had not obstructed the procedure to set reparations, the Commission’s request to order the State to pay the costs was dismissed.
149. Alternatively, the State requested that to establish costs and expenses it take into account the decision in the Castillo Páez Case, regarding judicious assessment of the specific scope of the legal costs, considering to this end their timely verification.
Considerations of the Court
150. As the Court has already stated several times before, legal costs and expenses are included under the concept of reparation set forth in Article 63(1) of the American Convention, in view of the fact that the actions carried out by the next of kin of the victim to establish his whereabouts and, subsequently, to obtain justice both under domestic and international jurisdiction, involve expenses that must be compensated when the State is found to be internationally responsible in a judgment against it. With respect to the reimbursement, it is for the Court to judiciously assess the amount, which includes expenses incurred before the authorities under domestic jurisdiction and those incurred in the proceedings before the inter-American system, taking into account the certification of expenses made, the circumstances of the specific case, and the nature of international jurisdiction for protection of human rights. This assessment can be based on the principle of equity and assessing the expenses stated by the parties, insofar as their quantum is reasonable.
151. In the instant case, the Court notes that there is a discrepancy between the Inter-American Commission and the representatives of the next of kin of the victim regarding legal costs and expenses. On the one hand, the Commission requested payment of certain amounts in its January 4, 2002 brief on reparations (supra 18). In it, the Commission pointed out that “continuation of the processing of the case before the [...] Court will require new legal costs and expenses in the near future [that] should also receive [...] compensation,” but in the brief with its final arguments, on July 4, 2003 (supra 29), it ratified the amounts requested on January 4, 2002. In their July 4, 2003 brief with their final arguments (supra 29), the representatives, in turn, demanded substantially higher amounts than those requested by the Commission with regard to legal costs and expenses, pointing out that “continuation of the processing of the case before the [...] Court has required new legal costs and expenses.” Finally, the Court notes that neither the Commission nor the representatives supplied receipts or vouchers to substantiate their claims regarding this aspect of the compensation.
152. The Court deems it equitable to order payment of US$40,000.00 (forty thousand United States dollars) for legal costs and expenses in the domestic proceedings and in the international human rights proceedings. Payment must be distributed as follows: a) US$12,000.00 (twelve thousand United States dollars) to María del Carmen Verdú; b) US$12,000.00 (twelve thousand United States dollars) to Daniel A. Stragá; c) US$7,000.00 (seven thousand United States dollars) to CORREPI; d) US$7,000.00 (seven thousand United States dollars) to CELS; and e) US$2,000.00 (two thousand United States dollars) to CEJIL.
153. This Court deems that to further the proceedings regarding investigation of the facts, the next of kin of the victim will need to incur expenses under domestic jurisdiction, and for this it grants in equity US$5,000.00 (five thousand United States dollars) to Graciela Rosa Scavone.
XIV
METHOD OF COMPLIANCE
Arguments of the representatives of the next of kin of the victim
154. With respect to the mode of compliance with the reparations claimed, the representatives requested the following:
a) that the State pay compensation and adopt the other measures ordered by
the Court, within six months of the date it receives notice of the judgment
on reparations issued by the Court;
b) that payment of compensation be made directly to the victims or to their
next of kin who are adults or their heirs;
c) that said payment be made in United States dollars or an equivalent sum,
in cash and in national Argentinean currency, at its exchange rate with respect
to the United States dollar on the day before the payment is made;
d) that payment of compensation be exempted from all currently existing taxes
and those that may be decreed in the future; and
e) that if the State should be in arrears, it pay interest on the amount owed,
according to the interest rate for arrearages in the Argentinean banking system.
The representatives also pointed out, with respect to the observation of the State that as a result of the adoption of various economic provisions there has been a strong devaluation of the Argentine currency vis-à-vis that of the United States, that it “reaffirm[ed] that [it] does not seek to obtain undue enrichment, and therefore [it] wish[ed] to express [its] intention to submit to whatever the [...] Court deems fair as regards updating of the amount of compensation.”
Arguments of the Commission
155. The Commission endorsed the requests of the representatives regarding
mode of compliance with the measures of reparation.
Arguments of the State
156. With respect to the amounts requested by the representatives of the next of kin of the alleged victim and the Inter-American Commission, the State pointed out that:
a) they are expressed in United States dollars, despite the fact that at the
time of filing of the brief on reparations, Convertibility Law No. 23,928 was
in force in Argentina, and it established, among other things, parity between
Argentinean currency and the United States dollar. Said law was annulled on
January 6, 2002 by Law No. 25,561, and Argentinean currency underwent devaluation
with respect to United States currency;
b) comparison between the claim made in the instant case and others being processed
under domestic jurisdiction, which have been affected by the aforementioned
monetary devaluation, would demonstrate inequality; and
c) if the amounts claimed were to remain the same and at the exchange rate set
in the brief on reparations, the amounts claimed would be excessive.
Considerations of the Court
157. To comply with the instant Judgment, the State must pay the compensations and reimbursement of legal costs and expenses within six months from the date it receives notice of the instant Judgment.
158. Pursuant to its case law, the State can fulfill its pecuniary obligations by payment in United States dollars or an equivalent amount in Argentinean currency, using for this calculation the exchange rate between both currencies in the New York Exchange, in the United States of America, the day before the payment.
159. Payment of the amount for pecuniary and non-pecuniary damages, as well as legal costs and expenses set forth in the instant Judgment, cannot be subject to currently existing taxes or levies or to any decreed in the future. In addition, if the State were to be in arrears, it must pay interest on the amount owed, according to the interest rate for arrearages in the Argentinean banking system. Finally, if for any reason it were not possible for the beneficiaries to collect the respective payments within twelve months, the State must deposit the respective amounts in the name of said beneficiaries in an account or certificate of deposit, at a solid financial institution, in United States dollars or their equivalent in Argentinean currency, under the most favorable conditions allowed by banking laws and practices. If after ten years the payment has not been claimed, the amount will return to the State together with the interest accrued.
160. With respect to the compensation ordered in favor of the children Tamara Florencia and Matías Emanuel Bulacio, the State must deposit the amounts in their name in an investment in a solid Argentinean banking institution, in United States dollars or their equivalent in Argentinean currency, within six months time, and under the most favorable financial conditions allowed by banking laws and practices while they are minors. If after five years from when said persons attain majority the compensation has not been claimed, the capital and interest earned will be distributed proportionally among the other beneficiaries of the reparations.
161. The Court reserves the authority to monitor integral compliance with the instant Judgment. The international proceedings will only be closed once the State has faithfully complied with the provisions of the instant decision.
XV
OPERATIVE PARAGRAPHS
162. Now therefore,
THE COURT,
DECIDES:
unanimously,
1. to admit the acknowledgment of international responsibility made by the State.
2. to approve the February 26, 2003 agreement, under the terms of the instant Judgment, on the merits and some aspects of reparations, and the March 6, 2003 explanatory document regarding that agreement, both of them signed by the State, the Inter-American Commission on Human Rights and the next of kin of the victim and their legal representatives.
DECLARES THAT:
3. pursuant to the terms of the acknowledgment of international responsibility made by the State, it violated the rights enshrined in Articles 4, 5, 7 and 19 of the American Convention on Human Rights to the detriment of Walter David Bulacio, and the rights enshrined in Articles 8 and 25 also of the American Convention on Human Rights to the detriment of Walter David Bulacio and his next of kin, all the above in connection with Articles 1(1) and 2 of the American Convention on Human Rights, under the terms of paragraph 38 of the instant Judgment.
AND DECIDES THAT:
4. the State must continue and complete the investigation of all the facts of this case and punish those responsible for them; that the next of kin of the victim must have full access and be able to act, at all stages and levels of said investigations, pursuant to domestic legislation and the provisions of the American Convention on Human Rights; and that the results of the investigations must be publicly disseminated, under the terms set forth in paragraphs 110 to 121 of the instant Judgment.
5. the State must guarantee non-recidivism of facts such as those of the instant case, adopting such legislative and any other measures as may be necessary to adjust the domestic legal system to international human rights provisions, and to make them fully effective, pursuant to Article 2 of the American Convention on Human Rights, under the terms of paragraphs 122 to 144 of the instant Judgment.
6. the State must publish in the Daily Gazette, once only, chapter VI and the operative section of this Judgment, under the terms of paragraph 145 of this Judgment.
7. the State must pay the total sum of US$124,000.00 (one hundred and twenty-four United States dollars) or its equivalent in Argentinean currency, as compensation for pecuniary damage, distributed as follows:
a) US$110,000.00 (one hundred and ten thousand United States dollars) or their
equivalent in Argentinean currency to be paid to Graciela Rosa Scavone under
the terms of paragraphs 85, 87, 88, 89, 157 to 159 of the instant Judgment;
and
b) US$14,000.00 (fourteen thousand United States dollars) or their equivalent
in Argentinean currency, to be distributed equally between María Ramona Armas
de Bulacio and Lorena Beatriz Bulacio, under the terms of paragraphs 88 and
157 to 159 of the instant Judgment.
8. the State must pay the total sum of US$210,000.00 (two hundred ten thousand United States dollars) or their equivalent in Argentinean currency, as compensation for non-pecuniary damages, distributed as follows:
a) US$114,333.00 (one hundred and fourteen thousand three hundred and thirty-three
United States dollars), or their equivalent in Argentinean currency, to be paid
to Graciela Rosa Scavone under the terms of paragraphs 95 to 104 and 157 to
159 of the instant Judgment;
b) US$44,333.00 (forty-four thousand three hundred and thirty-three United States
dollars), or their equivalent in Argentinean currency, to be paid to María Ramona
Armas de Bulacio under the terms of paragraphs 95 to 104 and 157 to 159 of the
instant Judgment;
c) US$39,333.00 (thirty-nine thousand three hundred and thirty-three United
States dollars), or their equivalent in Argentinean currency, to be paid to
Lorena Beatriz Bulacio under the terms of paragraphs 95 to 104 and 157 to 159
of the instant Judgment; and
d) US$12,000.00 (twelve thousand United States dollars), or their equivalent
in Argentinean currency, to be distributed in equal parts between the children
Matías Emanuel and Tamara Florencia Bulacio under the terms of paragraphs 104,
157 to 160 of the instant Judgment.
9. the State must pay the total sum of US$40,000.00 (forty thousand United States dollars), or their equivalent in Argentinean currency, for legal costs and expenses, under the terms of paragraphs 152 and 157 to 159 of the instant Judgment.
10. the State must pay the compensations and the reimbursement of legal costs and expenses ordered in the instant Judgment within six months of the date it receives notice of this Judgment.
11. compensation for pecuniary damages, non-pecuniary damages, and legal costs and expenses set forth in the instant Judgment cannot be subject to currently existing or future taxes, liens or levies.
12. if the State were to be in arrears, it must pay interest on the amount owed according to the interest rate for arrearages in the Argentinean banking system.
13. compensation ordered in favor of the children, Tamara Florencia and Matías Emanuel Bulacio, must be deposited by the State in their name in an investment fund at a solid Argentinean banking institution, in United States dollars or their equivalent in Argentinean currency, within six months, and under the most favorable financial conditions allowed by banking laws and practices while they are minors, pursuant to the provisions of paragraph 160 of the instant Judgment.
14. it will oversee compliance with this Judgment and it will close the instant case once the State has fully complied with the provisions ordered in the instant ruling. Within six months of the date it receives notice of this Judgment, the State must submit a report to the Court on steps taken to comply with it, pursuant to the provisions set forth in paragraph 161 of this Judgment.
Judges Cançado Trindade, García Ramírez and Gil Lavedra informed the Court of their Reasoned Opinions, which accompany this Judgment.
Done in Spanish and English, the Spanish text being authentic, in San Jose, Costa Rica, on September 18, 2002.
Antônio A. Cançado Trindade
President
Sergio García-Ramírez Hernán Salgado-Pesantes
Oliver Jackman Alirio Abreu-Burelli
Ricardo Gil-Lavedra
Judge Ad hoc
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A. Cançado Trindade
President
Manuel E. Ventura-Robles
Secretary