-66to humane treatment embodied in Article 5 of the American Convention, in relation
to Article 1(1) thereof, to the detriment of the next of kin of Ernestina and Erlinda
Serrano Cruz.
IX
VIOLATION OF ARTICLES 17, 18 AND 19 OF THE AMERICAN CONVENTION
IN RELATION TO ARTICLE 1(1) THEREOF
(RIGHTS OF THE FAMILY, RIGHT TO A NAME, RIGHTS OF THE CHILD)
Arguments of the Commission
116. With regard to Article 17 of the Convention, in relation to Article 1(1) thereof,
the Commission indicated that:
a)
“The lack of diligence in the investigation and determination of the
whereabouts [of Erlinda and Ernestina Serrano Cruz], constitute [a] violation
of the rights protected by Article 17 of the Convention”;
b)
According to Protocol II to the Geneva Conventions of 12 August 1949,
the State has the obligation not only to allow the family to carry out a search,
but also to provide the family with “timely measures” such as the
identification and registration of children to ensure reunification; and
c)
The State did not adopt any measure to comply with the obligations
established for the protection of the Serrano Cruz sisters.
117. With regard to Article 18 of the Convention, in relation to Article 1(1) thereof,
the Commission stated that:
a)
As the International Jurists Commission had indicated, the right to
identity, particularly in the case of children and of forced disappearance, is a
complex legal issue that acquired relevance with the adoption of the
Convention on the Rights of the Child. This right has been recognized by case
law and by legal writings as both an autonomous right and as the expression
of other rights or as a constituent element of these. The right to identity is
intimately associated with the right to the recognition of legal personality, the
right to a name, a nationality, and a family and to have family relationships.
The total or partial suppression or modification of the right of the child to
preserve his identity and its intrinsic elements entails State responsibility;
b)
Children who are victims of political events have the right to recover
the memory of their natural parents, to know that the latter did not abandon
them, to have contact with their natural family in order to nurture and give
continuity to their affective memory. In turn, the next of kin of disappeared
children or children born in captivity have the right to insist on knowing their
whereabouts and to participate in educating them and bringing them up as is
most appropriate for their welfare and development;
c)
The Commission’s experience in other countries with similar situations
to those of this case is that children’s names are changed when they are
handed over to people other than their biological family. “The case file