to an unreasonable or disproportionate solution. The State also points out that it is not stated in
the proceedings that Mr. Fornerón ever tried to appeal against the High Court judgment by
applying directly to the country’s Supreme Court of Justice.
28. With regard to the case entitled “Fornerón Leonardo Aníbal Javier. Visiting Rights,” the State
claims that Mr. Fornerón lodged a petition with the Civil and Labor court of Rosario de Tala on
November 15, 2001, setting in motion a case for visiting rights, and for reasons of competence
this was referred to the Civil and Commercial Court of Victoria on April 19, 2002. By November
25, 2003, Mr. Fornerón had requested a date for a hearing and on April 7, 2004, the Victoria
judge declared the court competent. One year later, on April 8, 2005, Leonardo Aníbal Javier
Fornerón requested a hearing in order to establish a regime for visiting, which was held on April
29, 2005, at which it was agreed that an expert psychologist should interview the child in order to
prepare her for a meeting with her biological father. On June 14, 2005, the judge agreed to bear
in mind the proposal from Leonardo Aníbal Javier Fornerón with regard to a possible calendar of
visits, and ordered it to be transmitted to the guardians in order for them to comment thereon.
29. With regard to the case entitled “Fornerón Milagros s/Full Adoption,” the state points out that
on June 6, 2004, the guardians brought proceedings applying for full adoption and the judge
therefore, having called for the relevant documents from the Ombudsman for Children and the
Poor and from the investigating officer, decided to summon the parents of Milagros to a hearing.
On October 28, 2004, Diana Elizabeth Enríquez appeared, and indicated her agreement to the full
adoption of her daughter Milagros, and on March 18, 2005, Mr. Fornerón indicated his opposition
to the adoption. On April 27, 2005, the Ombudsman for Children and the Poor recommended that
the court should opt for simple adoption of the minor by the guardian couple; and on June 2,
2005, the investigating officer was of the opinion that the aforementioned couple possessed
suitable moral and material conditions for a viable adoption and therefore recommended that the
child be given to them in simple adoption.
30. The State claims that an examination of the judicial acts carried out in the domestic arena
shows how the situation described by the petitioners has been reviewed by all the different
agencies concerned, in the civil as well as in the criminal jurisdictions. Although it is true that
Leonardo Aníbal Javier Fornerón has never stopped petitioning the legal authorities for the
restitution of his daughter Milagros, the State maintains that there have been periods of inactivity
in his legal proceedings which cannot be attributed to the local jurisdiction. Consequently, the
State considers that Leonardo Aníbal Javier Fornerón had full access to all the remedies in the
domestic jurisdiction and failed to exhaust them to the extent defined in Article 46 of the
American Convention.
IV
A.
ANALYSIS
Competence of the Commission
ratione personae, ratione materiae, ratione
temporis
and
ratione loci
31. The petitioners are empowered to lodge a petition with the Commission by Article 44 of the
American Convention. The petition names as alleged victims certain individuals whose rights
under the American Convention the State has agreed to respect and protect. The Commission
notes that Argentina has been a State party to the Convention since September 5, 1984, when it
deposited its instrument of ratification. Therefore, the Commission has competence
ratione
personae
to examine the petition.
32. The Commission has competence
ratione loci to examine the petition because the petition
alleges violations of rights protected under the American Convention which took place within the
territory of a State party to the Convention. The IACHR has competence
ratione temporis because
the obligation to respect and protect the rights enshrined in the American Convention was already
in force for the State at the date on which the violations of rights alleged in the petition took
6