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

SECOND EDITION

CHAPTER II

SUMMARY ON JURISPRUDENCE OF THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS PERTAINING TO CHILDREN

58.       This chapter presents a brief survey of the evolution in applying the human rights of children and adolescents in the inter-American human rights system, based on the recommendations adopted by the Inter-American Commission on Human Rights and the decisions of the Inter-American Court of Human Rights.

59.       The first stage in developing standards applicable to children in the inter-American system runs from the creation of the system to the end of the 1980’s, when the Convention on the Rights of the Child was adopted.  This period is characterized by action by the Commission in recording and monitoring human rights violations through petitions and individual cases, and in analyzing situations in countries.  During this initial period, most of the petitions and cases heard by the IACHR had to do with violations of the right to life, to personal liberty, or to humane treatment.

60.       A second stage in the evolution of the treatment of the issue of children’s rights in the inter-American system began with the entry into force of the Convention on the Rights of the Child by the United Nations General Assembly in 1989, and continues to the present day.  This period witnessed a more substantive development of the content of Article 19 of the American Convention on Human Rights.

61.       Finally, based on recognition of the progress the system has made to date, it should be noted that in view of the current evolution of the regional system in children’s rights, it could be said that a third stage in the development of the regional system is beginning, where the primary challenge is the establishment of a comprehensive view of the protection of the human rights of children and adolescents that will lead to inter-American standards on the human rights of children and adolescents that have not yet been specifically dealt with by the organs of the system.  Examples are issues related to protection of identity, adoption, the right not to be separated from one’s parents, and the duty of the state to protect the rights of children when private actors are present, among others.

62.       There follows an indicative, but not exhaustive survey of the decisions on matters related to children in the region adopted by the Commission and the Court in each of the stages of their evolution.

A.         Decisions of the Inter-American Commission on Human Rights

63.       Since its creation, the IACHR has referred to children’s rights in general reports and in its decisions on petitions and cases it has examined.  During the 1960’s, 1970’s and 1980’s, the Commission issued recommendations on general situations of human rights violations or decided on whether or not the human rights of a child were violated without proceeding to substantive development of the content of the law.  During the 1960’s and 1970’s, the IACHR used exclusively as a legal framework the American Declaration of the Rights and Duties of Man, an international instrument adopted at a time when the prevailing doctrine conceived of children as objects of protection, but did not recognize their status as persons with legal rights. In accordance with this doctrine, the Declaration does not contain a specific clause on the rights of children and adolescents, but rather includes reference to various types of protection for children and adolescents.  Of course, the Declaration is still applied in states that are not parties to the Convention, to understand the later concept according to which children are recognized persons with rights.

            64.       For instance, the first special reports published by the IACHR refer to the arbitrary detention of children,[40] the death of children by private militia in the service of the Government,[41] and children who remain with their parents deprived of liberty in inadequate conditions.[42]  The Commission has also analyzed general situations in its annual reports of 1970 (Mexico), 1971 (Chile and the United States of America), 1972 (Colombia), 1973 (Chile, Costa Rica, and Uruguay), 1974 (Nicaragua), 1975 (Argentina and Mexico), 1976 (Chile), and 1978 (Jamaica).  Another situation evaluated by the IACHR was the pattern of kidnappings of the children of political opponents of military dictatorships,[43] and the expulsion of children from schools or the refusal to register them because of their religious beliefs.[44]

            65.       With the entry into force of the American Convention,[45] the IACHR began to develop points of law on the content of the right to personal liberty and the right to a fair trial.  Thus, in its 1984-1985 Annual Report, the IACHR for the first time made specific nominal reference to Article 19 of the American Convention.[46]  Between 1985 and 1990, the IACHR issued various reports on violations of the right to life,[47] to humane treatment,[48] to a fair trial,[49] and to personal liberty[50] of children.  Moreover, in relation to children in conflict with criminal law, the Commission stated that these cases should be heard by a special judge and that they should be detained in places separate from the adult population.[51]

            66.       A review of cases on the rights to life,[52] humane treatment,[53]  and personal liberty[54] during the period immediately following the entry into force of the American Convention shows that there were no specific references to Article 19, in spite of the fact that they involved children whose human rights had been violated.  Up to that time, the examination of situations related to violations of the human rights of children and adolescents focused primarily on the law and not as much on the conditions that require special protection for children and adolescents.  For instance, there were references to violations of the right to humane treatment of children, but they did not include reference to the failure by states to comply with obligations assumed under the provisions of Article 19 of the American Convention on Human Rights.

67.       An analysis of the decisions adopted by the system shows that with the entry into force of the Convention on the Rights of the Child in 1990, there was a growing recognition of children as legal subjects with rights, as supported by the doctrine of comprehensive protection. [55]  In its 1991 Annual Report, for instance,[56] the IACHR referred to the situation of repatriated children, the majority of whom were separated from their progenitors, or were used to capture the parents who were illegal in the receiving country.  Subsequently, the IACHR decided cases involving street children,[57] use of children in armed conflicts[58] and recruitment of children into compulsory military service,[59] imprisonment of children with their parents, the situation of displaced children, abusive treatment and deplorable conditions in detention centers for children, sexual exploitation, and labor exploitation.[60]

68.       Another issue that the IACHR took up in general terms is corporal punishment.  It stated that “[…] physical punishment has been used traditionally by parents and guardians as a corrective measure.  Physical mistreatment is the type of correction most used in 48.2% of cases (…) 442. The Commission recommends to the State  […] that it implement programs for strict monitoring of the situation of children and adopt any necessary measures to guarantee the rights of minors, especially those who are victims of domestic violence.”[61]

            69.       In addition, on the gender issue, in Chapter V on the status of women in the Hemisphere, the IACHR expressed its concern over the situation of “invisible girls” or “girls in especially difficult circumstances,” as a specific group that requires special attention to protect their human rights.  This subject has also been evaluated through individual cases.[62] 

            70.       On another point, one of the first references to the principle of the best interests of children in the system can be found in its 1997 Annual Report, which established that (…) in any case involving decisions affecting the life liberty, physical or moral integrity, development, education, health, or other rights of minors, these decisions should be made in light of what is most advantageous for the child.[63]

71.       Finally, it is important to highlight the proactive role of the IACHR in promoting not only the development of the contentious jurisprudence of the Inter-American Court, but also the development of its advisory capacity in cases related to children.  An example of this was the request for an Advisory Opinion on the Juridical Status and Human Rights of the Child.

B.        Summary of a selection of decisions related to children, adopted by the Inter-American Commission on Human Rights

72.       There follows a summary of seven cases examined by the IACHR that contain significant conclusions pertaining to children, both because they involve recurrent themes, such as violations of the right to humane treatment and personal liberty, and because they raise new issues in the system, such as discrimination for reasons of gender or religion, which, in the substantive development of children’s rights, still pose a challenge for the evolution of the regional system.

1.         Case 2137 – Jehovah’s Witnesses vs. Argentina, 1978

Facts

73.       This case refers to restrictions imposed by the Argentine military dictatorship on the worship and the religion of Jehovah’s Witnesses.  The facts alleged by the Jehovah’s Witnesses include the expulsion of around 300 school-age children who were denied primary schooling by expulsion from the schools they were attending, or simply by not being permitting to register in the schools because of their religion.

Alleged rights

74.       Right of assembly (Article XXI), right to personal security, life, and liberty (Article I), right to education (Article XII), right of protection from arbitrary arrest (Article XXV), and right to religious freedom and worship (Article III) of the American Declaration of the Rights and Duties of Man.

Conclusions of the Commission

75.       In this case, the IACHR concluded, among other things, that the Jehovah’s Witnesses Religious Association was prohibited from exercising its activities in the Argentine Republic; that the State had violated the right to religious freedom and worship, hence the possibility of manifesting and practicing it both in public and in private; and, that it had also violated the right to equal opportunities for education and safety and security on the part of the members of the Association of Jehovah’s Witnesses.  Consequently, the Commission recommended to the State that it cease any type of persecution of the members of the Religious Association of Jehovah’s Witnesses.

2.         Case 11.491 – Detained Minors vs. Honduras

Facts

76.       This case refers to the arbitrary detention of children living in the streets in the city of Tegucigalpa, Honduras, who after being arrested, were sent to the San Pedro de Sula prison, where they were held together with adults in inhuman conditions and were subject to physical and sexual abuse.  At that time, the imprisonment of persons under 18 years of age in Honduras was related to the Supreme Court ruling of January 16, 1995, which authorized the incarceration of minors in prison blocks separate from the adults.  This judicial decision led to an increase in the number of children and adolescents incarcerated in prisons for adults, and also in the judgment of persons under 18 years of age by criminal judges rather than by judges specializing in juvenile matters.  Moreover, in this case the habeas corpus writs filed in favor of the children were not effective.

Alleged rights

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

Conclusions of the Commission

78.       To determine the scope of the specific obligations stipulated in Article 19 of the American Convention, the IACHR uses international laws on children which would subsequently be recognized by the Inter-American Court as corpus juris. Thus it is relevant to cite paragraph 72, which establishes that:  “To interpret the obligations of the state vis-à-vis minors, in addition to the provisions of the American Convention, the Commission considers it important to refer to other international instruments that contain more specific provisions pertaining to protection of children, including the Convention on the Rights of the Child and various declarations of the United Nations on the subject.  This integration of the regional system with the universal system of human rights for purposes of interpreting the Convention is based on Article 29 of the American Convention and on the repeated practices of the Court and the Commission in these matters.”[64]

79.       With regard to the right to personal liberty, this case refers to the situation of abandoned children who were living in the streets of Tegucigalpa, in respect of which the IACHR held:  “109. (...) that the detention of minors for noncriminal acts, but merely because they were in a situation of social abandonment, risk, orphanhood, or vagrancy, represents a grave danger to Honduran children.  The State may not deprive of their freedom those children who have not committed acts classified as offenses without incurring international responsibility for violating the right to personal liberty (Article 7 of the Convention).”[65]  This finding would be examined in greater detail by the Inter-American Court in the case of Villagrán Morales, where evidence showed that street children detained arbitrarily were victims of aggravated violations of their rights, both because they did not enjoy the minimum conditions for a decent life and because the state not only did not provide them with these minimum conditions, but also arbitrarily deprived them of their liberty.

80.       With regard to the right to humane treatment, the IACHR maintained:  “125. In the view of the Commission, the duty of the state to keep minors in detention in separate establishments from those occupied by adults is based on Article 5(5), considered together with Article 19 of the Convention.  It is obvious that the obligation emanating from Article 19, of according children special treatment, cannot be interpreted exclusively as the requirement to create a juvenile court and judges, but also, to ensure the “protection required by his condition as a minor,” requires that the minor be held separately from adults, namely in specialized institutions.”[66]  The Commission adds that in examining the State’s compliance with its special obligations to protect the right to humane treatment, of particular relevance is the role of guarantor that the state assumes whenever a person is deprived of his liberty.  On this point, the IACHR wrote that: “136. The obligation emanating from this position of guarantor implies that the agents of the state not only should refrain from carrying out acts that could be harmful to the life and physical safety of the detainee, but it should also endeavor by every means at its disposal to maintain the fundamental rights of the person in detention, and especially the right to life and humane treatment.  The state has the specific obligation here to protect prisoners from attacks coming from third parties, including those from other inmates.”[67]

3.         Case of Bulacio vs. Argentina (2000)

Facts

81.       Walter David Bulacio a 17 year old boy was detained by the Federal Argentinean Police on April 19, 1991, during a massive detention operation called “razzia”. He was taken to the Police station 35, room for children where he was tortured by police officials. The detention was not informed to the competent judge or his relatives. On April 21, the adolescent Walter Bulacio was taken to the Mitre hospital, where a doctor examined him and denounced the registration of a young guy with injuries. On April 26, the adolescent Walter Bulacio died.  In April a judicial process was initiated to punish the alleged responsible. Ten years after the arbitrary detention and the death of Walter Bulacio, domestic proceedings had not been concluded. On November 21, 2002 the VI Section of the Chamber of Appeals ruled the prescription of the criminal action.

Alleged Rights

82.       Right to life (Article 4), right to personal integrity (Article 5), right to personal liberty (Article 7), right to judicial guarantees (Article 8), right of the child (Article 19) and right to judicial protection (Article 25).

Conclusions of the Commission

83.       The Commission filed a lawsuit requiring the Court to decide if the State of Argentina had breached Articles 4 (right to life), 5 (right to personal integrity), 7 (right to personal liberty), 8 (judicial guarantees), 19 (rights of the child) y 25 (judicial protection) in relation to Article 1 (obligation to respect and ensure) of the American Convention in regards to Walter Bulacio. Additionally, the IACHR requested to compel the State to undertake a complete, impartial and effective investigation of the circumstances and to punish those responsible in accordance with the Argentinean legislation, the adoption of necessary measures to ensure that all detention facilities for persons under 18 years old are appropriate, the public recognition of the State’s responsibility and the reparation for material and immaterial damage for Walter Bulacio’s relatives as stated in Article 63.1 of the Convention, and to request the State the compensations and reimbursement of legal costs and expenses for those who assisted the Commission.

            84.       In its Report N° 72/00, the Commission concluded that the State breached the right to life (Article 4), personal integrity (Article 5), personal liberty (Article 7), judicial guarantees (Article 8), rights of the child (Article 19), and judicial protection (Article 25), in relation with the obligation to respect and to ensure human rights (Article 1), enshrined in the American Convention, against the adolescent Walter David Bulacio. The IACHR recommended the State to adopt the following measures:

1.           Adopt such measures as may be necessary for the facts stated above not to go unpunished, including a complete, impartial and effective investigation to establish the circumstances of the detention, injuries and death of Walter David Bulacio, and punishment of those responsible in accordance with Argentine legislation.

2.           Adopt such measures as may be necessary for the next of kin of Walter David Bulacio, Víctor David Bulacio and Graciela Scavone de Bulacio, to receive adequate and timely reparation for the violations [...] found.

85.         During the proceedings before the Court a friendly settlement was reached and was validated by the Inter-American Court. It is pertinent to observe that some of the arguments raised by the IACHR regarding reparations were different to those of the Court.  For instance, as regards to pecuniary damage, the IACHR alleged the need to consider his income as caddie in a golf camp to determine the compensation for material damage. On the same issue, the Court stated in paragraph 84 of its judgment of September 18, 2003 that:

The Court also deems that it is reasonable to assume that youth Bulacio would not have carried out this activity the rest of his life, but there is no certain fact that makes it possible to ascertain the activity or profession that he would have exercised in the future, that it, that there are insufficient grounds to establish the loss of a definite chance, which “must be estimated on the basis of certain damage with sufficient grounds to establish the probable realization of said damage.”[68] Due to the above, the Court decides to set, in fairness, US$100,000.00 (one hundred thousand United States dollars) as compensation for Walter David Bulacio’s lost earnings.

4.           Case of the girls Yean and Bosico vs. Dominican Republic (2001)

Facts

86.       The girls Dilcia Yean and Violeta Bosico were born in Sabana Grande de Boyá, in the District of Monte Plata in Dominican Republic; both girls have Dominican mothers and Haitian fathers. In this case, petitioners alleged that the State denied the late registration of birth because they did not fulfill certain conditions that were usually required from persons over 13 years old. Although at the moment of the registration, Dilcia Yean was 10 months and Violeta Bosico was 12 years old, the above mentioned conditions were demanded to these girls.  This situation placed both girls under an imminent threat to be expelled from their own country because they did not have an official identification as Dominican citizens. Additionally, due to that fact that Violeta Bosico did not have a birth certificate, she was deprived of her right to access to education during the period 1998-1999.
 

Alleged Rights

87.       Right to juridical personality (Article 3), right to judicial guarantees (Article 8), Rights of the child (Article19), right to nationality (Article 20), right to equal protection (Article 24) and right to judicial protection (Article 25) in relation with the obligation to adapt domestic law (Article 2) and the general obligations enshrined in Article 1.1 of the American Convention on Human Rights and the right to education enshrined in Article XII of the American Declaration of the Rights and Duties of Man. 

Conclusions of the Commission

            88.       The Commission analyzed the alleged violation of the obligations to respect and to ensure human Rights, and to adapt domestic law to the standards set in the American Convention in relation to the following Rights: right to juridical personality (Article 3), personal integrity (Article 5), protection of the family (Article 17), name (Article 18), rights of the child (Article 19),  right to property (Article 21), freedom of movement and residence (Article 22), and right to participate in government (Article 23). The Commission analyzed the right to education enshrined in Article XII of the American Declaration of the Rights and Duties of Man.

89.       On March 6, 2003, the IACHR approved its Merits Report N° 30/03 and recommended the State the adoption of the following measures:  

a)                   Establish guidelines that contain reasonable requirements and do not impose excessive or discriminatory obligations in order to facilitate the registration of Dominican-Haitian children with the Registry Office officials.

b)                   Establish a procedure that allows the requirements established in paragraph (a) to be applied in the case of late declarations of the birth of those born on Dominican territory.

c)                   Create a legal mechanism that, in case of dispute, allows individuals to file their reports directly before the judicial instance, so that their complaints can be reviewed by an independent and impartial judicial organ.

d)                   This mechanism should provide a simple, prompt and inexpensive recourse for individuals without a birth certificate.

e)                   Adopt the necessary measures to ensure that the children Dilcia Yean and Violeta Bosico, and also their mothers, Leonidas Yean and Tiramen Bosico Cofi, receive adequate and timely reparation and public acknowledgement of the violations of their human rights contained in Articles 1, 2, 3, 8, 19, 20, 24 and 25 of the American Convention on Human Rights and [in] Article XII of the American Declaration of the Rights and Duties of Man. When making this recommendation, the Commission recognize[d] that the State had made an effort to remedy the situation; however, some measures remained pending.

f)                    Adopt the necessary measures to prevent such facts being repeated in future.

90.       In relation to the right to education, the Commission deemed that although this right is enshrined in Article XII of the American Declaration, it is not protected by the Convention. Nevertheless, the Commission considered that this circumstance did not exclude its competence ratione materiae, because pursuant to Article 29(d) of the Convention “excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have. “No provision of this Convention shall be interpreted as: d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have”. Consequently, the Commission examined the violation of the right to education in relation to Article XII of the Declaration. It is pertinent to notice that in its ruling of September 2005, the Court analyzed the alleged violation of the right to education in relation to Article 19 of the American Convention, the Convention on the Rights of the Child and the Additional Protocol to the American Convention on Human Rights in the area of Economical, Social and Cultural Rights in relation to the obligation of progressive development enshrined in Article 26 of the Convention and stated:

185. (...)according to the child’s right to special protection embodied in Article 19 of the American Convention, interpreted in light of the Convention on the Rights of the Child and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, in relation to the obligation to ensure progressive development contained in 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.

91.       In relation to the analysis of the right to juridical personality, the Commission stated some relevant comments as regards to the right to an identity and the right to birth registration. For instance, the IACHR stated:

124. The birth registration is a necessary corollary to ensure the juridical identity, which at the same time is necessary to guarantee fundamental Rights enshrined in the Convention[69].  (...) It has been stated that “the birth registration is one of the fundamental human rights.  It assures a legal recognition of the child and identity, and also establishes family relations, to what community and nation he belong. It demonstrate that the child has a place (and right to participate) in all and each of the above mentioned institutions. It opened the path to other rights, such the access to healthcare and education, it allows protection against discrimination and abandonment, and determines the treatment that a child has as member of a legal system and last for all his life, ensuring the right of the individual to have a place in social and political life of his country. [70]

92.       Additionally, it is pertinent to indicate that in this case neither the IACHR nor the Court concluded that the State was responsible for the violation of the right to a name[71]. However, the Court in its ruling of September 8, 2005, included some relevant statements as regards to the scope of the right to a name in the following terms:

182.     The right to a name, embodied in Article 18 of the American Convention, 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. This right is also established in several international instruments.[72]

183.     Under Article 18 of the Convention, States are obliged not only to protect the right to a name, but also to provide the necessary measures to facilitate the registration of an individual, immediately after birth.
 

5.         Case 12.285, Michael Domingues vs. United States of America (2002)

Facts

93.       This case refers to the conviction of Michael Domingues to the death penalty for acts committed when he was 16 years of age.

Alleged rights

94.       Right to life (Article I) of the Declaration of the Rights and Duties of Man.

Conclusions of the Commission

95.       One of the points of law concerns the “jus cogens” nature of the prohibition of the death penalty for persons less than 18 years of age.  Thus the Commission indicated that Article I of the American Declaration “does not absolutely prohibit the death penalty, but it does prohibit its imposition whenever it would cause an arbitrary deprivation of life or for other reasons would constitute cruel, degrading, or unusual punishment.”[73]  In addition, in view of the fact that this case involves a person under 18 years of age, the IACHR concluded that “a rule of international customary law has come into play that prohibits the execution of delinquents under 18 years of age who commit a crime.”[74]  In view of these considerations, among others, the Commission concluded that the “United States is obligated by a rule of jus cogens not to impose capital punishment on persons who commit crimes before they attain 18 years of age.”[75] 

6.         Case 12.406 - Mónica Carabantes Galleguillos vs. Chile (2002)

Facts

96.       This case refers to the expulsion of a 15-year old adolescent, Mónica Carabantes Galleguillos, from a private school due to her pregnancy and the subsequent denial of justice in response to the complaint filed by the victim in the domestic courts.

Alleged rights

97.       In this case, the petitioners alleged violation of the right to equal protection before the law (Article 24) and the right to have her honor and dignity respected (Article 11) of the American Convention.

Conclusions of the Commission

98.       This case was resolved in a friendly settlement.[76]  Thus, although it raises interesting issues involved in the protection of human rights of girls, such as the right to be free of discrimination for reasons of gender, the right to education, and the right to protection against arbitrary interference in one’s private life, the IACHR did not have an opportunity to examine the issues raised in the phase on the merits.

7.         Case 10.506, X and Y vs. Argentina, (1996)

Facts

99.       This case refers to the practice of vaginal examinations of women and girls who visit family members incarcerated in prisons in Argentina.  Thus, Mrs. X and her daughter Y, 13 years of age, were subjected to vaginal examinations on every occasion that they visited the father of daughter Y.  Mrs. X filed a writ of amparo, that was declared without merit, in a special appeal to the Federal Supreme Court of Argentina.

Alleged rights

100.     Right to humane treatment (Article 5), right to protection of one’s honor and dignity (Article 11), protection of the family (Article 17), and rights of the child (Article 19) of the American Convention.

Conclusions of the Commission

101.     In this case, the Commission developed certain conclusions regarding the impact of the practice of vaginal examinations in the case of girls, in accordance with the criteria of legality, need, reasonableness, and proportionality.  The IACHR stated that:  “The practice of vaginal examination or inspection in certain circumstances may be acceptable, provided the measure is applied in accordance with the principles of due process and safeguards the rights protected by the Convention.  However, if certain conditions such as legality, need, and proportionality are not considered, and the procedure is not performed with due respect for certain minimum standards that protect the legitimacy of the act and the physical safety and well-being of the persons subjected to it, it cannot be considered as respecting the rights and guarantees enshrined in the Convention.” (para. 78)  From this standpoint, although it did not regard “the procedure as illegal per se [...], when the state performs any type of physical intervention on an individual, it must observe certain conditions to ensure that it does not generate more anxiety and humiliation than inevitable.  In order to apply this measure, a judicial order should be required in all cases, to ensure some control over the decision as to the need to apply this measure, and to ensure that the person to be subjected to it does not feel defenseless vis-à-vis the authorities.  Moreover, the procedure should always be conducted by appropriate staff who use due care, so as not to cause physical injury, and the examination must be conducted in such a way that the person subjected to it does not feel that it violates her mental and moral well-being. (para. 87)

102.     In analyzing the situation of girl Y, the Commission indicated that for her, “it was impossible for to obtain real consent, since at the time she was a child of 13 years of age, totally dependent on the decision made by her mother, Mrs. X, and on the protection offered by the State.  Moreover, for the obvious reason of the girl’s age, the method of vaginal examination used was absolutely inappropriate and unreasonable.” (para. 79)

103.     With regard to the personal safety and well-being of the child, the IACHR believes that “the Argentine State proposed and practiced a procedure with possible traumatic consequences on a minor, who did not have the legal capacity to consent [...].  Moreover, the State did not provide Y with minimum protection against abuses or physical injury.” (para. 104).  
 

8.         Case 11.364, Jailton Neri Da Fonseca vs. Brazil (2004)

Facts

104.     The case involves the arbitrary detention and extrajudicial execution of a child, Jailton Neri da Fonseca, 14 years of age, in the “favela” of Roquete Pinto, on December 22, 1992, by the military police of the Ramos Community Station.

Alleged rights

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

Conclusions of the Commission

106.     This is a case involving systematic violations of the human rights of children and adolescents living in the streets of Brazil.  In this report, the Commission established that it was not “an isolated case,” but instead reflected a pattern of conduct outside the law on the part of the State Military Police.  The Commission has received reports for years of an escalation of violence on the part of the national police, and especially the military police, who have been accused of acting with violence.  In its 1997 General Report on the Human Rights Situation in Brazil, the Commission indicated that “since February 1996, the average number of deaths per month at the hands of the Military Police has risen from 3.2 to 20.55 persons, for a total of 201 in 1996.”[77]

107.     The Commission arrived at some conclusions regarding the interpretation of the scope of Article 19 of the Convention, by establishing that “respect for the rights of the child constitutes a fundamental value in a society that claims to ensure social justice and human rights.  This not only entails providing children care and protection, basic parameters that have traditionally guided the legal and theoretical concept of the content of such rights, but also means recognizing, respecting, and guaranteeing the individual personality of the child, as a holder of rights and obligations.”[78]

108.     In addition, the Commission established that “in the case of children consideration must also be given to a more rigorous standard for the degree of suffering that could imply torture, taking into account, for instance, factors such as age, sex, the effect of the stress and fear experienced, the health of the victim, and his maturity.”[79]

9.         Case 12.300 Gerardo Vargas Areco vs. Paraguay (2004)

Facts

109.     The adolescent Gerardo Vargas Areco was recruited into military service in the Paraguayan Armed Forces on January 26, 1989, at the age of 15. On December 30, 1989, Gerardo Vargas Areco was allegedly arrested as punishment for failing to voluntarily and timely return to the military post after a leave of absence to spend Christmas with his family. As was proved during the proceedings the adolescent Vargas Areco appeared at the infirmary of the military unit where he was treated for a nasal bleeding.  After leaving the infirmary, the minor Vargas-Areco allegedly ran to flee from the military post and evade the punishment imposed upon him.  In that moment, a non-commissioned officer shot him to death.

Alleged rights

110.     Right to personal liberty (Article 7), right to personal integrity (Article 5), right to life (Article 4), rights of the child (Article 19) right to judicial protection (Article 25) in relation to the obligation to respect and ensure human rights enshrined in Article 1.1 of the American Convention.

Conclusions of the Commission

111.    In its Merits Report N° 76/04 of October 19, 2004, the Commission stated that “lack of the obligation to prevent consist in allowing, against what is stated in its Constitution and its domestic laws, that children under 18 years old, such Geraldo Vargas Areco, are recruited into military service. To place a child under that situation implies a breach of the obligation to ensure the right to life”[80]. Likewise, the IACHR, included some statements to strength the recognition of the child as a right holder:

The respect of the rights of the child constitutes a fundamental value for a society that intends to practice social justice and human rights. This does not only imply provide care and protection as basic parameters that used to guide the academic and legal conceptualization of the scope of those rights, but, in addition it means to recognize, respect and guarantee the individual personality of the child, as a right and duty holder.[81][82]

112.     In this light, it is pertinent to remind that the conceptualization of the special protection of the child that was stated by the IACHR in this case:

155 The integral protection recognized in Article 19 of the Convention demands in the present case, that the State enforces its Constitution and its domestic laws. It implied that the armed forces do not recruited Vargas Areco into compulsory military service(…)

156. The integral protection that required Vargas Areco also demanded that he was not treated as an adult, instead of being treated as a child. It also meant not to torture or to subject him to cruel, inhuman and degrading treatment, as it happened[83].

113.     In this light, the IACHR not only deem the recognition of the right of the child to enjoy a special protection such the right to have a special treatment different from the one that is given to adults; at the same time it deems that the conceptualization of the obligation of the State to ensure especial protection for children has as one of its axis the prevention of all situations that violates their human rights.

114.     After the timeframe given by the IACHR for the implementation of its recommendations concluded, pursuing to Article 51 of the American Convention, the IACHR filed a lawsuit to the Inter-American Court of Human Rights and requested the Tribunal to declare the international responsibility of the State for the violation of the rights enshrined in Article 8 (judicial guarantees) and 25 (judicial protection) of the American Convention, in relation to Article 1.1 (obligation to respect) of the said Convention against the relatives of Gerardo Vargas Areco. Furthermore, the Commission argued that the State breached the rights herein mentioned above because it did not “investigate, prosecute and punish those responsible for the violations perpetrated against their relatives in due term” and “for lack of a proper reparation on behalf of the relatives of the child”[84].

10.       Petition 1070-04 Milagros and Leonardo Fornerón vs. Argentina (2006)

Facts

115.     This case refers to the exercise of the right of guardianship and custody of a 6-year old child, Milagros Fornerón.  According to the petitioners’ report, the girl was turned over to her biological mother for temporary custody without the authorization of the father, who instituted proceedings for guardianship and the return of the child once he learned of this.

Alleged rights

116.     On the date of this publication, there is an admissibility report on this case in which evidence has been found of the alleged violation of the following rights:  right to a fair trial (Article 8), right to the protection of the family (Article 17), right to judicial protection (Article 25), and rights of the child (Article 19) of the American Convention.

Conclusions of the Commission

117.     Although this case involves an Admissibility Report, it is relevant to emphasize the criterion applied by the Commission to determine exhaustion of domestic remedies in the case of alleged violations of the rights of children.  For instance, the Commission established that the evaluation of the concept of a reasonable time in cases involving children’s rights is closely related to the scope of the obligation of special protection and consequently the obligation to act with diligence whenever issues affecting the human rights of children and adolescents are in dispute or the subject of a decision.  In this context, the Commission established that “41.   To evaluate the delay in the resolution of domestic remedies, account must also be taken of the objective of the judicial action.  In this regard, the Commission gives due consideration to the fact that the purpose of the proceedings initiated by Leonardo Aníbal Javier Fornerón is to establish and maintain a relationship of affection and care of his daughter, Milagros.  The Commission also takes into account the fact that the petitioners consider that the length of time of the proceedings very seriously affected the rights of Leonardo Aníbal Javier Fornerón and his daughter, Milagros, since as time went by, the child created closer links with her guardians, a factor used to maintain the adoption and to reject the requests of the biological parent.  On this point, the Commission observes that judicial proceedings related to guardianship and custody of a child must be handled expeditiously, in view of the importance of the interests at issue.”[85]

118.     In this regard, it should be noted that this criterion is based on the jurisprudence of the European Court of Human Rights, which has developed the concept of the “duty to act with exceptional diligence,” especially in administrative and judicial proceedings involving the protection of the human rights of persons under 18 years of age.[86]