35
they held that, based on a systemic approach to psychological traumatology, it has been proven that
forced disappearance is a form of trauma that severely damages family ties, provokes emotional
chaos and is passed on involuntarily and unconsciously to the following generations, affecting family
life. They affirmed that, in addition to those generations that directly experienced the traumatic
situation, future generations will also suffer from the breaking of those ties. Therefore, they argued
that the State continues to fail in its obligation to guarantee and restore the right to protection of the
family, given to the lack of investigation, prosecution, punishment and reparation for the violations
committed against the families.
103. The State acknowledged its responsibility for violating Articles 17 and 19 of the American
Convention, as determined in the merits report of the Commission (supra para. 20).
B.2
Considerations of the Court
104. Article 17 of the American Convention recognizes that the family is the fundamental unit of
society and must be protected. Hence, the family to which every child has a right is, first and foremost,
his or her biological family, which includes the closest family members, who should provide protection
to the child and, in turn, should be the principle subject of measures of protection by the State. 177
The Court has already pointed out that the State has the obligation not only to order and directly
implement measures to protect children, but also to favor, in the broadest sense, the development
and strengthening of the family nucleus,178 given that the mutual enjoyment of the coexistence
between parents and children constitutes a fundamental element of family life.179 In its case law, the
Court has already established that the separation of children from their families constitutes, under
certain conditions, a violation of the right to a family.180
105. The Court has also specified that Article 11(2) of the American Convention,181 which recognizes
the right of every person to receive protection against arbitrary or abusive interference in his family
life, is an implicit part of the family’s right to protection.182
106. For its part, Article 19 of the Convention establishes the obligation to adopt special measures
of protection for all children, based on their condition as minors, and this has an impact on the
interpretation of all the other rights established when the case relates to children. Thus, the Court
has considered that the protection due to the rights of children, as subjects of law, must take into
Cf. Case of Fornerón and Daughter v. Argentina. Merits, reparations and costs. Judgment of April 27, 2012. Series C
No. 242, para. 119, and Rights and Guarantees of Children in the Context of Migration and/or in Need of International
Protection. Advisory Opinion OC-21/14 of August 19, 2014. Series A. No. 21, para. 272.
177
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra, para. 66; Case of Chitay
Nech v. Guatemala. Preliminary objections, merits, reparations and costs. Judgment 25 May 25, 2010. Series C No. 212, para.
157, and Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary objections, merits, reparations and
costs. Judgment of August 28, 2014. Series C No. 282, para. 414.
178
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra, para. 72; Case of the Dos
Erres Massacre v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of November 24, 2009. Series
C No. 211, para. 189, and Case of Expelled Dominicans and Haitians v. Dominican Republic, supra, para. 414.
179
Cf. Case of the Dos Erres Massacre v. Guatemala, supra, para. 187, and Case of Expelled Dominicans and Haitians v.
Dominican Republic, supra, para. 414.
180
181
Article 11. Protection of honor and reputation
[…]
2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his
correspondence, or of unlawful attacks on his honor or reputation.
Cf. Case of Atala Riffo and Daughters v. Chile. Merits, reparations and costs. Judgment of February 24, 2012. Series C
No. 239, para. 170, and Rights and Guarantees of Children in the Context of Migration and/or in Need of International
Protection. Advisory Opinion OC-21/14, supra, para. 265.
182