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169. The Court considers that, while what happened to the Serrano Cruz sisters
and their whereabouts have not been determined, they cannot be aware of their real
given name and surnames and, consequently, their family relations. This places the
State in a position where it has the obligation to carry out a search encompassing all
the different situations in which the Serrano Cruz sisters may be.
170. Furthermore, the right to a name includes the right of the next of kin to
recognition of the relationship linking them to Ernestina and Erlinda Serrano Cruz,
and this persists even after death. For the family, the given name and surnames that
the parents gave them when they were born signify recognition of their family
relations. By violating Ernestina and Erlinda's right to a name and questioning their
very existence, the State denies their relationship to their next of kin.
171. The Court also observes that, in defending itself in the proceedings before the
Inter-American Court, the State has alleged the possible inexistence of the sisters,
Ernestina and Erlinda Serrano Cruz, “combined with the financial interest” of their
mother. At the same time, during the criminal proceedings before the Chalatenango
Trial Court, it appears that the prosecutor’s requests and the judge’s actions were
addressed at investigating the identity and existence of Ernestina and Erlinda
Serrano Cruz (supra para. 48(68) to 48(77)). To this end, the judge, at the request
of the prosecutor, ordered several expert appraisals to be carried out to verify the
authenticity of the baptismal records of Ernestina and Erlinda Serrano Cruz kept by
the Catholic Church, even though, in addition to these records, their births were
registered in the Registry Office. While the Special Transitory Law to establish the
civil status of undocumented persons affected by the conflict was in force, Mrs. Cruz
Franco registered her daughters, Ernestina and Erlinda Serrano Cruz, in the
respective mayors' offices (supra para. 48(10)), under the first names that she and
her husband had chosen when her daughters were born and the last names of their
parents.
172. In its preamble, this law recognizes that “the violence experienced by El
Salvador for more than ten years gave rise to the emigration of Salvadorans to other
countries, which prevented the establishment of their usual necessary and correct
filiation and registration in the registry offices.” Consequently, Article 4 of this law
established that “[t]he registry office registrations and the certifications issued under
[the said] law [by] the respective heads of the registry office or [by] the municipal
mayors, w[ould] have the effects established in the Civil Code and other laws.”
Therefore, the State has not accorded the appropriate legal effects to the civil
registrations of Ernestina and Erlinda.
173. The Court has noted that, by changing the course of the investigation in the
criminal case before the Chalatenango Trial Court (supra para. 48(68) to 48(77)),
the prosecutor and the judge of the criminal case being heard in this court only
summoned to testify those persons who had stated they did not know of the
existence of the sisters, Ernestina and Erlinda Serrano Cruz. However, they failed to
summon those persons who had stated before the Ombudsman's office that they
knew these sisters. In this regard, that Office mentioned the testimony of four
persons who stated they knew Ernestina and Erlinda Serrano Cruz, including that of
Felicita Franco, given on February 17, 2004, stating that she attended Mrs. Cruz
Franco during Ernestina's birth. The representatives also presented the sworn written
statement made by Felicita Franco before notary public on December 11, 2003, as an
attachment to their written arguments on preliminary objections (supra para. 6). In
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