47
indigenous cultures.189 Also, taking into consideration the deep material and spiritual
relationship of the indigenous peoples with their traditional lands (supra para. 145), this
Tribunal finds that within the general obligation of States to promote and protect the
cultural diversity of indigenous persons, there is also a special obligation to guarantee the
right to cultural life of indigenous children.
169. In this sense, the expert witness Rosalina Tuyuc described the sufferings of the
members of the indigenous communities that had to leave, and in particular the cultural and
spiritual loss that the displaced indigenous children suffered, as well as the impossibility for
them to receive an oral education (supra paras. 159 and 160). Additionally,
taking
into
account that the development of the child is a holistic concept that covers physical, mental,
spiritual, moral, psychological and social development,190 the Court finds that for the full
and harmonious development of their personality, the indigenous children in agreement
with their world vision, preferably require to grow and be raised within their natural and
cultural environment, particularly because they possess a distinctive identity that roots
them with their land, culture, religion, and language.
170. Therefore, because the then indigenous children Eliseo, Estermerio, and María
Rosaura, all of the last name Chitay Rodriguez, were deprived of their right to cultural life,
this Court considers that the State is responsible for the violation of Articles 19 of the
American Convention, in relation with Article 1(1) of the same, to their detriment.
*
*
*
171. Of that previously expressed, the Court verifies that the motive of the forced
displacement, the fragmentation of the family, as well as the cultural uprooting that
Encarnación, Pedro, Eliseo, Estermerio, and María Rosaura Chitay Rodríguez, suffered,
constitute violations of the rights of movement and residence and protection of the family,
as well as the protection of children regarding the last three. Therefore, the Tribunal
considers that the State is responsible for the violation of Articles 22 and 17 of the American
Convention, in relation with Article 1(1) of the same, to the detriment of Encarnación and
Pedro, both with the last name of Chitay Rodríguez. Also, the State is responsible for the
violation of Articles 22, 17, and 19 of the Convention, in relation to Articles 1(1) of the
same, to the detriment of Eliseo, Estermerio, and María Rosaura, all with the last name of
Chitay Rodríguez.
X
ARTICLES 8(1) (RIGHT TO A FAIR TRIAL) AND 25(1) (JUDICIAL PROTECTION), IN
RELATION WITH ARTICLES 1(1) (OBLIGATION TO RESPECT RIGHTS) AND 2
(DOMESTIC LEGAL EFFECTS) OF THE AMERICAN CONVENTION AND ARTICLE I OF
THE INTER-AMERICAN CONVENTION ON FORCED DISAPPEARANCES
189
Cf. Observación General No. 11 (2009), supra note 188, para. 16. Cf. U.N. Committee on the Rights of the
Child. General Observation Nº 11 (2009). The indigenous children and their rights due to the convention, February
12, 2009, par. 16
190
Cf. U.N. Committee on the Rights of the Child. General Observation Nº 5 of November 27, 2003,
paragraph 12. This concept of holistic development has been accepted in earlier Jurisprudence of the Court. See,
Case of Juvenile Reeducation Institute V. Paraguay, para. 161.
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