The rights of the child in the case law of the Inter-American Court of Human Rights: Recent cases

Human Rights Law Review

Volumn 5, Issue 1, 2005, Pages 151-167

  de Jesús Butler, Israel ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 23944511218     PISSN: 14617781     EISSN: None     Source Type: Journal    
DOI: 10.1093/hrlrev/ngi007     Document Type: Review

References (143)

1. These are a welcome supplement to the Court's growing case-law on the rights of the child. See Advisory Opinion OC-17/2002, Legal Status and Human Rights of the Child, IACtHR Series A 17 (2002);
2. IHRR 510 (2004)
3. and Bulacio v Argentina, IACtHR Series C 100 (2003).
4. See also, Butler, 'Recent Advisory Opinions and Contentious Cases of the Inter-American Court of Human Rights', (2004) 4 Human Rights Law Review 125 at 125 and 140.
5. IACtHR Series C 112 (2004). The respondent State was Paraguay.
6. Ibid. at paras 134.1-134.4.
7. Ibid. at paras 134.1-134.47.
8. Ibid. at paras 176, 179, 184, 186, 188, 190, 213, 247 and 251.
9. Ibid. at para. 193.
10. Ibid. at para. 147. Article 19 reads: 'Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the State.'
11. See, for example, the Bulacio case, supra n. 1 at paras 122-38, where it considered the application of Article 7 of the Convention to minors. Article 19 is both a freestanding and parasitic guarantee. See infra n. 126.
12. Case Concerning the Children's Rehabilitation Institute, supra n. 2 at para. 150.
13. Ibid. at para. 149.
14. Ibid. at para. 255.
15. 1577 UNTS 3.
16. OAS Treaty Series No. 69 (1988).
17. Case Concerning the Children's Rehabilitation Institute, supra n. 2 at para. 148. The Court also made reference to the UN General Assembly Resolution 40/33, UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), 29 November 1985, A/RES/40/33, and the UN General Assembly Resolution 45/113, UN Rules for the Protection of Juveniles Deprived of their Liberty, 14 December 1990, A/RES/45/113. See paras 161-3 and 211 of the judgment.
18. Ibid. at paras 152-3 and 159. As well as its own past case-law, the Court referred to the judgment of the European Court of Human Rights in Kudla v Poland 2000-IX 197;
19. (2002) 25 EHRR 198 at paras 93-4.
20. Ibid. at paras 154-5.
21. The Court's decision might have benefited from a reiterated explanation of this principle. Advisory Opinion 17, supra n. 1 at paras 56-61, explains, with reference to Article 2 of UN General Assembly Resolution 1386 (XIV), UN Declaration on the Rights of the Child, 20 November 1959, and Article 3(1) of the CRC, that in taking measures to ensure the development of the child according to their full potential, and in light of their special needs inherent in their vulnerability, immaturity and inexperience, the fulfilment of the best interests of the child shall constitute the 'primary' or 'paramount' consideration for the State.
22. 27 November 2003, CRC/GC/2003/5;
23. 11 IHRR 10 (2004) at para. 12.
24. Supra n. 14.
25. Case Concerning the Children's Rehabilitation Institute, supra n. 2 at para. 161.
26. Ibid. at paras 165-9.
27. Ibid. at paras 134.1-134.4.
28. Ibid. at paras 134.5-134.6.
29. Ibid. at para. 134.7.
30. Ibid. at para. 134.8.
31. Ibid. at paras 134.9-134.10.
32. Ibid. at para. 134.16.
33. Ibid. at para. 167.
34. Ibid. at para. 168.
35. Ibid. at paras 134.18-134.20.
36. Ibid. at para. 169.
37. Ibid. at paras 134.24 and 169.
38. Ibid. at para. 170.
39. Ibid. at para. 171
40. Ibid. at para. 172. The Court considered the requirements of Articles 4 and 19 in the light of the CRC and Article 13 (the right to education) of the San Salvador Protocol. The concept of 'project of life' or 'life plan' has been explained previously by the Court as 'akin to the concept of personal fulfilment, which in turn is based on the options that an individual may have for leading his life and achieving the goal that he sets for himself'.
41. See Loayza Tamayo v Peru (Reparations) IACtHR Series C 42 (1998);
42. 7 IHRR 136 (2000) at para. 148. The Court has also considered this concept in Villagran-Morales et al. v Guatemala (Street Children) (Merits) IACtHR Series C 63 (1999);
43. 7 IHRR 1136 (2000) at para. 191.
44. See Trindade, 'The Developing Case Law of the Inter-American Court of Human Rights', (2003) 3 Human Rights Law Review 1 at 15.
45. Ibid. at para. 173.
46. Ibid. at paras 134.12 and 174.
47. Ibid. at para. 174.
48. Ibid. at para. 176.
49. Ibid. at paras 175 and 190.
50. Compare the Court's analysis of the requirements of Article 7 in relation to minors in the Bulacio case, supra n. 1.
51. Ibid. at paras 134.29-134.38.
52. Ibid. at paras 134.32 and 178.
53. Ibid. at para. 178.
54. Ibid. at paras 179 and 187.
55. Ibid. at paras 181-2.
56. Ibid. at para. 185.
57. Ibid. at paras 183-4.
58. Ibid. at para. 186.
59. Ibid. at paras 191-3.
60. Ibid. at para. 167.
61. Ibid. at para. 208.
62. Supra n. 1.
63. Article 40(3) reads: 'States parties shall seek to promote the establishment of laws, procedures, authorities, and institutions specifically applicable to children alleged as, accused, or recognized as having infringed the penal law, and, in particular: (a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.'
64. Case Concerning the Children's Rehabilitation Institute, supra n. 2 at para. 210.
65. Supra n. 54.
66. Supra n. 14. Rules 6.1 and 6.3 of the Beijing Rules were especially noted. Rule 6.1 reads: 'In view of the varying special needs of juveniles as well as the variety of measures available, appropriate scope for discretion shall be allowed at all stages of proceedings and at the different levels of juvenile justice administration, including investigation, prosecution, adjudication and the follow-up of dispositions.' Rule 6.3 reads: 'Those who exercise discretion shall be specially qualified or trained to exercise it judiciously and in accordance with their functions and mandates.'
67. Case Concerning the Children's Rehabilitation Institute, supra n. 2 at para. 211.
68. Ibid. at para. 212.
69. Ibid. at paras 134.57 and 214.
70. The Court itself refers to this faculty at para. 126 of its judgment.
71. Ibid. at para. 317.
72. Ibid. at para. 225.
73. Ibid. at para. 228.
74. Ibid. at para. 229.
75. Ibid. at para. 230.
76. Article 40(4), CRC states: 'A variety of dispositions, such as care, guidance and supervision orders, counselling, probation, foster care, education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.'
77. Case Concerning the Children's Rehabilitation Institute, supra n. 2 at para. 231.
78. Ibid. at para. 134.27. In Paraguay a writ of habeas corpus may be used to safeguard the rights of those who are legally detained.
79. See ibid. at para. 243.
80. ibid. at para. 134.28.
81. Ibid. at para. 245.
82. Ibid. at para. 247.
83. Ibid. at para. 251.
84. Ibid. at paras 189 and 134.20-134.21.
85. Ibid. at paras 189, 317 and resolutory para. 11(b).
86. Ibid. at paras 216-7.
87. Ibid. at para. 232.
88. Ibid. at paras 217 and 233.
89. See text accompanying supra n. 21-41.
90. Supra n. 1.
91. See, Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 2002, ST/LEG/SER/E/19.
92. IACtHR, Series C 110 (2004).
93. Ibid. at paras 67(a)-67(c).
94. Ibid. at para. 67(e).
95. Ibid. at paras 67(l)-67(r).
96. Ibid. at para. 133.
97. Ibid. at para. 100.
98. Ibid. at para. 117.
99. Ibid. at para. 156.
100. Ibid. at para. 173.
101. Ibid. at paras 117 and 156.
102. Ibid. at para. 119.
103. Ibid. at para. 156.
104. Ibid. at para. 182.
105. They were also during this brief period not charged or brought before an authority competent to pronounce on the legality of their detention.
106. Ibid. at paras 87-100.
107. Ibid. at para. 93. See the Bulacio case, supra n. 1.
108. Ibid. at paras 81 and 86.
109. Ibid. at para. 108.
110. Ibid. at paras 111-3.
111. Ibid. at paras 67(f) and 109.
112. Ibid. at paras 67(f), 67(g), 67(i) and 110. In its analysis of whether the facts constituted torture the Court did not make specific reference to the fact that the corpses as delivered to the morgue were covered in blood and dirt, with brain matter in their hair, had a broken finger, and their eyes gouged out.
113. Ibid. at para. 67(j).
114. Ibid. at para. 116.
115. Ibid. at para. 118.
116. The Court has routinely asserted jurisdiction to hear allegations of violations of this instrument despite the absence of such a provision in the treaty itself. See, for example, Maritza Urrutia v Guatemala, IACtHR Series C 103 (2003) at paras 89-92, as noted in Butler, supra n. 1 at 145-8.
117. Gómez-Paquiyauri case, supra n. 82 at paras 67(k) and 118.
118. Ibid. at para. 118.
119. Ibid. at para. 124.
120. Ibid. at paras 127 and 132.
121. Ibid. at para. 129.
122. Ibid. at para. 131,
123. quoting European Court of Human Rights' judgment in Nachova and Others v Bulgaria (2004) 39 EHRR 37 at para. 116.
124. Ibid. at para. 128.
125. Ibid. at paras 67(l)-67(p)(3).
126. Ibid. at paras 67(r) and 143.
127. Ibid. at para. 145.
128. Ibid. at paras 67(p)(4), 140, 147 and 149.
129. Ibid. at para. 147.
130. Ibid. at para. 145.
131. Ibid. at para. 147.
132. Ibid. at paras 153-6.
133. See Partially Dissenting Opinion of Judge Cecilia Medina Quiroga,
134. ibid. at para. 3.
135. Ibid. at paras 163-4.
136. Ibid. at paras 166-7.
137. Ibid. at paras 167-9.
138. Ibid. at paras 169-71.
139. The Court considered the violation of Article 19 as an isolated provision, rather than parasitically, as in the Case Concerning the Children's Rehabilitation Institute, supra n. 2.
140. Ibid. at paras 67(w)-67(z) and 182.
141. Ibid. at para. 76.
142. A function presently carried out, not uncontroversially, by the Court See Baena Ricardo v Panama, IACtHR Series C 104 (2003);
143. 10 IHRR 130 (2003), as discussed in Butler, supra n. 1 at 148-50.