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systematically violated by the 1979 Code. Although its provisions are supposed to
favor minors, the latter are not recognized the rights that the Constitution and the
Convention on the Rights of the Child grant them. The Code affirms the so-called
“doctrine of the irregular situation”, which makes no distinction between a child who
is the victim of the failure of social policies, who falls outside the institutional circuits
– for example, the school – and the child who is the active subject of violence, so
that both can be subjected to the same measures in the same institutions.
Therefore, by applying the law, the police force is, on the one hand, strictly
complying with one of the Code’s mandates and, on the other, flagrantly violating
both the Convention and the Constitution itself.
The Code is a law that
overwhelmingly criminalizes poverty because, following a detention, there is a
“declaration of the state of abandon”, which is a legal proceeding that severs the
links between the biological family and the child. By failing to establish a difference
between the family that really expels the child and the one that is unable to maintain
him, it is technically possible to take a child away from his family merely for the lack
or absence of material resources.
Generally, two things happen to such children. If they are very young, they often
enter the sphere of national and international adoption. If they are older than the
usual age for adoption, that is, if they are more than 5, 6 or 7 years of age, these
children permanently aliment the circuit of children’s institutions. And there is a very
strong relationship between passage through these institutions and recidivism and
reclusion in adult prisons.
The Children and Youth Code adopted by the Guatemalan Congress in 1996, which is
in suspense, corresponds to what could be called a substantial adaptation to the
Convention on the Rights of the Child, and to all the instruments that comprise the
so-called United Nations integral protection doctrine, the Beijing rules and the Riad
rules.
The legislative modifications and the measures necessary to grant protection to
children in general, adapted to international standards for children in general and, in
particular, street children or those at risk in Guatemala are: application of the
parameters established by the International Convention; granting constitutional rank
to laws and policies on children; bringing into force the 1996 Code; the reform of the
institutions that apply the law; and, breaking and halting the cycle of the impunity of
the violations committed against minors. All the foregoing accompanied by an
increase in public expenditure on the so-called basic social policies of health and
education, and in the so-called special protection policies, which are those addressed
to the percentage of children at risk or at high risk.
It would be appropriate to execute acts of symbolic reparation. The measure
requested to give the names of the victims to a school, is a real, significant symbolic
measure and would be an extraordinary act to send a very strong message to break
the cycle of impunity, and to recall that those deaths did not occur in vain.
V
OBLIGATION TO MAKE REPARATION
57.
In the ninth operative paragraph of the judgment on merits of November 19,
1999, the Court decided to open the reparations and costs stage and to authorize