10.3 As to Darwinia Rosa Mónaco de Gallicchio's
claim that her right to recognition as a person before
the law was violated, the Committee notes that,
although her standing to represent her granddaughter
in the proceedings about the child's guardianship was
denied in 1989, the courts did recognize her standing
to represent her granddaughter in a number of
proceedings, including her suit to declare the nullity
of the adoption, and that she was granted
guardianship over Ximena Vicario. While these
circumstances do not raise an issue under article 16
of the Covenant, the initial denial of Mrs. Mónaco's
standing effectively left Ximena Vicario without
adequate representation, thereby depriving her of the
protection to which she was entitled as a minor.
Taken together with the circumstances mentioned in
paragraph 10.5 below, the denial of Mrs. Mónaco's
standing constituted a violation of article 24 of the
Covenant.
adopted on 11 August 1992 by the Cámara de
Apelación en lo Civil y Comercial Sala II del
Departamento Judicial de Morón, according to
which the nullity of Ximena Vicario's adoption was
affirmed.
8.2 By note verbale of 6 July 1994 the State party
informed the Committee that S.S. had appealed the
nullity of the adoption before the Supreme Court of
the Province of Buenos Aires and that Ximena
Vicario had been heard by the court.
8.3 With regard to the visiting rights initially
granted to S.S. in 1989, the State party indicates that
these were terminated in 1991, in conformity with
the express wishes of Ximena Vicario, then a minor.
8.4 With regard to the guardianship of Ximena
Vicario, which had been granted to her grandmother
on 29 December 1988, the Buenos Aires Juzgado
Nacional de Primera Instancia en lo Criminal y
Correccional terminated the regime by decision of
15 June 1994, bearing in mind that Ms. Vicario had
reached the age of 18 years.
10.4 As to Ximena Vicario's and her grandmother's
right to privacy, it is evident that the abduction of
Ximena Vicario, the falsification of her birth
certificate and her adoption by S.S. entailed
numerous acts of arbitrary and unlawful interference
with their privacy and family life, in violation of
article 17 of the Covenant. The same acts also
constituted violations of article 23, paragraph 1, and
article 24, paragraphs 1 and 2, of the Covenant.
These acts, however, occurred prior to the entry into
force of the Covenant and of the Optional Protocol
for Argentina on 8 November 1986, See the
Committee's decision on admissibility concerning
communication No. 275/1988, S.E. v. Argentina,
declared inadmissible ratione temporis on 26 March
1990, para. 5.3. and the Committee is not in a
position ratione temporis to emit a decision in their
respect. The Committee could, however, make a
finding of a violation of the Covenant if the
continuing effects of those violations were found
themselves to constitute violations of the Covenant.
The Committee notes that the grave violations of the
Covenant committed by the military regime of
Argentina in this case have been the subject of
numerous proceedings before the courts of the State
party, which have ultimately vindicated the right to
privacy and family life of both Ximena Vicario and
her grandmother. As to the visiting rights initially
granted to S.S., the Committee observes that the
competent courts of Argentina first endeavoured to
determine the facts and balance the human interests
of the persons involved and that in connection with
those investigations a number of measures were
adopted to give redress to Ximena Vicario and her
grandmother, including the termination of the regime
of visiting rights accorded to S.S, following the
recommendations of psychologists and Ximena
Vicario's own wishes. Nevertheless, these outcomes
appear to have been delayed by the initial denial of
8.5 In 1993 the Federal Court issued Ximena
Vicario identity papers under that name.
8.6 As to the criminal proceedings against S.S.,
an appeal is currently pending.
8.7 In the light of the above, the State party
contends that the facts of the case do not reveal any
violation of articles 16, 17, 23, 24 or 26 of the
Covenant.
9.1 In her submission of 10 February 1993, the
author expressed her concern over the appeal lodged
by S.S. against the nullity of the adoption and
contends that this uncertainty constitutes a
considerable burden to herself and to Ximena
Vicario.
9.2 In her submission of 3 February 1995, the
author states that the Supreme Court of the Province
of Buenos Aires has issued a final judgement
confirming the nullity of the adoption.
Examination of the merits
10.1 The Human Rights Committee has considered
the merits of the communication in the light of all
the information made available to it by the parties, as
provided for in article 5, paragraph 1, of the Optional
Protocol.
10.2 With regard to an alleged violation of article
16 of the Covenant, the Committee finds that the
facts before it do not sustain a finding that the State
party has denied Ximena Vicario recognition as a
person before the law. In fact, the courts of the State
party have endeavoured to establish her identity and
issued her identity papers accordingly.
50
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