his or her parents without any type of constraint or interference.146 In that respect, the IACHR understands that
the right to a name is included in Article V of the American Declaration.
140.
Furthermore, in the case of Gelman, the Inter-American Court established that the state’s grave illegal
interference in the family violated the right to protection of the family when preventing or obstructing
permanence with the nuclear family and the reestablishment of relationships with it.147 Likewise, the InterAmerican Commission has considered that, in cases such as the present one, there is a double violation of the
right to a family. On the one hand the breakup of the family triggered in the context of grave and systematic
human rights violations and, on the other hand, depriving children of their right to enjoy a family life as a result
of forced disappearance.148
141.
Regarding the right to a nationality, the Inter-American Commission has pointed out that the right of
all persons to keeping their nationality is the obligation stemming from the absolute prohibition of arbitrarily
depriving them of their nationality.149 The IACHR notes regarding this that, although Article XIX of the American
Declaration does not expressly forbid the arbitrary deprivation of nationality, this obligation is a necessary
corollary of the state’s duty to guarantee the right of every person “to the nationality that legally corresponds
to him or her.” Likewise, the Commission has established that international recognition of nationality as a
human right of all persons imposes on states the obligation to prevent and eradicate statelessness, a legal
situation in which all persons who are not recognized by any state as nationals are found.150
142.
According to the Inter-American Court, the right to a nationality, as a legal link between a person and
a state, is a prerequisite for anyone to exercise certain rights. As a result, the right to nationality involves the
state’s duty to protect the person against arbitrary deprivation of his or her nationality and, therefore, the
totality of his or her political rights and those civil rights that depend on it.151
143.
Finally, Article VIII of the American Declaration expressly establishes that all persons have the right to
abandon the state of which they are the nationals only when they wish to do so. The Inter-American Court has
established, regarding this, that “it also imports, when children are involved, the obligation to consider the
specific protection that is involved, for example, that they not be arbitrarily denied a family medium and that
they not be retained and illicitly transferred to another State.”152
2.
Analysis of the case
144.
In section B above, the Commission concluded that there was a forced disappearance with respect to
the Larrabeiti Yáñez siblings from September 26, 1976 to August 2, 1979, the date on which they recovered
their identities and reestablished their biological kindship. The Commission shall examine below whether or
not, during the almost three years that the siblings remained disappeared, another series of violations were
committed relative to their right to an identity, especially the rights to a family, to a name, to private life, and
to a nationality. Likewise, the Commission shall examine whether or not the facts of the instant case constitute,
in addition, a violation of the right to residence and freedom of movement.
145.
First of all, the Commission observes that, after the unlawful deprivation of liberty of the Larrabeiti
Yáñez siblings and their stay in “Orletti,” they were transferred secretly without the consent of their next of kin
and without any type of border control, which according to the above-mentioned case law is tantamount to the
unlawful transfer of children to another state and a forced exit from the country of which Victoria was a national
and of which Anatole was a resident in addition to being the son of a refugee. The Commission also notes that
I/A Court H.R. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para. 127.
I/A Court H.R. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para. 135.
148 IACHR. Application lodged before the Inter-American Court. Case No. 12.517. Gregoria Herminia Contreras et al., El Salvador, June 28,
2010, para. 118.
149 IACHR. Human Rights of Migrants, Refugees, Stateless Persons, Victims of Human Trafficking and Internally Displaced Persons: Norms
and Standards of the Inter-American Human Rights System. OEA/Ser.L/V/II.Doc.46/15. December 2015, para. 467.
150 IACHR. Human Rights of Migrants, Refugees, Stateless Persons, Victims of Human Trafficking and Internally Displaced Persons: Norms
and Standards of the Inter-American Human Rights System. OEA/Ser.L/V/II.Doc.46/15. December 2015, para. 470.
151 I/A Court H.R. Case of the Girls Yean and Bosico v. Dominican Republic. Judgment of September 8, 2005. Series C No. 130, para. 137-139.
152 I/A Court H.R. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para. 128.
146
147