both substantive and procedural safeguards that must govern this kind of proceeding were observed before
the intercountry adoption of the children was ordered.
2.1.
Judicial declaration of abandonment of the Ramírez brothers and appeals filed
i)
Procedure of judicial declaration of abandonment
163.
In the present case, the IACHR observes that, since December 18, 1996, date on which the
anonymous complaint on the alleged situation of abandonment of the Ramírez brothers was filed, up to
January 8, 1997, date on which the judicial request was made to the Attorney General's Office to go to the
home of Mrs. Ramírez, the judicial authority did not take any action to investigate the children's situation,
which constituted the first failure to fulfill the obligation to determine, as quickly as possible, the protection
measures that might have been needed to safeguard the best interests of the Ramírez children.
164.
The IACHR also notes that, in the court ruling of January 8, 1997, the court requested the
Attorney General's Office to take the children to the Child Care Residence of the Association (Hogar Asociación
de Los Niños de Guatemala) if it was confirmed that the Ramírez brothers were in a situation of abandonment.
The Commission notes that said ruling indicated institutional placement in the Child Care Residence of the
Association as an automatic measure without any reference to the possibility of adopting measures of
support for Mrs. Ramírez in the event other circumstances were found or needs identified that could be met
on the basis of other responses, for example that the absence of resources had been the cause for the alleged
abandonment. Nor was the possibility of finding other next of kin considered in order to determine if they
would have been able to take the children in their custody before considering placement in an institution.
The Commission deems that the reference to placement of the Ramírez brothers in an institution, without due
grounds and without a prior review of other less deleterious options, in line with the standards described
above, which must be considered before opting for said possibility, constituted a failure by the state to fulfill
the obligations already described above.
165.
As observed on the basis of proven facts, this situation continued to prevail throughout the
rest of the proceedings of the judicial declaration of abandonment, including the respective appeals. Although
certain decisions were subsequently taken with respect to the extended family, this was only because two of
the children's aunts and their maternal grandmother appeared in the proceedings, not because they were
summoned to appear as an ex officio measure taken by the State, as it was required to do in the discharge of
its duty to provide special protection. This widespread omission of looking for alternatives that might have
been less deleterious than placement in an institution and subsequent adoption is evident in the fact that, at
no time whatsoever, were measures ever adopted to find Mr. Gustavo Tobar, the father of one of the children,
so that he could indicate whether or not he wished or was able to take over custody of the child and take care
of him.
166.
In addition to not examining alternatives that might have been less harmful than placement
in an institution and subsequent adoption, the Commission observes that, since the visit of the Attorney
General's Office to the home of Mrs. Ramírez up to the judicial declaration of abandonment of her two sons,
many irregularities were apparent, as well as the failure to provide evidence and ensure due diligence on the
part of the various state authorities. The Commission highlights the relevance of the state's decision to
declare a status of abandonment and the severe impact of the latter on the legal status of the children, which
made it all the more important for this ruling to be conducted more seriously and thoroughly, with the
necessary safeguards of independence and impartiality.
167.
First of all, the Commission observes that, on January 9, 1997, civil servants of the Attorney
General's Office went to the home of Mrs. Ramírez and when they saw that both children were alone, they
proceeded to take them to Child Care Residence of the Association. The IACHR observes that, apart from a
reference that they had not acted rashly, in said record of the action there is no indication that Osmín Tobar
Ramírez or his brother were ever consulted about the accuracy of the complaint that was anonymously filed.
35