241.
In this regard, the Court considers that, in order to facilitate access to justice for
vulnerable persons, the participation of other State institutions and bodies is essential so
that they can assist in the judicial proceedings in order to ensure that the rights of such
persons are protected and defended. To this end, the United Nations Convention on the
Rights of Persons with Disabilities contains a specific article regarding the scope of the right
384
to access to justice in which it is provided that : i) States Parties shall ensure effective
access to justice for persons with disabilities on an equal basis with others, including
through the provision of procedural and age-appropriate accommodations, in order to
facilitate their effective role as direct and indirect participants.
242.
Moreover, the Court recalls that while procedural rights and their related guarantees
apply to all persons, in the case of children the exercise of those rights requires, due to the
special their special status as minors, that certain specific measures be adopted for them to
385
effectively enjoy those rights and guarantees.
The types of specific measures are
386
determined by each State Party and may include direct or joint representation,
as the
case may be, of the minor in order to reinforce the guarantee of the principle of the best
interests of the minor. Moreover, the Court considers that there may be cases in which,
depending on the person’s level of disability, it is advisable for that individual to receive the
counsel or intervention of a public official to ensure the effective protection of his or her
rights.
243.
In this regard, the Court notes that the Juvenile Defender was not notified by the
judge of the civil proceeding while Sebastián Furlán was a minor or later on, when the
expert reports revealed the extent of his disability; therefore, Sebastián Furlan was not
given the opportunity, which is mandatory at the domestic level, to participate in the civil
proceeding, to which he could have contributed thanks to the powers granted by law (supra
para. 238). Bearing in mind the foregoing, in the specific circumstances of the present case,
the Defender of Juveniles and Persons with Disabilities would have provided a mechanism to
address Sebastián Furlan’s vulnerability, given the negative effects produced by the
combination of his disability and his and his family’s very limited financial resources which,
as mentioned previously, (supra para. 201), meant that his impoverished circumstances had
a disproportionate impact on his condition as a person with disabilities. Accordingly, the
Court concludes that the State violated the right to a fair trial as embodied in Article 8(1), in
relation to Article 1(1) of the American Convention, to the detriment of Sebastián Claus
Furlan.
F)
Right to personal integrity and access to justice for the family of Sebastián
Furlan
Arguments of the Commission and of the parties
244.
The Commission alleged the violation of the right to personal integrity to the
detriment of Sebastián Furlan and his immediate family members, “his father (Danilo
Furlan), his mother (Susana Fernández), his brother (Claudio Erwin Furlan) and his sister
(Sabina Eva Furlan)”. In this respect, the Commission argued that “the next-of-kin of
victims of human rights can be considered victims as well” and argued that, in the instant
case, “the delay in the process protracted the emotional distress of Sebastián’s father,
mother, brother and sister, and therefore [...] their right to psychological and moral
384
385
386
Article 13 of the Convention on the Rights of Persons with Disabilities.
Advisory Opinion OC-17/02, para. 98.
Mutatis mutandi, Case of Atala Riffo and Daughters v. Chile, para. 199.
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