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b)
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Right to a name
159. Article 18 of the American Convention protects the right to a given name and
to the surnames of the parents or that of one of them. This right presumes that
everyone, from the moment of birth, has the right to be legally registered
immediately, since without this registration a person would remain legally unknown
to society and the State, because a name is the simplest means of identification and
individualization of a person. It is also the element that indicates the direct family
relationships and makes access to other rights possible.
160. The right to a name is also expressly recognized in Article 36 of the
Constitution of El Salvador, Article 7(1) of the Convention on the Rights of the Child
and Article 6(1) of the African Charter on the Rights and Welfare of the Child.
Moreover, even though the European Convention on Human Rights and Fundamental
Freedoms does not contain a specific norm that expressly embodies the right to a
name, the European Court has established that this right is protected in the provision
contained in Article 8 of this Convention on the protection of private and family life,
when it stated that:
Article 8 does not contain any explicit reference to names. Nonetheless, since it
constitutes a means of personal identification and a link to a family, an individual's name
does concern his or her private and family life.18
161. This Court considers that the scope of the protection of the right to a name
embodied in Article 18 of the Convention exceeds the State's obligation to ensure the
adequate conditions for a person to be duly registered as soon as they are born. The
State must also adopt the necessary measures to preserve the given name and
surname with which a person has been registered and, should there have been any
alteration or modification, it has the obligation to re-establish the given name and
surname with which the person was originally registered, if applicable.
162. In this regard, the Court observes that the State has not determined the fate
of the sisters, Ernestina and Erlinda Serrano Cruz, whether they are alive, or whether
they know their real name and identity, even though their next of kin have resorted
to the State authorities to request an investigation. Ernestina and Erlinda's mother
and siblings have requested the State to respond to them, in order to know the truth
of what happened to Ernestina and Erlinda, and El Salvador has not provided them
with any relevant information. In this regard, the Court declared that Articles 8(1)
and 25 of the Convention had been violated owing to the lack of a diligent
investigation and to violation of the principle of reasonable time.
163. El Salvador told the Inter-American Commission and the Court that the
sisters, Ernestina and Erlinda, had been abandoned by their parents and handed over
to the Red Cross, and has even questioned their existence. Nevertheless, given the
proven fact that many of the children who entered children's homes during the
armed conflict lacked identity documents and were therefore frequently registered in
the mayors' offices with the given name and surnames of those who had brought
them up or of a fictitious person in order to register the child (supra para. 48(11)),
the Court observes that it is possible that, if they are alive, the sisters have a
18
Cf. Stjerna v. Finland, judgment of 25 November 1994, Series A, n. 299-B, p. 60, § 37;
Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24.
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