71
the Convention. The European Court has also established that the contents of the right to family life must
332
also comprise this double viewpoint.
317.
The relevant facts were of the knowledge of the State since the begining of proceedings;
thus the State has had adequate opportunity to contest them. In view of these elements and applying the
principle of iura novit curia, which permits international organs to apply all the relevant legal provisions,
the Commission will apply Article 11 of the American Convention in its analysis.
318.
Additionally, Article 19 of the American Convention which consecrates the rights of the
child, also guarantees the rights of the family. In this respect, the Court has established that
The child has the right to live with his or her family, which is responsible for satisfying his or her
material, emotional, and psychological needs. Every person's right to receive protection against
arbitrary or illegal interference with his or her family is implicitly a part of the right to protection of
the family and the child, and it is also explicitly recognized by Articles 12(1) of the Universal
Declaration of Human Rights, V of the American Declaration of the Rights and Duties of Man, 17 of
the International Covenant on Civil and Political Rights, 11(2) of the American Convention on
Human Rights, and 8 of the European Human Rights Convention. These provisions are especially
333
significant when separation of a child from his or her family is being analyzed.
319.
The Court has established that the said norm must be understood as an additional and
complementary right, which the Convention establishes for persons who by their physical and emotional
334
development need special protection.
Children, therefore, are entitled both to the human rights of
everyone else, as well as those special rights derived from their particular condition of vulnerability and
335
which involve specific duties of the family, society and the State.
Also in accordance with the
overriding interests of the child, based on their own characteristics, is the necessity of fostering their
336
development, fully maximizing their potential, as well as their own dignity as human beings.
320.
In order to determine the scope of the right to protection of the family regarding children,
337
the Inter-American Court and the Commission have referred to the corpus juris of the human rights of
338
339
children.
In this respect the Convention on the Rights of the Child, to which Colombia is a party,
establishes the relationship of the special duty of protection for children and the institution of the family in
the following way
332
Eur. Ct. H.R., Nuutinen v. Finland, Application No. 32842/96, Judgment of June 27, 2000, para. 127; Hokkanen v.
Finland, Application No. 19823/92, Judgment of September 23, 1994, para. 55; and Keegan v. Ireland, Application No. 16969/90,
Judgment of May 26, 1994, para. 49.
333
I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002.
Series A No. 17, para. 71
334
I/A Court H.R., Case of the Ituango Massacres v. Colombia. Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 1, 2006Series C No. 148, para. 106; Case of Baldeón García v. Peru. Merits, Reparations and Costs. Judgment of
April 6, 2006. Series C No. 147, para. 244; and Case of Servellón García et al. v. Honduras. Merits, Reparations and Costs.
Judgment of September 21, 2006. Series C No. 152, para. 113.
335
I/A Court H.R. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002.
Series A No. 17, para.54. I/A Court H.R. Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and
Costs. Judgment of August 24, 2010. Series C No. 214, para. 257.
336
I/A Court H.R. Case of the Ituango Massacres. Judgment of July 1, 2006. Series C No. 148, para. 244. See also I/A
Court H.R. Case of the “Mapiripán Massacre” v. Colombia. Judgment of September 15, 2005. Series C No. 134, para. 134; I/A Court
H.R. Case of the Girls Yean and Bosico. Judgment of September 8, 2005. Series C No. 130, para. 134; and I/A Court H.R., Case of
the Yakye Axa Indigenous Community. Judgment of June 17, 2005. Series C No. 125, para. 172. Case of Chitay Nech et al. v.
Guatemala. Judgment of May 25, 2010. Series C No. 212, para. 164.
337
IACHR Report No. 41/99, Case 11.491, Merits, Detained Minors, Honduras, March 10, 1999, para. 72.
338
I/A Court H.R. Case of “the Street Children” (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No.
63, para. 194
339
Colombia has ratified the Convention on the Rights of the Child since January 28, 1991.