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Given the need to protect the best interests of the children referred to in paragraph 1 ( a ) of this
article and their right to preserve, or to have re-established, their identity, including their nationality,
name and family relations as recognized by law, States Parties which recognize a system of
adoption or other form of placement of children shall have legal procedures in place to review the
adoption or placement procedure, and, where appropriate, to annul any adoption or placement of
children that originated in an enforced disappearance.
153.
For its part, the then-UN Commission on Human Rights adopted resolutions in which it
decided to continue to give particular consideration to cases of children subjected to enforced
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disappearance and to cooperate with the governments concerned in their identification. .
154.
In its reports to the now-United Nations Human Rights Council, the Working Group on
Enforced or Involuntary Disappearances, has noted that children are also victims of disappearances, both
directly and indirectly. The disappearance of a child, his/her wrongful removal, and the loss of a parent
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through disappearance are serious violations of children's rights .
155.
In the report on its mission to Argentina, this Working Group, in reference to the chapter
on “missing children and pregnant women” in the 1984 Report of the National Commission on the
Disappearance of Persons, mentioned:
A specific phenomenon that occurred in the country under the military dictatorship from 1976 to
1983 in the Argentine Republic was the enforced disappearance of children and children born in
captivity. The children were removed, stripped of their identity, and torn from their families. It was
also common for children to be abducted by military commanders, who would take them into their
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families as their own children. .
156.
Recently, in the case of Contreras et al. v. El Salvador, the Inter-American Court found
that in effect the practice of appropriating children in the same context in which the facts of the instant
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case occurred was a form of forced disappearance of persons.
157.
Taking account of the foregoing references, the Commission must analyze whether the
facts that have been established in the instant case are in line with the concept of forced disappearance.
Although the Salvadoran State is not a party to the Inter-American Convention on Forced Disappearance
of Forces, the definition established in it may be used for this analysis, as it represents a consensus
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version of the matter. Article II of that instrument indicates that “forced disappearance is considered to
be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by
agents of the state or by persons or groups of persons acting with the authorization, support, or
acquiescence of the state, followed by an absence of information or a refusal to acknowledge that
deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or
her recourse to the applicable legal remedies and procedural guarantees.”
158.
The facts that the Commission has considered established in the instant case indicate
that José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel
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UN Commission on Human Rights. Question of enforced or involuntary disappearances Resolution 2000/37.
134
UN Human Rights Council. Report of the Working Group on Enforced or Involuntary Disappearances. A/HRC/10/9. 25
February 2009. par. 456.
135
UN Human Rights Council. Report of the Working Group on Enforced or Involuntary Disappearances. Addendum.
Mission to Argentina. A/HRC/10/9/Add.1. 5 January 2009. par. 10 [unofficial translation].
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I/A Court H.R., Caso Contreras y otros Vs. El Salvador. Merits, Reparations, and Costs. Sentencia de 31 de agosto de
2011 Serie C No. 232, párrs. 50 – 55.
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See joint separate vote by judges García-Sayán and García Ramírez, in the case of Ticona Estrada et al. I/A Court
H.R. Case of Ticona Estrada et al. v. Bolivia. Merits, Reparations, and Costs. Judgment of November 27, 2008. Series C No. 191.