Child and Adolescence Court of Zacapa, No. 19003-2011-0637-Of.3ª (Mayra Amador Raymundo) and four ors. - Guatemala
Background
Following a fall in the price of coffee, which triggered an economic crisis, 88.88% of residents of the Camotan municipality fell below the poverty line with 38.20% of residents living in extreme poverty.
In 2009, a group of 14 CSOs from Guatemala advocated for the creation of an international fact-finding task force (“Mission”) with the objectives of, first, verifying possible cases of violations of the right to food and other related human rights in Guatemala, and second, drawing the attention of the competent authorities, the media, the international community and regional and international human rights bodies and agencies. The Mission, which was composed of a range of international human rights organisations, found evidence of chronic malnutrition of children, lack of food, lack of work, lack of access to land and lack of basic services (water, housing and sanitation).
This situation prompted Asociación Nuevo Día, a CSO under the umbrella of the Campaign Guatemala sin Hambre (a coalition of NGOs), to survey the children living in the municipality. The aim of the survey was to identify possible legal claims to create a national legal precedent for the protection of the human rights of children.
With the support of Guatemala Sin Hambre, the parents of five children, Dina Marilú, Mavèlita Lucila Interiano Amador, René Espino Ramírez, Mayra Amador Raymundo, and Leonel Amador García, filed claims against the State, on behalf of their children. They argued that there were violations of the rights to food, to life, to health, to education, to housing and to work by the state under national and international law.
The legal viability of each of the cases was carefully assessed. The main challenge was to demonstrate that the State was responsible for the deteriorating health of the children, and not the parents. This was necessary so as to avoid the Attorney General's Office (PGN) deciding to remove the children from the care of their parents and placing them in alternative care.
Reasoning
The Court first recalled the constitutional obligation (articles 1, 2, 47 and 51) of the State to protect the individual and the family and to protect the physical, mental and moral health of children, guaranteeing their right to food, health, education, security and social security, among others. It also referred to the best interests of the child as a primary consideration when taking measures in relation to children (CRC, art. 3 and Law on the Protection of Children and Adolescents, art. 5), to children’s right to express their views (Law on the Protection of Children and Adolescents, art. 116), the right of the child to an adequate standard of living for the child's physical, mental, spiritual and social development (CRC, art. 9) and the right to special care and assistance for all children (arts. 25(1) and 25(2) of the Universal Declaration of Human Rights). The Court also noted that the Law on the Protection of Children and Adolescents (arts. 5, 18, 19, 53, 54 and 112) obliges the state to "adopt appropriate legislative, administrative, social and educational measures to protect children against all forms of neglect or negligent treatment".
The Court stated that the right to food, recognised in a number of international law treaties ratified by Guatemala, should be interpreted broadly, in accordance with the definition provided by the UN Committee on Economic Social and Cultural Rights in its General Comment No. 12, as the "right to have regular, permanent and free access, either directly or through direct purchase, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the population to which the consumer belongs, and which ensures a physical and mental, individual and collective, free of distress, satisfying and dignified life". Therefore, the Court reasoned that there are three levels of State obligation related to the right to food and nutrition, those being to (i) respect (refrain from adopting measures that will prevent or impede access to food and nutrition); (ii) protect (adopt measures to prevent private companies or individuals from impeding access to food and nutrition); and realise (initiate activities with the aim of strengthening access to food and nutrition, where the State is responsible to guarantee access when the individual is not able to do so themselves and in a way that does not interfere with the enjoyment of other human rights contained in domestic and international legal instruments).
As such, and due to the serious effects that the state failings at issue had on the physical and psychological development of the children (see, “Peritajes” in all four cases) as well as the principle of the best interests of the child, the Court found that the State had violated the right to food (Law on the National System of Nutritional Security, arts. 28, 29, 30, 31 and 32; Constitution, arts. 55 and 99; and ICESCR, art. 11), the right to life (Constitution, art. 3), the right to an adequate standard of living (CRC, art. 27 and Law on the Protection of Children and Adolescents, art. 4), the right to health (Constitution, arts. 51, 93 and 94) and the right to housing (Housing Law, arts. 6, 30 and 32, and ICESCR, art. 11) by omission, meaning that it had failed in its obligation to realise said rights.
Remedy
The Court made orders directing a range of measures to be implemented by specific state entities (Ministry of Agriculture, Livestock and Food, Ministry of Communications and Infrastructure, Ministry of Public Health and Social Assistance and Municipal Mayor, among others), including providing regular access to food, drinking water and medical treatment to the five plaintiff children as well as providing the families with the land and farming equipment for harvesting.
Additionally, the Court ordered the State to implement a protocol (“Protocolo para el ejercicio del derecho humano a la alimentación”) to prevent future violations of this nature, involving multiple ministries, and specified the minimum content that Protocol should contain in terms of coordination, intervention and monitoring mechanisms and administrative timelines.
Role of children
The case was brought on behalf of five children by their parents with the support of Guatemala Sin Hambre, a group of 14 NGOs.
Enforcement and other outcomes
In December 2013, FIAN International and the Campaign Guatemala Sin Hambre conducted a monitoring visit on the implementation of the decisions. This revealed that the living conditions of the families had not substantially improved due to severe delays and shortcomings in state compliance with the measures ordered in the judgments.
The decisions issued by the Child and Adolescence Court of the Zacapa Department were upheld by the Guatemalan Constitutional Court on 1 October 2015, after the Ministry of Communications, Infrastructure, and Housing filed an appeal. The Constitutional Court ruled that the State must meet the requirements of the decisions by all means available to it.
According to a 2019 report resulting from the work promoted by the Task Force on Right to Food, the situation of the children had not changed significantly. The situation resulted in the death of one of the girls due to malnutrition in 2017 and the forced emigration of two of the children. In addition, measures were not adopted to address the condition of physical and cognitive disability of two of the children, which worsened as a result of chronic malnutrition. Furthermore, the lack of participation of the children and their families in the design, implementation, adjustment and follow-up of the measures resulted in a lack of adaptation to their needs, perceptions and proposals.
Significance of the case from a CRSL perspective
The role of civil society organisations in the CRSL is particularly noteworthy due to their involvement in the investigations prior to the filing of the CRSL claim, in the preparation and presentation of the claim, as well as in the follow-up and monitoring of compliance with the judgments. The group of 14 NGOs that supported and guided the children's parents to bring the cases before the Court deliberately sought to establish jurisprudence and judicial means for addressing children’s economic, social and cultural rights. They also sought to influence existing social policies and ensure that they had a child rights perspective.
These cases created legal precedent that furthers the enjoyment of children’s rights, including potentially in the context of CRSL. In the first instance, the fact that the State’s scope of liability has been widened both incentivises the State to enact policies that prevent further children’s rights violations and opens up the court system for future claims. In the second instance, it explicitly ordered the State to prevent future violations by enacting a plan requiring the collaboration of multiple State entities, which should benefit other children and contribute to advancing children’s rights in Guatemala.
Country
The Republic of Guatemala
Forum and date of decision
Child and Adolescence Court of the Zacapa Department
April 3, 2013 (Dina Marilú and Mavèlita Lucila Interiano Amador)
April 12, 2013 (Brayan René Espino Ramírez),
May 10, 2013 (Mayra Amador Raymundo)
May 31, 2013 (Leonel Amador García)
CRC provisions and other international law provisions/sources
Convention on the Rights of the Child, Articles 1-3, 5-6, 9, 12, 24, 27, 28, and 29
Universal Declaration of Human Rights, Articles 1-2, 7, 17, 19, 25(1), 25(2), 26, and 29
International Covenant on Civil and Political Rights, Articles 1-2, 5(2), 9, 11, 14(1), 23(1), and 24(1)
American Convention on Human Rights, Articles 1(1-2), 5(1), 17(1), and 19
International Covenant on Economic, Social and Cultural Rights, article 11
Domestic law provisions
Political Constitution of Guatemala, Articles 1- 4, 46-47, 51, 71-72, 95, 101, 119 (d), 203-205, and 211
Law on the Protection of Children and Adolescents, Articles 1-5, 11, 15-20, 22, 49, 53-54, 56, 59-60, 75, 80, 101, 104, 108-112, 114, 116-117, 119-124, and 128
Law on the National System of Nutritional Security, Articles 1-4, 6-7, 10, 19, 20-22, 28 and 29
Municipal Code, Articles 1, 3, 5, 8, 35, and 53(d)
Health Code, Articles 1-2, 4, 7, 8, 9(a and d), 11, 18, 37-41, 43, 68, 70, 72, 74, 78-79, 87, and 90- 95
Housing Law, Articles 2, 4-7, 32, 35, 43, and 73- 77
Land Trust Fund Law, Articles 2, 4, 8, 13, and 20-21.
Related information
The applicants:
The parents on behalf of the children (5) Dina Marilú, Mavèlita Lucila Interiano Amador, René Espino Ramírez, Mayra Amador Raymundo, and Leonel Amador García.
In support of the applicants:
Campaign Guatemala sin Hambre (coalition of NGOs)
2a calle 4-50, Zona 2 Ciudad de Guatemala, Guatemala
The respondents:
State of Guatemala
Amicus curiae:
International Commission of Jurists (ICJ)
Rue des Buis 3
P.O. Box 1740
1211 Geneva 1, Switzerland
Case documents
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-0637-Of.3ª (Decision for Mayra Amador Raymundo)
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-00638-Of. 1ª (Decision for Dina Marilú y Mavèlita Lucila Interiano Amador)
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-0639-Of.3ª (Decision for Brayan René Espino Ramírez)
The Child and Adolescence Court of the Zacapa Department, Judicial File No. 19003-2011-0641-Of.3a (Decision for Leonel Amador García)
Ruling by the Guatemalan Constitutional Court, file No. 4474-2014
Secondary documents
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Baires Quezada R, 'Cinco Niños Olvidados Ganan Juicio Al Estado' Plaza Pública (2013), accessed 16 May 2022
Central de Organizaciones Indígenas Campesinas Ch'ortí Nuevo Día, Guatemala Sin Hambre and Procurador de los Derechos Humanos, 'Informe Sobre El Cumplimiento De Las Sentencias De Camotán. "Sin Horizontes De Desarrollo Humano"' (2019), accessed 19 May 2022
Comisión Interamericana de Derechos Humanos (CIDH), 'Situación De Derechos Humanos En Guatemala' (2017), accessed 16 May 2022
FIAN Internacional et al., 'El Derecho A La Alimentación En Guatemala. Informe Final Misión Internacional De Verificación' (Magna Terra editores 2022), accessed 19 May 2022
FIAN International, 'FIAN International’s Submission On Children’S Right To Food And Nutrition To The Committee On The Rights Of The Child Day Of General Discussion: “Children’S Rights And The Environment”' (2016), accessed 17 May 2022
'Guatemala Condenado Por Violaciones Al Derecho A La Alimentación' (International Commission of Jurists, 2013), accessed 16 May 2022
'Judge Declares State Of Guatemala Responsible For Right To Food Violations' (Fian.org, 2013), accessed 19 May 2022
- Mogollón V, Cano M, and Wolpold-Bosien M, 'El Derecho a La Alimentación – Acciones Y Omisiones Del Estado. Informe Del Monitoreo De Las Sentencias En El Caso De Desnutrición Infantil En Camotán, Guatemala' (Fian Internacional and Campaña Guatemala sin Hambre 2014), accessed 17 May 2022
Radio Urbana, 'Magali Cano Sobre La Campaña Guatemala Sin Hambre' (2016), accessed 17 May 2022
