45
cases provided in the American Convention on Human Rights. 135
124. In relation to the illicit abduction and appropriation of children, Argentine
jurisprudence determined that it affected the right to identity of the victims every
time that the children's civil status had been changed and there had been an
attribution of birth information that hindered knowing the true identity, eliminating
any indication of the true origin and preventing contact with the true family
members. 136 In this same sense, the Federal Chamber of Appeals of La Plata,137 in
relation to the identity of children abducted in Argentina, and citing a minority
opinion of the Federal Chamber of Appeals of La Plata, stated that “[t]he social
recognition of the prevailing right of the family to educate the children they
biologically bring to life, is based on the fact that entails a strong scientific basis,
which is a genetic inheritance from accumulated cultural experiences by the previous
generations,” adding that “the personality is not formed, then, in a process only
determined through the transmission of attitudes and values by the parents and
other members of the family group, but also by the hereditary dispositions of the
person, whereupon the normal way of formation of the identity is a result of the
biological family,” concluding that “the right of the child is, primarily, the right to
acquire and develop an identity, and, consequently, to the acceptance and
integration by the family nucleus to which the child is born into.” 138
125. On the other hand, the right to protection of the family and to live within it,
recognized in Article 17 of the Convention implies that, the State must not only offer
and directly execute measures for the protection of children, but that it also must
favor, in the broadest sense, the development and strengthening of the family
nucleus.139 Thus, the separation of children from their family constitutes, under
certain conditions, a violation of the mentioned right, 140 since even the legal
separations of a child from his or her family can proceed only if they are duly
justified as being in the best interest of the child, and are under exception, and
where possible, temporary. 141
126. Specifically in the early childhood years of María Macarena Gelman, there was
an illegal interference by the State in her biological family, which violated the right to
135
Cf. Inter-American Juridical Committee, Opinion, supra note 133, para. 12.
136
Cf. Oral Tribunal on Federal Criminal Matters No. 6 of the Federal Capital de Argentina, captioned
orders "REI, Víctor Enrique s/abductionof minors under 10 years of age", supra note 55.
137
Cf. Federal Appeals Chamber of La Plata, Argentina, Third Chamber, in captioned orders "C., O.O.
s/infraction of articles 139 section 2° and 293 of the Penal Code,” Claim No. 08.787, of December 9,
1988, minority vote of Judge Leopoldo Schiffrin.
138
Cf. Oral Tribunal on Federal Criminal Matters No. 6 of the Federal Capital of Argentina, captioned
orders " Zaffaroni Islas, Mariana s/ av. circumstances surrounding the disappearance - FURCI, Miguel
Ángel-González de FURCI, Adriana", Claim No. 403, on August 5, 1994, vote of Judge Mansur in the
majority position.
139
Cf. Advisory Opinion OC-17, supra note 131, para. 66; Case of of the Serrano Cruz Sisters V. El
Salvador. Merits, Reparations and Costs. Judgment of March 01, 2005. Series C No. 120, para. 141, and
Case of Chitay Nech, supra note 63, para. 157.
140
Cf. Advisory Opinion OC-17, supra note 131, paras. 71 and 72; and 72; Case of The Dos Erres
Massacre, supra note 127, para. 187, and Case of Chitay Nech et al., supra note 63, para. 157.
141
Cf. Advisory Opinion OC-17, supra note 131, para. 77.
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