in case A-62/84 had been pending for over six years
at first instance; as any judgement could be appealed
to the Court of Appeal and the Supreme Court, the
author surmises that Ximena Vicario would reach
legal age (18 years) without a final solution to her,
and the author's, plight. Therefore, the judicial
process should be deemed to have been
"unreasonably prolonged".
circumstances by the competent authorities seized of
the matter.
4.2 In the author's case, the State party notes, new
factual and legal circumstances have come to light
which will require further judicial proceedings and
decisions; the latter in turn may provide the author
with an effective remedy. Thus, a complaint was
filed on 13 February 1990 in the Federal Court of
First Instance by the Federal Prosecutor charged
with the investigation of the cases of the children of
disappeared persons; the case was registered under
case file A-56/90. On 16 September 1990, the
Prosecutor submitted a report from a professor of
juvenile clinical psychology of the University of
Buenos Aires, which addressed the impact of the
visits from S.S. on the mental health of Ximena
Vicario; the report recommended that the visiting
rights regime should be reviewed.
5.2 The author contends that the Supreme Court's
decision denying her standing in the judicial
proceedings binds all other Argentine tribunals and
therefore extends the violations suffered by her to all
grandparents and parents of disappeared children in
Argentina. In support of her contention, she cites a
recent judgement of the Court of Appeal of La Plata,
concerning a case similar to hers. These judgements,
in her opinion, have nothing "provisional" about
them. In fact, the psychological state of Ximena
Vicario is said to have deteriorated to such an extent
that, on an unspecified date, a judge denied S.S. the
month of summer vacation with Ximena Vicario she
had requested; however, the judge authorized S.S. to
spend a week with Ximena Vicario in April 1991.
The author concludes that she should be deemed to
have complied with the admissibility criteria of the
Optional Protocol.
4.3 The State party further indicates that before
the civil courts in the province of Buenos Aires
(Juzgado en lo Civil No. 10 del Departamento
Judicial de Morón) an action initiated by the author
had been pending, with a view to declaring the
adoption of Ximena Vicario by S.S. invalid. On
9 August 1991, the Juzgado en lo Civil No. 10 held
that Ximena Vicario's adoption and her birth
inscription as R.P.S. were invalid. The decision is on
appeal before the Supreme Court of the province of
Buenos Aires.
Committee's decision on admissibility
6.1 During its forty-fifth session the Committee
considered the admissibility of the communication.
The Committee took note of the State party's
observations, according to which several judicial
actions which potentially might provide the author
with a satisfactory remedy were pending. It noted,
however, that the author had availed herself of
domestic appeals procedures, including an appeal to
the Supreme Court of Argentina, and that her appeals
had been unsuccessful. In the circumstances, the
author was not required, for purposes of article 5,
paragraph 2 (b), of the Optional Protocol, to repetition the Argentine courts if new circumstances
arose in the dispute over the guardianship of Ximena
Vicario.
4.4 Finally, the State party notes that criminal
proceedings against S.S. remain pending, for the
alleged offences of falsification of documents and
kidnapping of a minor. A final decision in this
matter has not been taken.
4.5 The State party concludes that, in the light of
the provisional nature of decisions in guardianship
proceedings, it is important to await the outcome of
the various civil and criminal actions pending in the
author's case and that of Ximena Vicario, as this may
modify the author's and Ximena Vicario's situation.
Accordingly, the State party requests the Committee
to decide that it would be inappropriate to adjudicate
the matter under consideration at this time.
6.2 In respect of the author's claims under
articles 2, 3, 7, 8 and 14, the Committee found that
the author had failed to substantiate her claims, for
purposes of admissibility.
4.6 In respect of the alleged violations of the
Argentine Constitution, the State party affirms that it
is beyond the Committee's competence to evaluate
the compatibility of judicial decisions with domestic
law, and that this part of the communication should
be declared inadmissible.
7.
On 8 July 1992 the Human Rights Committee
decided that the communication was admissible in so
far as it might raise issues under articles 16, 17, 23,
24 and 26 of the Covenant.
5.1 In her comments, the author contends that no
new circumstances have arisen that would justify a
modification of her initial claims submitted to the
Committee. Thus, her granddaughter continues to
receive regular visits from S.S., and the civil and
criminal proceedings against the latter have not
shown any notable progress. The author points out
that by the spring of 1991, the criminal proceedings
Author's and State party's further submissions on the
merits
8.1 By note verbale of 7 September 1992, the
State party forwarded the text of the decision
49
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