equated with “against the law,” but must be interpreted more broadly to include elements of
inappropriateness, injustice [and] lack of predictability. 85
64.
Accordingly, the Court has held that to ensure that a precautionary measure that
restricts liberty is not arbitrary, it is necessary that: a) substantive presumptions exist relating
to an unlawful act and to the connection of the defendant to that act, b) the measure that
restricts liberty complies with the four elements of the “proportionality test,” in other words,
the purpose of the measure must be legitimate (compatible with the American Convention), 86
appropriate to comply with the purpose sought, necessary, and strictly proportionate, 87 and
c) the decision imposing such measures must include sufficient reasoning to permit an
assessment of whether they are in keeping with the aforementioned conditions. 88 In this
respect, the Court has established in its case-law that rulings by domestic bodies that may
impair human rights, such as the right to personal liberty, and which are not properly
substantiated, are arbitrary. 89
A.2.3. Rights of the child in immigration expulsion proceedings
65.
Moreover, as this Court has maintained previously, 90 although due process and its
correlative guarantees are applicable to everyone, in the case of child migrants their exercise
supposes, owing to the special conditions in which the children find themselves, the adoption
of certain specific measures in order to ensure access to justice in conditions of equality, to
guarantee effective due process, and to ensure that the best interest of the child is a
paramount consideration in all the administrative or judicial decisions adopted. The Court has
stipulated that administrative or judicial proceedings during which decisions are taken on the
rights of child migrants and, if applicable, of the persons whose protection or authority they
are under, should be based on the foregoing considerations and be adapted to their situation,
needs and rights. 91
66.
Therefore, this Court has established the specific guarantees that must govern all
immigration proceedings that involve children, in relation to the following aspects: (i) the right
to be notified of the existence of proceedings and of the decision adopted during the
immigration proceedings; (ii) the right that immigration proceedings are conducted by a
specialized official or judge; (iii) the right of the child to be heard and to participate in the
85
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 92, and Case of Villarroel Merino et
al. v. Ecuador, supra, para. 86.
86
Cf. Case of Servellón-García et al. v. Honduras. Preliminary objection, merits, reparations and costs.
Judgment of September 21, 2006. Series C No. 152, para. 89, and Case of Manuela et al. v. El Salvador. Preliminary
objections, merits, reparations and costs. Judgment of November 2, 2021. Series C No. 441, para. 99.
Cf. Case of Palamara Iribarne v. Chile. Merits, reparations and costs. Judgment of November 22, 2005. Series
C No. 135, para. 197, and Case of Manuela et al. v. El Salvador, supra, para. 99.
87
Cf. Case of García-Asto and Ramírez-Rojas v. Peru. Preliminary objection, merits, reparations and costs.
Judgment of November 25, 2005. Series C No. 137, para. 128, and Case of Manuela et al. v. El Salvador, supra, para.
99.
88
Cf. Case of Yatama v. Nicaragua. Preliminary objections, merits, reparations and costs. Judgment of June
23, 2005. Series C No. 127, para. 152, and Case of Vélez Loor v. Panama, supra, para. 116.
89
Cf. Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002. Series A
No. 17, supra, paras. 96 to 98, and Advisory Opinion OC-21/14, supra, para. 115.
90
Cf. Advisory Opinion OC-21/14, supra, para. 115, and Committee on the Rights of the Child, General
Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (Article
3, paragraph 1), para. 14.b).
91
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