THE RIGHTS OF THE CHILD IN THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

SECOND EDITION

C.         Jurisprudence of the Inter-American Court of Human Rights

119.     In this section, there are references to the provisional measures adopted by the Court to protect the human rights of children and adolescents, and a summary of each of the contentious cases and the advisory opinion issued by the Court on the human rights of children and adolescents.  The complete text of the decisions issued by the Inter-American Court of Human Rights in each case involving provisional measures, contentious cases, and the advisory opinion can be found in the compact disc of this publication.

•               Provisional measures adopted by the Court to protect the human rights of children and adolescents

120.     Up to now, the Inter-American Court of Human Rights has granted few provisional measures referring exclusively to protection of the rights of children and adolescents.  The case of Reggiardo Tolosa and the FEBEM case are highlighted.

Case of the children Gonzalo Xavier and Matías Angel Reggiardo Tolosa vs.
            Argentina

121.     In accordance with the decisions issued on November 19, 1993 and January 19, 1994 in response to the request for provisional measures presented to the Inter-American Commission on Human Rights, on November 8, 1993, to protect the personal well-being and safety of the children Gonzalo Xavier and Matías Angel Reggiardo Tolosa, who were illegally appropriated and registered as the children of third persons, who falsified their identity during the dictatorship in Argentina.  Following the decisions of the Court, the Argentine State adopted the measures that allowed the children to be placed with their biological families.[87]

Case of the children and adolescents deprived of liberty in the “Tatuapé Compound” of the “Fundação Estadual do Bem-Estar do Menor” (FEBEM[88] ) in São Paulo, Brazil

122.     This request was based on the need to adopt urgent measures to protect the life and safety of the adolescents residing in the Tatuapé Compound of the Fundação Estadual do Bem-Estar do Menor [State Juvenile Welfare Foundation] of São Paulo (FEBEM) in Brazil, due to inhuman living conditions, constant fights among the adolescents, allegations of torture, and uprisings that posed extremely serious threats to the life and safety of the adolescents.  It should be noted that after the IACHR adopted precautionary measures, four of the beneficiaries of those measures died, and that placed the adolescents in an extremely serious situation.

123.     Consequently, in a decision issued on November 17, 2005, the Court requested the State to “immediately adopt the necessary measures to protect the life and personal safety of all the children and adolescents residing in the Tatuapé Compound of FEBEM, as well as all the persons inside it.”  In view of the fact that the same day that the Court adopted the decision on provisional measures there was an uprising that left various inmates wounded in Units 19, 20, and 39 of the FEBEM Tatuapé Complex, the Court again requested the State to adopt measures to: a) substantially reduce the overcrowding in “Tatuapé Compound”, b) confiscate the weapons in the possession of the youth, c) separate the detainees, according to international standards on the subject and to the best interests of the child, and d) provide the necessary medical care to the children detained there, so as to guarantee their right to humane treatment.  To this end, it urged the State to conduct periodic supervisions of detention conditions and the physical and emotional condition of the juvenile detainees, with the participation of representatives of the beneficiaries of these provisional measures.

•                     Contentious cases

Case of the "Street Children" Case (Villagrán Morales et al.) vs. Guatemala

Facts

124.     This case refers to the kidnapping, torture, and death of Henry Giovanni Contreras, 18 years of age, Federico Clemente Figueroa Túnchez, 20 years of age, and the adolescents Julio Roberto Caal Sandoval, 15 years old, Jovito Josué Juárez Cifuentes, 17 years old, and Anstraum Aman Villagrán, also 17.  All were living in the streets of Guatemala City.

125      The acts were perpetrated by members of the Guatemalan National Police, as part of a systematic pattern of violence against the “street children” that included threats, detentions, cruel, inhuman, and degrading treatment, and homicides, as a means for countering juvenile delinquency and destitution.

Violated rights

126      Right to life (Article 4), humane treatment (Article 5), personal liberty (Article 7), a fair trial (Article 8), judicial protection (Article 25), and the rights of the child (Article 19).

Principal conclusions of the Inter-American Court of Human Rights

127      In this case, the Court advanced concepts that were fundamental to the subsequent development of its jurisprudence on children’s rights.  Prominent among these concepts are the notion of corpus juris, the double discrimination affecting children living in the streets, the situation of children in conflict with the law or juvenile delinquents, the scope of protective measures applicable to children’s rights, and the concept of a decent life, among others.

128      On the notion of corpus juris, the Court established that the American Convention on Human Rights and the Convention on the Rights of the Child are part of an international corpus juris for protection of the rights of children.  This means that there is a substantive connection between the two treaties and that they should be applied together in cases pertaining to children and adolescents.[89]

129      As regards special protection obligations, the Court determined that special protection obligations imply the existence of an additional, complementary right of children, supported by the specificity of these obligations.  Thus, the protective measures referred to in Article 19 of the Convention should include special care for children deprived of their family environment, the guarantee of the child’s survival and development, the right to adequate living conditions, and social rehabilitation or reinsertion of all children who are victims of abandonment or exploitation. In this context, the Court maintained that the State has the duty to adopt every positive measure to ensure the full exercise of the child’s human rights.

130      Concerning the violation of personal liberty, the Court declared that the State violated the right to personal liberty of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez and the adolescents Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes, because it failed to comply with both the procedural and the material rules governing detention.

131.     As for the concept of a decent life, the Court established that the right to life includes not only the right to exist and not to be arbitrarily deprived of life, but also the right not to be impeded from access to conditions that ensure a decent existence or a life with dignity.[90]  In this way, the Court set an important jurisprudential precedent, in underlining the obligation of states to ensure the conditions necessary so that all human beings may enjoy and exercise this right.  Since three of the victims in this case were children, the Court asserted that states need to adopt special measures for the protection and care of children and adolescents.

132.     The Court described the situation of children and adolescents living in the streets as a “situación de doble agresión” [situation involving a twofold violation of their rights].  In the first place, because the state did not prevent these children from living in misery, thereby depriving them of the minimal conditions for a decent life and impeding their integral development.  In this way, the state, by allowing this type of situation, denies all children their right to realize a project of life that should be tended to and fostered by the public authorities, so that it evolves to their benefit and to the benefit of the society in which they live.  In the second place, because their physical and moral safety or well-being are at risk, as are their very lives.[91]

Decision of the Court on the merits

133.     The Court decided:

1.         to declare that the State violated Article 7 of the American Convention on Human Rights, in relation to its Article 1.1, to the detriment of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes;

2.         to declare that the State violated Article 4 of the American Convention on Human Rights, in relation to its Article 1.1, to the detriment of Henry Giovanni

Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes and Anstraum Aman Villagrán Morales;

3.         to declare that the State violated Article 5.1 and 5.2 of the American Convention on Human Rights, in relation to its Article 1.1, to the detriment of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Jovito Josué Juárez Cifuentes and Julio Roberto Caal Sandoval;

4.         to declare that the State violated Article 5.2 of the American Convention on Human Rights, in relation to its Article 1.1, to the detriment of the mothers of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Jovito Josué Juárez Cifuentes and Julio Roberto Caal Sandoval, Ana María Contreras, Matilde Reyna Morales García, Rosa Carlota Sandoval, Margarita Sandoval Urbina, Marta Isabel Túnchez Palencia and Noemí Cifuentes;

5.         to declare that the State violated Article 19 of the American Convention on Human Rights, in relation to its Article 1.1, to the detriment of Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes and Anstraum Aman Villagrán Morales;

6.         to declare that the State violated Articles 8.1 and 25 of the American Convention on Human Rights, in relation to its Article 1.1, to the detriment of Henry Giovanni Contreras, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes, Federico Clemente Figueroa Túnchez and Anstraum Aman Villagrán Morales and their immediate next of kin;

7.         to declare that the State violated Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture to the detriment of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes;

8.         to declare that the State violated Article 1.1 of the American Convention on Human Rights regarding the obligation to investigate, that the State should conduct a real and effective investigation to determine the persons responsible for the human rights violations referred to in this judgment and eventually punish them; and

9.         to open the phase of reparations and costs and authorize the President to adopt the corresponding procedural measures.

Decisions issued in this case:

·                     Merits. Judgment of November 19, 1999

              Opinions of Judges Antonio Cançado and Abreu Burelli

·                     Reparations, Judgment of May 26, 2001

·                     Monitoring of compliance with judgment, decision of June 14, 2005

·                     Monitoring of compliance with judgment, decision of December 13, 2007

·                     Monitoring of compliance with judgment, decision of January 16, 2008

Case of Bulacio vs. Argentina

Facts

134.     Walter David Bulacio, 17 years of age, was arrested by the Federal Police of Argentina on April 19, 1991, as part of a massive detention operation known as “razzia.”  He was transferred to the 35th Police Station, to the room for juveniles, where he was tortured by police agents.  The detention was not reported to the competent judge or to his next of kin.  On April 21, the adolescent Walter Bulacio was transferred to Sanatorio Mitre, where a physician examined him, and reported the admittance of an adolescent with injuries.  On April 26, the adolescent Walter Bulacio died.  In April a judicial proceeding was opened to punish the responsible parties.  Ten years after the arbitrary arrest and death of Walter Bulacio, the domestic proceedings had still not been concluded.  On November 21, 2002, Courtroom VI of the Chamber of Appeals ruled that criminal legal action could not be pursued due to the statute of limitations.

Rights violated

135.     Right to life (Article 4), right to humane treatment (Article 5), right to personal liberty (Article 7), rights of the child (Article 19), in addition to the right to a fair trial (Article 8) and to judicial protection (Article 25), to the detriment of Walter Bulacio and his next of kin.

Principal conclusions of the Inter-American Court of Human Rights

136.     In this case, the Argentine State acknowledged its international responsibility for violating the human rights of Walter David Bulacio.  Thus, the Court proceeded to determine the corresponding reparations.

137.     With regard to the right to personal liberty, the Court indicated that in the case of children, detention must be exceptional and for the shortest possible time.  Moreover, it held that in cases of detentions of children, the right to establish contact with next of kin takes on special importance, to ensure that the child receives the necessary care.  It also stressed the need for detention centers to have adequately trained staff to attend to and protect the children.[92]

138.     In relation to the right to humane treatment, the Court opined that in cases involving children, account must be taken of their special vulnerability, in accordance with the state’s obligation to provide for a special guarantee of the rights of children, which is particularly important when the detainee is a minor.

139.     The Court pointed out that the acts committed by the State were especially serious, because they constituted failure of the State to comply with its obligation to adopt special measures of protection and care for children who come under its jurisdiction.  In this context, the Court declared that the prevailing principle in the area of protection of children’s rights is the principle of the best interests of the child, based on “the very dignity of the human being, on the intrinsic characteristics of children, and on the need to foster their development, so that they may fully realize their potential.”[93]

Decision of the Court on the merits

140.     The Court decided:

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 acts 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.

Decisions issued in this case

·                Judgment on the merits of September 18, 2003

·               Monitoring of compliance with judgment. Decision of the Inter-American Court of Human Rights of November 17, 2004

Case of Molina Theissen vs. Guatemala

Facts

141.     This case involves the forced disappearance of Marco Antonio Molina Theissen, 14 years of age, who was kidnapped from his parents’ home by members of the Guatemalan Army on October 6, 1981.  At the time these events occurred, forced disappearance was a practice of the State perpetrated primarily by security or law enforcement forces.

Rights violated

142.     Right to life (Article 4), right to humane treatment (Article 5), right to personal liberty (Article 7), right to a fair trial (Article 8), rights of the child (Article 19), and right to judicial protection (Article 25).

Principal considerations of the Inter-American Court of Human Rights

143.     The State of Guatemala acknowledged its international responsibility for violation of the human rights of Marco Antonio Molina Theissen.  Consequently, the Court proceeded to decide on reparations, and declared that in cases involving children, the state has a special obligation of protection, that it should have fulfilled vis-à-vis Marco Antonio Molina, due to his status as a minor.  As regards reparations, the Court ordered the State to establish an educational center as a tribute to the children who disappeared during the armed conflict.

Decision of the Court on the merits

144.     The Court decided in this case:

1.         To reaffirm its Order of April 26, 2004, in which it considered that the preliminary objections filed by the State had been withdrawn and accepted the State’s acknowledgement of international responsibility.

2.         To declare that the dispute concerning the facts that gave rise to this case has ceased.

3.         To declare, in accordance with the terms of the State’s acknowledgement of international responsibility and with the facts that have been established, that the State violated the rights embodied in Articles 4(1) (Right to Life), 5(1) and 5(2) (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), 17 (Rights of the Family), 19 (Rights of the Child) and 25 (Judicial Protection) of the American Convention on Human Rights, and that it failed to comply with the obligations established in Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, to the detriment of Marco Antonio Molina Theissen; the State also failed to comply with the obligation established in Articles I and II of the Inter-American Convention on Forced Disappearance of Persons to the detriment of Marco Antonio Molina Theissen, in the terms of paragraph 43 of this judgment.

4.         To declare, in accordance with the terms [of the State’s acknowledgement of international responsibility and with] the facts that have been established, that the State violated the rights embodied in Articles, 5(1) and 5(2) (Right to Humane Treatment); 8 (Right to a Fair Trial); 17 (Rights of the Family), and 25 (Judicial Protection) of the American Convention on Human Rights, and that it failed to comply with the obligations established in Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, to the detriment of the next of kin of Marco Antonio Molina Theissen: Emma Theissen Álvarez vda. de Molina (mother), Carlos Augusto Molina Palma (deceased father), Emma Guadalupe, Ana Lucrecia and María Eugenia Molina Theissen (sisters), in the terms of paragraph 44 of this judgment.

5.         To continue hearing the reparations and costs stage of this case.

Decisions issued in this case

·                     Judgment on the merits of May 4, 2004

·                     Judgment on reparations, July 3, 2004

Case of the Gómez Paquiyauri Brothers vs. Peru

Facts

145.     This case involves the kidnapping and extrajudicial execution of two brothers, Emilio Moisés and Rafael Samuel Gómez Paquiyauri, which occurred on June 21, 1991.  On that day, the Gómez Paquiyauri brothers, 14 and 17 years of age, were detained by national police agents and put into the trunk of a police patrol car.  They were executed along the route taken by the policemen following their detention.

Violated rights

146.     Right to life (Article 4), right to humane treatment (Article 5), right to personal liberty (Article 7), right to a fair trial (Article 8), rights of the child (Article 19), and right to judicial protection (Article 25).

Principal considerations of the Inter-American Court of Human Rights

147.     In issuing this decision, the court applied the principle of the best interests of the child, reiterating that this principle was based on human dignity, on the special characteristics of children, and on the need to foster their development so that they may fully realize their potential.[94]

148.     On the right to life of the children, the Court reiterated that in the case of the right to life, states have a negative obligation not to arbitrarily deprive any person of his or her life, as well as a positive obligation to adopt all adequate measures to protect and preserve this right.[95]  Thus it held that the obligation of the State with respect to this right takes on special characteristics, in accordance with the provisions of the American Convention and the Convention on the Rights of the Child.  In this context, the Court explained that whenever victims are children, the state’s role as guarantor of the right to life requires it to prevent situations that could lead to violation of that right, either by act or omission.

149.     As regards the right to humane treatment, the Court established that the state has the obligation to apply the highest standard in any acts that violate the right of children to humane treatment.[96]

150.     In this case, the Court ordered as measures of redress  that the State organize an act of public acknowledgement of the acts that gave rise to the case and as amends to the victims, that it name a school in the Constitutional Province of El Callao after Rafael Samuel Gómez Paquiyauri and Emilio Moisés Gómez Paquiyauri, and grant a scholarship to Nora Emely Gómez Peralta, the daughter of Samuel Gómez Paquiyauri, and that it publish the relevant parts of the judgment in the Official Gazette.  In addition, the Court ordered payment of compensation to the victims’ next of kin, and ordered an investigation to be opened  and the responsible parties to be punished for the violations committed to the detriment of the Gómez Paquiyauri brothers.

Decision of the Court on the merits

151.     The Court decided:

Unanimously,

1.         the State violated the Right to Life set forth in Article 4(1) of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, to the detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri, under the terms set forth in paragraphs 124 to 133 of the instant Judgment.

Unanimously,

2.         the State violated the Right to Personal Liberty set forth in Article 7 of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, to the detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri, under the terms set forth in paragraphs 81 to 100 of the instant Judgment.

Unanimously,

3.         the State violated the Right to Humane Treatment set forth in Article 5 of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, and the obligations set forth in Articles 1, 6 and 9 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri. The State also violated Article 5 of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, to the detriment of Marcelina Paquiyauri Illanes de Gómez, Ricardo Samuel Gómez Quispe, Marcelina Haydeé Gómez Paquiyauri, Ricardo Emilio Gómez Paquiyauri, Carlos Pedro Gómez Paquiyauri, Lucy Rosa Gómez Paquiyauri, Miguel Ángel Gómez Paquiyauri and Jacinta Peralta Allccarima, under the terms set forth in paragraphs 106 to 119 of the instant Judgment.

By six votes to one,

4.         the State violated the rights to Right to Fair Trial and to Judicial Protection enshrined in Articles 8 and 25, respectively, of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, to the detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri, Ricardo Samuel Gómez Quispe, Marcelina Paquiyauri Illanes de Gómez, Ricardo Emilio Gómez Paquiyauri, Carlos Pedro Gómez Paquiyauri, Marcelina Haydeé Gómez Paquiyauri, Lucy Rosa Gómez Paquiyauri, and Miguel Ángel Gómez Paquiyauri, under the terms set forth in paragraphs 140 to 156 of the instant Judgment.

            Judge Medina Quiroga partially dissenting.

Unanimously,

5.         the State violated the obligations set forth in Article 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri, under the terms set forth in paragraphs 153 to 156 of the instant Judgment.

Unanimously,

6.         the State violated Article 19 of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, to the detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri under the terms set forth in paragraphs 161 to 173 of the instant Judgment.

Unanimously,

7.         the State violated Article 11 of the American Convention on Human Rights, in combination with Article 1(1) of this same Convention, to the detriment of the members of the family of Rafael Samuel Gómez Paquiyauri and Emilio Moisés Gómez Paquiyauri, mentioned in paragraphs 67.t and 67.u of this ruling, under the terms set forth in paragraphs 178 to 182 of the instant Judgment.

Unanimously,

8.         this Judgment is per se a form of reparation, as set forth in paragraph 215 of the instant Judgment.

AND, UNANIMOUSLY, ORDERS THAT:

9.         The State must, within a reasonable term, effectively investigate the facts of the instant case, with the aim of identifying, trying, and punish all the perpetrators of the violations against Rafael Samuel and Emilio Moisés Gómez Paquiyauri.  The outcome of this proceeding must be made known to the public, under the terms set forth in paragraphs 227 to 233 of the instant Judgment.

10.       The State must carry out a public act of acknowledgment of its responsibility in connection with the facts of this case and of apology to the victims, under the terms set forth in paragraph 234 of the instant Judgment.

11.       The State must publish once in the official gazette, and in another national coverage daily the chapter of this Judgment on proven facts, without the respective footnotes, and the operative paragraphs of this Judgment, under the terms set forth in paragraph 235 of the instant Judgment.

12.       The State must officially name a school in the province of El Callao after Rafael Samuel Gómez Paquiyauri and Emilio Moisés Gómez Paquiyauri, in a public ceremony and in the presence of the next of kin of the victims, under the terms set forth in paragraph 236 of the instant Judgment. 

13.       The State must establish a scholarship up to university level, in favor of Nora Emely Gómez Peralta, and facilitate her registry as the daughter of Rafael Samuel Gómez Paquiyauri, under the terms set forth in paragraphs 237 and 238 of the instant Judgment.

14.       The State must pay the total sum of US$240,500.00 (two hundred and forty thousand five hundred United States dollars) or its equivalent in Peruvian currency, for pecuniary damages, under the terms set forth in paragraphs 206, 208 and 210 of the instant Judgment, distributed as follows:

a)          to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, as parents of Emilio Moisés Gómez Paquiyauri, US$ 100,000.00 (one hundred thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraphs 206 and 199 of the instant Judgment;

b)         to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, as parents of Rafael Samuel Gómez Paquiyauri; and to Nora Emely Gómez Peralta, as daughter of Rafael Samuel Gómez Paquiyauri, US$ 100,000.00 (one hundred thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraphs 206 and 200 of the instant Judgment; and

c)          to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, US$ 40,500.00 (forty thousand five hundred United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraph 208 of the instant Judgment.

15.       The State must pay US$500,000.00 (five hundred thousand United States dollars) or their equivalent in Peruvian currency, as compensation for non-pecuniary damages, under the terms set forth in paragraphs 217, 219 and 220 of the instant Judgment, distributed as follows:

a)          to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, as parents of Emilio Moisés Gómez Paquiyauri, US$ 100,000.00 (one hundred thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraphs 217 and 199 of the instant Judgment;

b)         to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, as parents of Rafael Samuel Gómez Paquiyauri; and to Nora Emely Gómez Peralta, as daughter of Rafael Samuel Gómez Paquiyauri, US$ 100,000.00 (one hundred thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraphs 217 and 200 of the instant Judgment;

c)          to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, US$ 200,000.00 (two hundred thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraph 219 of the instant Judgment;

d)         to Jacinta Peralta Allccarima, US$ 40,000.00 (forty thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraph 220 of the instant Judgment; and

e)          to Nora Emely Gómez Peralta, US$ 60,000.00 (sixty thousand United States dollars) or their equivalent in Peruvian currency, under the terms set forth in paragraph 220 of the instant Judgment.

16.       The State must pay US$30,000.00 (thirty thousand United States dollars) or their equivalent in Peruvian currency, which must be given to Ricardo Samuel Gómez Quispe and Marcelina Paquiyauri Illanes de Gómez, for costs and expenses in the domestic proceeding and in the international proceeding before the inter-American system for protection of human rights, under the terms set forth in paragraph 243 of the instant Judgment.

17.       The State must deposit the compensation ordered in favor of the child Nora Emely Gómez Peralta in a banking investment in her behalf at a solid Peruvian institution, in United States dollars, within one year’s time and under the most favorable financial conditions allowed by banking practices and legislation while she is a minor, under the terms set forth in paragraph 248 of the instant Judgment.

18.       The State must pay the total amount ordered as compensation for pecuniary damages, non-pecuniary damages, costs and expenses established in the instant Judgment, without any of its items being subject to existing taxes, levies or charges, or any that may be decreed in the future.

19.       The State must carry out the measures of reparation and of reimbursement of expenses listed in operative paragraphs 10 to 17 of the instant Judgment within one year’s time, counted from the date this Judgment is notified, under the terms set forth in paragraph 244 of the instant Judgment.

20.       If the State were to be in arrears, it must pay interest on the amount owed, and the interest will be at the banking rate in Peru, under the terms set forth in paragraph 251 of the instant Judgment.

21.       If due to causes attributable to the beneficiaries of the compensations it were not possible for them to receive those compensations within the one-year term that has been set, the State will deposit those amounts on behalf of the beneficiaries in a deposit certificate or account at a solid Peruvian banking institution, under the terms set forth in paragraph 247 of the instant Judgment.

22.       The Court will oversee execution of this Judgment and will close this case once the State has fully complied with its provisions.  Within one year from the date when notice is served of this Judgment, the State must submit a report to the Court on steps taken to comply with it, pursuant to paragraph 252 of the instant Judgment.

Judge Cançado informed the Court of his Separate Opinion, Judge Medina Quiroga informed the Court of her Partially Dissenting Opinion, and Judge Eguiguren Praeli informed the Court of his Separate Opinion. These opinions are attached to the instant judgment.

Decisions issued in this case:

·                     Judgment of July 8, 2004

·                     Supervision of compliance with judgment, decision of November 17, 2005

·                     Supervision of compliance with judgment, decision of September 22, 2006

Case of the ”Juvenile Reeducation Institute” vs. Paraguay

Facts

152.     This case originated with the death and injuries suffered by children who were inmates in the “Coronel Panchito López Juvenile Reeducation Institute” in Paraguay between August 14, 1996 and July 25, 2001.

153.     In this case, it was proven that the children detained in the Juvenile Reeducation Institute were living under a system of deprivation of liberty contrary to international human rights standards, due to the fact that they were confined in conditions of overcrowding, lack of sanitation, lack of adequate infrastructure, insufficient number of guards, and lack of personnel trained in handling children.
 

Violated rights

154.     Right to life (Article 4), right to humane treatment (Article 5), right to personal liberty (Article 7), right to a fair trial (Article 8), and rights of the child (Article 19).

Principal considerations of the Inter-American Court of Human Rights

155.     With regard to the right to life, the Court applied this concept to ensure adequate protection of social rights.[97]

156.     With regard to special protection obligations, the Court reiterated that in view of the physical and emotional development of children, international standards recognize an additional, complementary right that requires states to adopt special measures for their protection.  The concept of special protection obligations is linked to the existence of additional or supplementary obligations vis-à-vis children and adolescents.  To this is added the fact that the nature of the supplementary obligation has to do with the condition of the child as a holder of rights, whose integral development as a human being must be guaranteed by the state.[98]  Thus the Court has found that these measures become critically important, because children are at a crucial stage in their physical, mental, spiritual, moral, psychological, and social development, that will have an impact on their life plan in one way or another.[99]

157.     The Court has spoken to the scope of specificity and complementarity of state obligations vis-à-vis children in relation to the right to life, in the following terms: “161.  (…)Articles 6 and 27 of the Convention on the Rights of the Child include within the right to life the State’s obligation to ‘ensure to the maximum extent possible the survival and development of the child.” The Committee on the Rights of the Child has interpreted the word “development” in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development[100]. Viewed in this way, the state has the obligation to provide children deprived of their liberty and thus under its custody with health care and education, inter alia, to ensure in that way that their detention will not destroy their life plans.[101]

158.     Concerning application of Article 19 of the Convention, it is interesting to note that in this case, the Court perceives a comprehensive application of standards on the human rights of children.  It is important to recall that on other occasions, the Court has analyzed Article 19 in a separate section; in this case, however, the court conducted a systematic analysis of the violations of children’s human rights under the specific obligations and criteria established in Article 19 of the Convention.  In this way, the Court considered the transcendent and comprehensive nature of this Article, and stated that:  “The examination of the State’s possible failure to comply with its obligations under Article 19 of the American Convention should take into account that the measures of which this provision speaks go well beyond the sphere of strictly civil and political rights.  The measures that the State must undertake, particularly given the provisions of the Convention on the Rights of the Child, encompass economic, social and cultural aspects that pertain, first and foremost, to the child’s right to life and right to humane treatment.”[102]

159.     With regard to the right to personal liberty, the Court referred extensively to the state’s position as guarantor in cases involving children and adolescents deprived of their liberty.  It stated that the role of guarantor played by the state in these cases is justified because of the heavy control and dominance of the role of state agents over the persons in their custody, which generates a particularly intensive relationship in which the inmate is incapable of satisfying on his own many of his needs, and thus is completely dependent on the state to guarantee these essential needs for him.  An example of this is the state’s obligation to ensure the right to education to children deprived of their liberty.

160.     With regard to children’s right to a fair trial, the Court stated that to exercise this right, certain specific measures need to be adopted so that children may effectively enjoy these rights and guarantees in a manner consistent with the special conditions of children.[103] Thus, the Court recognizes that criminal proceedings have a greater impact on children and so it has established certain minimum elements that must be present in the juvenile justice system.

Decision of the Court on the merits

161.     In this case, the Court decided:

Unanimously,

1.         To dismiss the State’s preliminary objections claiming a legal defect in the filing of the application and failure to claim violation of Article 26 of the American Convention at the proper stage in the proceedings.

2.         Given the State’s withdrawal of its preliminary objection claiming litis pendencia, to consider that preliminary objection withdrawn.

3.         To continue taking cognizance of the instant case, and

DECLARES,

Unanimously that:

4.         The State violated the rights to life and to humane treatment, recognized in Articles 4(1), 5(1), 5(2) and 5(6) of the American Convention on Human Rights, in relation to Article 1(1) thereof and, where the victims were children, also in relation to Article 19 thereof, to the detriment of all the inmates at the center between August 14, 1996 and July 25, 2001, as set forth in paragraphs 176 and 190 of the present Judgment.

5.         The State violated the right to life, recognized in Article 4(1) of the American Convention on Human Rights, in relation to Article 1(1) thereof and, where the victims were children, also in relation to its Article 19, to the detriment of the 12 deceased inmates, as set forth in paragraphs 179, 184, 186 and 190 of the present Judgment.

6.         The State violated the right to humane treatment, recognized in Articles 5(1) and 5(2) of the American Convention, in relation to Articles 1(1) and 19 thereof, to the detriment of the children injured as a result of the fires; and the right to humane treatment recognized in Article 5(1) of the Convention, in relation to its Article 1(1), to the detriment of the identified next of kin of the deceased and injured inmates, all as set forth in paragraphs 188, 190 and 193 of the present Judgment.

7.         The State failed to comply with its duty to adopt domestic legislative measures and violated the right to a fair trial recognized, respectively, in Articles 2 and 8(1) of the American Convention, in relation to Articles 1(1) and 19 thereof, to the detriment of all the children interned at the Center in the period from August 14, 1996 to July 25, 2001, as set forth in paragraph 213 of the present Judgment.

8.         The State violated the right to judicial protection, recognized in Article 25 of the American Convention, in relation to Article 1(1) thereof, to the detriment of the 239 inmates named in the writ of generic habeas corpus, as set forth in paragraph 251 of the present Judgment.

AND ORDERS,

Unanimously, that:

9.         This Judgment constitutes, per se, a form of reparation, as set forth in paragraphs 299 and 323 of the present Judgment.

10.       The State is to publish, at least once, within six months from the date of notification of the present Judgment and in the Official Gazette and another widely circulated national newspaper, both the section titled “Facts Proven” in this Judgment  -absent the corresponding footnotes- and the operative part of this Judgment, in the terms set forth in paragraph 315 of the present Judgment.

11.       In consultation with civil society and within six months’ time, the State is to carry out a public act of acknowledgement of international responsibility and issue a declaration setting forth a short-, medium- and long-term State policy on the matter of children in conflict with the law that fully comports with Paraguay’s international commitments.  That policy must:

a)          be presented by high-ranking State officials in a public ceremony wherein Paraguay’s responsibility for the substandard detention conditions at the center between August 14, 1996 and July 25, 2001 is acknowledged; and

b)         plan, inter alia, strategies and other appropriate measures and the allocation of the resources needed so that children deprived of their liberty are separated from adults; so that children awaiting or standing trial are separated from convicted inmates; and in order to create education programs and comprehensive medical and psychological treatment programs for all children deprived of their liberty.

12.       The State must provide psychological treatment to all persons who were inmates at the center in the period from August 14, 1996 to July 25, 2001; medical and psychological treatment to the former inmates injured in the fires, and psychological treatment to the next of kin of the injured and deceased inmates, as set forth in paragraphs 318 to 320 of the present Judgment.

13.       The State must provide vocational guidance and a special education program geared to those who had been inmates at the center at any time during the period between August 14, 1996 and July 25, 2001, as set forth in paragraph 321 of the present Judgment.

14.       Within 15 days of the date of notification of this Judgment, the State must provide Mrs. María Teresa de Jesús Pérez with a place in a mausoleum, near her home, where she can lay her sons remains to rest, as set forth in paragraph 322 of the present Judgment.

15.       The State must take particular care to ensure the life, personal integrity and safety of the persons who gave affidavits and their next of kin and must provide them with protection against anyone, taking into account the circumstances of this case, in the terms set forth in paragraph 324 of the present Judgment.

16.       The State must pay pecuniary damages totaling US$ 953,000.00 (nine hundred fifty-three thousand United States dollars) or the equivalent in the State’s national currency, as set forth in paragraphs 288 to 294 of the present Judgment, divided as follows:

a)          to each of the deceased inmates Elvio Epifanio Acosta Ocampos, Marco Antonio Jiménez, Diego Walter Valdez, Sergio Daniel Vega Figueredo, Sergio David Poletti Domínguez, Mario del Pilar Álvarez Pérez, Juan Alcides Román Barrios, Antonio Damián Escobar Morinigo, Carlos Raúl de la Cruz, Benito Augusto Adorno, Richard Daniel Martínez and Héctor Ramón Vázquez, the sum of US$ 40,000.00 (forty thousand United States dollars) or the equivalent in the State’s national currency, in the terms set forth in paragraphs 288, 289 and 294 of the present Judgment;

b)         to Juan Carlos Zarza Viveros, Miguel Ángel Coronel Ramírez, Sergio Vincent Navarro Moraez, Alberto David Martínez, Miguel Ángel Martínez, Raúl Esteban Portillo,  César Fidelino Ojeda Acevedo, Pedro Iván Peña, Ever Ramón Molinas Zárate, Arsenio Joel Barrios Báez and Francisco Ramón Adorno, the sum of US$15,000.00 (fifteen thousand United States dollars) each or the equivalent in the State’s national currency, in the terms set forth in paragraphs 290, 291 and 294 of the present Judgment;

c)          to Alfredo Duarte Ramos, Abel Achar Acuña, Osvaldo Mora Espinola, Ismael Méndez Aranda and Hugo Antonio Vera Quintana, the sum of US$  13,000.00 (thirteen thousand United States dollars) each or the equivalent in the State’s national currency, as set forth in paragraphs 290, 291 and 294 of the present Judgment;

d)         to Clemente Luis Escobar González, Juan Ramón Lugo and Carlos Román Feris Almirón, the sum of US$ 11,000.00 (eleven thousand United States dollars) each or the equivalent in the State’s national currency, in the terms set forth in paragraphs 290, 291 and 294 of the present Judgment;

e)          to Pablo Ayala Azola, Julio César García, José Amado Jara Fernández, Rolando Benítez, Antonio Delgado, Aristides Ramón Ortiz Bernal, Carlos Raúl Romero Giacomo, Claudio Coronel Quiroga, Demetrio Silguero, Eduardo Vera, Francisco Noé Andrada, Heriberto Zarate, Hugo Olmedo, Jorge Daniel Toledo, José Milciades Cañete Chamorro, Nelson Rodríguez, Osmar López Verón, Osvaldo Daniel Sosa, Pablo Emmanuel Rojas, Oscar Rafael Aquino Acuña, Sixto Gonzáles Franco, Cándido Ulises Zelaya Flores and Walter Javier Riveros Rojas, the sum of US$ 9,000.00 (nine thousand United States dollars) each or the equivalent in the State’s national currency, in the terms set forth in paragraphs 290, 291, 292 and 294 of the present Judgment; and

f)          to the next of kin of former inmates  Francisco Ramón Adorno, Sergio David Poletti Domínguez and Mario del Pilar Álvarez Pérez, US$ 1,000.00 (one thousand United States dollars) or the equivalent in the State’s national currency, in the terms set forth in paragraphs 293 and 294 of the present Judgment.

17.       The State must pay non-pecuniary damages of US$2,706,000.00 (two million seven hundred and six thousand United States dollars) or the equivalent in the State’s national currency, in the terms set forth in paragraphs 304 to 309 of the present Judgment, divided as follows:

a)          to deceased inmates Elvio Epifanio Acosta Ocampos, Marco Antonio Jiménez, Diego Walter Valdez, Sergio Daniel Vega Figueredo, Sergio David Poletti Domínguez, Mario del Pilar Álvarez Pérez, Juan Alcides Román Barrios, Antonio Damián Escobar Morinigo and Carlos Raúl de la Cruz, the sum of US$ 65,000.00 (sixty-five thousand United States dollars) each or the equivalent in the State’s national currency, as set forth in paragraphs 304 and 309 of the present Judgment;

b)         to deceased inmates Benito Augusto Adorno, Richard Daniel Martínez and Héctor Ramón Vázquez, the sum of US$ 50,000.00 (fifty thousand United States dollars) each or the equivalent in the State’s national currency, as set forth in paragraphs 304 and 309 of the present Judgment;

c)          to Juan Carlos Zarza Viveros, Miguel Ángel Coronel Ramírez, Sergio Vincent Navarro Moraez, Alberto David Martínez, Miguel Ángel Martínez, Raúl Esteban Portillo and César Fidelino Ojeda Acevedo, the sum of US$ 50,000.00 (fifty thousand United States dollars) each or the equivalent in the State’s national currency, in the terms set forth in paragraphs 305 and 309 of the present Judgment; 

d)         to Pedro Iván Peña, Ever Ramón Molinas Zárate, Arsenio Joel Barrios Báez and Francisco Ramón Adorno, the sum of US$ 45,000.00 (forty-five thousand United States dollars) each or the equivalent in the State’s national currency, as set forth in paragraphs 305 and 309 of the present Judgment;

e)          to Alfredo Duarte Ramos, Abel Achar Acuña, Osvaldo Mora Espinola, Ismael Méndez Aranda and Hugo Antonio Vera Quintana, the sum of US$ 40,000.00 (forty thousand United States dollars) each or the equivalent in the State’s national currency, as set forth in paragraphs 305 and 309 of the present Judgment;

f)          to Clemente Luis Escobar González, Juan Ramón Lugo and Carlos Román Feris Almirón, the sum of US$ 30,000.00 (thirty thousand United States dollars) each or the equivalent in the State’s national currency, in the terms set forth in paragraphs 305 and 309 of the present Judgment;

g)         to Pablo Ayala Azola, Julio César García, José Amado Jara Fernández, Rolando Benítez, Antonio Delgado, Aristides Ramón Ortiz Bernal, Carlos Raúl Romero Giacomo, Claudio Coronel Quiroga, Demetrio Silguero, Eduardo Vera, Francisco Noé Andrada, Heriberto Zarate, Hugo Olmedo, Jorge Daniel Toledo, José Milciades Cañete Chamorro, Nelson Rodríguez, Osmar López Verón, Osvaldo Daniel Sosa, Pablo Emmanuel Rojas, Oscar Rafael Aquino Acuña, Sixto Gonzáles Franco, Cándido Ulises Zelaya Flores and Walter Javier Riveros Rojas, the sum of  US$ 22,000.00 (twenty-two thousand United States dollars) each or the equivalent in the State’s national currency, in the terms set forth in paragraphs 305, 306 and 309 of the present Judgment;

h)         to the identified next of kin of the deceased inmates, the sum of US$ 25,000.00 (twenty-five thousand United States dollars) or the equivalent in the State’s national currency, in the terms set forth in paragraphs 307 and 309, and

i)          to the identified next of kin of the former inmates injured in the fires, the sum of US$ 15,000.00 (fifteen thousand United States dollars) or the equivalent in the State’s national currency, in the terms set forth in paragraphs 307 and 309 of the present Judgment.

18.       In costs and expenses, the State must pay the Tekojojá Foundation the sum of US$ 5,000.00 (five thousand United States dollars) or the equivalent in the State’s national currency, and the Center for Justice and International Law (CEJIL) the sum of US$12,500.00 (twelve thousand five hundred United States dollars) or the equivalent in the State’s national currency, as set forth in paragraph 330 of the present Judgment.

19.       The State must pay the compensation and costs and expenses within one year of the date of notification of the present Judgment, as set forth in paragraph 331 thereof, unless different deadlines should be established, pursuant to the terms of paragraphs 315 to 322 and 331 of this Judgment.

20.       The State must deposit the compensation ordered for victims who are minors in a bank investment in their name, in a sound Paraguayan institution, in United States dollars, within one year and under the most advantageous terms allowed under banking law and practice, for as long as they are minors, as set forth in paragraph 336 of this Judgment.

21.       The State may fulfill the pecuniary obligations through payment in United States dollars or in an equivalent sum in the State’s national currency, using for the respective calculation the exchange rate between both currencies at the New York exchange the day before the payment.  The bank investment will be in United States dollars in keeping with the terms of paragraphs 335 and 336 of this Judgment.

22.       The payments for pecuniary and non-pecuniary damages and costs and expenses established in the present Judgment shall not be subject to, reduced by or conditional upon current or future fiscal considerations, in the terms of paragraph 337 of the present Judgment.

23.       Should the State fall into arrears, it shall pay interest on the amount owed, which will be at the banking arrearage interest rate in effect in Paraguay.

24.       If for any reason attributable to the beneficiaries of the compensations, they are unable to receive them within the stipulated one-year period from the date of notification of the present Judgment, the State shall deposit the respective amount in favor of said beneficiaries in a bank account or certificate of deposit, at a sound Paraguayan financial institution, in accordance with the terms of paragraph 335 of the present Judgment.

25.       The Court will oversee full compliance with this Judgment and will declare the case closed once the State has fully complied with the present Judgment.  Within one year of the date of notification of this Judgment, Paraguay will submit a report to the Court on the measures adopted to comply with this Judgment, as set forth in paragraph 339 thereof.

Judge Cançado Trindade informed the Court of his Concurring Opinion, which is affixed to this Judgment.

Decisions issued in this case:

·               Judgment of September 2, 2004

Concurring opinion of Antonio Cançado

·               Supervision of compliance with judgment, decision of July 4, 2006

·               Supervision of compliance with judgment, decision of December 10, 2007

·               Supervision of compliance with judgment, decision of February 6, 2008

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