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The child has the right to live with his or her family, which is responsible for satisfying his or her
material, emotional, and psychological needs. Every person’s right to receive protection against
arbitrary or illegal interference with his or her family is implicitly a part of the right to protection of
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the family and the child (...) .
203.
The same Tribunal, citing the European Court of Human Rights, has determined that
mutual enjoyment of harmonious relations between parents and children is a fundamental component of
family life and that the essential content of this precept is protection of the individual in face of arbitrary
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action by public authorities. One of the gravest interferences is that which leads to division of a family .
204.
All of the foregoing, examined in the light of the obligations of the State under Articles 17
and 19 of the American Convention, means that even in a state of emergency the State, through its
agents, must ensure the protection of the family institution as an essential mechanism for the protection
of the rights of the children under its jurisdiction. Therefore, if a child is separated from their family
nucleus, the State should seek to preserve that link by intervening temporarily and directing its efforts
toward the return of the child to their family and community, provided that is not contrary to their best
interests. The Inter-American Court of Human Rights has established very clearly that in such situations
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children should be returned to their parents as soon as circumstances permit .
205.
In the instant case, it was the Salvadoran State itself which, through its Armed Forces,
provoked the separation of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena
Hernández, Manuel Antonio Bonilla, and Ricardo Ayala Abarca from their families of origin by forcibly
disappearing them.
206.
Some of the victims in the instant case were of sufficient age to be aware of the names of
their family members and where they lived. It is apparent that the soldiers who took the children who are
the victims in this case did not attempt to establish their identity so as to make family reunification
possible. To the contrary, the way in which the events unfolded – considered proven by the Commission,
and recognized by the State – shows that the military officials sought the separation of the children from
their families of origin through persecution of the families, the state of terror that was generated, and even
their assassination, as for example in the case of the mother of José Adrián Rochac Hernández, who was
executed moments before the child was abducted. All this was done under the doctrine of “taking the
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water from the fish” , a state strategy that consisted of attacking primarily the rural populations in the
areas considered to have guerrilla activity, leading, among other things, to the deaths of many civilians,
the separation of families, the forced displacement of entire communities, the abduction of children, and
the destruction of property.
207.
In addition to the responsibility derived from the State’s actions at the very moment of
carrying out the forced disappearances of the children with the aim of separating them from their families
of origin, this violation continues to the present day, since adequate and effective measures have not
been taken to conduct a serious search for the victims or to determine their fate or whereabouts. This
omission has for more than three decades impeded re-establishing the family tie and, consequently,
restoring the identity of the victims.
208.
In view of the foregoing considerations, the Inter-American Commission concludes that
the Salvadoran State breached the obligations established in Article 19 of the Convention in relation to
the obligations established in Article 1(1) of the same instrument, to the detriment of José Adrián Rochac
Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla, and Ricardo
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I/A Court H.R., Advisory Opinion OC-17 of August 28, 2002, par. 71.
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I/A Court H.R., Advisory Opinion OC-17 of August 28, 2002, par. 72.
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I/A Court H.R., Advisory Opinion OC-17 of August 28, 2002, pars. 75 and 77.
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Report of the El Salvador Truth Commission. Cases and patterns of violence A and B.