- 2and the right to a name, as well as the rights of the child to the detriment of Erlinda,
who was a minor when El Salvador accepted the Court's jurisdiction.
5.
Owing to the specific facts of this case, the logical and necessary consequence
of the foregoing was the violation of the right to identity of Ernestina and Erlinda and
their next of kin, because, without a family and without a name, there is no identity.
The right to identity as such is not expressly recognized in the American Convention.
However, I believe it important to indicate that the Convention protects this right,
based on an evolutionary interpretation of the content of other rights embodied
therein and, in this case in particular, based on an examination of Articles 17, 18 and
19 thereof. In this regard, I believe it important to emphasize that this would not be
the first time the Court has ruled on a right that is not explicitly established in this
instrument. In previous judgments, as well as in paragraph 62 of this judgment, the
Court has referred to the right to the truth,1 which is not expressly embodied in the
American Convention; while, in other cases, it has referred to the violation of the
right to a decent life, which is not expressly established in this Convention either,
and even encompasses the protection of other rights expressly protected in other
treaties.2
6.
In my opinion, the text of the Court's judgment in this case, in relation to the
violation of Articles 17, 18 and 19 of the Convention, should have been drafted as
follows:
*
*
*
125. Given the characteristics of this case, the Court considers it pertinent to
examine jointly the aspects related to the alleged violations of Articles 17 (Rights of
the Family) and 18 (Right to a Name) of the Convention, to the detriment of the
sisters, Ernestina and Erlinda Serrano Cruz and of their next of kin, and also the
alleged violations of Article 19 (Rights of the Child) of the Convention with regard to
Ernestina and Erlinda.
1
Cf. Case of Carpio Nicolle et al.. Judgment of November 22, 2004. Series C No. 117, para. 128;
ICourtHR Case of the Plan de Sánchez Massacre. Reparations (Art. 63(1) American Convention on Human
Rights). Judgment of November 19, 2004. Series C No. 116, para. 97; Case of Tibi. Judgment of
September 7, 2004. Series C No. 114, para. 257; Case of the Gómez Paquiyauri Brothers. Judgment of
July 8, 2004. Series C No. 110, para. 230; Case of the 19 Tradesmen. Judgment of July 5, 2004. Series C
No. 109, para. 261; Case of Molina Theissen. Reparations (Art. 63(1) American Convention on Human
Rights). Judgment of July 3, 2004. Series C No. 108, para. 81; Case of Myrna Mack Chang. Judgment of
November 25, 2003. Series C No. 101, para. 274; Case of Bulacio. Judgment of September 18, 2003.
Series C No. 100, para. 114; Case of Trujillo Oroza. Reparations (Art. 63(1) American Convention on
Human Rights). Judgment of February 27, 2002. Series C No. 92, para. 114; f. Reparations (Art. 63(1)
American Convention on Human Rights). Judgment of February 22, 2002. Series C No. 91, para. 76; Case
of Cantoral Benavides. Reparations (Art. 63(1) American Convention on Human Rights). Judgment of
December 3, 2001. Series C No. 88, para. 69; Case of the “Street Children” (Villagrán Morales et al.).
Reparations (Art. 63(1) American Convention on Human Rights). Judgment of May 26, 2001. Series C No.
77, para. 100; Case of the “Panel Blanca” (Paniagua Morales el al.). Reparations (Art. 63(1) American
Convention on Human Rights). Judgment of May 25, 2001. Series C No. 76, para. 200; Case of Barrios
Altos. Judgment of March 14, 2001. Series C No. 75, para. 47 and 48; Case of Bámaca Velásquez.
Judgment of November 25, 2000. Series C No. 70, paras. 200-202; and Case of Castillo Páez. Judgment
of November, 1997. Series C No. 34, paras. 86 and 90.
2
Cf. Case of the “Juvenile Reeducation Institute”. Judgment of September 2, 2004. Series C No.
112, paras. 152, 159, 164, 167, 170 and 171; and Case of the “Street Children” (Villagrán Morales et al.).
Judgment of November 19, 1999. Series C No. 63, para. 144, 147 and 191.
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