192.
The Commission observes that this judicial decision did not meet the minimum standards for
ensuring the rights of the Ramírez children in accordance with their best interests.
193.
First of all, the court did not examine whether there were any remedies still pending in the
proceedings, as indicated by the report from the Attorney General’s office. The court simply stated that
pursuant to a judicial certification, the motion for review had been settled by the order of January 6, 1998.
Nevertheless, the IACHR points out that according to the evidence presented by both parties, Mrs. Ramírez
had filed various documents questioning the irregularities that had arisen during the proceedings for the
declaration of abandonment and during the processing of the motion for review itself.
194.
Second, the court ordered no formalities of any kind to examine Mrs. Ramírez’s situation.
The IACHR notes that the report of the Attorney General’s office states that it would be useful to examine Mrs.
Ramírez’s situation at a later juncture in order to determine the measures to be adopted with respect to her
children. However, the court did not take that consideration into account. Neither did the court take into
account the situation of Ricardo Tobar as Osmín’s father, in light of the State’s duty to adopt the support
measures necessary to ensure that children remain with their parents except when not in accordance with
their best interests.
195.
Third, the court did not assess the possibility of ordering that the Ramírez brothers’
maternal grandmother or aunts, who had requested custody, be made responsible for their care. In addition,
in this process the judicial authorities repeatedly failed to investigate other possible maternal or paternal
relatives who could assume custody of the children, in the event that the parents were effectively deemed
unfit to do so. Thus, in the adoption proceedings, the State also failed in its duty of properly exploring the
possibility of the children being cared for by their extended family.
196.
Fourth, the IACHR again states that pursuant to the international instruments identified
above that are a part of the corpus iuris on the rights of children, international adoptions must be exceptional
and take place solely when adoption at the national level is not possible. However, in the case at hand, the
court failed to examine the possibility of exploring an adoption in Guatemala; instead, it processed, in an
expedited fashion, the applications to adopt the Ramírez children made by families living in the United States.
197.
Fifth, the court failed to assess the suitability of the adoptive families vis-à-vis the specific
needs of the Ramírez brothers, who were, in addition, separated. The IACHR notes that the order merely
indicates that the two families “established their moral and economic solvency” and makes no reference as to
how that conclusion was reached.
198.
Finally, there is no indication that Mr. Gustavo Tobar, Mrs. Flor Ramírez, or the Ramírez
brothers were heard during the adoption process, which represents a fresh violation of their right to a
hearing and to have the opinions of the two children taken into account according to their age and maturity.
199.
The Commission cannot fail to point out that some time after the Ramírez brothers’ adoption
process had concluded, both the judiciary and the National Civilian Police acknowledged that it suffered from
several irregularities (see supra paras. 98-110).
200.
In consideration whereof, the Commission finds that the State of Guatemala violated the
right to a hearing, the right to a family life free of arbitrary interference, and the right to the protection of the
family set forth in Articles 8.1, 11.2, 17, and 19 of the American Convention, in conjunction with Articles 19,
1.1, and 2 thereof, with respect to Osmín Tobar Ramírez and J.R. In addition, the Commission finds that the
State of Guatemala is responsible for violating the right to a hearing, the right to the protection of the family,
and the right to a family life free of arbitrary interference set forth in Articles 8.1, 11.2, and 17 of the
American Convention, in conjunction with Articles 1.1 and 2 thereof, with respect to Flor Ramírez and
Gustavo Tobar..
ii)
Review and amparo remedies
40