Gisela Sin Gomiz 1/17/23 Gisela Sin Gomiz 1/17/23

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
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999

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
Amicus Curiae – International Commission of Jurists (ICJ)

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

Gisela Sin Gomiz 1/17/23 Gisela Sin Gomiz 1/17/23

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

Convention on the Rights of the Child (CRC) Articles 3(1) and 3(2)
International Covenant on Civil and Political Rights (ICCPR), Article 24(1)
American Convention on Human Rights, Article 19
UN Committee on Economic, Social and Cultural Rights, General Comment No. 13 on the right to education, Article 10(3)
UN Declaration on the Rights of the Child, Principle 2

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

Judgement T-279/18

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