55
190. The same can be inferred from the provisions contained in the Convention on
the Rights of the Child, which establishes that the rights of children require not only
that the State should abstain from improperly interfering in the private or family
relationships of a child, but also to adopt positive measures to ensure full enjoyment
of his/her rights. This requires the State, within its responsibility over the public
welfare, to protect the family’s superior role in protecting the child; and to offer
assistance to the family by means of public authorities, through the adoption of
measures that promote the family unit. 218
191. Finally the Court notes that, within the context of an internal armed conflict,
the State’s obligations toward children are defined in Article 4(3) of the Geneva
Conventions’ Additional Protocol II. This Article establishes that: “the children will be
provided with the care and help they need, and, particularly: […] b) the timely
measures to facilitate the reunion of the temporarily separated families will be taken
[…]”. According to the International Committee of the Red Cross, this obligation has
been defined as follows: “the parties to the conflict should do everything possible to
reestablish family ties, that is, not only allow the members of the dispersed families
to search for their next of kin, but also facilitate this search.” 219
*
*
*
192. In relation to the right to a name, the Court notes that it has established in its
jurisprudence that the “right to a name, recognized in Article 18 of the American
Convention, constitutes a basic and indispensable element of each person’s
identity.”220 In this regard, the Court has indicated that “the States should guarantee
that a person is registered with the name chosen by that person or his/her parents,
depending on the time of the registration, without any sort of restriction on the right
nor interference with the decision to choose a name. Once the person is registered,
their possibility to preserve and reestablish their name and surname should be
guaranteed. The names and surnames are essential to formally establish a link
between the various members of the family.” 221
193. The European Court also ruled on the matter of the right to a name that “is a
means of personal identification and of relation or incorporation to the family, the
name of a person affects the family […] life of this person.” 222
194. Based on the foregoing considerations, it is the Court’s role to determine
whether the State is responsible for the violations of the right to a name, rights of
the family, and rights of the child, to the detriment of Ramiro Osorio Cristales. To this
end, the Court reiterates that as of March 9, 1987, when Guatemala recognized the
Court’s jurisdiction, Ramiro Osorio Cristales was separated from his family, living
under another name and identity, and with a family that was not his own. The
separation from his family persisted until 1999, when Ramiro Osorio Cristales
reunited with his biological family. Likewise, the name change, based on his
218
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra note
204, para. 88.
219
Commentary on additional Protocol II to the Geneva Conventions of 1949 regarding the protection
of the victims of armed conflicto that are not of an international character. Section B. Reunion of Families,
para. 4553, Available at http/www.icrc.org.
220
Case of the Girls Yean and Bosico v. Dominican Republic, supra note 204, para. 182.
221
Case of the Girls Yean and Bosico v. Dominican Republic, supra note 204, para. 184.
222
Eur. Court. H.R., Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280 – 3,
p. 28 para. 24 “[…] Article 8 (art. 8) of the Convention does not contain any explicit provisions on names.
As a means of personal identification and of linking to a family, a person’s name none the less concerns his
or her private and family life”.
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