-73b)
“In several cases in which the States in question had failed to
investigate allegations of deprivation of life, the international courts have
determined that those States violated this fundamental right.” The failure to
clarify the facts is attributed to “the complete absence of adequate measures
of investigation, which correspond exclusively to the State”; and
c)
“The State […] wants the Court to apply the principle of estoppel,”
because the Commission and the representatives have stated that the sisters,
Ernestina and Erlinda Serrano Cruz, “were given up in adoption.” However,
neither the Commission, nor the petitioner, nor the representatives “could be
certain that [the sisters] have been adopted, because they have no probative
elements about the children’s whereabouts, which should have been provided
by the State.”
Arguments of the representatives of the alleged victims and their next of kin
127. The representatives referred to the alleged violation of Article 4 of the
Convention in their requests and arguments brief, and stated that “they harbor[ed]
the hope that Erlinda and Ernestina [were] still alive,” although “their whereabouts
were unknown and, what is worse, whether they are alive or dead” and that “the
State has the obligation to look for them and to provide detailed information about
the children’s whereabouts and, if applicable, disprove that it was responsible for the
violations to which they were [allegedly] subjected.”
Arguments of the State
128.
With regard to Article 4 of the Convention, the State indicated that:
a)
“In their briefs, the plaintiffs and the representatives of the alleged
victims have stated that the Serrano Cruz children were given up in
adoption”; therefore, the State “invokes the principle of estoppel”;
consequently, the allegation regarding the violation of Article 4 of the
Convention should not be admissible. In addition, the alleged victims’ mother
and a member of Pro-Búsqueda also presumed they had been given up in
adoption;
b)
It had not violated this article, “because it had not arbitrarily deprived
the children of their lives (negative obligation), [and] also it had taken the
appropriate measures to protect and preserve this right of the Serrano Cruz
children by picking them up in a combat zone and in a state of abandon,
[and] handing them over to the Salvadoran Red Cross (positive obligation),
as established in humanitarian law”; and
c)
It regrets “that, despite its efforts, to date, it has been impossible to
trace the Serrano Cruz children, since the Salvadoran Red Cross and the ICRC
do not have any information or files that would allow this to be clarified.” The
Salvadoran Red Cross and the ICRC handed children over to orphanages and
children’s homes.
Considerations of the Court:
129.
that:
Regarding the right to life, Article 4(1) of the American Convention stipulates