caused by questions of jurisdictional competence, prevented any familiarity developing between
Mr. Fornerón and his daughter Milagros.
39. Regarding these two remedies concerning legal guardianship and visiting rights, the
Commission observes that the first lasted from October 2000 until April 2004, and the second was
opened in November 2001, and according to the records has not yet been resolved in law. With
regard to the proceedings to do with legal guardianship, it is evident that two years passed
between the decision of first instance and the reversal of second instance. Although the State has
shown that Mr. Fornerón had opportune access to the remedies available under domestic law, it
has offered no information to either explain or justify the duration of these two proceedings.
40. The IACHR observes that approximately two years and a half elapsed between the date on
which Mr. Fornerón brought his request for visiting rights on November 15, 2001, and April 7,
2004, the date on which the Victoria judge declared himself competent, a delay that cannot in any
way be attributed to Mr. Fornerón. Moreover, the IACHR notes that the State alleges merely that
Mr. Fornerón did not repeatedly request the familiarization meetings with Milagros; however, it
fails to allege that any other remedy should have been exhausted in order to resolve the issue. In
accordance with the burden of proof applicable in the case, any State that alleges the
nonexhaustion of remedies available under domestic law must indicate the remedies that were
available to be exhausted and must provide proof of their effectiveness.3 In the present case, the
State did not satisfy the burden of proof incumbent on it.
41. To assess any delay in resolving remedies available under domestic law, the purpose of the
legal action must also be taken into account. In this regard, the Commission must take into
account that the actions undertaken by Leonardo Aníbal Javier Fornerón were intended to enable
him to establish and maintain an emotional and caring relationship with his daughter Milagros.
The Commission must also take into account that the petitioners consider that the length of time
taken by the proceedings had a particularly deleterious effect on the rights of Leonardo Aníbal
Javier Fornerón and of his daughter Milagros because as time passed, the child built up stronger
ties with her guardians and this factor was then used to maintain the adoption and to reject the
claims of the biological father. The Commission therefore notes that the judicial proceedings
concerning guardianship and custody of a boy or girl should be handled with dispatch because of
the importance of the interests involved.4
42. In the light of the foregoing analysis, the Commission concludes that Leonardo Aníbal Javier
Fornerón invoked the ordinary remedies provided by the legal system of the State and therefore
that the State was fully aware of the claims that gave rise to the legal petition. Taking into
account the length of the ordinary remedies and allowing for the fact that the remedy invoked as
necessary by the State is subject to discretionality as to how it is exercised and how long it lasts,
it would not be reasonable to demand that the petitioner exhausts that extraordinary remedy as a
condition of admissibility. As stated by the InterAmerican Court, “the rule of prior exhaustion
must never lead to a halt or delay that would render international action in support of the
defenseless victim ineffective…”5
See IACHR, Report Nº 32/05, petition 642/03, Admissibility, Luis Rolando Cuscul Pivaral and other persons affected by
HIV/AIDS, Guatemala, March 7, 2005, paras. 3335; I/A Court H.R.,
The Mayagna (Sumo) Awas Tingni Community Case.
Preliminary Exceptions, supra
note 3, para. 53; I/A Court H.R.,
Durand and Ugarte Case. Preliminary Exceptions. Judgment
of May 28, 1999, Series C No. 50, para. 33; and I/A Court H.R.,
Cantoral Benavides Case. Preliminary Exceptions.
Judgment of September 3, 1998. Series C No. 40. para. 31.
3
4
5
See, in general, the European Court of Human Rights,
Johansen vs. Norway
, August 7, 1996, 1196III, No. 13, para. 88.
I
/A Court H.R.,
Velásquez Rodríguez Case. Preliminary Objections
. Judgment of June 26, 1987. Series C No. 1, para. 93.
I/A Court H.R.,
Godínez Cruz Case. Preliminary Exceptions. Judgment of June 26, 1987. Series C, No. 3, para. 93. As
indicated by the Commission, those remedies whose processing is subject to undue delays cease to be effective. See, for
example, IACHR, Report No. 27/00, Admissibility, Case 11.697, Ramón Mauricio GarcíaPrieto Giralt, El Salvador, March 9,
1999, para. 47.
8