32
same human rights that all persons enjoy; however, they are also the titulaires of special rights resulting
from their condition, and are entitled to the protections that are the specific duty of the family, society and
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the State. In other words, children are entitled to special measures of protection.
136.
In the final analysis the rights of the child must be protected because the child is a human
being and because of his or her special condition as a child, which is why special measures of protection
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must be adopted. This added obligation of protection
and the special duties that attend it must be
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determined according to the particular needs of the child as a subject of law.
137.
As for the interpretation of Article 19 of the American Convention, the Inter-American
Court has written that: “Both 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 the child that should help this
Court establish the content and scope of the general provision established in Article 19 of the American
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Convention.”
138.
The Inter-American Commission, for its part, has written that:
For an interpretation of a State's obligations vis-à-vis minors, in addition to the provision of the
American Convention, the Commission considers it important to refer to other international
instruments that contain even more specific rules regarding the protection of children. Those
instruments include the Convention on the Rights of the Child and the various United Nations
declarations on the subject. This combination of the regional and universal human rights systems
for purposes of interpreting the Convention is based on Article 29 of the American Convention and
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on the consistent practice of the Court and of the Commission in this sphere.
139.
The preamble to the Convention on the Rights of the Child incorporates the principle of
the special needs of protection in the following terms: “Bearing in mind that, as indicated in the Declaration
of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection, (…)’. Article 3 of that Convention provides that
in all realms in which the State intervenes, the paramount consideration shall be the best interests of the
child. In the words of the Convention on the Rights of the Child, “1. In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary consideration (…)”.
140.
Article 5(6) of the American Convention, a provision that has its own meaning and
relevance, makes reform and social re-adaptation of the prisoner the driving principle for enforcement of
sentences involving deprivation of liberty. While it does not deter States from legislating other legitimate
ends that sentences of incarceration might pursue, Article 5(6) sets out the fundamental objective that
such sentences are to serve so that they are compatible with the right that those deprived of liberty have to
humane treatment. The fundamental goal is to prepare them to rejoin society, which means that sentences
of incarceration must focus on ensuring that persons sentenced to prison are willing and able to conduct
themselves as law-abiding members of society. As the Inter-American Commission observed, the
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Advisory Opinion OC-17/2002, para. 62:
“Adoption of special measures to protect children is a responsibility both of the State and of the family, community, and
society to which they belong.”
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I/A Court H.R., Case of the "Juvenile Reeducation Institute,” para. 160; Case of the Gómez Paquiyauri Brothers,
paragraphs 124, 163-164, and 171; Case of Bulacio, paragraphs 126 and 134; and Case of the “Street Children” (Villagrán Morales
et al.), paragraphs 146 and 191; and Case of the Yakye Axa Indigenous Community. Judgment of June 17, 2005, para. 172. See
also Advisory Opinion OC-17/02, paragraphs 56 and 60.
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I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community. Judgment of March 29, 2006, para. 154.
115
I/A Court H.R., Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Judgment of November 19, 1999.
Series C No. 63, para. 194. I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of
August 28, 2002. Series A No. 17, para. 24; I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru, Judgment of July 8,
2004. Series C No. 110, para. 166.
116
IACHR, Report No. 41/99, Case 11,491, Merits, Minors in Detention (Honduras), March 10, 1999, para. 72.