54
187. In relation to the rights of the family, the Court has established in its
jurisprudence that the separation of children from their family constitutes, under
certain conditions, a violation of his right to a family, enshrined in Article 17 of the
American Convention209.
188. Additionally, the Court has indicated that the “child has the right to live with
this family, which is called upon to satisfy his material, emotional, and psychological
needs. The right of all persons to receive protection against arbitrary or illegal
interference with his family, is implicitly part of the right to the protection of the
family and of the child, and is expressly recognized in Articles 12(1) of the Universal
Declaration of Human Rights210, V of the American Declaration of the Rights and
Duties of Man211, 17 of the International Pact on Civil and Political Rights212, 11(2) of
the American Convention on Human Rights213, and 8 of the European Convention on
Human Rights214. These provisions have special relevance when analyzing the
separation of a child from his family215.
189. Likewise, the jurisprudence of the European Court on Human Rights has
indicated that the mutual enjoyment of the coexistence between parents and their
children constitutes a fundamental element of family life,216 and that Article 8 of the
European Convention on Human Rights not only has the goal of protecting the
individual against arbitrary interference by public authorities, but also presupposes
positive obligations by the State to honor effective respect for family life.217
209
Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra note 204,
para. 71.
210
Article 12.1 establishes that “[n]o one shall be subjected to arbitrary interference with his privacy,
family, home, or correspondence, nor to attacks upon his honor or reputation. Everyone has the right to
the protection of the law against such interferences or attacks.”
211
Article V establishes that "[e]very person has the right to the protection of the law against
abusive attacks upon his honor, his reputation, and his private and family life.”
212
Article 17 establishes that “[n]o one shall be subjected to arbitrary or illegal interference with his
privacy, address, or correspondence, or to illegal attacks upon his honor and reputation.”
213
Article 11(2) establishes that “[n]o one may be the object of arbitrary or abusive interference with
his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or
reputation.” Article 11(3) establishes that “[e]veryone has the right to the protection of the laws against
such interference or attacks.”
214
In this regard, Article 8(1) of the European Convention on Human Rights and Fundamental
Freedoms establishes that: “[e]veryone has the right to respect for his private and family life, his home
and his correspondence.” Likewise, Article 8(2) establishes that “[t]here shall be no interference by a
public authority with the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
215
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra note
204, para. 71.
216
Eur. Court H.R., Case of Buchberger v. Austria, Judgment of 20 December 2001, para. 35, Eur.
Court H.R., Case of T and K v. Finland, Judgment of 12 July 2001, para. 151, Eur. Court H.R., Case of
Elsholz v. Germany, Judgment of 13 July 2000, para. 43, Eur. Court H.R., Case of Bronda v. Italy,
Judgment of 9 June 1998, Reports 1998 a IV, para. 51, y Eur. Court H.R., Case of Johansen v. Norway,
Judgment of 7 August 1996, Reports 1996 a IV, para. 52, and Juridical Condition and Human Rights of the
Child, OC-17/02, supra note 204, para. 72.
217
Eur. Court H.R., Case of Olsson v. Sweden, judgment of March 24, 1988, series A, n. 130, para.
81. In this case the European Court inferred from the positive obligation of the State the obligation to take
all measures necessary to terminate the separation when it is not necessary, thus facilitating the family’s
reunion. “The care decision should therefore have been regarded as a temporary measure, to be
discontinued as soon as circumstances permitted, and any measures of implementation should have been
consistent with the ultimate aim of reuniting the Olsson family.”
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