unalterable conception of the right to intimacy, since the realm of private life cannot be
excluded from the judge’s knowledge and consideration.” It added that “neither [the]
Supreme Court nor the other domestic courts have violated the right enshrined in Article
11.2 of the American Convention in the decisions on the custody trial […] but, on the
contrary, have merely issued rulings regarding considerations that are inherent to a trial of
that nature.”
160. Finally, the State argued that “the separation of the family is not attributable to the
actions of the Chilean courts [since] the task of the Chilean courts was precisely the
opposite, that is, responding to the petition of the parties […] to decide, according to the
girls’ best interest, which new family unit provided the best support for their development.”
Considerations of the Court
161. Article 11 of the Convention prohibits all arbitrary or abusive interference in a
person’s private life, and encompasses various spheres of the intimate realm as well as the
private lives of their families. In that regard, the Court has held that the realm of privacy is
exempt and immune from abusive or arbitrary intrusion or aggression by third parties or by
the public authorities177.
162. Furthermore, regarding Article 11 of the American Convention, the Court has
specified that, although this provision is titled “Protection of Honor and Dignity” (in Spanish)
its content includes, among others, the protection of privacy178. Privacy is an ample concept
that is not subject to exhaustive definitions and includes, among other protected realms,
the sex life and the right to establish and develop relationships with other human beings.179
Thus, privacy includes the way in which the individual views himself and to what extent and
how he decides to project this view to others180.
163. The Court observes that the Commission’s arguments regarding the alleged violation
of Ms. Karen Atala’s right to privacy were focused on the judgment issued by the Supreme
Court. On their part, the representatives added the ruling on the provisional custody as
another fact that allegedly generated the violation of Ms. Atala’s right to privacy. Therefore,
these two facts will be analyzed.
164. The Court has established in its case law that the right to private life is not an
absolute right and, therefore, may be restricted by States provided that the intrusions are
neither abusive nor arbitrary. For this reason, these must be regulated by the law, pursue a
177
Cf. Case of the Ituango Masacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2006 Series C No. 148, para. 194 and Case Fontevecchia and D`Amico, supra note 28, para.
48.
178
Cf. Case of the Massacres of Ituango v. Colombia, supra note 177, para. 193 and Case of Rosendo Cantú
et al. v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 31, 2010. Series C No.
216, para. 119.
179
Cf. Case of Rosendo Cantú et al, supra note ¡Error! Marcador no definido., para. 119, and Case of
Fernández Ortega et al. v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 30,
2010 Series C No. 215, para. 129, quoting ECHR, Case of Dudgeon v. United Kingdom, (No. 7525/76), Judgment of
October 22, 1981, para. 41, Case of X and Y v. The Netherlands, (No. 8978/80), Judgment of March 26, 1985,
para. 22. Case of Niemietz, supra note 159, para. 29, and Case of Peck, supra note 159, para. 57.
180
Cf. Case Rosendo Cantú et al., supra note ¡Error! Marcador no definido., para. 119, and Case
Fernández Ortega et al., supra note ¡Error! Marcador no definido., para. 129, citing ECHR, Case Niemietz, supra
note 159, para. 29, and Case Peck, supra note 159, para. 57.
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