Domestic, Guatemala Gisela Sin Gomiz Domestic, Guatemala Gisela Sin Gomiz

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

Domestic law provisions

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

Secondary documents

Agudo A, 'Guatemala: El Hambre Que Cien Años Dura' El País (2019), accessed 19 May 2022

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

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Head of the Llano Grande Educational Institution v Governor’s Office of Boyacá and the Secretary for Education of the Department of Boyacá, Judgement T-279/18 - Colombia

Background

The Head of the Educational Institution Llano Grande of the municipality of Nuevo Colón, Boyacá, Colombia, brought a tutela action against the Secretary for Education of the Department of Boyacá in defence of the children who studied in the institution. He did so on the grounds that the children’s constitutional rights to health, life, personal integrity and to receive quality educational services in conditions of dignity (Arts. 44, 49 and 67 of the Constitution) were seriously threatened, due to the fact that the Secretary for Education of the Department of Boyacá had refused several times to provide the institution with an additional employee to provide cleaning services. The Secretary justified their decision on the basis of article 3 of the Resolution no. 2314 , which provided that only two employees could be appointed in institutions with less than 300 students, which was the case with Llano Grande. The Head of Llano Grande requested that a judicial inspection be ordered, as well as the appointment of an employee to carry out the functions in question, and that the authorities be ordered not to engage in such practices again, nor to ignore petitions aimed at protecting the fundamental rights of children in Boyacá's educational institutions. The injunction was denied by both the Third Labour Court of the Circuit of Tunja (31 October 2017) and the Labour Chamber of the High Court of the Judicial District of Tunja.

Reasoning

The Court found that the head of the educational institution had standing to intervene on behalf of the children studying at the institution because their fundamental rights were seriously threatened by the sanitary conditions caused by the lack of staff to carry out cleaning work (art. 44 of the Constitution, art. 11 of the Code on Children and Adolescents and Ruling T-498 of 1994).

The Constitutional Court found that the absence of administrative personnel would not necessarily constitute a violation of the right to access to education of the underage students. However, where the absence or interruption of a general or administrative service (such as cleaning service) represented a barrier to access, obstructed the stay of students in an educational institution or affected the right of children to receive education in decent conditions, such an interruption constituted a violation of their fundamental right to education (art. 67 of the Constitution). Thus, when the absence of cleaning staff led to a serious deterioration in the health and hygiene conditions of an institution, the right of children to receive an education in decent conditions was violated.

The Court also stated that the right to accessible education carried with it a corresponding obligation on the part of the State to take deliberate, concrete and targeted steps towards the implementation of education. Failure to do so violated the rights to education and to equality of opportunity, which means that the fundamental right to education entails a positive obligation to provide the material conditions (through administrative supervision, cleaning, transport and secretarial services) in educational institutions that will encourage students to learn and guarantee that children can access education in conditions of dignity.

The Court declared that the Secretary for Education of the Department of Boyacá may waive the limit on the number of employees established by Article 3 of Resolution no. 2314 in order to guarantee the right to education in accordance with article 67 of the Constitution.

Remedy

The Court ordered the Secretary of Education of Boyacá to assign, within a period of one month, a provisional employee for cleaning duties, and the permanent assignment of such personnel within a period of one year. It also ordered the Ombudsman's Office to prepare and submit trimestral reports to the judge for a period of one year. In addition, it warned the Ministry of Education to refrain from engaging again in the conduct that gave rise to the violation of fundamental rights and, in this regard, to take effective measures in a timely manner when children's right to education is threatened or has been violated. The Court ordered the headmaster, in compliance with his legal duty to ensure the quality of the educational service (in line with Article 10.14 of Law 715 of 2001), to instruct students to understand that they must fulfil their duties to care for and preserve communal property and spaces in good condition.

Role of children

Children were not directly involved in the litigation. The Head of the Educational Institution Llano Grande brought the tutela action on behalf of the children in that institution, whose fundamental rights were being violated. Articles 44 of the Constitution and 11 of the Code on Children and Adolescents granted him standing in the tutela action. Furthermore, Ruling T-498 de 1994 (relied on in this case) provided that institutions other than children’s legal representatives may take action “provided that the letter or request states that the violation of [children’s] fundamental rights is imminent, or the absence of a legal representative”, which was the case in this instance.

Enforcement and other outcomes

There is no publicly available information that confirms compliance with the court's orders.

Significance of the case from a CRSL perspective

The tutela action led to the recognition that a legal provision may not apply in circumstances where it would result in the fundamental rights of children are violated. The court also ruled that the obligation of public institutions to guarantee education not only consists of the provision of education itself, but also of the material conditions to guarantee that children can access education in conditions of dignity, thus concretising the substance of this obligation. All of the above may be used for argumentation in the future to advance children’s rights in Colombia and benefit other groups of children as well.

Country

Colombia

Forum and date of decision

Constitutional Court of Colombia

July 17, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

Head of Llano Grande Educational Institution

153627, Nuevo Colón (Boyacá), Colombia

The respondents:

Secretary for Education of the Department of Boyacá

Carrera 10 No 18-68. Tunja (Boyacá) Colombia

List of amicus curiae:

Ministry of Education of Colombia

Committee on Economic, Social and Cultural Rights

Case documents

Secondary documents

“ÍNDICE Sintético De La Calidad Educativa -ISCE” [Quality Index for educational institutions] (Portal Ministerio de Educación Nacional - Presentación), accessed October 11, 2022

Villegas García Mauricio and others, Separados y Desiguales: Educación y Clases Sociales En Colombia (Dejusticia 2013)

Góngora Mera Manuel Eduardo (Defensoría del Pueblo 2003) publication

“Education in Colombia: Highlights 2016” (OECD 2016) publication

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Colombia Supreme Court - Sentencia STC 4360-2018, Radicación No. 11001-22-03-000-2018-00319-01 - Colombia

Background

The petitioners, a group of children and young persons aged between 7 and 25, brought an action (acción de tutela) against the Colombian Government and governmental agencies (the Respondents) based on their rights to enjoy life, health and a healthy environment. The petitioners alleged that these rights were affected by the continued deforestation of the Colombian Amazon and that the government had failed to comply with its obligations under the Paris Agreement and the domestic Law 1753 of 2015, to ensure that this deforestation ceased.

Reasoning

The Colombian Supreme Court overturned the decision of the High Court of Bogotá –which had rejected the action on the basis that the acción popular (class action), and not the acción de tutela, is the right means to protect collective rights– and declared the admissibility of the acción de tutela. According to the Supreme Court, the jurisprudence had exceptionally accepted this form of  action to be admissible when the impairment of collective interests also impaired individual guarantees. In this case, according to the Court, environmental protection entails the protection of individual guarantees enshrined in legislation superior to ordinary law, such as life, health, freedom, and human dignity, and any person, including children, may bring the action.

In addition, the Supreme Court found that the effects of the Amazon’s deforestation entailed a serious and imminent harm for the petitioners and, in general, for all Colombians of present and future generations (p. 34), as “the fundamental right to life, health, basic needs, liberty and human dignity is significantly linked to and determined by the environment and the ecosystem” (p. 13). Finally, the Supreme Court stated that the Amazon deforestation is contrary to environmental principles (precaution, intergenerational equity and solidarity) and to Colombia’s international obligations (such as the Andean Environmental Charter and the Paris Agreement). The Court also recognized the Colombian Amazon as a subject of rights, whose conservation, maintenance and restoration are the responsibility of the State and the different territorial entities, in order to protect this ecosystem for the global common good.

However, although the petitioners had also grounded the tutela action on the principle of participation, the Court did not address this principle in its reasoning. The petitioners had claimed their right, and that of all citizens, to “prior, representative, free, informed, active and effective participation” (see pp. 109-111 of the tutela action) in decisions that affect or may affect the environment, as recognised by the Constitution, various international legal instruments and the Court itself on previous occasions. Participation was indeed contemplated by the Court in the remedy. Another principle that was mentioned in the tutela action and which was not addressed by the Court was the best interests of the child.  

Remedy

The Court ordered the Colombian Presidency, the Environmental and Sustainable Development Ministry, and the Agriculture and Rural Development Ministry, to develop a plan and draft an intergenerational agreement in order to adopt measures that will initially reduce and ultimately fully eliminate deforestation (Pacto intergeneracional por la vida del Amazonas colombiano - PIVAC), with the participation of the petitioners and public in general.

It also ordered the municipalities of the Colombian Amazon to design a plan to reduce to zero the deforestation rate in their territories, and ordered environmental agencies in the Amazon to develop a plan, including police, legal and administrative measures, to counteract deforestation.

Role of children

The plaintiffs were a group of 25 children, adolescents, and young adults, between the ages of 7 and 25 years, who initiated the action with the support of Dejusticia, a civil society organisation.

Enforcement and other outcomes

The Supreme Court ordered the respondents to comply with its orders within a period of 4-5 months following the judgment rendered in April 2018. The respondents have yet to comply with those orders (see article by Dejusticia). In fact, by the time such deadlines expired, the respondents had made little progress (see Red-DESC and Ministerio de Agricultura). A year after the judgment was entered, on 5 April 2019, the petitioners asked the Superior Tribunal of Bogotá to declare the respondents’ to be in non-compliance.

As reported by Dejusticia, the Colombian organization that supports the petitioners in this case, deforestation in the Colombian Amazon has increased between 2019 and 2020.

Significance of the case from a CRSL perspective

This was the first lawsuit of this type (acción de tutela) filed by children in Colombia regarding climate change and the rights of future generations.

The judgment sought remedies that would have a positive impact on children, in particular, on those who live in areas most at risk for climate change.  In fact, the aim of the Supreme Court’s orders was to reduce deforestation rate and, consequently, reduce the negative effects of greenhouse gases and climate change for future generations.

The case also confirmed children’s standing to bring an acción de tutela. In addition, the Supreme Court admitted an action that is generally used to protect individual rights (acción de tutela), to protect a collective right, based on the connection between the protection of the environment and children’s individual rights to life and health.

Country

Colombia

Forum and date of decision

Colombian Supreme Court, Civil Chamber of Cassation/Corte Suprema de Justicia, Sala de Casación Civil.

5 April 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

  • Dejusticia, a Colombian research and advocacy organization, supported the petitioners in this action.

    Calle 35 No. 24 - 31 Bogotá, Colombia

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Constitutional Court of Colombia, Second Review Chamber, Auto N° 251 de 2008 - Colombia

Background

In Sentence T-025 of 2004 (T-025-04), the Constitutional Court declared a state of unconstitutionality with respect to the Colombian State’s failure to protect the constitutional rights of victims of forced displacement, and in particular, displaced children and adolescents. This Auto (in Colombia, autos are judicial decisions that “resolve an incident or substantive issue” (art. 161 Law 906 of 2004)) was a review of the State’s response to the T-025-04 Decision and presents information concerning the current situation of displaced children.

Reasoning

The Court affirmed that victims of forced displacement are entitled to special State treatment. More specifically, the Court, relying on the Constitution, stated that, “each individual case of children displaced by armed violence in Colombia, was, in itself, an extreme manifestation of profound, serious, systematic and simultaneous violations of fundamental rights”, given their “state of grave victimisation and defencelessness” (p.2). Displaced children were affected by the following specific cross-cutting problems: lack of protection from several risks and dangers that threaten their rights; hunger and malnutrition; preventable physical and mental health deficiencies; shortcomings in the educational system and lack of opportunities for recreation and participation in society as well as for exercising their rights. The impact of these issues on children was further aggravated by changes to family structures due to displacement, the trauma of displacement itself, childhood, adolescence, gender inequality, ethnic divergence and disability.

The Court noted that violent crimes by armed groups (including “social cleansing”), forced recruitment into armed groups or illicit businesses (e.g., drug trafficking and child trafficking), sexual abuse (in the context of armed groups and at home) and coercive pressure by illegal armed groups were the principal causal factors of the forced displacement of children.

To address the unique vulnerabilities of displaced children and the unique and disproportionate impact displacement has on them, specific measures were required from the State. However, the Court considered that the Colombian State had failed to implement such measures. In the opinion of the Court, the State response to the specific needs of displaced children had been "(i) irregular and fragmented, neither systematic nor comprehensive, (iii) non-specific, (iv) late, (iv) lacking resources, (v) legal and formal, with no practical realisation, and (vi) lacking a preventive approach” (p. 23). The failure to treat these children, in practice, as subjects of international and domestic law with prevailing and directly enforceable rights and as subjects of special protection, attempted against their human dignity.

The Court observed that displaced children were generally “invisible” to the State and society at large. This was due in part to a lack of registration of displaced persons, caused by widespread distrust of authorities and a lack of awareness of constitutional rights amongst displaced persons.

Given the multiplicity of factors affecting displaced children and the absence of measures aimed specifically at them, the State’s efforts to date were inadequate and amounted to a breach of its domestic and international legal obligations.

Remedy

The Court ordered the relevant public authorities to remedy the state of unconstitutionality by adopting concrete measures exclusively aimed at displaced children that are preventative and that address their specific needs. In particular, it ordered the creation and implementation of a programme based on pilot projects, which were also ordered in the decision, for the protection of children, containing prevention and care elements and giving response to the risks, cross-cutting problems and factors that aggravated these children’s situations. The Court also required the State to guarantee the participation of at least those civil society organisations that are listed in the decision in the elaboration of pilot projects.

Role of children

While the case addressed displaced Colombian children in general, 18,000 children were individually identified to the Court. The Court ordered the State to address these children’s specific situations. Displaced children were heard at a public technical information hearing held on 28 June 2007 before the same Chamber and their testimony was cited throughout the judgment.

Enforcement and other outcomes

The Court ordered the relevant State authorities, under the coordination of Acción Social, to:

(i) design and implement a new programme specifically aimed at the protection of displaced children. The programme shall focus on: (1) preventing the disproportionate impact of forced displacement on children; and (2) giving attention to displaced children;

(ii) design and implement fifteen (15) pilot projects across Colombia to address risks related to armed conflict and the most concerning specific problems; and

(iii) give specific attention to the approximately 18,000 displaced children whose individual circumstances were reported to the court.

Progress in this regard was monitored directly by the Constitutional Court through autos (see auto 756 of 2018). Auto 756 of 2018 offered a full review of the extent to which the State implemented the measures ordered by the Court. Existing public policies aimed at forcibly displaced children were deemed inadequate, and the State’s level of compliance to orders issued in Sentence T-025-04 and Auto 251 was deemed low. The Court ordered a series of concrete actions to redress this situation.

Significance of the case from a CRSL perspective

The case highlighted barriers to the enjoyment of displaced children’s rights (including right special protection, right to food, right to physical and mental health, right to education and right to participation). It also resulted in increased legal protection of children’s rights in this and future CRSL cases through its identification of legal provisions obliging the State to provide a differential treatment to displaced children which meets their specific needs.

Through detailed analysis of the causes and features of forced displacement of children, the Court identified the complexity of factors that prevent children from enjoying their constitutional right and which must be addressed in a targeted and appropriate manner in order to ensure the effective enjoyment of rights of forcibly displaced children. These include cultural and social factors on a family, community and national level.

Country

Colombia

Forum and date of decision

Constitutional Court, Second Review Chamber, Republic of Colombia / Corte Constitucional, Sala Segunda de Revisión, República de Colombia

October 6, 2008

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

Colombian State Entities addressed by the Auto:

NGOs to be involved in the design of programmes ordered by the Auto:

Amicus curiae:

Other relevant entities/parts:

Case documents

  • Auto N° 251 de 2008

  • 'Informes De La Comisión' (Consultoría para los Derechos Humanos y el Desplazamiento (CODHES)) <https://codhes.wordpress.com/comision-de-seguimiento/informes-de-la-comision/> accessed 30 March 2022

  • Nal, 'Primera Infancia, Niñez Y Adolescencia En Situación De Desplazamiento Propuesta De Indicadores De Goce Efectivo De Derechos' (National University of Colombia and Plan International 2011) <http://equidadparalainfancia.org/wp-content/uploads/2011/10/Desplazamiento-INDICADORES-DE-GOCE-EFECTIVO-DE-DERECHOS-OBSI.pdf> accessed 30 March 2022

  • 'Lineamientos Jurídicos Y Administrativos Del Estado Colombiano Para La Atención A Los Niños, Niñas Y Adolescentes Desvinculados Del Conflicto Armado' (Procuraduría General de la Nación and UNICEF Bogotá DC, Colombia 2006) <https://www.acnur.org/fileadmin/Documentos/Publicaciones/2007/5523.pdf?view=1> accessed 30 March 2022

  • 'Estado Nutricional, De Alimentación Y Condiciones De Salud De La Población Desplazada Por La Violencia En Seis Subregiones Del País' (World Food Programme 2005) <https://documents.wfp.org/stellent/groups/public/documents/liaison_offices/wfp086486.pdf> accessed 30 March 2022

  • Ojeda G, and Murad R, Salud Sexual Y Reproductiva En Zonas Marginadas (Asociación Probienestar de la Familia Colombiana (Profamilia) and Agencia para el Desarrollo Social (USAID) 2005) <https://repositorio.unal.edu.co/handle/unal/53238;jsessionid=DAA04FD22ABB0D8BFB85FE4C61BFE95F>

  • UN Committee on the Rights of the Child: Concluding Observations, Colombia CRC/C/COL/CO/3, 8 June 2006 <https://www.refworld.org/docid/45377ee30.html>

  • UN General Assembly, Children and armed conflict: report of the Secretary-General, 21 December 2007, A/62/609–S/2007/757, 21 December 2007 <https://www.refworld.org/docid/479f54592.html>

  • General Secretariat, Organization of the American States, 'Violence And Discrimination Against Women In The Armed Conflict In Colombia' (Inter-American Commission on Human Rights 2022) <https://www.cidh.oas.org/pdf%20files/InformeColombiaMujeres2006eng.pdf> accessed 30 March 2022

Secondary documents

  • 'Volver A Estudiar, La Agonía De Los Niños Desplazados' (Vanguardia, 2013) <https://www.vanguardia.com/colombia/volver-a-estudiar-la-agonia-de-los-ninos-desplazados-DCVL235305> accessed 30 March 2022

  • 'Acción Integral Contra Minas Antipersonal - AICMA' (Government of Colombia) <http://www.accioncontraminas.gov.co/AICMA> accessed 4 April 2022

  • Patiño-Montaña Y, 'Cómo Vive El Desplazamiento La Población Infantil Aquitanense, Víctima Del Conflicto Armado' (2018) 14 Derecho y Realidad <https://doi.org/10.19053/16923936.v14.n28.2016.7816>

  • González Ocampo L, and Bedmar Moreno M, 'Población Infantil En Situación De Desplazamiento Forzado En Colombia Y Sus Manifestaciones De Ciudadanía' (2016) 2 Derecho y Realidad < https://doi.org/10.19053/16923936.v2.n24.2014.4548>

  • Sánchez Cubides P, 'La Política Pública Como Garantía De Derechos De La Primera Infancia En Colombia' (2018) 16 Derecho y Realidad <https://doi.org/10.19053/16923936.v16.n31.2018.9105>

  • UNICEF Colombia, 'Infancia En Tiempos De Guerra: ¿Los Niños De Colombia Conocerán Por Fin La Paz?' (UNICEF 2016) <https://www.unicef.org/sites/default/files/press-releases/glo-media-UNICEF_CHILD_ALERT_COLOMBIA_ESPANOL_19_03_16__FINAL.pdf> accessed 4 April 2022

  • Alianza por la Niñez Colombiana, 'Niñez víctima de un conflicto armado que persiste. Informe de seguimiento a la implementación de recomendaciones del Comité de los Derechos del Niño a los informes periódicos IV y V combinados de Colombia' (2018) <https://www.refworld.org.es/pdfid/5bec60444.pdf>

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Constitutional Court of Colombia, Sentencia T-025 de 2004 - Colombia

Background

This case involved 108 files that had been joined by the Court. These concerned 108 tutela actions submitted by 1150 family units, all belonging to the displaced population, and composed mainly of women heads of household, elderly persons and children, as well as some indigenous persons. A number of these tutela actions were filed by civil society organisations on behalf of displaced persons. The complainants claimed that authorities were not fulfilling their mandate to protect the displaced population in terms of fundamental rights enshrined in the Constitution and were failing to respond effectively to the complainants’ requests for housing, health care, education, humanitarian aid and access to state aid for their integration into the labour market and the implementation of economically profitable projects. The majority of these tutela actions had been rejected by the judges at the lower courts.

Reasoning

The Court stated that due to the conditions of extreme vulnerability in which the displaced population finds itself, as well as the repeated omission to provide them with timely and effective protection on the part of the various authorities responsible for their care, the rights of both the actors in the case and the displaced population in general were violated. Specifically, it referred to the right to a dignified life and to personal integrity (Arts. 1 and 12 of the Constitution and UN Guiding Principles 1, 5, 6, 8, 10, 11, 12, 13 and 15), to equality (Art. 13 of the Constitution and UN Guiding Principles 1 to 4, 6, 9 and 22), to petition, to work and to social security (Art. 6 of the Constitution , Law 387 of 1997 and UN Guiding Principles 1, 3, 4, 11 and 18), to health (Arts. 49 and 50 of the Constitution and UN Guiding Principles 1, 2 and 19), to education (Art. 67(3) of the Constitution and UN Guiding Principle 23), to the minimum conditions for life (UN Guiding Principles 18, 24 and 27) and to the due special protection (Arts. 42 and 44 of the Constitution and UN Guiding Principles 2, 4, 9 and 17) for the elderly, women heads of household and children.

The Court defined the minimum levels of protection that must be guaranteed in a timely and effective manner to the displaced population in the face of insufficient resources or deficiencies in institutional capacity. According to the Court, this determination of minimum standards implies that “(i) in no case may the essential core of the fundamental constitutional rights of displaced persons be threatened and (ii) the State has to satisfy the minimum level of the rights to life, to dignity, to physical, psychological and moral integrity, to family unity, to the provision of urgent and basic health services, to protection against discriminatory practices based on the condition of being displaced, and to the right to education up to the age of fifteen in the case of children in a situation of displacement.” (p. 32).

The existence of an unconstitutional state of affairs with regard to the situation of the displaced population was declared by the Court on the basis of the lack of concordance between (a) the seriousness of the impact on constitutionally recognised rights developed by law, and (b) the volume of resources allocated to ensure the effective enjoyment of such rights and the institutional capacity to implement them. The Court also relied on the high number of tutela actions filled by displaced persons, which confirmed the impact these violations had had on a large part of this population group, and the structural nature of the issue, since the violations were attributable to various state bodies.

Remedy

The Court ordered a series of actions related to the unconstitutional state of affairs aimed at guaranteeing the rights of the entire displaced population, regardless of whether they had sought protection of their rights through tutela actions. The aim with the order was to force the government to reassess and restructure the actions or omissions that led to the violation of the Constitution and legislation in the shortest possible time, providing sufficient opportunities for the participation of displaced people’s representatives, to ensure that displaced people, including children, could effectively enjoy their rights. The Court also ordered a series of actions aimed at responding to the specific requests of the complainants in the tutela action in line with the Court’s previous jurisprudence on the rights of displaced population. These actions included: (i) addressing requests to access financial support programmes (including temporary jobs, business projects, training and food security) and housing, (ii) determining whether requests for registration in the Unified Registry of Displaced Populations meet the objective conditions of displacement and, if so, giving them immediate access to the assistance envisaged for their protection, (iii) effectively granting the requested humanitarian aid to those who applied for it, (iv) guaranteeing the complainants’ effective access to the health system, ensuring that they are provided with the required medicines, (v) ensuring effective access to the education system for children until the age of fifteen and (vi) registering information regarding displaced people’s land properties in order to effectively protect them.

Role of children

Children were petitioners in the tutela actions. They were represented by adults, mostly legal representatives of the civil organisations involved.

Enforcement and other outcomes

The decision forced the government to reassess and restructure the actions and omissions that led to the violation of the Constitution and the legislation in the shortest possible time to ensure that displaced people, including children, could effectively enjoy their rights. The court ordered a series of concrete actions to be carried out by the authorities to this end. This decision is followed by two orders (Autos 251-05 and 756-08), which focus specifically on assessing and monitoring the rights of displaced children. In these Autos, the Constitutional Court described progress in this regard as “low”.

Significance of the case from a CRSL perspective

Although the litigation was not brought solely to protect the rights of displaced children, its aim was to stop the massive violation of fundamental rights of displaced people, which affects displaced children as well. The decision forces the government to reassess and restructure the actions or omissions that led to the violation to ensure the effective enjoyment of the rights of this vulnerable group. This implies the obligation to adopt clear policies in favour of displaced people, including children. The state of unconstitutional affairs enables the Constitutional Court to make the effects of the decision applicable to all and to directly monitor compliance with the ruling (see Autos 251-08 and 756-18).

Country

Colombia

Forum and date of decision

Constitutional Court, Third Review Chamber, Republic of Colombia/Corte Constitucional, Sala Tercera de Revisión, República de Colombia

22 January 2004

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

  • Municipal ombudsman of Neiva - Jorge Osorio Peña

    Personería de Neiva

    Calle 8 no. 12-22 Neiva-Huila

  • Fundación Ayudémonos FUNDAYUDE - Javier Augusto Silva Madero, legal representative

  • Asociación Humanitaria de Colombia (ahudeco@hotmail.com) - Jorge E Peralta de Brigard, legal representative

  • Asociación de Desplazados del Caribe Colombiano - Juvenal Navarro Arroyo, legal representative

  • Asociación por un mejor vivir feliz - Deyanira Herrera, legal representative

  • Asociación Nueva Vida (alonsovifi@hotmail.com) - Eduardo Orozco, legal representative

  • Asociación Nuevo Horizonte - Pedro Pacheco, legal representative

    Calle 1B # 55 – 74 Cali-Colombia

  • Asociación Desplazados Unidos - Ismael Maestre, legal representative

  • Asociación Asodespente - Juan Montes, legal representative

  • Asociación Justicia y Paz (cauca@justiciaypazcolombia.com) - Jony Meriño, legal representative

  • Asociación Renacer (asorenacer@yahoo.es) - Luis Carlos Fernández, legal representative

  • Asociación de Familias Desplazadas (ASOFADECOL) (luzmarinac59@yahoo.es) - Henry Rivera Acosta, legal representative

  • Asociación de Personas Desplazadas de Fonseca, ADESFONGUA - Eustacio Fonseca Barraza, legal representative.

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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