58
their dealings with minors.
Pleadings of the State
159. Regarding to the provision in Article 19 of the American Convention, the State
expressed that “in the specific case[,] the agents of the State, instead of watching
over and ensuring the rights of the Gómez Paquiyauri brothers, violated their
fundamental rights.”
Considerations of the Court
160.
Article 19 of the American Convention sets forth that
[e]very minor child has the right to the measures of protection required by his condition
as a minor on the part of his family, society, and the state.
161. Regarding to the aforementioned article, the State pointed out that “it is, in
fact, [under] the obligation to ensure measures for the protection for minors and
adolescents, to safeguard their rights and liberties that they are entitled to for the
mere [fact] of being legal persons. And that[,] therefore[,] in this specific case the
agents of the State instead of watching over and protecting the rights of the Gómez
Paquiyauri brothers, violated their basic rights.”
162. Rafael Samuel and Emilio Moisés Gómez Paquiyauri were children,
respectively 14 and 17 years old, when they were unlawfully and arbitrarily detained,
tortured, and extra-legally executed by agents of the Peruvian National Police.122
The Court deems that cases in which the victims of human rights are children are
especially grave, as their rights are reflected not only in the American Convention,
but also in numerous international instruments, broadly accepted by the international
community -notably in the United Nations’ Convention on the Rights of the Childthat “establish the duty of the State to adopt special protection and assistance
measures in favor of children under their jurisdiction.”123
163. Regarding the matter of protecting the rights of the child and adopting
measures to attain said protection, the principle of the best interests of the child
prevails, based “on the very dignity of the human being, on the characteristics of
children themselves, and on the need to foster their development, making full use of
their potential”.124
164. Article 19 of the American Convention places the States under the obligation
to adopt “measures of protection” that they require as children. The concept of
“measures of protection” may be interpreted taking into account other provisions.
This Court has said that “the interpretation of a treaty must take into account not
only the agreements and instruments related to the treaty (paragraph 2 of Article
122
The Court has already established that “[f]inally, taking into account international norms and the
criterion upheld by the Court in other cases, “child” refers to any person who has not yet turned 18 years
of age”. Legal Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002.
Series A No. 17, para. 42; and see Case of Bulacio, supra note 6, para. 133.
123
Case of Bulacio, supra note 6, para. 133; and Case of the “Street Children” (Villagrán Morales et
al.), supra note 68, para. 188.
124
Legal Status and Human Rights of the Child, supra note 122, para. 56; and see Case of Bulacio,
supra note 6, para. 134.
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