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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.
90.
Article 17 of the Convention mentions the origin of the family in marriage and,
on this basis, sets forth certain protections for its members. Article 13 of the San
Salvador Protocol, signed two decades after the Pact of San José, no longer refers to
this juridical act as the foundation for the family, which Article VI of the American
Declaration of the Rights and Duties of Man does not refer to either. Clearly,
marriage, as a contract or institution of civil Law, is not –and even less so in many
countries of the hemisphere- the only way to establish a family. Modern family Law
has shifted substantially in the direction imposed by liberty, equity, and reality.
These other ways to constitute the household unit, as a result of the free decision of
individuals, merits respect and protection by the law and by institutions, as
comparative Law has asserted.
91.
In the case to which the judgment of the Inter-American Court refers, and to
which I attach this Opinion, the facts involving violations severely affected Mr. Tibi
and Mrs. Baruet, as well as their child and the woman’s children, who lived with the
couple and were members of the family unit in the manner that its adult members
had freely decided. The abridgment may have influenced, together with other causes
–which it is not for the Court to analyze- the breaking up of the family group and
scattering of its members. In the process of hearing numerous cases of grave human
rights violations, including more than a few regarding executions, forced
disappearances, torture, or arbitrary detention, we have seen how the members of
the family group of those who suffered those attacks directly have also suffered their
consequences.
92.
There could hardly be violations, among the most serious ones, to which those
in closest emotional contact with the victim, based on family ties –broadly
understood- were indifferent, and which did not entail dissolving pressures on the
union. The facts in violation have had various types of repercussions on these
individuals: scattering the members of the family, depriving them of legitimate
income, forcing them to incur extraordinary expenses, interfering in communication
amongst them, altering or suppressing shared life, negatively affecting legitimate
plans and projects, weakening household ties, generating physical or mental ailing of
the next of kin, and so forth.
93.
In accordance with the circumstances of each case, it is possible to raise the
possibility of analyzing these facts as a consequence or projection of other violations
that were committed or as a direct violation of Article 17 of the Pact of San José,
independently of said abridgments, although also in connection with them. The Court
chose the first option, precisely bearing in mind the circumstances of this case. I
believe that, under those circumstances, this was the right decision.
Family
disintegration was a consequence, among others, of the violations committed against
the accused, his spouse, and the children who constituted, with them, the family
group. The Court has not omitted recognition and assessment of said violations: they
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