75.
In the instant case, the Court notes that, as occurred with Ms. Habbal, the failure to
notify Monnawar Al Kassar, Hifaa Al Kassar and Natasha Al Kassar of the decision to institute
proceedings against them, and the fact that they were denied the possibility of being heard,
receiving legal assistance and appealing the decision, meant that they were unaware of the
existence of the expulsion proceedings and the reasons why the authorities had taken such
action, and were prevented from exercising their right to a defense. In addition, the Court
recalls that the State has special obligations to protect children in immigration proceedings
(supra, para. 66). It was therefore due to the State’s omissions that the expulsion proceedings
were not handled by an official specializing in cases involving children, and the alleged victims
were denied the possibility of taking part in the different procedural stages, and submitting
their case to a competent authority for review.
76.
On this point, the Court deems it pertinent to recall that, particularly in the case of
children, based on Articles 8(1) and 19 of the American Convention, decisions taken in the
context of immigration proceedings must explain in detail the way in which the opinions
expressed by the child were taken into account and also the way in which her or his best
interest was assessed. 108 The Committee on the Rights of the Child has also highlighted the
close relationship between the best interests of the girl or boy and the right to be heard,
stating that “there can be no correct application of article 3 [(best interest)] if the components
of article 12 are not respected [(right to participate and have their views considered)].” 109
Similarly, “article 3 reinforces the functionality of article 12, facilitating the essential role of
children in all decisions affecting their lives.” 110
77.
This Court notes that Resolution 1088 did not consider the impact that the expulsion
could have on Monnawar Al Kassar, Hifaa Al Kassar and Natasha Al Kassar, and in that sense
failed to assess the children’s best interests or properly state the reasons for the decision
according to this principle. In addition, the Court notes that the decision failed to consider the
particular circumstances of Mohamed Al Kassar, the brother and son of the alleged victims,
who at the time of the events was less than one year old and had been born in Argentina.
Although Resolution 1088 did not order Mohamed Al Kassar’s expulsion, the authorities failed
to consider how the expulsion of his mother and sisters would affect his family life. The Court
holds that, even though the child was not part of the proceedings, the immigration authorities
should have taken into account the impact that the expulsion would have on Mohamed Al
Kassar, and explained the reasons for their decision.
78.
Thirdly, the Court recalls that measures depriving people of their liberty, including
those ordered in the context of immigration proceedings, must be strictly necessary to protect
fundamental legal rights from more serious attacks and should not be used for punitive
purposes. Consequently, as can be deduced from what has already been noted (supra, paras.
61 to 64), detention for immigration purposes must be in accordance with the essential
content of Article 7 of the Convention, which protects the freedom of individuals against
unlawful or arbitrary interference. In particular, the Court emphasizes that Article 7(3) of the
Convention protects people from arrests that are unreasonable, unpredictable, or
disproportionate (supra, para. 63). In this case, the Court notes that Resolution 1088, which
108
Cf. Advisory Opinion OC-21/14, supra, para. 139.
Committee on the Rights of the Child, General Comment No. 12: The right of the child to be heard, UN Doc.
CRC/C/GC/12, July 20, 2009, para. 74.
109
110
Advisory Opinion OC-21/14, supra, para. 139, and Committee on the Rights of the Child, General Comment
No. 12: The right of the child to be heard, supra, para. 74.
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