Inter-American Court of Human Rights judgment of 09 March 2018 in the case of Ramirez Escobar and Others v. Guatemala (Series C, no. 351).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San José, Costa Rica). The complaint was then communicated to Guatemala.
The case successfully examined a complaint about arbitrary separation of family members and violations committed in the course of international adoption procedures.
The case deals with arbitrary separation of family members and irregularities in international adoption procedures.
THE CIRCUMSTANCES OF THE CASE
The circumstances of the case took place in the broader context of serious violations of adoption procedures in Guatemala, which consisted of a lack of adequate institutional oversight and inappropriate regulations that allowed criminal structures to benefit from international adoptions.
January 9, 1997 Osmín Tobar Ramírez and J.R. (JR), the sons of Flor de María Ramírez Escobar, at the age of seven and five, respectively, were removed from their mother's home and placed in an orphanage after authorities received an anonymous complaint that the children lived alone and were unattended by adults. At this time, their mother was at work. The next day, Flora de Maria Ramirez Escobar went to the competent judge and demanded that her children be returned to her. Her claims were rejected, and after several socio-economic studies were carried out in violation of Flora de Maria Ramirez Escobar and her family, the domestic court ruled that the children should be considered abandoned by their parents.
The court granted the orphanage where the children were staying with custody rights and ordered the brothers to be included in the adoption program. The children were subsequently adopted in June 1998 by two different families from the United States of America under an administrative procedure with the participation of a notary, as provided for by Guatemalan law. The applicants (Osmin and his parents) argued before the Inter-American Court of Human Rights (hereinafter - the Inter-American Court) that the adoption of children did not meet even the minimum requirements that were necessary to comply with the provisions of the American Convention on Human Rights (hereinafter - ACHR), and that the available remedies were ineffective in restoring and enforcing the applicants' rights.
QUESTIONS OF LAW
Article 11, paragraph 2 (right to security of person), Article 17, paragraph 1 (family rights), Article 8, paragraph 1 (right to a fair trial) and Article 25, paragraph 1 (right to judicial protection), in conjunction with Article 1, paragraph 1 ( duty to respect and respect rights without discrimination) and Article 2 (domestic legal impact) ACHR.
First, with regard to the decision to declare children unattended, the Inter-American Court reiterated that the removal of a child from his / her biological parents is permissible only if it is duly justified in the best interests of the child and, if possible, should be temporary. Having regard to the RMS v. Spain judgment of 18 June 2013, application no. 28775/12), the Inter-American Court examined whether the domestic authorities had accepted all the necessary and appropriate measures that might reasonably be expected of them to ensure that children have a normal family life with their own parents. The Inter-American Court concluded that the separation of the Ramirez family members was carried out following an inappropriate verification and as such the decision to separate the children constituted a violation of both domestic law and the applicants' rights to be heard. Moreover, the Inter-American Court of Justice found that the decisions to remove children from the family did not have an adequate and sufficient basis to determine that the procedure was carried out in the best interests of the children and that the procedure for determining whether the children were abandoned or not was incompatible with ACHR requirements.
Secondly, the Inter-American Court has established a duty of states in the context of international adoption by interpreting Article 19 of the ACHR in conjunction with the relevant provisions of the Convention on the Rights of the Child and the views of the Committee on the Rights of the Child. In this regard, it is noted that for intercountry adoption to be ACHR compliant, states must ensure that a number of substantive and procedural requirements are met, namely (i) children must be adopted by law, (ii) the best interests of children are primarily and decisively considered, ( iii) children's right to be heard must be guaranteed; (iv) children are not adequately cared for in their country of origin or residence, (v) placement of children in a new family does not provide any undue financial benefit to anyone. The Inter-American Court concluded that in the present case the intercountry adoptions did not meet these requirements.
Third, the Inter-American Court ruled that the decision to remove children from their biological parents was based on discriminatory provisions regarding the economic situation of the family, and not on stereotypes regarding parental responsibilities of mother and father or on the sexual orientation of the children's grandmother. In formulating this conclusion, the Inter-American Court relied on the judgment of the European Court in the case Saviny v. Ukraine (18 December 2008, application no. 39948/06), judgment of the European Court in the case of Soares de Melo v. Portugal "(Soares de Melo v. Portugal) (16 February 2016, application no. 72850/14), K. and T. v. Finland" (12 July 2001, application no. 25702/94) and against the Kutzner v. Germany judgment (26 February 2002, application no. 46544/99), arguing that the absence of high family incomes is not an excuse for the removal of children from their parents and that the mere fact that children can be placed in a more suitable environment for upbringing cannot per se justify the separation of family members, given that the state can provide financial assistance to the family and social consultations.
Per se (lat.) - in itself.
Article 6 § 1 (freedom from slavery), 8 (right to a fair trial) and 25 § 1 (right to a legal remedy) ACHR. The Inter-American Court held that Article 6 § 1 of the ACHR includes a prohibition on the sale of children for the purpose of adoption. However, the Inter-American Court considered that it did not have sufficient evidence to determine whether in the present case the illegal adoptions constituted human trafficking. However, the Inter-American Court found that the failure to investigate whether there was trafficking in persons, despite the complaints of the parents of the children and related factors, was a violation of the right to access to justice.
Article 7 § 1 (right to security of person) ACHR. The Inter-American Court has determined that placing children in a public institution may constitute a restriction of their personal freedom if their freedom of movement is restricted beyond the limits that can be considered reasonable by the family to ensure the well-being of the children. Moreover, referring to the Scozzari and Giunta v. Italy judgment of the Grand Chamber of the European Court of Justice (13 July 2000, applications nos. 39221/98 and 41963/98), the Inter-American Court stressed that that the fact that the children were under the care of the State could not have resulted in the loss of family ties. In the present case, the Inter-American Court concluded that the placement of Osmin Tobar Ramirez in a public institution amounted to an arbitrary interference with his right to personal integrity, since the respondent Government did not prove that such interference was necessary. In addition, the Inter-American Court found that the state did not regulate, supervise or properly control the institution where Osmin Tobar Ramirez was located, and thus did not ensure that Osmin was kept in an orphanage in accordance with the rights of the child.
There was a violation in the case of Article 1 § 1, Article 2, Article 8 § 1, Article 11 § 2, Article 17 § 1 and Article 25 § 1 ACHR (adopted unanimously).
- There was no violation of the requirements of paragraph 1 of Article 6 of the ACHR in the case (adopted unanimously). The case violated the requirements of Articles 8 and 25 ACHR (adopted unanimously).
- The case violated the requirements of paragraph 1 of Article 7 ACHR (adopted unanimously).
The Inter-American Court found that the judgment in the present case was per se a form of compensation and indicated, inter alia, that the respondent State's authorities (i) take all necessary and appropriate measures to help re-establish family ties between Osmin Tobar Ramirez and his parents, and initiate some form of restoration of family relations between J.R., Osmin and their mother; (ii) amended Osmin's birth certificate to restore his legal family ties and other rights that had belonged to him from birth; (iii) conducted criminal, administrative and disciplinary investigations into the facts of the present case; (iv) publicly acknowledge the international responsibility of the state; (v) film a documentary about the facts of the present case, their context and the violations found in the judgment; (vi) adopted a state program to ensure effective state supervision and control over the placement of children in state institutions.