place. Finally, the Commission has competence
ratione materiae because the petition alleges
violations of human rights enshrined in the American Convention.
B.
1.
Other requirements for admissibility
Exhaustion of remedies under domestic law
33. Article 46.1.a of the American Convention states that for a petition lodged before the
Commission to be admissible according to Article 44 of the Convention, it is necessary that all
remedies under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law. The purpose of this requirement is to ensure that the
State in question has the possibility to resolve disputes within its own legal jurisdiction.
34. The requirement of prior exhaustion is applicable when domestic legislation does in fact
provide remedies that are adequate and effective to remedy the alleged violation. In this sense,
Article 46.2 specifies that the requirement is not applicable when domestic law does not afford
due process of law for the protection of the right in question; or if the alleged victim has been
denied access to the remedies under domestic law; or if there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies. As stated in Article 31 of the
Rules of Procedure of the Commission, when a petitioner alleges one of these exceptions it shall
be up to the State concerned to demonstrate that the remedies under domestic law have not been
previously exhausted, unless that is clearly evident from the record.
35. In the instant case, with regard to the proceedings entitled “Fornerón Milagros s/Full
Adoption,” the Commission observes that Leonardo Javier Aníbal Fornerón was not a party to the
above proceedings but was merely called to appear, and did appear, in order to oppose the
adoption of Milagros requested by the guardian couple. Therefore the Commission observes that
there was no obligation on Mr. Fornerón to exhaust any remedies in relation to the
abovementioned proceedings.
36. Regarding the argument made by the State to the effect that in the proceedings entitled
“Investigating Officer requests prior measures. Possible crime of suppression of legal status” an
extraordinary federal appeal was neither brought nor exhausted, the petitioners point out that
Leonardo Aníbal Javier Fornerón, by appealing, exhausted all the ordinary remedies available
under domestic law that could have been effective. The Commission observes, in this respect, that
the crime alleged was liable to prosecution by the State. It was incumbent upon the State to carry
out the proper investigation, an obligation that was not Mr. Fornerón’s responsibility. Furthermore,
the Commission observes that even if an extraordinary federal remedy had been exhausted, the
results would not have been able to remedy the situation denounced in the present petition.
37. In order to determine the degree of compliance of this requirement for admissibility, the
remedies concerning legal guardianship and visiting rights are of paramount importance. The
State claims that in the proceedings entitled “Enríquez Milagros s/Legal Guardianship,” there is no
evidence that Leonardo Aníbal Javier Fornerón attempted to appeal against the finding of the Civil
Court of the High Court of Justice in the Province of Entre Ríos, by appealing directly to the
Argentinean Supreme Court of Justice. In this regard, the petitioners state that because
proceedings in the ordinary remedies took almost four years, for a matter where time is of the
essence, Mr. Fornerón feared that there would be an even greater delay if he appealed to the
Supreme Court, in addition to which it would not help to remedy the delay that had already taken
place.
38. Regarding the proceedings entitled “Fornerón Leonardo Aníbal Javier. Visiting Rights,” the
State claims that Leonardo Aníbal Javier Fornerón did not repeatedly request the meetings that
should have taken place. The petitioners, for their part, claim that delays in the proceedings
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