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Gomez Paquiyauri Brothers v. Peru

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Court/Judicial body: Inter-American Court of Human Rights
Date: July 8, 2004 CRC
Provisions: Article 2: Non-discrimination Article 6: Survival and development Article 37: Torture and deprivation of liberty Article 38: Armed conflicts
Other international provisions:American Convention on Human Rights, Articles 1, 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to fair trial), 11 (protection of honor and dignity), 17 (protection of the family), 19 (rights of child), 25 (right to judicial protection)Inter-American Convention to Prevent and Punish Torture, Articles 1, 2 (torture), 6 (obligation to take measures to prevent and punish torture), 8 (obligation to act immediately) and 9 (compensation for victims of torture)

Case summary

Background: In 1991, the Peruvian National Police detained two brothers, Rafael Samuel and Emilio Moisés Gómez Paquiyauri, aged 14 and 17, respectively, in connection with a government anti-terrorism initiative. The boys were beaten, blindfolded, and placed in the trunk of the patrol car. Shortly after being taken into custody, they were further beaten, tortured and executed. Following the boys’ murder, their family was harassed and intimidated by Peruvian authorities, who repeatedly interrogated family members and detained the boys’ sister for four years. The boys’ parents filed a complaint with the provincial criminal prosecutor, and following an independent police investigation, the officers who arrested the boys were convicted. The higher level officials behind the incident were never tried or punished, and civil reparations owing to the family were never paid. The Inter-American Commission of Human Rights issued recommendations in 2001 that Peru provide adequate reparations, conduct a impartial investigation into the circumstances of the boys’ murder, and punish those reponsible. When Peru failed to comply with these recommendations, the Commission filed a complaint with the Inter-American Court of Human Rights the following year.

Issue and resolution: Torture; right to life; detention. The Court found that as a result of the detention, torture and extra-legal execution of the Gomez brothers, Peru had violated their rights to life, humane treatment, personal liberty, a fair trial, and judicial protection under the American Convention on Human Rights. The Court also found that Peru had violated the brothers’ relatives’ right to humane treatment, and the Inter-American Convention to Prevent and Punish Torture.

Court reasoning: Looking to both the American Convention on Human Rights and the Convention on the Rights of the Child, the Court found that every child has the right to special measures of protection, and that violations of children’s human rights are especially grave. The detention of children should be exceptional and for the briefest possible period; governments have a special obligation to ensure that children’s right to life is never threatened; and there is an exceptionally high standard for chidren’s right to humane treatment. Peru violated all of these rights by detaining the boys without reason, failing to ensure their safety, and refusing to conduct an effective investigation into the circumstances or adequately punish those responsible. Moreover, the boys’ family suffered cruel, inhuman and degrading treatment as a direct consequence of their unlawful and arbitrary detention. Finding Peru’s tolerance of impunity unacceptable, the Court awarded reparations to the family and ordered the government to identify, try and punish all persons responsible for the detention, torture and execution of the Gomez brothers.

Excerpt citing CRC and other relevant human rights 124. The State must respect the right to life of every person under its jurisdiction, protected by Article 4 of the American Convention. This obligation has special modes regarding to minors, taking into account the rules on protection of children set forth in the American Convention and in the Convention on the Rights of the Child. As guarantor of this right, the State is under the obligation to forestall situations that might lead, by action or omission, to abridge it. … 162. Rafael Samuel and Emilio Moisés Gómez Paquiyauri were children, respectively 14 and 17 years old, when they were unlawfully and arbitrarily detained, tortured, and extra-legally executed by agents of the Peruvian National Police. The Court deems that cases in which the victims of human rights are children are especially grave, as their rights are reflected not only in the American Convention, but also in numerous international instruments, broadly accepted by the international community -notably in the United Nations’ Convention on the Rights of the Child that “establish the duty of the State to adopt special protection and assistance measures in favor of children under their jurisdiction.” 163. Regarding the matter of protecting the rights of the child and adopting measures to attain said protection, the principle of the best interests of the child prevails, based “on the very dignity of the human being, on the characteristics of children themselves, and on the need to foster their development, making full use of their potential”. 164. Article 19 of the American Convention places the States under the obligation to adopt “measures of protection” that they require as children. The concept of “measures of protection” may be interpreted taking into account other provisions.

This Court has said that “the interpretation of a treaty must take into account not only the agreements and instruments related to the treaty (paragraph 2 of Article 31), but also the system of which it is part (paragraph 3 of Article 31).” 165. The Court has pointed out before that this orientation is especially important for International Human Rights Law, which has moved forward substantially by means of an evolutive interpretation of the international protection instruments. Regarding this matter, it has been the understanding of the Court that [t]hat evolutive interpretation is consistent with the general rules of treaty interpretation established in the 1969 Vienna Convention. Both this Court […] and the European Court […] have held that human rights treaties are living instruments whose interpretation must consider the changes over time and present-day conditions. 166. Both the American Convention and the Convention on the Rights of the Child are part of a broad international corpus juris for protection of children that aids this Court in establishing the content and scope of the general provision defined in Article 19 of the American Convention. 167. The Convention on the Rights of the Child, ratified almost universally, contains various provisions that refer to the obligations of the State regarding minors who are in similar factual situations as those examined in this case, and which may throw light, in connection with Article 19 of the American Convention, on the behavior that the State should have had in that situation. Those provisions are as follows: “ Article 2 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members. Article 6 1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. Article 37 States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. […]; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” 168. The provisions transcribed above allow us to specify, in several directions, the scope of the “measures of protection” mentioned in Article 19 of the American Convention. Several such measures stand out, including those pertaining to nondiscrimination, prohibition of torture, and the conditions that must exist in cases of deprivation of the liberty of children. 169. On the other hand, in light of these provisions and in connection with detention of minors, as this Court pointed out and is recognized in various international instruments, it must be exceptional and for the briefest possible period. [FN 129: See Case of Bulacio, supra note 6, para. 135; likewise, see Article 37(b) of the Convention on the Rights of the Child; and Rules 13 and 19 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (1985).] 170. Also, as the Court analyzed the matter in the chapter on abridgment of Article 5 of the Convention and the provisions of the Inter-American Convention against Torture (supra para. 117), the fact that the alleged victims were children requires applying the highest standard in determining the seriousness of actions that violate their right to humane treatment. 171. Finally, as the Court already pointed out in a previous chapter (supra para. 124), the obligation of the State to respect the right to life of every person under its jurisdiction has special modalities in the case of minors, as follows from the provisions on the protection of children set forth in the American Convention and in the Convention on the Rights of the Child; and it becomes an obligation to “prevent situations that might lead, by action or omission, to negatively affect it”.

CRIN Comments: CRIN believes this decision is consistent with the CRC. As noted by the Court, governments have an obligation to ensure that children receive special measures of protection in their interactions with the law, especially where they are held in detention as envisaged in Article 37 of the Convention. Where children’s rights are violated, not only must those reponsible for the violations be held accountable, appropriate compensation must be provided to the victims or, as in this case, their surviving relatives.

Citation: IHRL 1493 (IACHR 2004)
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