135. The Criminal Chamber confirmed that the case should be archived and, among other
considerations,103 indicated that:
The reform [of the Criminal Code introduced by Law No. 24,410 modifying articles discussed in the
judicial investigation,] was not intended to eliminate the activities of those who profit from the sale of
children or intermediation in their surrender for benevolent or humanitarian reasons.
136. This Court, based on Article 58(b) of its Rules of Procedure, asked the State to
provide information on whether the act of surrendering a child in exchange for financial
compensation or remuneration constituted a criminal offense under domestic law. After
requesting an extension of the time frame that was granted, Argentina failed to forward the
information requested as helpful evidence. Two and a half months after the original time
frame had expired, and more than a month after the extension had expired, the State
submitted information related to the Court’s request; this was not admitted because it was
time-barred (supra paras. 7 and 12).
137. As this Court has indicated, the American Convention and the Convention on the
Rights of the Child form part of a very comprehensive international corpus juris for the
protection of children, which this Court must use to establish the content and the scope of
the general provision defined in Article 19 of the American Convention.104
138. Article 19 of the Convention establishes the right of every child, and the consequent
obligation, inter alia, of the State to provide the measures of protection required by his or
her condition as a minor. Meanwhile, Article 35 of the Convention on the Rights of the Child,
ratified by Argentina on December 4, 1990, establishes that:
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the
abduction of, the sale of or traffic in children for any purpose or in any form.
139. The combined analysis of the two articles reveals that the latter clarifies and
determines the content of some of the “measures of protection” mentioned in Article 19 of
the American Convention, establishing, inter alia, the obligation to adopt all appropriate
national measures to prevent the “sale” of children for any purpose or in any form. The text
is clear in stating that the State is obliged to adopt all appropriate measures to prevent the
sale of children; in other words, the State is not permitted to choose between different
measures, but must prevent the “sale” in all possible ways, without exceptions or
limitations, and this includes, among other legislative, administrative and any other type of
measure, the obligation to criminalize the “sale” of children, whatever the purpose or form.
140. The Court considers that criminalization is an appropriate way to protect certain
rights.105 The surrender of a child in exchange for remuneration or any other compensation
clearly affects fundamental rights such as the child’s liberty, personal integrity and dignity,
and results in one of the most serious injuries to a child, whose condition of vulnerability is
being taken advantage of by adults. The Special Rapporteur on the Sale of Children, Child
Prostitution and Child Pornography has indicated that the sale of children must be
103
Ruling of the Gualeguay Criminal Chamber of April 26, 2001 (file of attachments to the Merits Report,
attachment 13, folio 112).
104
Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, supra note 49, para. 194 and,
similarly, Case of Contreras et al. v. El Salvador, supra note 94, para. 107.
105
Cf., mutatis mutandi, Case of Kimel v. Argentina. Merits, reparations and costs. Judgment of May 2,
2008. Series C No. 177, para. 76, and Case of Tristán Donoso v. Panama. Preliminary objection, merits,
reparations and costs. Judgment of January 27, 2009. Series C No. 193, para. 118.
39
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