before it do not provide sufficient basis for a finding
that either Ms. Vicario or her grandmother were
victims of prohibited discrimination.
standing of Mrs. Mónaco to challenge the visitation
order.
10.5 While the Committee appreciates the
seriousness with which the Argentine courts
endeavoured to redress the wrongs done to
Ms. Vicario and her grandmother, it observes that the
duration of the various judicial proceedings extended
for over 10 years, and that some of the proceedings
have not yet been completed. The Committee notes
that in the meantime Ms. Vicario, who was 7 years of
age when found, reached the age of maturity
(18 years) in 1994, and that it was not until 1993 that
her legal identity as Ximena Vicario was officially
recognized. In the specific circumstances of this case,
the Committee finds that the protection of children
stipulated in article 24 of the Covenant required the
State party to take affirmative action to grant
Ms. Vicario prompt and effective relief from her
predicament. In this context, the Committee recalls its
General Comment on article 24, General Comment
No. 17, adopted at the thirty-fifth session of the
Committee, in 1989. in which it stressed that every
child has a right to special measures of protection
because of his/her status as a minor; those special
measures are additional to the measures that States are
required to take under article 2 to ensure that everyone
enjoys the rights provided for in the Covenant.
Bearing in mind the suffering already endured by
Ms. Vicario, who lost both of her parents under tragic
circumstances imputable to the State party, the
Committee finds that the special measures required
under article 24, paragraph 1, of the Covenant were
not expeditiously applied by Argentina, and that the
failure to recognize the standing of Mrs. Mónaco in
the guardianship and visitation proceedings and the
delay in legally establishing Ms. Vicario's real name
and issuing identity papers also entailed a violation of
article 24, paragraph 2, of the Covenant, which is
designed to promote recognition of the child's legal
personality.
11.1 The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts which have been placed
before it reveal a violation by Argentina of article
24, paragraphs 1 and 2, of the Covenant.
11.2 In accordance with article 2, paragraph 3 (a),
of the Covenant, the State party is under an
obligation to provide the author and her
granddaughter with an effective remedy, including
compensation from the State for the undue delay of
the proceedings and resulting suffering to which they
were subjected. Furthermore, the State party is under
an obligation to ensure that similar violations do not
occur in the future.
11.3 Bearing in mind that, by becoming a party to
the Optional Protocol, the State party has
recognized the competence of the Committee to
determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to
ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in
the Covenant to provide an effective and
enforceable remedy in case a violation has been
established, the Committee wishes to receive from
the State party, within ninety days, information
about the measures taken to give effect to the
Committee's Views.
12. With reference to the violations of the
Covenant which occurred prior to 8 November
1986, the Committee encourages the State party to
persevere in its efforts to investigate the
disappearance of children, determine their true
identity, issue to them identity papers and passports
under their real names, and grant appropriate
redress to them and their families in an expeditious
manner.
10.6 As to an alleged violation of article 26 of the
Covenant, the Committee concludes that the facts
Communication No. 402/1990
Submitted by: Henricus Antonius Godefriedus Maria Brinkhof (represented by counsel) on 11 April 1990
Alleged victim: The author
State party: The Netherlands
Declared admissible: 25 March 1992 (forty-fourth session)
Date of adoption of Views: 27 July 1993 (forty-eighth session)
Subject matter: Exemption of Jehovah’s Witnesses
from military and alternative service – Alleged
discrimination of conscientious objectors
Procedural issues: Lack of substantiation of claim –
Inadmissibility ratione materiae – Exhaustion
of domestic remedies
51
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