Court/Judicial body: Inter-American Court of Human Rights
Date: February 24, 2011 CRC
Provisions: Article 6: Survival and development Article 7: Name and nationality Article 8: Preservation of identity Article 9: Separation from parents Article 11: Illicit transfer and non-return Article 16: Protection of privacy Article 18: Parental responsibilities
Other international provisions:American Convention on Human Rights, Articles 17, 19International Convention for the Protection of all Persons from Enforced Disappearance, Article 25
Background: Maria Macarena Gelman was born in 1976 in Uruguay, where her Argentinian mother and father were held as political prisoners following a joint operation between military dictatorships in Argentina and Uruguay. Maria’s parents were later allegedly tortured and killed by the Uruguayan military, and she was raised by a Uruguayan policeman and his wife. Maria knew nothing of her true identity until her paternal grandfather found her decades later. After learning the truth, she and her grandfather sued Uruguay over her kidnapping and the kidnapping and murder of her parents.
Issue and resolution: Disappearance; kidnapping. The Court found that Maria’s kidnapping and transfer to another family constituted a gross violation of her human rights, including her right to special protection.
Court reasoning: As a child, Maria was end to special protection under the American Convention on Human Rights, which the Court interpreted in light of the Convention on the Rights of the Child. In particular, Uruguay violated her rights to identity, nationality and family relationships under Articles 7, 8 and 9 of the Convention by removing her mother from Argentina, preventing her from developing relationships with her parents, and hiding her true identity from her.
Excerpt citing CRC and other relevant human rights 121. In the first place, as a child, Maria Macarena Gelman had the right to special measures of protection, which under Article 19 of the [American] Convention correspond to the family, society, and the State. Therefore, the rights recognized in Articles 3, 17, 18, and 20 of the Convention should be interpreted in consideration of the corpus juris of the rights of the child and, in particular, in the specific circumstances of the present case, in harmony with the other provisions that affect children, particularly Articles 7, 8, 9, 11, 16, and 18 of the Convention on the Rights of the Child. 122. In this manner, the referred situation affected what has been named the right to identity. Although this right is not expressly established in the Convention, it is possible to determine it on the basis of that provided in Article 8 of the Convention on the Rights of the Child, which establishes that said right encompasses the right to nationality, to a name, and to family relationships. Likewise, it can be conceptualized as the collection of attributes and characteristics that allow for the individualization of the person in a society, and, in that sense, encompasses a number of other rights according to the subject it treats and the circumstances of the case. … 130. The proven facts also affected the right to life, enshrined in Article 4(1) of the Convention, to the detriment of Maria Macarena Gelman, in the extent that, due to said separation, her survival and development was placed at risk, that which the State was obligated to ensure, pursuant to the provisions of Article 19 of the Convention and Article 6 of the Convention on the Rights of the Child, particularly through the protection of the family and the non-interference of an unlawful or arbitrary nature in the family life of the children, given that family plays an essential role in their development.
CRIN comments: CRIN believes this decision is consistent with the CRC. As recognised by the Court, children have the rights to name, nationality, identity, and to be raised by their parents as far as possible under Articles 7, 8 and 9 of the Convention. Children should be able to enforce these rights directly in court and seek compensation from offending States, especially where they have violated children’s rights in a systematic fashion as here.
Citation: Gelman v. Uruguay, Merits and Reparations, Inter-Am Ct. H.R., Series C No. 221 (February 24, 2011)
Link to full judgement: http://www.corteidh.or.cr/docs/casos/articulos/seriec_221_ing.pdf