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

SECOND EDITION

Case of the Serrano Cruz Sisters vs. El Salvador

Facts

162.     This case refers to the kidnapping and forced disappearance of the girls Ernestina and Erlinda Serrano Cruz, 7 and 3 years of age, respectively, on June 2, 1982, perpetrated by members of the Salvadoran Atlacatl Army Batallion during a military operation known as “Operation Clean Up” or “la guinda de mayo,” which was carried out in the Municipality of San Antonio de La Cruz, Department of Chalatenango, El Salvador, among other places.

Rights violated

163.     In this case, the following rights are alleged to have been violated:  right to life (Article 4), right to personal liberty (Article 7), right to a name (Article 18), and rights of the child (Article 19), to the detriment of Ernestina and Erlinda, and the right to humane treatment (Article 5) and the right to a fair trial and judicial protection (Articles 8 and 25, respectively) in respect of the victims’ next of kin.  The Court did not issue a decision on the right to family protection, the right to a name, and the rights of the child, since it did not have jurisdiction to analyze possible violations arising from acts that took place prior to June 6, 1995.

Principal considerations of the Inter-American Court of Human Rights

164.     In this case the Court did not elaborate on considerations pertaining to children’s rights; on the contrary, it decided not to rule on the alleged violations of Articles 17, 18, and 19 of the Convention, because it concluded that it did not have jurisdiction to rule on possible violations arising from events or acts that occurred prior to June 6, 1995, or that began to be executed before that date on which El Salvador deposited the instrument accepting the Court’s jurisdiction with the OAS General Secretariat. (see paragraph 125 of the judgment on the merits).  However, it is relevant to refer to the dissenting opinion issued by Judge Antônio Cançado Trindade with respect to the judgment issued in it.  In that opinion, Professor Cançado referred to important considerations on the right to identity, to the effect that: “Even though the right to identity is not expressly established in the American Convention, its material content is implied, in the circumstances of the specific case, particularly from Articles 18 (Right to a Name) and 17 (Rights of the Family) of the American Convention, in relation to Article 1(1) thereof.”[104]

Decision of the Court on the merits

165.     The Court declared:

By six votes to one, that:

1.         The State has violated the right to judicial guarantees and judicial protection embodied in Articles 8(1) and 25 of the American Convention on Human Rights, in relation to Article 1(1) thereof, to the detriment of Ernestina and Erlinda Serrano Cruz and their next of kin, in the terms of paragraphs 53 to 107 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

By six votes to one, that:

2.         The State has violated the right to humane treatment embodied in Article 5 of the American Convention on Human Rights, in relation to Article 1(1) thereof, to the detriment of the next of kin of Ernestina and Erlinda Serrano Cruz, in the terms of paragraphs 111 to 115 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

By five votes to two, that:

3.         It will not rule on the alleged violations of the rights of the family, the right to a name, and the rights of the child, embodied in Articles 17, 18 and 19 of the American Convention on Human Rights, respectively, in the terms of paragraph 125 of this judgment.

Dissenting Judges Cançado Trindade and Ventura Robles.

By six votes to one, that:

4.         It will not rule on the alleged violation of the right to life embodied in Article 4 of the American Convention on Human Rights, in relation to Article 1(1) thereof, to the detriment of Ernestina and Erlinda Serrano Cruz, in the terms of paragraphs 130 to 132 of this judgment.

Dissenting Judge Cançado Trindade.

AND DECIDES:

By six votes to one, that:

5.         This judgment constitutes per se a form of reparation, in the terms of paragraphs 157 and 201 thereof.

Dissenting Judge ad hoc Montiel Argüello.

6.         The State shall, within a reasonable time, carry out an effective investigation into the reported facts in this case, identify and punish those responsible and conduct a genuine search for the victims, and eliminate all the obstacles and mechanisms de facto and de jure, which prevent compliance with these obligations in the instant case, so that it uses all possible measures, either through the criminal proceedings or by adopting other appropriate measures, and shall publicize the result of the criminal proceedings, in the terms of paragraphs 166 to 182 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

7.         The State shall adopt the following measures to determine the whereabouts of Ernestina and Erlinda Serrano Cruz: establishment of a national commission to trace the young people who disappeared during the armed conflict when they were children, with the participation of civil society; creation of a search web page; and creation of a genetic information system, in the terms of paragraphs 183 to 193 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

8.         The State shall, within one year, organize a public act acknowledging its responsibility for the violations declared in this judgment and in reparation to the victims and their next of kin, in the presence of senior State authorities and the members of the Serrano Cruz family, in the terms of paragraphs 194 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

9.         The State shall publish, within six months, at least once in the official gazette and in another national newspaper, Chapter 1, entitled “Introduction of the case,” Chapter III, entitled “Jurisdiction” and Chapter VI, entitled “Proven facts,” as well as the operative paragraphs of this judgment, and shall also establish a link to the complete text of this judgment in the search web page, in the terms of paragraph 195 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

10.       The State shall designate, within six months, a day dedicated to the children who disappeared during the internal armed conflict for different reasons, in the terms of paragraph 196 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

11.       The State shall provide free of charge, through its specialized health institutions, the medical and psychological treatment required by the next of kin of the victims, including the medicines they require, taking into consideration the health problems of each one, after making an individual evaluation, and within six months, inform the next of kin of Ernestina and Erlinda Serrano Cruz in which health centers or specialized institutes they will receive the said medical of psychological care, and provide them with the treatment, in the terms of paragraphs 197 to 200 of this judgment. If Ernestina and Erlinda Serrano Cruz are found alive, the State shall also provide them with the said medical and psychological treatment, in the terms of paragraph 198 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

12.       The State shall pay Suyapa Serrano Cruz the amount established in paragraph 152 of this judgment in reparation for the pecuniary damage suffered by the next of kin of the victims, part of which was assumed by the Asociación Pro-Búsqueda, in the terms of paragraph 152 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

13.       The State shall pay, in compensation for non-pecuniary damage caused to the victims and their next of kin, the amounts established in paragraph 160 of this judgment, in favor of Ernestina Serrano Cruz, Erlinda Serrano Cruz, María Victoria Cruz Franco, Suyapa, José Fernando, Oscar, Martha, Arnulfo and María Rosa, all Serrano Cruz, in the terms of paragraph 160 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

14.       The State shall pay the amounts established in paragraph 207 of this judgment to the Asociación Pro-Búsqueda, for the costs and expenses generated in the domestic sphere and in the international proceedings before the inter-American system for the protection of human rights, and to CEJIL, for the costs and expenses it incurred in the said international proceedings, in the terms of paragraph 207 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

15.       The State shall pay the compensations, reimburse the costs and expenses, and adopt the measures of reparation established in the eighth operative paragraph of this judgment, within one year of its notification, in the terms of paragraph 208 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

16.       The State shall adopt the measures of reparation ordered in paragraphs 183 to 191 and 195 to 200 of this judgment within six months of its notification.

Dissenting Judge ad hoc Montiel Argüello.

17.       The State shall adopt the measures of reparation ordered in paragraphs 166 to 182, 192 and 193 of this judgment within a reasonable time, in the terms of the said paragraphs.

Dissenting Judge ad hoc Montiel Argüello.

18.       The State shall comply with its pecuniary obligations by payment in United States dollars or the equivalent in Salvadoran currency, in the terms of paragraph 209 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

19.       The State shall deposit the compensation ordered in favor of Ernestina and Erlinda Serrano Cruz in a deposit certificate or account in a reputable Salvadoran banking institution and in the most favorable financial conditions permitted by Salvadoran legislation and banking practice. If, after 10 years, the compensation has not been claimed, the amount shall be given, with the earned interest, to the siblings of Ernestina and Erlinda in equal parts, who will have two years to claim it, after which, if it has not been claimed, it shall be returned to the State, in the terms of paragraph 210 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

20.       The payment of the compensation corresponding to María Victoria Cruz Franco, mother of Ernestina and Erlinda Serrano Cruz, shall be given to her children in equal parts, in the terms of paragraph 211 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

21.       The payment of the compensation established in favor of the siblings of Ernestina and Erlinda Serrano Cruz shall be made directly to them. If any of them have died, the payment shall be made to the heirs, in the terms of paragraph 212 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

22.       The payments of compensation for pecuniary and non-pecuniary damage and to reimburse costs and expenses, shall not be affected, reduced or conditioned by current or future taxes or charges, in the terms of paragraph 214 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

23.       If, due to causes that can be attributed to the next of kin of the victims, beneficiaries of the payment of compensation, they are unable to receive it within the said period of one year, the State shall deposit such amounts in their favor in an account or a deposit certificate in a reputable Salvadoran banking institution in United States dollars, in the terms of paragraph 215 of this judgment.

Dissenting Judge ad hoc Montiel Argüello.

24.       Should the State fall in arrears, it shall pay interest on the amount owed corresponding to the bank interest on payments in arrears in El Salvador, in the terms of paragraph 216 of this judgment

Dissenting Judge ad hoc Montiel Argüello.

25.       It shall monitor compliance with this judgment and shall file the instant case, when the State has fully implemented all its provisions. Within one year of notification of this judgment, the State shall provide the Court with a report on the measures taken to comply with it, in the terms of paragraph 217 of this judgment. 

Dissenting Judge ad hoc Montiel Argüello.

Decisions issued in this case

·               Preliminary objections:  judgment of November 23, 2003

Opinion of Judge Cançado Trindade

Opinion of Judge Montiel Argüello

·               Merits:  judgment of March 1, 2005

Opinion of Judge Cançado Trindade

Opinion of Judge Ventura Robles

Opinion of Judge Montiel Argüello

·               Request for interpretation of the Judgment on the merits, reparations, and costs (Art. 67 of the American Convention on Human Rights), judgment of September 9, 2005.

Opinion of Judge Montiel Argüello

Case of the girls Yean and Bosico vs. the Dominican Republic

Facts

166.     This case is based on the refusal by the authorities of the Civil Registry of the Dominican Republic to issue birth certificates for Dilcia Yean and Violeta Bosico, daughters of Dominican mothers and Haitian fathers, when they requested a late registration at the Official Registry of Births, Deaths, and Marriages.  The girls were 10 months and 12 years old, respectively.  This denial occurred despite the fact that they were born on the territory of the state whose constitution recognizes the right to nationality by reason of birth, ius soli.  In this way, the State of the Dominican Republic denied the girls their right to nationality, which affected the exercise of other human rights, such as the right to education, since the child Violeta Bosico was unable to attend school for one year owing to a lack of identity documents.

Rights violated

167.     Right to recognition of juridical personality (Article 3), rights of the child (Article 19), right to nationality (Article 20), and right to equal protection (Article 24).

Principal considerations of the Inter-American Court of Human Rights

168.     On the principle of the best interests of the child, the Court stated that this is a criterion for interpretation of cases related to children, and established that “the prevalence of the best interest of the child should be understood as the need to satisfy all the rights of children, and this obligates the state and affects the interpretation of all the other rights of the Convention when the case refers to minors.”[105]

169.     The Court held that the condition of statelessness in which the two girls lived affected the free development of their personalities, since it impeded access to their rights, such as the right to education, health, and housing, among others, and the special protection to which they are entitled.[106]  It further stated that denial of the right to Dominican nationality was arbitrary, discriminatory, and contrary to the best interests of the child.

170.     With regard to the right to nationality in the instant case, the Court argued that the arbitrary denial of the right to nationality had consequences that affected the right of the children Dilcia Yean and Violeta Bosico to recognition of juridical personality and the right to a name.[107]

171.     As for the right to recognition of juridical personality, the Court asserted that violation of this right directly affects human dignity, since it means the absolute denial of an individual’s status as the holder of rights and renders him vulnerable to nonobservance of his rights by the state or by individuals.[108]  The Court pointed out that the condition of statelessness meant that the girls were not legally recognized, and therefore did not have juridical personality.

172.     With regard to the right to a name, the Court held that states have the duty not only to protect this right, but also to offer persons the necessary measures to facilitate the registration of the person immediately after birth.  The Court also underlined the freedom of persons to choose the name of their children, as well as the right to preserve and re-establish the name.[109]   On this point, the Court maintained that the right to a name “constitutes a basic and essential element of the identity of each individual, without which he cannot be recognized by society or registered before the State.”[110]  The Court ruled that in this case, the Dominican Republic did not guarantee the right to a name to the girls Yean and Bosico.

173.     In this case, the Court elaborated on the obligation of states to ensure the right to education.  To this end, the Court referred to the special protection obligation that the Dominican Republic assumed vis-à-vis children stipulated in Article 19 of the Convention, and stated that in accordance with the provisions of the Additional Protocol to the American Convention in the area of  Economic, Social and Cultural Rights and Article 26 of the American Convention, “the State must provide free primary education to all children in an appropriate environment and in the conditions necessary to ensure their full intellectual development.”[111] This finding is highly relevant inasmuch as it is not part of the previous case law of the Court, according to which, based on the concept of a life with dignity, it established that states have different economic or social obligations, and this has had a significant impact on inter-American jurisprudence. However, in this case the Court went a little further, since it made specific reference to a social right, namely the right to education, which as such is linked to the special protection for children, and is beginning to be the subject of jurisprudential considerations and points of law in the system.

174.     The Court rejected the allegations regarding the violation of the right to a fair trial and freedom of conscience.

175.     The Court established that the State must pay compensation to the victims.  Moreover, it established as an additional compensatory measure publication of the relevant parts of the judgment in the Official Gazette, acknowledgement of its international responsibility in a public act, adoption of measures to adapt domestic law on late registration of Dominican citizens, and implementation of a program for training in human rights for state agents competent to register births.  In these training programs, the State must give priority to nondiscrimination and the rights of the child.

Decision of the Court on the merits

176.     The Court decided:

Unanimously,

1.         To reject the three preliminary objections filed by the State, in accordance with paragraphs 59 to 65, 69 to 74, and 78 and 79 of this judgment.

DECLARES:

Unanimously that: 

2.         The State violated the rights to nationality and to equal protection embodied, respectively, in Articles 20 and 24 of the American Convention, in relation to Article 19 thereof, and also in relation to Article 1(1) of the Convention, to the detriment of the children Dilcia Yean and Violeta Bosico, in the terms of paragraphs 131 to 174 of this judgment.

3.         The State violated the rights to a name and to juridical personality embodied, respectively, in Articles 3 and 18 of the American Convention, in relation to Article 19 thereof, and also in relation to Article 1(1) of the Convention, to the detriment of the children Dilcia Yean and Violeta Bosico, in the terms of paragraphs 131 to 135 and 175 to 187 of this judgment.

4.         The State violated the right to humane treatment embodied in Article 5 of the American Convention, in relation to 1(1) thereof, to the detriment of Leonidas Oliven Yean, Tiramen Bosico Cofi and Teresa Tucent Mena, in the terms of paragraphs 205 to 206 of this judgment.

5.         This judgment constitutes per se a form of reparation, in the terms of paragraph 223 thereof.

AND ORDERS,

Unanimously that:

6.         The State should publish at least once, within six months of notification of this judgment, in the official gazette and in another newspaper with national circulation in the Dominican Republic, both the section entitled “Proven Facts”, without the corresponding footnotes, and also the operative paragraphs of this judgment, in the terms of paragraph 234 thereof.

7.         The State should organize a public act acknowledging its international responsibility and apologizing to the victims Dilcia Yean and Violeta Bosico, and to Leonidas Oliven Yean, Tiramen Bosico Cofi and Teresa Tucent Mena, within six months, in the presence of State authorities, the victims and their next of kin, and also the representatives and this shall be disseminated in the media (radio, press and television). The purpose of this act is to provide satisfaction and to serve as a guarantee of non-repetition, in the terms of paragraph 235 of this judgment.

8.         The State should adopt within its domestic law, within a reasonable time, in accordance with Article 2 of the American Convention, the legislative, administrative and any other measures needed to regulate the procedure and requirements for acquiring Dominican nationality based on late declaration of birth. This procedure should be simple, accessible and reasonable since, to the contrary, applicants could remain stateless. Also, an effective remedy should exist for cases in which the request is rejected in the terms of the American Convention, in accordance with paragraphs 239 to 241 of this judgment.

9.         The State should pay, as compensation for non-pecuniary damage, the amount established in paragraph 226 of this judgment to the child Dilcia Yean and the amount established in the same paragraph to the child Violeta Bosico.

10.       The State should pay the amount established in paragraph 250 of this judgment to Leonidas Oliven Yean and Tiramen Bosico Cofi for costs and expenses arising in the domestic sphere and in the international sphere before the Inter-American System for the protection of human rights; and they should make the payments to the Movimiento de Mujeres Domínico Haitianas (MUDHA), the Center for Justice and International Law (CEJIL), and the International Human Rights Law Clinic, Boalt Hall School of Law, University of California, Berkeley, to compensate the expenses they incurred.

11.       The Court shall monitor implementation of this judgment and will deem the case closed when the State has fully complied with the terms of this judgment. Within one year of notification of this judgment, the State shall provide the Court with a report on the measures adopted to comply with it, in the terms of paragraph 259 of this judgment.

Decisions issued in this case

·              Merits: judgment of September 8, 2005

          Opinion of Judge Cançado Trindade

·               Interpretation of the judgment on preliminary objections, merits, reparations, and costs (Article 67 of the American Convention on Human Rights):  judgment of November 23, 2006

·               Monitoring of compliance with judgment: decision of November 28, 2007

Case of Servellón García et al. vs. Honduras

Facts

177.     This case refers to the degrading detention conditions of the victims by police agents, to the detriment of Marco Antonio Servellón García, 16 years of age, and Rony Alexis Betancourt Vásquez, 17 years old, who were detained together with adults September 15 and 16, 1995 during an operation conducted by the Public Security Forces (FUSEP).  The victims were executed extrajudicially by FUSEP on September 17, 1995, and their bodies were found in different places in Tegucigalpa, Honduras.

178.     In this case, the State acknowledged its international responsibility for violation of the rights to life, to humane treatment, and to personal liberty, and the rights of the child.

Violated rights

179.     Right to life (Article 4), to humane treatment, and to personal liberty (Articles 5 and 7, respectively), and the right to a fair trial and to judicial protection (Articles 8 and 25, respectively).

Principal considerations of the Inter-American Court of Human Rights

180.     In this case, the Court developed substantive points of law regarding violence against children, which takes on special relevance in the way in which many states are trying to cope with the insecurity of citizens in their countries and the risks that such measures represent for the human rights of children.  The Court established that the violations of the human rights of the children Servellón and Betancourt occurred as a result of the situation of risk in which they were living. Thus, the Court asserted that “at the time the events occurred, there was a systematic pattern of violations of human rights in detriment to children and adolescents in situations of risk, and the context of violence within which the violations to the rights to life, humane treatment, and personal liberty occurred in this case has been proven.”[112]

181.     The Court called attention to the social stigmatization which victimizes poor children who are living in conditions of vagrancy, without regular jobs, or who suffer from other social problems.  In this context, the Court determined that the stigmatization, which in many cases is permitted by states for alleged reasons of citizen security, constitutes a violation of the principles of equality before the law and nondiscrimination.

182.     The Court ordered the State to investigate and punish the persons responsible for the violations committed to the detriment of the victims.

Decision of the Court on the merits

183.     In this case, the Court decided:

Unanimously to,

1.         Admit the acknowledgment of international responsibility made by the State for the violation of the rights to personal liberty and humane treatment, to life, to a fair trial, and the judicial protection enshrined in Articles 7(1), 7(2), 7(3), 7(4) 7(5) and 7(6), 5(1) and 5(2), 4(1), 8(1) and 8(2), 25(1) of the American Convention, in detriment of Marco Antonio Servellón García, Rony Alexis Betancourth Vásquez, Orlando Álvarez Ríos, and Diomedes Obed García Sánchez, and the right to humane treatment enshrined in Article 19 of the Convention, in detriment of Marco Antonio Servellón García and Rony Alexis Betancourth Vásquez, all in relation with the general obligation to respect and guarantee the rights established in Article 1(1) of said treaty, in the terms of paragraphs 54, 55, 60, and 65 of the present Judgment.

2.         Admit the acknowledgment of international responsibility made by the State for the violation of the rights to a fair trial and to judicial protection enshrined in Articles 8(1) and 25(1) of the American Convention, in relation with the general obligation to respect and guarantee the rights established in Article 1(1) of said treaty, in the terms of paragraphs 54, 55, and 66 of the present Judgment.

DECLARES,

Unanimously, that

3.         The State violated the rights to personal liberty and humane treatment and to life enshrined in Articles 7(1), 7(2), 7(3), 7(4), and 7(5), 5(1) and 5(2), and 4(1) of the American Convention, and the right to humane treatment enshrined in Article 5(5) of the Convention, in detriment of Marco Antonio Servellón García, Rony Alexis Betancourth Vásquez, Orlando Álvarez Ríos, and Diomedes Obed García Sánchez, in relation to the rights of the child enshrined in Article 19 of the Convention, in detriment of Marco Antonio Servellón García and Rony Alexis Betancourth Vásquez, all in relation with the general obligation to respect and guarantee the rights established in Article 1(1) of said treaty, in the terms of paragraphs 86 through 125 of the present Judgment.

4.         The State violated the right to humane treatment enshrined in Article 5(1) of the American Convention, in detriment of the next of kin of Marco Antonio Servellón García, Reyes Servellón Santos, father; Bricelda Aide García Lobo, mother, and Marja Ibeth Castro García, sister; of the next of kin of Rony Alexis Betancourth Vásquez, Manases Betancourth Núñez, father, Hilda Estebana Hernández López, mother, Zara Beatris Bustillo Rivera, daughter, and Ana Luisa Vargas Soto, partner, and of the sister of Orlando Álvarez Ríos, Dilcia Álvarez Ríos, in relation with the general obligation to respect and guarantee the rights established in Article 1(1) of said treaty, in the terms of paragraphs 126 through 139 of the present Judgment.

5.         The State violated Articles 8(1), 8(2), 7(6), and 25(1) of the Convention, in detriment of Marco Antonio Servellón García, Rony Alexis Betancourth Vásquez, Orlando Álvarez Ríos, and Diomedes Obed García Sánchez, all in relation with the general obligation to respect and guarantee the rights established in Article 1(1) of said treaty, in the terms of paragraphs 140 and 155 of the present Judgment.

6.         The State violated the right to a fair trial and judicial protection enshrined in Articles 8(1) and 25(1) of the American Convention, in detriment of the next of kin of Marco Antonio Servellón García, Reyes Servellón Santos, father, Bricelda Aide García Lobo, mother, and Marja Ibeth Castro García, Pablo Servellón García, and Héctor Vicente Castro García, siblings; of the next of kin of Rony Alexis Betancourth Vásquez, Manases Betancourth Núñez, father, Hilda Estebana Hernández López, mother, Zara Beatris Bustillo Rivera, daughter, Ana Luisa Vargas Soto, partner, and Juan Carlos Betancourth Hernández, Manaces Betancourt Aguilar, Emma Aracely Betancourth Aguilar, Enma Aracely Betancourth Abarca, and Lilian María Betancourt Álvarez, siblings; of the next of kin of Orlando Álvarez Ríos, Antonia Ríos, mother, and Dilcia Álvarez Ríos, sister, and of the next of kin of Diomedes Obed García Sánchez, Diomedes Tito García Casildo, father, and Esther Patricia García Sánchez, Jorge Moisés García Sánchez, and Fidelia Sarahí García Sánchez, siblings, in relation with the general obligation to respect and guarantee the rights established in Article 1(1) of said treaty, in the terms of paragraphs 140, 145 through 154, and 156 through 159 of the present Judgment.

7.         This Judgment is, per se, a form of reparation, in the terms of paragraph 180 of the same.

And Decides:

Unanimously, that:

8.         The State must seriously undertake, within a reasonable period of time, all actions necessary to identify, prosecute, and, in its case, punish all the perpetrators and planners of the violations committed in detriment of Marco Antonio Servellón García, Rony Alexis Betancourth Vásquez, Orlando Álvarez Ríos, and Diomedes Obed García Sánchez, for criminal effects and any other that may result from the investigation of the facts. For this, the State must remove, in a reasonable period of time, all obstacles and mechanisms of fact and law that have maintained the impunity in the present case, in the terms of paragraphs 192 through 196 of the present Judgment.

9.         The State must publish, within a six-month period, the Chapter on facts proven of this Judgment, without the corresponding footnotes, and the operative part of the same, once, in the terms of paragraph 197 of the present Judgment.

10.       The State must hold, within a six-month period, a public act of acknowledgment of its international responsibility, in the terms of paragraph 198 of the present Judgment.

11.       The State must name, within a one-year period, a street or a plaza, in the city of Tegucigalpa, in memory of Marco Antonio Servellón García, Rony Alexis Betancourth Vásquez, Diomedes Obed García Sánchez, and Orlando Álvarez Ríos. The State must place a plaque on said street or plaza with the names of the mentioned four victims, in the terms of paragraph 199 of the present Judgment.

12.       The State must establish, within a reasonable period of time, a program for the formation and training of police and judicial personnel as well as personnel of the Public Prosecutors’ Office and of the penitentiary regarding the special protection that must be offered by the State to children and youngsters, the principle of equality and non-discrimination, and the principles and norms for the protection of human rights, related to the application of international standards for the arrest of people, respect for their rights and judicial guarantees, the treatment that they must receive, their detention conditions, treatment, and medical control, the right to have an attorney, to receive visits, and that minors and adults, as well as those being processed and those already convicted, be located in different installations, in the terms of paragraph 200 of the present Judgment.

13.       The State must carry out, within a reasonable period of time, a campaign with the purpose of creating awareness in the Honduran society regarding the importance of the protection of children and youngsters, inform it of the specific duties for their protection that correspond to the family, society, and the State, and make the population see that children and youngsters in situations of social risk are not identified with delinquency. Likewise, the State must issue, within a one-year period, a postal stamp allusive to the protection due by the State and society to children and youngsters in risky situations, in order to prevent them from becoming victims of violence, in the terms of paragraphs 201 and 202 of the present Judgment.

14.       The State must create, within a reasonable period of time, a unified data base between all institutions involved in the investigation, identification, and punishment of those responsible for the violent deaths of children and youngsters in risky situations, in the terms of paragraph 203 of the present Judgment.

15.       The State must pay the next of kin of Marco Antonio Servellón García, Rony Alexis Betancourth Vásquez, Diomedes Obed García Sánchez, and Orlando Álvarez Ríos, in their condition of successors, and in a one-year period, as compensations for pecuniary and non-pecuniary damages, the amounts determined in paragraphs 176 and 184(a) and 184(b) of the present Judgment, in the terms of paragraphs 169 through 172, 176, 180, 182, 184(a) and 184(b) and 185 of the same.

16.       The State must pay Bricelda Aide García Lobo, Hilda Estebana Hernández López, and Dilcia Álvarez Ríos, within a one-year period, as compensation for pecuniary damages, the amount set in paragraph 177 of the present term, pursuant to its terms.

17.       The State must pay Reyes Servellón Santos, Bricelda Aide García Lobo, Marja Ibeth Castro García, Manases Betancourth Núñez, Hilda Estebana Hernández López, Zara Beatris Bustillo Rivera, Ana Luisa Vargas Soto, and Dilcia Álvarez Ríos, within a one-year period, as compensation for non-pecuniary damages, the amounts set in paragraphs 184(c), 184(d), 184(e), 184(f) and 184(g) of the present Judgment, in the terms of paragraphs 180, 181, 183, 184(c), 184(d), 184(e), 184(f) and 184(g), and 185 of the same.

18.       The State must pay, within a one-year period, in the concept of costs and expenses generated in the domestic realm and in the international proceedings before the Inter-American system for the protection of human rights, the amount set in paragraph 205 of the present Judgment, which must be delivered to Bricelda Aide García Lobo, Hilda Estebana Hernández López, and Dilcia Álvarez Ríos, in the terms of paragraphs 204 and 205 of the same.

19.       It will monitor the compliance of the present Judgment in all its aspects, and it will close the present case once the State has fully implemented all of the provisions of this Judgment. Within one year of notification of this Judgment, the State must present a report of the measures taken in compliance of this Judgment to the Court.

Judge Antônio A. Cançado Trindade advised the Court of his Concurring Opinion, which accompanies the present Judgment.

Decisions issued in this case

·                     Judgment of September 21, 2006

·                     Monitoring of judgment:  decision of January 29, 2008

Case of Gerardo Vargas Areco vs. Paraguay

Facts

184.     On January 26, 1989, the boy, Gerardo Vargas Areco, 15 years of age, was recruited into the military service in Paraguay.  On December 30, 1989, the boy was arrested in punishment for not having returned to the military establishment on time after being on leave to visit his family.  Allegedly, when the boy tried to run away to avoid the punishment, a noncommissioned officer at the military post shot him in the back, causing his death.  The body of the boy was found the next day, 100 meters from the military post.  The State acknowledged international responsibility in this case.

Rights violated

185.     Right to life (Article 4), to humane treatment and personal liberty (Articles 5 and 7, respectively), and rights of the child (Article 19), to the detriment of the boy, Gerardo Vargas Areco, and right to a fair trial and judicial protection (Articles 8 and 25, respectively), to the detriment of the boy’s next of kin.

Principal considerations of the Inter-American Court of Human Rights

186.     This is the first case referring to recruitment of children into the military service.  Although the Court did not rule on the case prior to acceptance of the Court’s jurisdiction by Paraguay, the Court included a few general considerations on this subject, and emphasized that the prevailing trend in international law is to avoid having persons under 18 years of age in the Armed Forces, and to ensure in all cases that minors less than 18 years of age do not participate directly in hostilities.[113]

Decision of the Court on the merits

187.     In this case, the Court decided:

Unanimously,

1.         To admit the acknowledgment of international responsibility by the State regarding the violation of the duty to guarantee the rights set forth in Articles 4 and 5(1) of the American Convention on Human Rights, together with Article 1(1) of said treaty and Articles 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, after March 26, 1993, to the detriment of the relatives of Gerardo Vargas-Areco, in accordance with paragraphs 52 to 58 and 64 of this Judgment.

2.         To admit the acknowledgment of international responsibility by the State regarding the violation of the right set forth in Article 5(1) of the American Convention on Human rights, in relation to Article 1(1) of said treaty, after March 26, 1993, to the detriment of the relatives of Gerardo Vargas-Areco, in accordance with paragraphs 52 to 58 and 64 of this Judgment.

3.         To admit the acknowledgment of international responsibility by the State regarding the violation of the right set forth in Articles 8(1) and 25 of the American Convention on Human Rights, in relation to Article 1(1) of said treaty, after March 26, 1993, to the detriment of the relatives of Gerardo Vargas-Areco, in accordance with paragraphs 52 to 58 and 64 of this Judgment.

4.         To reject the acknowledgement of international responsibility by the State regarding the alleged violation of the right to special protection measures for children as set forth in Article 19 of the American Convention on Human Rights, in relation to Articles 1(1), 2 and 7 of said treaty, to the detriment of the children of Paraguay, in general, and the minor Gerardo Vargas-Areco, in particular, in accordance with paragraphs 59 to 63 of this Judgment.

Declared unanimously that:

5.         The State violated the duty to guarantee the rights set forth in Articles 4 and 5(1) of the American Convention on Human Rights, together with Article 1(1) of said treaty and Articles 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, after March 26, 1993, to the detriment of the relatives of Gerardo Vargas-Areco, as set forth in paragraphs 84 to 94 of this Judgment.

6.         The State violated the right set forth in Article 5(1) of the American Convention on Human Rights, in relation to Article 1(1) of said treaty, after March 26, 1993, to the detriment of the relatives of Gerardo Vargas-Areco, as set forth in paragraphs 95 to 97 of this Judgment.

7.         The State violated the right set forth in Articles 8(1) and 25 of the American Convention on Human Rights, in relation to Article 1(1) of said treaty, after March 26, 1993, to the detriment of the relatives of Gerardo Vargas-Areco, as set forth in paragraphs 98 to 110 of this Judgment.

8.         This judgment is, in and of itself, a form of reparation, as set forth in paragraph 150 herein.

and ruled unanimously that:

9.         The State shall adopt, in full compliance with the right to fair trial and within reasonable time, all measures necessary to identify, prosecute and punish the physical perpetrators of the violations committed in the instant case, as set forth in paragraphs 153 to 156 and 168 of this Judgment.

10.       The State shall make a public apology and acknowledgement of international liability regarding the violations declared in this Judgment, in the community where the family of Gerardo Vargas-Areco lives, in their presence and that of the State’s civil and military authorities. In the course of said act, a plaque in the memory of the minor Vargas-Areco will be affixed, as set forth in paragraphs 157, 158 and 168 of this Judgment.

11.       The State shall provide medical, psychological and psychiatric treatment, as applicable, to Mrs. De Belén Areco, Mr. Pedro Vargas, and Juan, María Elisa, Patricio, Daniel, Doralicia, Mario, María Magdalena, Sebastián and Jorge Ramón, all members of the Vargas-Areco family, at their discretion and for as long as necessary, as set forth in paragraphs 159, 160 and 168 of this Judgment.

12.       The State shall design and implement training programs and regular courses in human rights, which must be made available to all members of the Paraguayan Armed Forces, as set forth in paragraphs 161 and 168 of this Judgment.

13.       The State shall publish at least once, in the Official Gazette and in another nationwide daily newspaper, the chapter on Proven Facts of this Judgment, without the corresponding footnotes, and the related operative paragraphs, as set forth in paragraphs 162 and 168 hereof.

14.       The State shall adapt its domestic legislation regarding the recruitment of minors under the age of 18 into the Paraguayan Armed Forces to applicable international standards, as set forth in paragraphs 163, 164 and 168 of this Judgment.

15.       The State shall pay to Mrs. De Belén Areco and Mr. Pedro Vargas the compensation for pecuniary damage in the amount established in paragraph 148 of this Judgment, as set forth in paragraphs 168 and 174 hereof.

16.       The State shall pay to Mrs. De Belén Areco, Mr. Pedro Vargas, and Juan, María Elisa, Patricio, Daniel, Doralicia, Mario, María Magdalena, Sebastián and Jorge Ramón, all of them members of the Vargas-Areco family, a compensation for non-pecuniary damage in the amount established in paragraph 151 of this Judgment, as set forth in paragraphs 168 and 174 hereof.

17.       The State shall reimburse the costs and expenses incurred in the domestic jurisdiction and in the course of international proceedings before the Inter-American System for Human Rights Protection, pursuant to the amount established in paragraph 167 of this Judgment. Said amount must be delivered to Mrs. De Belén Areco and Mr. Pedro Vargas, as set forth in paragraphs 168 and 174 hereof.

18.       The State shall monitor full compliance with this Judgment and the instant case shall be closed once the State implements in full the provisions herein. Within a year from the date notice of this Judgment is served upon it, the State shall submit to the Court a report on the measures taken to comply with the Judgment, as set forth in paragraph 175 herein.

Decisions issued in this case

·                     Judgment of September 26, 2006

.

·                     Advisory opinions

Advisory Opinion OC 17/02 Juridical Condition and Human Rights of the Child

188.     On August 28, 2002, the Court issued OC-17, which contains considerations on the following subjects:  definition of the child; equality; best interests of the child, duties of the family, society, and the state; right to a fair trial in all judicial processes involving children.

189.     The following concepts were elaborated on and clarified by the Court:

190.     On the principle of the best interests of the child, the Court stated that this “regulating principle regarding children’s rights is 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, as well as on the nature and scope of the Convention on the Rights of the Child.[114]

191.     With regard to special measures of protection stipulated in Article 19 of the American Convention, the Court merely referred to their application to ensure protection against abusive treatment on the part of individuals or state agents.  Unfortunately, it did not examine all the potentials inherent in Article 19 for the regional system pertaining to children’s rights.

192.     With regard to a fair trial, the Court established an interpretation of all the provisions regulating this right in international law on children to the effect that: “the rules of due process and the right to fair trial must be applied not only to judicial proceedings, but also to any other proceedings conducted by the State, or under its supervision”[115]. In this context, the Court advised that: “it is also appropriate to consider the possibility and convenience of all procedural forms followed in those courts to have features of their own, in accordance with the characteristics and needs of the proceedings that take place there, bearing in mind the principle set forth in the Convention on the Rights of the Child, that at this level can be reflected both in court intervention, as regards the form of procedural acts, and in the use of alternative means of solving controversies, mentioned below."

193.     From a general perspective, it is noted that OC -17 contains considerations which are relevant and substantive, but which at the same time, owing to their generality, can become ambiguous.  However, OC-17 marks a milestone in the development of regional jurisprudence in children’s matters, because it places the item on the region’s agenda and establishes parameters that open the way for an interesting and encouraging process of development in the protection of the human rights of children in the region.

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