"X" y "Z" v. Argentina, Case 11.676, Report No. 71/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 582 (2000).
"X" and "Z"
October 3, 2000
On February 21, 1996, Mrs."X" (hereinafter the
petitioner or the mother) filed a petition with the
Inter-American Commission on Human Rights (hereinafter the Commission,
the Inter-American Commission or the IACHR) alleging
violation of the right to due process (Article 8(1)).
In a communication of August 20, 1996, the petitioner also alleged
violation of the right to protection of the family (Article 17), the rights
of the child (Article 19), and the right to judicial protection (Article
25) of the American Convention on Human Rights (hereinafter the
Convention or the American Convention) on the part of
the Argentine Republic (hereinafter the State, the Argentine
State or Argentina).
The alleged violations purportedly occurred in connection with
a dispute between the petitioner and Mr. Y (hereinafter the
father) concerning the return to Spain of child Z (hereinafter
the child), born of the union of X and Z.
According to the petition, the violations committed were detrimental
to both child and mother.
The petitioners main complaint is that Argentine authorities
violated the rights to due process (Article 8(1)) and effective recourse
(Article 25) when, within the space of 24 hours, they executed the court
ruling ordering the return of child "Z" to the latters
habitual residence in Spain, in the care and custody of the father, before
the court ruling ordering her return had become final. The
petitioner further alleges that the ruling of the court of second instance,
which in this case was the National Civil Appeals Chamber, Court H
(hereinafter the Civil Appeals Court), was arbitrary when
it ordered that the child be handed over to her father and taken to Spain
She based her assertion on the claim that the fathers request
had not been filed within the deadline stipulated in The Hague Convention
and that the childs removal to Argentina with her mother had not
been unlawful. The State
alleges that it acted in compliance with The Hague Convention on the Civil
Aspects of International Child Abduction (hereinafter The Hague
Convention), adopted at the Fourteenth Session of The Hague Conference
on Private International Law, October 25, 1980.
The Convention became Argentine domestic law 23,857 on October
31, 1990, and was ratified before the organs and agencies therein stipulated.
After examining the admissibility of the case, the Commission concluded
that it met the formal requirements for admissibility stipulated in Articles
46 and 47 of the Convention. However,
when examining the merits of the case, the Commission concluded that the
facts alleged by the petitioner did not constitute violations of Articles
8, 17, 19 and 25 of the Convention.
II. PROCEEDINGS WITH THE COMMISSION
4. The Commission
acknowledged receipt of the petition on March 8, 1996.
It acknowledged receipt of the additional material sent on two
occasions, on April 16 and July 11, 1996.
On March 28, 1996, information was requested from the State and
two 30-day extensions were granted: one on June 26 and the other on July
26, 1996. The States
response was received on July 30, 1996.
The petitioner presented her observations on August 23, 1996.
On September 11, 1996, the parties were informed that a number
had been assigned to the case. Thereafter,
the State was given extensions for purposes of its reply.
On October 14, 1997, another communication was received from the
petitioner and then forwarded to the State on November 7, 1997.
On December 10, 1997, information was received from the State.
5. The Commission
held a hearing with the parties during its 100th regular session,
on October 6, 1998. On March 1, 1999, the State presented its observations
to the Commission. On March 30, the petitioner presented additional information,
which was forwarded to the State that same day, which was given 30 days
to present its observations. On
May 10, 1999, the State requested an extension on that deadline. The Commission
then granted it a 30-day extension.
The State presented its reports on June 2, 1999, and the Commission
forwarded them to the petitioner on June 16, 1999, who was given 30 days
in which to reply. The petitioner presented
her observations on July 7, 1999, which were then forwarded to the State
on July 9, 1999. The State
was given 30 days in which to present its report.
The Commission received the States observations on August
19, 1999, and sent them to the petitioner on August 11, 1999.
On January 4, 2000, the Commission requested additional information
from the petitioner, which she supplied on February 8, 2000.
The State furnished copies of the court rulings on April 26, 2000.
THE PARTIES POSITIONS
The petitioners position
As the petition states, Mrs. X
married Mr. Y, a Danish citizen, in Denmark.
Child Z was the product of that union. The family home became Madrid, Spain. Over time the marriage between X and Y
broke down and the couple filed for divorce in the Spanish courts. When the court-ordered separation came through on April 23,
1991, Madrids 27th Lower Court (hereinafter the
Madrid Lower Court) awarded the mother temporary custody and the
father visiting rights. When
the couple quarreled, the mother decided to move to Argentina with her
daughter. That decision was not reported to the Madrid Lower Court that
had handled the divorce and had decided the question of the childs
A year later, the father went to the Madrid Lower Court to ask
that the mothers custody of the child be revoked on the grounds
that she had violated his visiting rights.
The Madrid Lower Court awarded temporary custody of the child to
the father and, based on The Hague Convention, Spain sent Argentina a
diplomatic letter rogatory to determine the whereabouts of the child.
The petitioner concedes that the proceedings for divorce, child
custody and visiting rights in the Spanish courts are not the subject
of this case, which strictly concerns what transpired within Argentine
The petitioner points out that the proceedings conducted with Argentine
authorities were the following: on May 6, 1993, a hearing was held in
which the Advisor on Minors Affairs of the Ministry of Foreign Relations,
Trade and Worship told the mother that the child could not be removed
from Argentine jurisdiction without authorization.
On May 21, 1993, Domestic Court No. 5 in the city of Rosario, Province
of Santa Fe, Argentina awarded custody of the child to the mother, as
did the National Civil Court of First Instance of the Federal Capital,
which gave the mother provisional custody until the question of whether
the child should be sent to Spain was settled. On several occasions, courts
declared that they did not have jurisdiction over the case. They ruled
that because The Hague Convention was the controlling law, the case belonged
in the federal courts. Then,
on September 28, 1993, the National Civil Court of First Instance of the
Federal Capital handed down its ruling, which was to refuse to allow the
childs return to her father.
When the father appealed the ruling, the case went to the Civil
Appeals Court, where new expert opinions, hearings with the parties, evaluations
of the child and interviews with the parties were ordered.
On March 2, 1995, the Civil Appeals Court decided to overturn the
lower-courts decision and ordered the child immediately handed over
to her father and returned to Spain.
The Advisor on Minors Affairs executed the ruling that very day,
before it became final and res judicata. To carry
out the ruling, the Civil Appeals Court ordered the mother to hand over
the childs clothes at a tearoom near the court district.
The childs effects were handed over to the father, who had
a special visit with the child.
That day the two left for Spain.
The petitioner considers that the Advisor on Minors Affairs usurped
the functions of the court because the Civil Appeals Court had not instructed
said Advisor to execute the ruling.
According to the ruling, the Advisor for Minors Affairs was merely
informed of the ruling.
On March 3, 1995, the Advisor on Minors Affairs informed the Civil
Appeals Court of the execution of the courts ruling the previous
day. That same day, the petitioner
filed an extraordinary appeal to challenge the ruling.
In her appeal, she petitioned for suspension of the rulings
execution until the Supreme Court of Justice (hereinafter the Supreme
Court) ruled on the appeal, as the case came under federal jurisdiction
because it involved the interpretation and application of international
treaties ratified by Argentina.
That same day, on March 3, 1995, the Civil Appeals Court dismissed
the request to suspend execution of the ruling handed down and executed
the previous day.
On March 7, 1995, the Spanish central authority was sent a copy
of the Appeals Court ruling reversing the lower-court decision and thus
ordering the childs return to her father.
On March 8, 1995, the central Spanish authority reported that the
child was with her father in Spain.
On April 11, 1995, the Civil Appeals Court handed down its ruling
that allowed the petitioner to file an extraordinary appeal and send the
case to the Supreme Court. On
April 17, 1995, the petitioner filed a motion with the Civil Appeals Court
seeking the childs return.
She argued that the decision allowing her to file extraordinary
appeal had the effect of suspending execution of the appeals court ruling.
The petitioners position is that the decision to allow the extraordinary
appeal to go forward implied an acknowledgment of the fact that an injustice
had been committed when the child was ordered returned to her father and
when the judgment was allowed to be carried out before it became final
and res judicata, which caused
an irreparable harm.
On April 28, 1995, the Civil Appeals Court denied the petitioners
request on the grounds that it was not a question of suspending
execution of a ruling, but of undoing a situation resulting from a ruling
carried out outside the procedural framework for execution and sent
the request to the Supreme Court.
In the opinion of the petitioner, the Civil Appeals Court acknowledged
that whereas the ruling was executed within the court system, it was not
done according to judicial procedure; "it was executed by an advisor
rather than a judge. There
was a dissenting opinion in the appellate courts decision, which
was in favor of acceding to the request and, therefore, asking the
Spanish authorities to return the child to Argentina, through a letter
rogatory processed through diplomatic channels.
In addition to the extraordinary appeal, the petitioner also filed
a petition of amparo directly with the Supreme Court. That petition, as the petitioner claims, was part of the extraordinary
appeal. To show the injustice
of the decision, the petitioner cites the jurisprudence in the Osswald
case, which finds that rulings involving application and interpretation
of international treaties cannot be executed through the courts, because
such matters are eminently federal jurisdiction and therefore require
the Supreme Courts intervention before they can become res
On August 29, 1995, the Supreme Court denied the extraordinary
appeal on the grounds that no federal issue was at stake that would necessitate
its intervention. The petitioner
also used the arguments of the dissenting judges, who found that interpretation
of a treaty is an eminently federal matter even though two of the requirements
under The Hague Convention to effect the childs return were not
satisfied: first, it was not illegal for the mother to bring the child
to Argentina; second, the father had let more than a year pass from the
time mother and daughter left for Argentina before claiming his custody,
which is a violation of Article 12 of The Hague Convention.
She therefore considered that the Civil Appeals Courts ruling
The petitioner reports that she also brought a criminal complaint
against the three members of the Civil Appeals Court, the Advisor on Minors
Affairs and the officials from the Ministry of Foreign Affairs and Worship
of Argentina who had intervened in the instant case, charging them with
breach of the duties of a public official and, in the case of the Advisor
on Minors Affairs, usurping judicial functions.
The Fifth Chamber of the Criminal Appellate Court dismissed this
complaint on the grounds that the issue of whether the ruling of the Civil
Appeals Court was final when carried out was debatable and while the advisor
on minors affairs may have overreached his functions, the matter was one
for the administrative law courts, not the criminal courts.
With this ruling, this internal remedy was exhausted.
The petitioner also pointed out that she subsequently traveled
to Spain to get the custody arrangement modified and secure a more liberal
17. The petitioner
alleges that the violations of Articles 8 and 25 of the Convention were
the material support of the violation of the rights of the child (Article
19) and of the mother (Article 17(4)).
She is of the view that the rights of the child were irreparably
damaged because she was separated from her natural mother in charge of
raising and educating her. The
mothers rights were also injured in that the child was removed from
her custody not because she was derelict in her parental duties, but as
some kind of undetermined procedural penalty and for having left Spanish
territory without the express authorization of the judge who handled the
divorce and child-custody proceedings.
The State alleges that child "Z" was born in Denmark
in 1987, acquired Spanish citizenship and lived in Spain with her mother,
who had dual Spanish/Argentine citizenship, and her father, a Danish citizen.
The parents separated in Spain and settled the issues of custody,
visiting, and the childs residence with the natural Spanish court
competent in such matters. The
State pointed out that while separation was being processed, the father
had liberal visiting rights, which were given to him by the Spanish courts,
which later awarded him custody of the child after determining that he
would be able to care for her properly.
The State argues that the mother, in flagrant violation of the
decision of the Spanish courts, unlawfully moved the child to Argentina,
without the knowledge of or authorization from the Madrid Civil Court
that had heard the separation proceedings.
The mother argued that Argentinas judicial authorities had
legitimized the unlawful removal of the child by requesting the Spanish
authorities to give her custody of the child, in a clear evasion of the
original and natural jurisdiction of the Spanish courts that had ordered
that the child not be taken out of the country.
The State considers that situations of this type come under The
Hague Convention, which is the international community's response to the
juridical insecurity that forum shopping would create, in a fraudulent
evasion of the law and the jurisdiction of the State in which the child
had its immediate habitual residence before it was removed or retained.
On February 3, 1993, the Argentine State received a request from
Spain, based on Article 8 of The Hague Convention, to find and return
the child. This request was
accompanied by the following court documents: a) a police order dated
May 17, 1991, prohibiting the removal of the child from Spanish territory;
b) proceedings of June 1, 1991, to determine the visiting arrangement
and requiring both parents to turn over their passports to prevent them
from leaving Spanish territory; c) an arrest warrant issued by Madrids
Examining Court Nº 23, ordering temporary detention pending trial, without
bond, of the childs mother; d) a June 3, 1992 decision of Madrids
Lower Court Nº 27 giving the father custody of the child and maintaining
the system of shared patria potestad;
e) the June 8, 1992, ruling of the same court ordering the conjugal separation
of the spouses, keeping intact the measures ordered under the previous
ruling. Based on these documents,
the Conventions central authority in Argentina filed with the judicial
authority, which in turn instituted proceedings.
The State alleges that the parents presented their arguments before
the Argentine judicial authorities, whose sole function was to discern
whether The Hague Convention should be invoked; it did not enter into
the merits of the childs custody, as prescribed in Article 16 of
that instrument. On September
28, 1993, the court of first instance decided to refuse to order the childs
return to her father. On
October 26, 1993, Spains central authority requested that the decision
be appealed. On March 2,
1995, the Civil Appeals Court overturned the decision of the court of
first instance and ordered that the child be returned to her father.
As for compliance with the requirements stipulated in The Hague
Convention, the State asserts that the Civil Appeals Court confirmed that
the requirements had been met. First,
invoking The Hague Convention the father filed his claim in Spain in late
1991, i.e., within six months of the date of his daughters removal;
on June 3, 1992, Madrids Court of First Instance Nº 27 gave the
father custody of the child. The State argues that under Article 12 of The Hague Convention,
if the proceedings begin before one year from the time of removal or retention,
return shall be immediate; after a year, the return may hinge upon evidence
that the child has adapted to his/her new milieu.
Second, the State notes that the judicial authorities confirmed
that the child had been removed unlawfully and that none of the few exceptions
provided for in the Convention applied.
It therefore decided to order that she be immediately returned
to her habitual residence in Spain.
The State argues that under The Hague Convention, the principle
of the childs higher interest is served by returning her immediately
to her place of habitual residence. To illustrate, the State cited paragraphs from the official
report on The Hague Convention, prepared by Eliza Pérez Vera.
The State alleges that the child was taken to the country of habitual
residence and its natural judges on March 3, 1995.
Thereafter, the child was not taken away and returned, and
there is no dispute over jurisdiction since she returned to her natural
jurisdiction, which was Spain.
The State argued that on March 8, the Central Authority in Spain
(in application of The Hague Convention) reported that the child was in
Spain, with her father, and considered the case closed.
The requirement stipulated in Article 46(1) of the Convention might
therefore be considered fulfilled.
The State reports that in June 1995, the mother appeared before
the competent Spanish judge and requested the visiting arrangement and
custody change, since custody went to the merits and was therefore completely
extraneous to the proceeding conducted in Argentina.
The fact that the child is living with her father in Spain cannot
be blamed on the Argentine State since it confined itself to returning
the child to her residence and to the jurisdiction of the natural courts
in her case, in response to the mothers wrongful removal of the
child and in compliance with an international treaty.
The State alleges that the procedure followed in the Argentine
courts is an autonomous measure stemming from the text of the Convention,
and can in some ways be likened to a precautionary measure to be carried
out in a foreign jurisdiction. As to the immediacy with which the Civil Appeals Court ordered
the ruling carried out, the State alleges that the principle of The Hague
Convention is to return wrongfully removed or retained minors immediately,
following more expeditious procedures.
It also pointed out that there is international jurisprudence in
which lower-court rulings have been executed while appeals were in process,
in order to be in compliance with the objectives of The Hague Convention.
Concerning the action taken by the Advisor on Minors Affairs, the
State explains that the appeals court expressly requested the advisors
cooperation, as the ruling clearly shows, and that nothing illegal was
done. The State also notes
that the Supreme Court dismissed the appeals filed by the petitioner concerning
immediate execution of the ruling.
The complaints filed by the mother in criminal court for alleged
irregularities on the part of the civil appeals court, the advisor on
minors affairs and Argentinas Ministry of Foreign Affairs and Worship
were examined and dismissed.
The State alleges that under Article
17(4) of the Convention, both parents have equal rights and a proper balance
of responsibilities. Article
18 of the Convention on the Rights of the Child requires States to guarantee
that both parents have mutual obligations in raising the child; Article
11 urges the States to combat unlawful removals and retention of children
abroad, to which end they will work toward agreements.
The State argues that it is fully respectful of the jurisdictions
of other countries and of the international agreements it has signed.
As of mid 1998, 45 minors wrongfully removed or retained from their
habitual place of residence had been returned under The Hague Convention.
Competence of the Commission
ratione materiae, ratione personae,
ratione temporis and ratione
29. The Commission
is competent ratione materiae and ratione personae by virtue of the passive and
active legitimation, ratione loci
and ratione temporis to
take up the present case because the alleged violations of Convention
Articles 8, 17, 19 and 25 are attributed to agents of the Argentine State,
a party to the American Convention.
The alleged victims are natural persons, Mrs. X,
acting on her own behalf and on behalf of her daughter, child Z. The alleged violations were purportedly committed within Argentine
territory, subsequent to its ratification of the Convention.
Other admissibility requirements of the petition
Exhaustion of local remedies
For the Commission to admit a petition, Article 46(1)(a) of the
Convention stipulates that the remedies under domestic law shall have
been exhausted, in accordance with generally recognized principles of
international law. The Commission
considers that the only domestic remedies that must be exhausted under
Article 46(1)(a) of the
Convention are those related to the alleged violations of the Convention.
At the same time, those remedies must be adequate; in other words,
they must be able to provide an effective and sufficient remedy for the
violations. All internal legal systems have multiple remedies, but not
all remedies apply in all circumstances.
Therefore, those remedies that, although remedies in theory, offer
no chance of remedying the alleged violations need not be exhausted.
31. First, in the
instant case the petitioner alleges that with the ruling handed down by
the Supreme Court, the proceedings in the civil courts were exhausted;
she also asserts that the petition filed with the criminal court had exhausted
that avenue as well. The State merely notes that the domestic remedies were exhausted
once the child was returned to the jurisdiction of the Spanish courts;
in other words, with execution of the Civil Appeals Court ruling.
The Commission considers that the parties have built their arguments
around the proceedings in the civil courts, for application of The Hague
Convention. This, therefore,
is at the very center of the instant case.
With regard to the complaints that the petitioner filed in criminal
court, the IACHR notes that they referred to the possibly criminal conduct
on the part of public officials of the Ministry of Foreign Affairs, Trade
and Worship, the Advisor on Minors Affairs and three judges on the Civil
Appeals Court bench. As to
this trial, although the petitioner states that the remedy was exhausted,
she provided nothing that would allow this Commission to infer or deduce
that the petition is in anyway related to that criminal court case.
The Commission considers that even if the outcome in the criminal
case had been favorable to the petitioner, it would have not constituted
a remedy for the alleged violations having to do with her daughters
return to Spain. For this
reason, the Commission concludes that the proceedings in the civil courts
were the proper remedies for a final resolution of the situation denounced.
Second, while the parties agree that the domestic remedies before
the civil courts have been exhausted, the petitioner and the State each
cite different court actions, taken at different times, to show that this
requirement was met. The
State alleges that on March 3, 1995, Spains Central Authority reported
that the child was in the country, living with her father, and that it
considered the case closed. Whereas
the State argues that this decision fulfilled the requirement under Article
46(1)(a) of the Convention, the petitioner argues, inter alia, that the right to due process (Article 8(1)) was violated
when court actions resulted in the execution of a judgment before it became
To have the child returned to Argentina, the petitioner filed a
motion for the childs return with the Civil Appeals Court and a
remedy of amparo that she regarded
as over and above the extraordinary appeal. The Civil Appeals Court decided to refer her requests to the
Supreme Court, which handed down a final ruling.
In the Commissions view, the petition raises certain questions
related to the Argentine civil courts interpretation and application
of The Hague Convention that were decisive in determining where the child
would live, and issues about the application of procedural rules and procedural
aspects of domestic law concerning execution of judgments and the effects
that the filing of an extraordinary remedy of appeal have.
The Commission is of the view that in principle, execution of a
judgment does not necessary mean that the judicial remedies have been
exhausted, since any appeal filed by the parties might still be pending. In
the instant case, while the ruling of the Civil Appeals Court had been
executed with the childs return to her father and to the jurisdiction
of the Spanish courts, the procedure before the Argentine courts was not
exhausted until the Supreme Court handed down its ruling of August 25,
1995 and denied the extraordinary appeal filed by the petitioner.
Given the particulars of the instant case, the Commission concluded
that the Supreme Courts ruling on August 25, 1995, denying the extraordinary
appeal exhausted the domestic remedies and with that the requirement under
Article 46(1)(a) of the Convention was fulfilled.
Deadline for filing a petition with the Commission
One of the requirements that Article 46(1)(b) of the Convention
establishes for a petitions admissibility is that it has been presented
within six months of the date on which the petitioner was notified of
the final decision. Inasmuch
as the State has not alleged failure to comply with this requirement,
it can be considered that the State has tacitly waived its right to challenge
on grounds of a failure to meet this requirement.
That having been said, the Commission notes that the Supreme Court
handed down the final decision on August 25, 1995, and that the mothers
attorney was notified on August 29, 1995.
It further notes that the petition was filed with the Commission
on February 21, 1996, within the six-month time frame.
The Commission therefore concludes that this requirement has been
Duplication of proceedings and res
As for the requirement set forth in Article 46(1)(c) of the Convention,
which is that the petition is not pending with any other international
organization for settlement, the Commission has received no information
that would indicate that this circumstance obtains.
Hence, the Commission considers that this requirement has been
met. The Commission finds
that the requirement established in Article 47(d) has also be met, which
is that the petition is not substantially the same as one already examined
by the Commission; nor has the Commission received any information indicating
that the case was settled by some other international organization.
Characterization of the facts alleged
Article 47(b) of the Convention provides that the Commission shall
consider inadmissible any petition or communication if the petition
or communication does not state facts that tend to establish a violation
of the rights guaranteed by this Convention.
The Commission considers that the facts that the petitioner alleges
could characterize violations of Articles 8, 17, 19 and 25 of the American
Convention. The Commission
therefore concludes that the petition is admissible under the terms established
in Article 47(b).
ON THE MERITS
In the case under study, The Hague Convention was the legal basis
of the dispute between the parties litigated in the domestic courts.
That Convention was ratified by Argentina and is part of its domestic
legal system. The Convention contains provisions establishing rights and
obligations for the signatory States and rights for the interested person
vis-à-vis the State. In the
instant case, as the State has pointed out and the petitioner acknowledged,
it was not the function of Argentinas judicial authorities to decide
which of the two parents should have custody of the child Z.
Instead, their function was merely to determine the rights established
under The Hague Convention, i.e., to determine whether conditions were
present to order the childs return to Spain, pursuant to Article
16 and in application of that instruments principal objective.
Therefore, the central issue for the Commission to decide is whether
the Argentine authorities violated the American Convention by taking action
and ruling on Spains request seeking the return of child Z
under the terms of The Hague Convention.
In principle, according to the fourth instance formula,
the Commission cannot review judgments handed down by domestic courts
within their competence and with due judicial guarantees, unless a possible
violation of the American Convention has been committed.
The Commission will now examine whether the facts alleged by the
petitioner constitute violations of Articles 8 and 25 of the Convention,
and then its Articles 17 and 19.
i. Right to due process (Article 8(1)) and the right to judicial protection (Article 25)
to due process (Article 8(1)).
Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation
of a criminal nature made against him or for the determination of his
rights and obligations of a civil, labor, fiscal, or any other nature.
to effective remedies (Article 25)
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution
or laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system
of the state;
develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies
40. Under these Articles,
every person has the right to have the basic rules of procedure observed
not just in terms of access to the courts, but also in terms of effective
enforcement of the judicial authorities decisions.
In this connection, this Commission has observed that the right
to judicial protection recognized in the Convention covers the right to
fair, impartial and prompt proceedings that offer the possibility but
never a guarantee of a favorable outcome.
In the instant case, the Commission will begin by examining the
petitioners allegations regarding the conduct of the Advisor on
Minors Affairs when it executed a ruling without having jurisdictional
authorities; the Commission will then look at the execution of the Civil
Appeals Court ruling before the ruling became res judicata and the effects of the filing of the extraordinary appeal;
and then the Supreme Courts decision denying the extraordinary appeal
filed by the petitioner.
Concerning the petitioners allegations relative to the execution
of the Civil Appeals Court decision by the Advisor on Minors Issues, who
did not have the jurisdictional authorities to do so, the State explained
that the Civil Appeals Court had expressly requested that the Advisor
cooperate when the time came to execute the decision, which was nothing
illegal. This is clear from
the March 2, 1995 ruling, an excerpt of which appears below:
as the father is in the country, the proper course of action is to effect
the return immediately. The
Argentine authorities that, if necessary, might have to issue the documents
necessary for the child to leave the country, are to be so notified.
Let notification be made today to the parties, to the Advisor
on Minors Affairs and the Ministry of Foreign Affairs, International Trade
and Worship so that they might arrange the measures necessary to fully
comply with this ruling, with authorization to treat as juridical days
and hours those days and hours which otherwise would not be so counted
(emphasis added by the State).
From the text cited above, the Commission notes that the Civil
Appeals Court expressly requested the cooperation of the parents, as parties
involved in the proceeding, of the Advisor on Minors Affairs and of the
Ministry of Foreign Affairs, International Trade and Worship, so that
together they might arrange the measures necessary to fully comply
with this ruling and to that end authorized non-working hours and
days to be used. The
Advisor on Minors Issues, then, was in compliance with the order issued
by the court competent to determine the rights of the parties in this
case, and ordered that the decision be carried out immediately.
The Commission finds no reason to question the impartiality of
the Appeals Court in ordering notification of the parties, the Advisor
on Minors Affairs and the Ministry of Foreign Affairs, International Trade
and Worship so that they might arrange the measures necessary to execute
the ruling immediately.
The Commission notes that to accomplish its objectives, The Hague
Convention develops a procedure tending to guarantee the minor's return
(Preamble, Articles 1 and 2). To
that end, contracting States are to take all appropriate measures to secure
within their territories the implementation of the objects of the Convention,
using the most expeditious procedures available (Article 2).
Here, The Hague Convention is the product of the interdisciplinary
work done in civil international law and procedural international law
that not only harmonize and unify private law, but also influence domestic
procedural laws in order to facilitate international judicial assistance
and ensure the human right to access the courts.
The Commission considers that Argentinas Central Authority
acted within the framework of the obligations and authorities established
to achieve The Hague Conventions objectives, as set forth in Article
As said, the Commission must confine itself to examining whether
the judicial authorities acted in conformity with the American Convention,
without entering into the question of whether The Hague Convention was
properly interpreted or applied. Consequently, the Commission considers
that the allegation made in this part of the petition does not constitute
a violation of Article 8(1) of the
44. Secondly, the
Commission will analyze whether immediate execution of the ruling ordering
the return of child Z, delivered in accordance with The Hague
Convention at a time when an extraordinary appeal was pending with the
Supreme Court, constitutes a violation of Articles 8(1) and 25 of the
Convention. The petitioner
alleges that execution of the Civil Appeals Court decision before it became
final and res judicata was a
violation of her right to due process.
It was detrimental to her right to an effective recourse because
the domestic remedies had not been exhausted, specifically the extraordinary
appeal she had filed. For its part, the State alleged that the procedure followed
in the Argentine courts was an autonomous measure arising out of the text
of The Hague Convention. It
added that under Article 11 of The Hague Convention, the childs
return is to be executed within six weeks of commencement of the proceedings,
which can be likened to a precautionary measure that must be executed
in a foreign jurisdiction, where the most expeditious proceedings are
required. It noted that this position is supported by international jurisprudence
that allows children to be returned under lower-court rulings while an
appeal is still pending.
The State also notes that the Argentine judicial authorities gave
the petitioner a hearing and her arguments were duly rejected.
Specifically, it notes that the extraordinary appeal the petitioner
filed to challenge that decision was declared inadmissible by the Supreme
45. The Commission
considers that the issue to be decided has nothing to do with the principle
of res judicata or with the
fact that the decision ordering the childs return had not become
final: the fact that the petitioner was able to file an extraordinary
appeal with the Supreme Court to challenge the Civil Appeals Court ruling
is uncontested. Moreover,
rulings that have not become final can still be executed under the procedural
laws of the State.
The question of whether or not the court ruling is final, therefore,
is not relevant in the instant case.
Instead, the issue to be decided is whether a court ruling can
be executed while an appeal provided for by law is pending.
Whether a court ruling pending on appeal can be executed depends
on the effect of the remedy. It
is a matter of determining whether or not the remedy presented by the
petitioner has the effect of suspending the ruling being appealed.
The issue before the domestic courts is the effect of an extraordinary
appeal filed with the Supreme Court.
The States procedural laws include special regulations governing
the extraordinary appeal filed with the Supreme Court. The
petitioner has argued that execution is suspended not just when the extraordinary
appeal is allowed but also when the appeal is filed.
The issue is a difficult one since, as the State points out, the
executed court ruling can be likened to a precautionary measure.
The Commission notes that under Argentine procedural law, special
rules govern the effect of appeals with regard to precautionary measures.
47. The Commission
notes that varying interpretations have been given of this issue.
In the instant case, on the very day that the petitioner filed
the extraordinary appeal and requested that execution of the judgment
be suspended, the appeal was denied by the Civil Appeals Court.
In other words, the Civil Appeals Court was of the view that execution
of the ruling was not suspended merely because an extraordinary appeal
was filed. Execution is suspended
only when the extraordinary appeal is allowed.
The petitioner, on the other hand, argued that the jurisprudence
of the Supreme Court now recognizes the suspensive effect that follows
from the filing of an extraordinary appeal against a ruling ordering a
minors return under The Hague Convention.
Furthermore, the local courts themselves, specifically the Criminal
Court that dismissed the criminal complaint brought by the petitioner
in connection with these facts, ruled that there is some debate surrounding
the scope of the procedural laws on this subject.
It described the issue as debatable.
The Commission reiterates that it has limited competence to examine
whether a States actions are in keeping with the law; it is up to
the national authorities to interpret the law.
The Commission, therefore, cannot say what the proper interpretation
is of domestic procedural laws on the effects that the ordering and filing
of a federal extraordinary appeal have on the execution of a ruling ordering
the return of minors under The Hague Convention.
The Commission only has competence to analyze whether those laws
are in themselves incompatible with the Convention or whether their application
in a specific case has violated some right protected under the Convention.
48. The State has
the authority to design a procedural system of civil remedies, so it is
only obligated to ensure a process with the guarantees required under
Article 8(1) of the Convention.
While appeals may in some cases be remedies against violations
of fundamental rights recognized in the American Convention, they may
also be effective for purposes of Article 25 of the Convention.
49. The fact that
an order to return a minor was executed in accordance with The Hague Convention,
before the extraordinary appeal filed by the interested party was decided,
cannot be regarded per se as incompatible with either Article 8(1) or Article 25 of the
Convention. The determination
as to whether execution of a ruling can become a violation of the Convention
depends on the circumstances of each concrete case.
The Commission will examine whether execution of the lower court
ruling in the instant case adversely affected the right to due process
and the right to effective judicial protection.
Accordingly, it will be especially attentive to the particulars
of the judicial proceeding being examined.
In the instant case, under The Hague Convention Spanish authorities
filed a request with Argentine authorities to secure a minors return.
The issue, therefore, was not the custody of child Z,
but rather her return to her habitual place of residence while the custody
arrangement was being settled. The
object of the Hague Convention, inter
alia, is to avoid an evasion of the law that might adversely affect
the minors interests, when one of his/her parents wrongfully remove
the child from the country of the childs habitual residence and,
by taking the child to another country, tries to shop the forum in which
the issue of custody will be decided. One element typical of such situations
is that the person who retains or removes the child claims that his/her
action is considered lawful by the competent authorities of the State
of refuge; one measure to deter this practice, therefore, is to deprive
his/her actions of any practical consequence.
Here, the principal objective of the Hague Convention is to restore
the status quo by securing the
immediate return of the wrongfully removed or retained minor in any contracting
It is reasonable to understand that one possible way to avoid unnecessary
delays in processing the minors return is to authorize execution
of the order, even when appeals are pending.
Hence, it cannot be said that immediate execution is incompatible
with the object or purpose of the judicial proceeding in particular.
On the contrary, it might well be regarded as one possible way
to fully comply with the obligations expressly set forth in The Hague
Convention. The petitioner
does not allege that The Hague Convention itself is incompatible with
the American Convention.
Having shed light on the relationship between the effects of the
appeal and the characteristics of the process, the Commission will now
examine whether in this case, immediate execution of the ruling might
have adversely affected the petitioners rights.
Having examined the background information in the case file, the
Commission notes that on March 3, 1995, the Advisor on Minors Affairs
informed the Civil Appeals Court that:
learned of the final ruling that Your Honor handed down yesterday, which
supports the childs reunion with her father, as requested in Spains
letter rogatory and as this Office urged, the child is already in her
fathers custody, to facilitate her transfer to the requesting State;
no measure need be executed to carry out the ruling since execution has
been effected now that she has been turned over to her fathers custody
53. The case files
also show that on March 8, 1995, the Advisor for Minors Affairs informed
the Civil Appeals Court of the following:
am forwarding to Your Honor for the case file the final report prepared
by the technical team of this Office of the Advisor on Minors Affairs
that assisted in this case (...) particularly to help the child take leave
of her mother and provide the basics that the child should take with her.
(...) Finally, I would add that I have been informed that the child and
her father left for Spain that same day, Friday the third at 8:00 p.m.,
and that everything went smoothly.
The next day she arrived safely in her country of destination.
All this after I personally witnessed the childs mother delivering
to the fathers attorney, at 5:50 p.m., (
) a small suitcase
containing the childs personal effects.
The IACHR notes that no court held that execution of the ruling
in the instant case was contrary to local procedural law.
In effect, the day after the ruling was executed, the mother filed
an extraordinary appeal with the Civil Appeals Court, which allowed it
and referred it to the Supreme Court.
The petitioner also filed a motion with the Civil Appeals Court
and a remedy of amparothe latter was part of the extraordinary appeal-.
The purpose of the motion and the remedy was to secure the return
of her daughter from Spain to Argentina.
The motion to secure her daughters return was denied by the
Civil Appeals Court on April 28, 1995, based on the fact that the ruling
had been executed outside the framework of judicial procedure and that
what the petitioner was seeking was to restore the status quo as it was prior to execution of the ruling.
The criminal complaint that the petitioner brought was dismissed
by the Fifth Court of the Criminal Appeals Court on the grounds that the
question of whether the ruling of the Civil Appeals Court was final at
the time it was carried out was debatable and that if the Advisor on Minors
Affairs had overstepped his authority, the matter was one for the administrative
law court, not criminal court.
56. The Commission
considers that in the instant case, immediate execution of the ruling
ordering the childs return did not breach the petitioners
right to due process of law, since she challenged that ruling by filing
other judicial remedies based on her interpretation of The Hague Convention
and procedural law. The courts
analyzed and dismissed those appeals.
And even though the appeals were filed after the Civil Appeals
Court decision had been executed, the petitioner was able to challenge
the way in which the ruling had been executed, i.e., the very same question
she is putting to the Commission for consideration.
The petitioner has not allegednor is there anything in the
case file to indicate-that the immediate execution of the ruling ordering
the childs return affected the admissibility of the appeals, narrowed
the issues that could be appealed, or curtailed access to higher courts
or her chances of having a hearing, with the necessary guarantees, for
the determination of her civil rights. The Commission concludes, then,
that this part of the petition does not constitute a violation of Article
8(1) of the Convention.
57. The Commission
considers that execution of the ruling ordering the childs return
did not affect the petitioners right to effective remedies, since
had the remedies been decided in the mothers favor, the child might
have been returned to her custody until the competent Spanish authorities
reached a final decision on the matter.
Nor is there any apparent reason why the mother could not have
filed a complaint alleging the illegality of the immediate execution of
the ruling before she handed the child over to the father for her return
to Spain, if she had planned to file an extraordinary appeal with the
Supreme Court to challenge that ruling, based on the argument that the
filing of that appeal had the effect of suspending execution, as she argued
in the petition she filed with the Commission.
The Commission observes that as the procedural deadline for filing
an appeal with the Court is the maximum time period,
there was no procedural rule that would have prevented her from filing
before the deadline expired and argue then and there to have the execution
of the ruling suspended. The
mother raised the issue of immediate execution of the ruling when it had
already been executed, and filed a motion for review that the Civil Appeals
Court rejected. The Commission
notes that there is nothing in Argentine procedural law to prevent the
petitioner from introducing her argument concerning the suspensive effects
of a pending extraordinary appeal, before execution of the ruling materialized.
The allegation made in the petition on this point, therefore, is
not a violation of Article 25 of the Convention.
Thirdly, the Commission will examine the petitioners allegations
to the effect that with the Supreme Courts denial of the extraordinary
appeal, two requirements of The Hague Convention for effecting the childs
return were not observed, in violation of Articles 8(1) and 25 of the
Convention. It is not up
to the Commission to analyze what error the local courts may or may not
have committed, acting within their competence, in interpreting The Hague
Convention, unless some violation of the Convention was committed.
The petitioner further alleges that the ruling handed down by the
Civil Appeals Court did not take into account the fact that the childs
removal from Spain to Argentina had not been wrongful.
Here the State argued that by petitioning the Argentine courts
for custody of the child, the mother wanted the Argentine authorities
to sanction the wrongful removal of the child.
It was an obvious attempt to evade the original and natural jurisdiction
of the Spanish authorities, which had prohibited the childs removal
from the country. The Commission
considers that the Civil Appeals Court decision is neither unfounded nor
patently arbitrary. The Civil Appeals Court, among other issues, considered
the fact that a certificate had been presented, filed under the terms
of Article 15 of The Hague Convention, attesting to the childs unlawful
removal and the violation of the court order that prohibited her removal
from Spain, which was considered to be one of the factual premises stipulated
in Article 3 to consider a removal as wrongful, and a violation of the
fathers right under Article 5,
in the terms of Article 4 of The Hague Convention.
The Commission, therefore, considers that the allegations that
the petitioner makes on this point do not constitute a violation of Article
8(1) of the Convention.
The petitioner alleges that the father waited more than a year
from the time of the childs removal before filing a claim, which
is contrary to the provisions of Article 12 of The Hague Convention.
The Argentine State alleged that the sense of Article 12 of that
Convention is that if the proceedings commence before the expiration of
the period of one year from the date of the wrongful removal, then the
child is to be returned immediately, while if more than a year has elapsed,
the return may hinge on whether it is shown that the child is now settled
in its new environment. The
Commission notes that the Civil Appeals Courts finding was that
the time period stipulated in Article 12 had been exceeded.
It proceeded to analyze and weigh the evidence in the case to determine
whether any of the hypothetical impediments posited in Article 13 of The
Hague Convention were present.
The Commission also notes that to arrive at its findings, the Civil Appeals
Court considered the evaluations done by a psychologist and a court-appointed
social worker assigned to the case.
They interviewed the two parents and the child. It also considered the statements made by the child concerning
supposedly negative comments made by the mother. The Commission cannot review the decisions of the Argentine
authorities that interpret and apply The Hague Convention, designed precisely
to help settle problems such as the one raised in the present petition.
The Commission is of the view that the protection that the Convention
affords includes the right to fair, impartial and rapid proceedings that
offer the possibility but never a guarantee of a favorable outcome.
The Commission, then, does not find that the facts alleged by the
petitioner on this point constitute violations of Articles 8(1) and 25
of the Convention.
Right to family protection
(Article 17) and the rights of the child
Article 17(1) and
(4) reads as follows:
The family is the natural and fundamental group unit of society
and is entitled to protection by society and the state.
The States Parties shall take appropriate steps to ensure the equality
of rights and the adequate balance of responsibilities of the spouses
as to marriage, during marriage, and in the event of its dissolution.
In case of dissolution, provision shall be made for the necessary
protection of any children solely on the basis of their own best interests.
(Emphasis added by the Commission)
62. Article 19 of
the Convention provides the following:
Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.
63. The petitioner
alleges that the violations of Articles 8(1) and 25 of the Convention
were the material root of the breach of the rights of the child under
Article 19 and the rights of the mother under Article 17(4) of the Convention.
There are, then, no freestanding arguments or issues upon which
to base the alleged violation of these rights.
Therefore, a separate analysis of the possible violation of Articles
19 and 17(4) of the Convention is unnecessary.
The Commission, then, has concluded that the court rulings analyzed
have not violated Articles 8(1) and 25 of the Convention. Therefore, the petitioners allegations cannot be characterized
as violations of either of these rights.
After examining the admissibility of the case, the Commission concludes
that it meets the requirements stipulated in Articles 46 and 47 of the
American Convention. Nevertheless,
the Commission also concludes that the facts alleged by the petitioner
do not constitute violations of Articles 8, 17, 19 and 25 of the Convention.
65. Based on the
foregoing arguments of fact and of law,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare that the facts alleged in this petition do not constitute
violations of Articles 8, 17, 19 and 25 of the Convention.
To transmit this report to the parties, make it public and include
it in its Annual Report to the OAS General Assembly.
and signed in the city of Washington, D.C., on the 3rd day
of the month of October, 2000 (Signed): Chairman; Hélio Bicudo, First
Vice-Chairman; Claudio Grossman, Commissioners: Marta Altolaguirre, Robert
K. Goldman, Peter Laurie, and Julio Prado Vallejo.
The second Vice-Chairman of the Commission, Mr. Juan E. Méndez, an
Argentine national, did not participate in the discussion and decision
of this Report, in keeping with Article 19(2)(a) of the Commissions
The following excerpts are cited by the State: (...) two elements
are invariably present in all cases examined
(...). Firstly, we are
confronted in each case with the removal from its habitual environment
of a child whose custody had been entrusted to and lawfully exercised
by a natural or legal person. Naturally, a refusal to restore a child to its own environment
after a stay abroad to which the person exercising the right of custody
has consented must be put in the same category.
In both cases, the outcome is in fact the same: the child is
taken out of the family and social environment in which its life has
developed. What is more,
in this context the type of legal title which underlies the exercise
of custody rights over the child matters little, since whether or
not a document on custody exists in no way affects the sociological
realities of the problem. Secondly, the person who removes the child (or who is responsible
for its removal, where the act of removal is undertaken by a third
party) hopes to obtain a right of custody from the authorities of
the country to which the child has been taken.
The problem therefore concerns a person who, broadly speaking,
belongs to the family circle of the child; indeed, in the majority
of cases, the person concerned is the father or mother. 14. It frequently
happens that the person retaining the child tries to obtain a judicial
or administrative decision in the State of refuge, which would legalize
the factual situation which he has just brought about.
However, if he is uncertain about the way in which the decision
will go, he is just as likely to opt for inaction, leaving it up to
the dispossessed party to take the initiative.
Now, even if the latter acts quickly, this is to say manages
to avoid the consolidation through lapse of time of the situation
brought about by the removal of the child, the abductor will hold
the advantage, since it is he who has chosen the forum in which the
case is to be decided, a forum which, in principle, he regards as
more favorable to his own claims (...) 16. The Conventions objects,
which appear in Article 1, can be summarized as follows: since one
factor characteristic of the situation under consideration consists
in the fact that the abductor claims that his action has been rendered
lawful by the competent authorities of the State of refuge, one effective
way of deterring him would be to deprive his actions of any practical
or juridical consequences. The
Convention, in order to bring this about, places at the head of its
objectives the restoration of the status
quo, by means of the prompt return of children wrongfully
removed to or retained in any Contracting State. The
insurmountable difficulties encountered in establishing, within the
framework of the Convention, directly applicable jurisdictional rules
indeed resulted in this route being followed which, although an indirect
one, will tend in most cases to allow a final decision on custody
to be taken by the authorities of the childs habitual residence
prior to its removal. (...) 23.
For these reasons, among others, the dispositive part of the
Convention contains no explicit reference to the interests of the
child to the extent of their qualifying the Conventions stated
object, which is to secure the prompt return of children who have
been wrongfully removed or retained.
However, its silence on this point ought not to lead one to
the conclusion that the Convention ignores the social paradigm which
declares the necessity of considering the interests of children in
regulating all the problems which concern them.
On the contrary, right from the start the signatory States
declare themselves to be firmly convinced that the interests
of children are of paramount importance in matters relating to their
custody; it is precisely because of this conviction that they
drew up the Convention, desiring to protect children internationally
from the harmful effects of their wrongful removal or retention.
two paragraphs in the preamble reflect quite clearly the philosophy
of the Convention in this regard.
It can be defined as follows: the struggle against the great
increase in international child abduction must always be inspired
by the desire to protect children and should be based upon an interpretation
of their true interests. Now,
the right not to be removed or retained in the name of more or less
arguable rights concerning its person is one of the most objective
examples of what constitutes the interests of the child.
In this regard, it would be as well to refer to Recommendation
874(1979) of the Parliamentary Assembly of the Council of Europe,
the first general principle of which states that children must
no longer be regarded as parents property, but must be recognized
as individuals with their own rights and needs."
The instrument of ratification was deposited with the General Secretariat
of the Organization of American States on September 5, 1984.
Inter-American Court of Human Rights, Velásquez
Rodríguez Case, Preliminary Objections,
judgment of June 26, 1987, paragraphs 63, 64 and 88. Also, the former European Commission on Human Rights has stated
the following: The Commission
recalls that Article 26 (Art. 26) of the Convention only requires
the exhaustion of such remedies which relate to the breaches of the
Convention alleged and at the same time can provide effective and
sufficient redress. An
applicant does not need to exercise remedies which, although theoretically
of a nature to constitute remedies, do not in reality offer any chance
of redressing the alleged breach. (cf. Eur. Court H.R., De
Jong, Baljet and Van den Brink judgment of 22 May 1984, Series
A no. 77, p. 18, para. 36, and Nos. 14116/88 and 14117/88, Sargin
and Yagci v. Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).
Procedural doctrine and law in most countries of the hemisphere
generally make a distinction between devolutive effects (which do
nothing to prevent execution of the decision or stay the main proceeding)
and suspensive effects (which paralyze execution of the court ruling
until such time as the appeal has been decided) of the appeals and
remedies brought against court decisions.
See, inter alia, IACHR,
Report Nº 22/00, Case 11,732, Argentina. Decision of March 7, 2000,
Article 16 reads as follows: After receiving notice of
a wrongful removal or retention of a child in the sense of Article
3, the judicial or administrative authorities of the Contracting State
to which the child has been removed or in which it has been retained
shall not decide on the merits of rights of custody until it has been
determined that the child is not to be returned under this Convention
or unless an application under the Convention is not lodged within
a reasonable time following receipt of the notice.
Annual Report 1988-1989. Resolution Nº 15/89, Case 10.208 (Dominican
Republic), April 14, 1989, and Annual Report 1996, Case 11.673, Santiago
Marzioni (Argentina), page 86, para. 50.
Article 7 states the following:
Central Authorities shall co-operate with each other
and promote co-operation amongst the authorities in their respective
States to secure the prompt return of children and to achieve the
other objects of this Convention.
In particular, either directly or through any intermediary,
they shall take all appropriate measures: (
) c) to secure the
voluntary return of the child or to bring about an amicable resolution
of the issues; (
) f) to initiate or facilitate the institution
of judicial or administrative proceedings with a view to obtaining
the return of the child and, in a proper case, to make arrangements
for organizing or securing the effective exercise of rights of access;
) h) to provide such administrative arrangements as may be
necessary and appropriate to secure the safe return of the child.
Article 11 provides the following:
The judicial or administrative authorities of Contracting
States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement
of the proceedings, the applicant or the Central Authority of the
requested State, on its own initiative or if asked by the Central
Authority of the requesting State, shall have the right to request
a statement of the reasons for the delay.
If a reply is received by the Central Authority of the requested
State, that Authority shall transmit the reply to the Central Authority
of the requesting State, or to the applicant, as the case may be.
The State cited the Report of the Second Special Commission meeting
to review the operation of The Hague Convention on the Civil Aspects
of International Child Abduction (18-21 January 1993) prepared by
the Permanent Office (paragraph 26):
One way to avoid delay in frivolous appeals was to enforce
the order for return of the child or children while the appeal is
pending. This had been done in some cases in France, where there did
not appear to be a strong legal ground for the appeal, the Central
Authority having the power to enforce the decision pending the appeal.
In the Netherlands the order must be enforced, even if there
is an appeal. Austria, Germany and Luxembourg also have the possibility for
enforcement of a return pending an appeal.
See the Civil and Commercial Procedural Code of the Nation: Article
243: The remedy
of appeal allowed will be open to new evidence or closed to new evidence;
in either case, allowing an appeal may or may not have the effect
of suspending execution of the lower-court decision.
An appeal against a final judgment, whether in regular or summary
proceedings, will be open to new evidence.
In other cases, the appeal will be closed to new evidence.
It will always have a suspensive effect, unless the law stipulates
that it will not. Appeals
allowed where new evidence may be introduced will also have a deferred
effect, when the law so stipulates.
Article 258 of the Civil and Commercial Procedural Code stipulates
that: If the ruling
of the appeals court or tribunal upholds the lower-court ruling, when
the appeal is allowed the respondent may request its execution, pledging
to return what he receives if the Supreme Court overturns the lower
court ruling (
Article 198 of the Civil and Commercial Procedural Code stipulates
that in the case of precautionary measures: the remedy of appeal,
if admitted, will have a devolutive effect.
Dissenting vote of Dr. Claudio Marcelo Kiper in the Civil Appeals
Court ruling of April 28, 1995:
(...) it is important to note that the effects of just
filing the kind of appeal in question is an abstract issue, since
at folio 731 of the principal proceedings the decision on the issue
was negative, as most Argentine doctrine recognizes. (...).
The issue to be resolved is whether the fact that the federal
remedy has been permitted a
posteriori and before substantiation, implies a change in
the effects that the decision of the majority on this bench has had
thus far. The extraordinary
remedy permitted suspends execution of a ruling (Colombo, Código
Procesal, II, page 521; Palacio, L., Derecho Procesal
Civil, V, pág. 302.) (...) This raises the sensitive question
of whether a suspensive effect should be ordered in relation to a
ruling that has already been carried out (...).
(Emphasis by the Commission).
Corte Suprema de Justicia de la Nación. Caso
Wilner, Eduardo Mario c/ Osswald, María Gabriela, judgment of
European Court of Human Rights, Delcourt Case, January 17, 1970. A.11, p.15; Pakelli Case, April 25, 1983, A.64, p. 14; Pretto et al, December 8, 1983, A.71, p. 12; Granger Case, March 28, 1990, A.174, pp. 17-19.
Article 257 of the Civil and Commercial Procedural Code stipulates
that the appeal can be filed within a period of ten days.
See: Corte Suprema de Justicia de la Nación. Caso
Wilner, Eduardo Mario c/ Osswald, María Gabriela, Judgment of
Article 5 provides the following: For the purposes of this Convention:
a. 'rights of custody' shall include rights relating to the care of
the person of the child and, in particular, the right to determine
the child's place of residence; b. 'rights of access' shall include
the right to take a child for a limited period of time to a place
other than the child's habitual residence. (emphasis added)
In its ruling the Civil Appeals Court stated the following:
the stormy relationship between the parties following their
separation in Spain, after the mother was granted temporary custody
on April 23, 1991, caused the magistrate to order, on April 30, 1991,
that the child was not to leave the country without the courts
express authorization. Later,
as the litigation continued, a hearing was held on July 1, 1991.
There, once the visiting arrangement was settled, the Spanish
court demanded that both parents turn over their respective passports,
so that they might not attempt to take the child out of Spanish
territory (see fs. 24).
It was around that time, probably on July 8, 1991, that the
child was taken out of the country (see fs. 535.), proof of the wrongful
act of which Article 3 of The Hague Convention speaks, committed by
the mother. She disregarded not only the respondents right but also
her daughters right as defined in Article 5- all under
the terms of Article 4 of the applicable law, especially since the
father was entitled to spend summer vacations with the child.
Article 12 stipulates the following: Where a child has been
wrongfully removed or retained in terms of Article 3 and, at the date
of the commencement of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a period of
less than one year has elapsed from the date of the wrongful removal
or retention, the authority concerned shall order the return of the
child forthwith. The
judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one year referred
to in the preceding paragraph, shall also order the return of the
child, unless it is demonstrated that the child is now settled in
its new environment. Where
the judicial or administrative authority in the requested State has
reason to believe that the child has been taken to another State,
it may stay the proceedings or dismiss the application for the return
of the child. Article 13 reads as follows: Notwithstanding the
provisions of the preceding Article, the judicial or administrative
authority of the requested State is not bound to order the return
of the child if the person, institution or other body which opposes
its return establishes that: a. the person, institution or other body
having the care of the person of the child was not actually exercising
the custody rights at the time of removal or retention, or had consented
to or subsequently acquiesced in the removal of retention; or
b. there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise place the
child in an intolerable situation.
The judicial or administrative authority may also refuse to
order the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at which
it is appropriate to take account of its views. In considering the circumstances referred to in this Article,
the judicial and administrative authorities shall take into account
the information relating to the social background of the child provided
by the Central Authority or other competent authority of the child's
Inter-American Commission on Human Rights, Annual Report 1996, Case
11.673, Santiago Marzioni
(Argentina), page 89.