49
together with [..] Articles 1(1), 2 and 19 of this instrument, and 7 of the Convention of
Belém do Pará.”
129. The State indicated that “the right to life is respected and ensured by […]
Guatemala, because it is recognized in Guatemalan law, and in the policies of the Republic”
and that Guatemala is “aware that the obligation of States to protect the right to life is both
negative and positive.” Accordingly, it indicated that it “has taken the pertinent measures to
ensure the life of its population, giving everyone access to justice to obtain either safety or
investigative measures from the Public Prosecution Service in order to prosecute anyone
accused who it is possible to identify.”
130. The State also indicated that, in the instant case, it had not violated the right to life
of María Isabel Veliz Franco, because, “in compliance with its obligations to respect and
protect the said right, and aware of the phenomenon of violence, it had established child
welfare and protection institutions by law.” In addition, it indicated that it “had […] created
institutions that supervise and monitor the full enjoyment of human rights, as well as
institutions to which recourse can be had in order to gain access to the system of justice.”
The foregoing is designed “to share supervision of respect for and guarantee of the rights of
the child with parents and guardians […], paying special attention to safeguarding the
respect for and guarantee of the right to life of María Isabel.” It explained that:
In principle, the family should provide the best protection of children against abuse, neglect and
exploitation and, when the State was advised of María Isabel’s disappearance, that was when its
obligation to intervene in the direct protection of the child started, because her effective safeguard
was no longer in the hands of her family, and the State had established adequate policies and
measures for the mother to request the help of the State.
131.
Guatemala also asserted that:
If it had been possible to identify the person or persons responsible for the tragic result of María
Isabel’s disappearance, [it] would have applied the laws in force at the time the offense was
committed in order to punish them; however, this has not been possible, despite the extensive efforts
made by the investigating body […]; moreover, it is not possible to convict someone arbitrarily, even
though the State repudiates what happened to the girl.
B.
Considerations of the Court
132. The Court notes that the representative has alleged, inter alia, failure to observe
Article 2 of the Convention American.209 The Inter-American Commission did not indicate
that this article had been violated in its submission brief or in the Merits Report. In this
regard, the Court reiterates that “the presumed victims or their representatives may cite
rights other than those included by the Commission, based on the facts presented by the
latter.”210 The representative also alleged the violation of the rights to personal integrity and
liberty recognized, respectively, in Articles 5 and 7 of the American Convention,211 to the
detriment of María Isabel Veliz Franco. The Court notes that, in relation to the initial petition
lodged before the Commission, the alleged violation of these two articles to the detriment of
the minor had been declared inadmissible in the respective Admissibility Report.
Nevertheless, this was based on a prima facie assessment of the facts by the Commission.
209
This article stipulates: “[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not
already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary
to give effect to those rights or freedoms.”
210
Cf. Case of the “Five Pensioners”, supra, para. 155, and Case of the Pacheco Tineo Family v. Bolivia.
Preliminary objections, merits, reparations and costs. Judgment of November 25, 2013. Series C No. 272, para. 22.
211
The pertinent part of Article 5 of the American Convention establishes: “1. Every person has the right to
have his physical, mental, and moral integrity respected.” Article 7 of the Convention establishes: “1. Every person has
the right to personal liberty and security. 2. No one shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the State Party concerned or by a law established
pursuant thereto.”