25
87.
In this regard, the Court has noted that both the Commission and the
representatives have submitted various facts to the Court’s consideration related to
alleged violations of Articles 4, 5, 17, 18 and 19 of the American Convention, in
relation to Article 1(1) thereof, which had allegedly occurred after recognition of the
Court’s jurisdiction and in the context of the alleged lack of an investigation at the
domestic level to determine what happened to Ernestina and Erlinda Serrano Cruz.
In other words, the Commission and the representatives established a close
connection between some of the alleged violations of Articles 4, 5, 17, 18 and 19 of
the American Convention, and the alleged violation of Articles 8 and 25 of the
Convention, in relation to Article 1(1) thereof.
88.
Regarding the violation of Article 4 of the Convention, the Commission
indicated that there had been “a total absence of adequate measures of
investigation”; and that, “[i]n some cases when the respective State has not
investigated allegations of arbitrary deprivation of life, the international courts have
determined their responsibility for violating this fundamental right.”
89.
In the case of the alleged violation of Article 5 of the Convention, the
Commission indicated in its final oral and written arguments that, owing to “the
failure to comply with its obligation to investigate what happened,” the State had
violated the mental and moral integrity of the Serrano Cruz sisters, because “they
continue to be deprived of their identity and contact with their biological family.” The
Commission also indicated that the next of kin of Ernestina and Erlinda are allegedly
direct victims of the violation of Article 5 of the American Convention “because they
do not know the whereabouts of [the girls], which causes them great anguish.” The
representatives added that the next of kin of Ernestina and Erlinda have suffered
frustration and impotence owing to the failure of the public authorities to investigate
the facts, “punish [those] responsible,” and due to the “denial of justice.”
90.
Regarding the violation of Article 17 of the Convention, to the detriment of
the Serrano Cruz sisters and their next of kin, the Commission stated that “the lack
of diligence in the investigation and determination of the whereabouts [of Ernestina
and Erlinda], constitutes a violation of the rights protected by Article 17 of the
Convention.” Both the Commission and the representatives mentioned that,
according to Protocol II additional to the Geneva Conventions of 12 August 1949, the
State has the obligation not only to allow the next of kin to carry out a search, but
also to facilitate it with “timely measures” such as the identification and registration
of children for family reunification. The representatives also indicated that “far from
taking any measure of this type, [El Salvador] ensured non-reunification […] by
different acts and omissions,” such as the creation of obstacles to prevent finding
Ernestina and Erlinda, and the way in which the criminal investigation has been
carried out “owing to the lack of impartiality and diligence” with which it was
conducted. In this regard, the representatives indicated expressly that these
arguments refer to events relating to the alleged violation of Articles 8 and 25 of the
Convention.
91.
Regarding the alleged violation of Article 18 of the American Convention, the
Commission indicated that “[t]he State’s obligation to clarify the facts and establish
the whereabouts of the two disappeared children subsists fully in the instant case,
[because] if they are still alive, Ernestina and Erlinda Serrano Cruz have the right to
know their origins, which complements the right of the next of kin to know their
whereabouts.” The representatives argued that “the State has also violated the right
to identity of the girls by trying to deny their existence before the Court.”
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