Court/Judicial body: Inter-American Court of Human Rights
Date: March 1, 2005 CRC
Provisions: Article 3: Best interests of the child Article 7: Name and nationality Article 8: Preservation of identity Article 20: Protection of a child without family Article 38: Armed conflicts Article 39: Rehabilitative care
Other international provisions:American Convention on Human Rights, Articles 4 (right to life), 5 (humane treatment), 7 (personal liberty), 8 (fair trial), 17 (rights of the family), 18 (right to a name), 19 (rights of the child), 25 (judicial protection), 27, 50 and 61International Covenant on Civil and Political Rights, Articles 17 (right to private and family life), 23 (right to protection)International Covenant on Economic, Social and Cultural Rights, Article 10 (rights of the family)African Charter on Human and Peoples’ Rights, Article 6 (right to a name)European Convention on Human Rights, Articles 2 (right to life), 8 (right to private and family life)Universal Declaration of Human Rights, Articles 12 (right to private and family life), 16 (right to marry)American Declaration on the Rights and Duties of Man, Article V (right to protection)Convention on the Protection of the Rights of All Migrant Workers and their Families; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural RightsInter-American Convention on the Forced Disappearance of PersonsProtocol (II) Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts
Background: During a period of internal armed conflict, the Serrano Cruz family was forced to abandon their home, separate from one another and go into hiding. Two of the family’s children, sisters aged 3 and 7, were later discovered, captured and abducted by the Salvadoran army. After their mother unsuccessfully attempted to force the Salvadoran courts to investigate their disappearance, the Inter-American Commission on Human Rights brought a complaint claiming violations of Articles 4 (right to life), 7 (right to personal liberty), 18 (right to a name), and 19 (rights of the child) of the American Convention on Human Rights in relation to the sisters and Articles 5 (right to humane treatment), 8 (right to a fair trial), 17 (rights of the family) and 25 (judicial protection) of the Convention in relation to the sisters’ family members.
Issue and resolution: Disappearance. The Court did not rule on the alleged violations of the sisters’ rights, but found violations of the family members’ rights to humane treatment, a fair trial and judicial protection.
Court reasoning: The Court did not examine claims relating directly to the sisters’ disappearance as this occurred before El Salvador’s acceptance of the Court’s jurisdiction. However, looking in part to the Convention on the Rights of the Child, the Court did find that an effective remedy had not been provided to the sisters’ family members in the years following the disappearance. Specifically, the Salvadoran criminal courts’ lengthy delay in investigating the sisters’ disappearance was itself a violation of the right to a fair trial, denying the family members their right to know the truth of what happened and the opportunity to hold those responsible for the disappearance accountable for their actions. Noting the suffering caused to the sisters’ family members by the State’s refusal to provide information, the Court also found violations of the family’s right to humane treatment. As such, the Court ordered that, among other things, El Salvador provide reparations to the victims, launch an effective investigation into the sisters’ disappearance, and establish a national commission to trace persons who disappeared during the armed conflict when they were children. Dissent: Given, among other things, the key importance of the rights of the child to this case, the Court should have examined and ruled on the alleged violations of the sisters’ rights.
Excerpt citing CRC and other relevant human rights 117. With regard to Article 18 of the Convention, in relation to Article 1(1) thereof, the Commission stated that: a) As the International Jurists Commission had indicated, the right to identity, particularly in the case of children and of forced disappearance, is a complex legal issue that acquired relevance with the adoption of the Convention on the Rights of the Child. This right has been recognized by case law and by legal writings as both an autonomous right and as the expression of other rights or as a constituent element of these. The right to identity is intimately associated with the right to the recognition of legal personality, the right to a name, a nationality, and a family and to have family relationships. The total or partial suppression or modification of the right of the child to preserve his identity and its intrinsic elements entails State responsibility… … 120. With regard to Article 18 of the Convention, in relation to Article 1(1) thereof, the representatives stated that: a) The right to a name is linked intrinsically to recognition of personal identity, which also implies belonging to a family and to a community. In this regard, the Court should use the Convention on the Rights of the Child to interpret the content of Article 18 of the American Convention… … 122. With regard to Article 17 of the Convention, the State alleged that… d) “The sisters [Ernestina and Erlinda] were left abandoned in a combat zone; […] gathering up two children and handing them over to the ICRC or to the Red Cross implied complying with a positive obligation established by humanitarian law, and does not contradict the provisions of Article 38(4) of the Convention on the Rights of the Child”… … 124. With regard to Article 19 of the Convention the State indicated that… b) In accordance with Article 3(2) of the Convention on the Rights of the Child, “if the Salvadoran Army found both children abandoned […], the act of picking them up and subsequently handing them over to a humanitarian organization, is in keeping with the protection and care necessary for their welfare.” The “conduct of the Armed Forces, should the facts have occurred as they have been related before the national and the international courts, is in accordance with article” 20 of this Convention…
Dissenting Opinion of Judge A.A. Cançado Trindade: 21. The right to identity, like the right to the truth, is inferred by specific rights embodied in the American Convention; it is more a necessary development of case law that, in turn, leads to the progressive development of the corpus juris of international human rights law. Thus, other international human rights instruments – subsequent to the American Convention on Human Rights, such as the 1989 United Nations Convention on the Rights of the Child1 and the 1990 United Nations Convention on the Protection of the Rights of All Migrant Workers and their Families, effectively recognize the right to identity as such. … 23. The right to a name, established in the American Convention ( Article 18), is also expressly recognized in the Convention on the Rights of the Child ( Article 7(1)) and in the African Charter on Human and Peoples’ Rights ( Article 6(1)). And, although the European Convention on Human Rights does not establish it expressly, the European Court of Human Rights has stated that this right is inferred by Article 8 (Right to Private and Family Life) of the Convention. … 25. Its other component in this case, the rights of the family, is expressly established in both the American Convention ( Article 17) and in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador, Article 15), among other international treaties. FN87 FN87 Also in the United Nations Covenant on Civil and Political Rights ( Article 23), the United Nations Covenant on Economic, Social and Cultural Rights( Article 10(1)), the United Nations Convention on the Rights of the Child ( Article 8), The European Convention on Human Rights ( Article 8). and cf., also, on family reunification, Protocol II to the 1949 Geneva Conventions on international humanitarian law ( Article 4(3)(b)). … 31. In this case, the most recent inventory drawn up by the Asociación Pro-Búsqueda, which forms part of the case file, lists 698 children who disappeared during the Salvadoran armed conflict, aged at the time from less than one year to 18 years old. Faithful compliance with Article 19 of the American Convention, in circumstances such as those of the instant case, which occurred in the context of this human tragedy, require the immediate search for, tracing, finding, family reunion,FN95 and psychological treatment of the disappeared children who are found.
Most efforts in this regard have been undertaken by civil society entities (such as, above all, the Asociación Pro-BúsquedaFN96), moved by human solidarity, and not by the public authorities,2 who have the duty to protect all those subject to their jurisdiction. FN95 As required also by the United Nations Convention on the Rights of the Child, Article 39. FN96 As expressly stated by the United Nations Committee on the Rights of the Child under the Convention on the Rights of the Child (UN, doc. CRC/C/15/Add.232, of 30 June 2004, para. 31), which attributed the tracing and identification of almost 250 children principally to the Asociación Pro-Búsqueda, and has expressed its “concern” because the State had not “played a larger role in the investigation into the disappearance of 700 other children” during the Salvadoran armed conflict from 1980-1991 (Ibíd., p. 7, para. 31). … 133. Diverse international legal instruments recognize the right to personal identity.FN126 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. FN126 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). … 136. The Court explains that, in the instant case, it will not rule on the alleged violation of Article 19 of the American Convention to the detriment of the sisters, Ernestina and Erlinda Serrano Cruz, separately from its consideration of the rights to the protection of the family and to a name, and also the possible violation of their right to identity, but will include its decision in that respect when ruling on the other rights that are alleged to have been violated. In this regard, this Court, among other norms, will give particular consideration to Articles 7 and 8 of the United Nations Convention on the Rights of the Child, because they embody the right to identity explicitly and directly. … 140. A
s the Court has stated previously, recognition of the family as the natural and fundamental element of society, with the right to be protected by society and the State, is a basic principle of international human rights law. In addition to being established in the American Convention and in the said Protocol of San Salvador, it is also embodied in a significant number of international legal instruments,FN129 and also in Article 32 of the Constitution of El Salvador. FN129 This is established in: Article 16(3) of the Universal Declaration of Human Rights; Article 10(1) of the International Covenant on Economic, Social and Cultural Rights; Article 23 of the International Covenant on Civil and Political Rights; the preamble and Article 8 of the Convention on the Rights of the Child; Article 18 of the African Charter on the Rights and Welfare of the Child; Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms amended according to the provisions of Protocol 11 and completed by Protocols 1 and 6; Articles 4 and 22 on the Declaration on Social Progress and Development; point 16 of the Proclamation of Teheran; Articles 1 and 2 of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with particular reference to foster placement and adoption nationally and internationally; and Article 6 of the Declaration on the Elimination of Discrimination against Women. … 147. Furthermore, this Court considers it necessary to emphasize that Article 39 of the Convention on the Rights of the Child establishes the State’s obligation “to take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, […] or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.” … 160. The right to a name is also expressly recognized in Article 36 of the Constitution of El Salvador, Article 7(1) of the Convention on the Rights of the Child and Article 6(1) of the African Charter on the Rights and Welfare of the Child. Moreover, even though the European Convention on Human Rights and Fundamental Freedoms does not contain a specific norm that expressly embodies the right to a name, the European Court has established that this right is protected in the provision contained in Article 8 of this Convention on the protection of private and family life…
Follow Up: In response to a request from El Salvador, the Court issued an Interpretation of the Judgment of Merits, Reparations and Costs on September 9, 2005, available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_131_ing.pdf.
CRIN Comments: CRIN believes this decision is consistent with the CRC in that where violations of children’s rights under the Convention occur, these violations must be investigated, pursued and remedied in the justice system. In addition, as noted by the Court, the CRC can provide useful guidance in interpreting other regional and international human rights instruments.
Citation: Serrano-Cruz Sisters v. El Salvador, Judgment of March 1, 2005, Inter-Am. Ct. H.R., (Ser. C) No. 120
Link to Full Judgment:http://www.corteidh.or.cr/docs/casos/articulos/seriec_120_ing.doc