- 4in relation to determining what happened to the children who disappeared during the
internal armed conflict. The Court must examine the problem comprehensively,
bearing in mind that, as has been proved, the search for, tracing and finding of the
disappeared children, as well as the process of family reunification should the search
be successful, is a complex situation for rebuilding the lives and identities of those
who are found, their biological families and Salvadoran society itself (supra para.
48(7)).
132. The Court observes that every person has the right to an identity. This is a
complex right which, on the one hand has a dynamic aspect linked to the evolution
of the personality of the individual, and includes a series of attributes and
characteristics that allow each person to be individualized as unique. Personal
identity starts from the moment of conception and its construction continues
throughout the life of the individual, in a continuous process that encompasses a
multiplicity of elements and aspects which exceed the strictly biological concept and
correspond to the biographical and “personal reality” of the individual. These
elements and attributes, which comprise personal identity, include such varied
aspects as a person's origin or “biological reality,” and his cultural, historical,
religious, ideological, political, professional, family and social heritage, as well as
more static aspects relating, for example, to physical traits, name and nationality.
133. Diverse international legal instruments recognize the right to personal
identity.3 In El Salvador, an individual's right to identity is enshrined in Article 203 of
the Family Code on the rights of children, and in Article 351(3) of this code, on the
fundamental rights of minors.
134. Even though the right to identity is not explicitly established in the American
Convention, it is protected in this treaty based on an evolutionary interpretation4 of
the contents of the rights embodied, inter alia, in Articles 3, 4, 5, 11, 12, 13, 17, 18,
19 and 20 thereof. Depending on the facts, there could be a violation of the right to
identity if one or several of these provisions are infringed. In other words, the right
to identity would not always be violated when one of these articles is violated, and
the matter must be examined on a case-by-case basis.
135. Given the nature of the facts of this case, the Court will examine the possible
violation of Articles 17 and 18 of the American Convention, in relation to Article 1(1)
thereof, and whether it violates the right to identity of the sisters, Ernestina and
Erlinda Serrano Cruz, and their next of kin. The Court observes that the rights to
protection of the family and to a name establish a protection that provides content to
the individual's right to an identity, and some of the rights that the Commission and
the representatives alleged were violated in this case are elements of this
comprehensive legal figure.
3
Cf. The United Nations Convention on the Rights of the Child, Articles 7, 8 and 29(1); the
International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families, Articles 17, 21 and 31; the Declaration on Race and Racial Prejudices, Articles 1(3) and 5(1);
and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, Article 1(1).
4
Cf. Case of the Serrano Cruz Sisters. Preliminary Objections. Judgment of November 23, 2004.
Series C No. 118, para. 119; Case of Tibi. Judgment of September 7, 2004. Series C No. 114, para. 144;
and Case of the “Juvenile Reeducation Institute”. Judgment of September 2, 2004. Series C No. 112, para.
148.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos