20
85.
In the Loayza Tamayo case, the Court undertook the examination of a topic that
still requires further development and consolidation: the life plan. This involves more
than opportunities, chances, expectations. It is linked, as we stated in this case, to
reasonable goals, well-founded hopes, accessible projects, which together constitute the
course for the individual’s development, one that is deliberate and feasible, based on
certain conditions that support and justify it. Let us add to this the possibility of a
concrete decision by the person entitled to the rights that were infringed, a decision
based on those factors, and not merely on suppositions, presumptions, or inferences of
the external observer.
86.
All this would seem to be so in the case that we are discussing. A project had
been developed and its realization had begun. Apparently, all circumstances were
favorable to it. It had to do with personal life, with the household community, with
work, with the place where all this was developing and would develop, as well as with
decisions reached by the adult members of the family. All of this was destroyed,
abruptly and damaging many lives, due to the facts in violation of the Convention, heard
by the Inter-American Court. This life plan was destroyed and another, unwanted life
course appeared. This has been taken into account in the decision on reparations, which
nevertheless cannot reinstate said project. This, while desirable, is not feasible in the
framework of the instant case.
87.
The above motivates a reflection on the right set forth in Article 17 of the
convention, which the San Salvador Protocol takes up once again through Article 13:
protection of the family. The application filed by the Inter-American Commission did not
mention the abridgment of Article 17, which was, instead, raised in the pleadings of the
representatives of the alleged victim. This argument did not bring up facts other than
those included in the application, but rather the possibility that those mentioned in it
might constitute abridgments of precepts not invoked in it. The Court, exercising the jura
novit curia principle, has accepted the pertinence of considering those pleadings.
Restriction of the hearing of the facts, inherent to the accusatory system –which is the
one adopted in international human rights proceedings-, does not impede the court, once
the former have been stated and proven, to issue such juridical considerations as may
be pertinent in light of the provisions of the American Convention.
88.
Paragraph one of Article 17 states, as an assumption, that “the family is the
natural and fundamental group unit of society,” and it asserts that the family “is entitled
to protection by society and the state,” the two institutions to which the obligation set
forth in that provision applies. Article 1(1), in turn, ensures respect for and guarantee of
the person’s rights set forth in the Convention, understanding that, for purposes of the
Convention, "’person’ means every human being” (Article 1(2)).
89.
Therefore, the State is under the obligation to i) create conditions for the family
to receive the recognition and protection due to it, in general, to guarantee and assert its
role as “the natural and fundamental group unit of society;” and ii) respect and protect
the rights of the individuals who are part of the family or intend to become part of it, and
these rights must be analyzed, in the case in point, based on their connection with said
references about the family unit. Said rights would be injured in several possible
situations: for example –and only as an example-, if the State were to act in a way that
was not consistent with recognition of the family as the “natural and fundamental group
unit of society,” impeding its establishment or abridging the rights set forth in the other
paragraphs of Article 17.
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