42. The State alleges that the girls are currently in “optimal affective and material conditions” to
develop their capacities and that they shine in school. 32 The State adduces that during the years
that have passed since the decision of the Supreme Court, the girls have had available all the
conditions and emotional stability to develop fully, “even overcoming the attention deficit and
other challenges that they must have confronted.” 33 The State sustains that the father of the
girls has recently requested the increase of the alimony that he receives to support his daughters
from Ms. Atala due to the variation in the needs of the girls and that the minors suffer “an
attention deficit, a medical pathology that forces Mr. López to supply the medicine and medical
needs of his daughters which influences the family budget.” 34 The State also informs that the
working meetings about public policies and measures against discrimination initiated in this case
have been restarted by the Human Rights Direction of the State and that in this context
“interesting antecedents have been discussed about important changes that are happening in
public institutions, which display a disposition to work in collaboration to overcome more
traditional and prejudicial views.” 35
43. In regards to the exhaustion of domestic remedies, the State specifically draws attention to
the “rule of formal res judicata [cosa juzgada formal],” 36 which applies in proceedings on family
matters and allows the review of judicial decisions when the factual circumstances on which a
particular decision was based have changed. If Ms. Atala has to date not sued again for custody of
her daughters, “the only explanation is factual circumstances, not because there is a legal
impediment for her to do so.” 37 The State mentions that the mother can file a new custody suit if
the psychoaffective circumstances of the girls have changed, based on a separate psychiatric
report. 38 Its position is that the petitioners still have remedies available to challenge this decision
at the domestic level.
IV.
ANALYSIS
A.
Competence of the Commission ratione personae, ratione loci, ratione temporis,
and ratione materiae
44. The petitioners are entitled, under Article 44 of the American Convention, to file complaints
with the Commission. The petition names as alleged victims Ms. Karen Atala and her three
daughters, M., V., and R., on whose behalf Chile undertook to respect and ensure the rights
enshrined in the American Convention. Regarding the State, the Commission notes that Chile has
been a party to the American Convention since August 21, 1990, when it deposited the respective
instrument of ratification. The Commission, therefore, has ratione personae competence to
examine the petition.
45. The Commission is competent ratione loci to consider the petition inasmuch as it alleges
violations of rights protected under the American Convention which are said to have taken place
within the territory of Chile, a state party to said treaty.
46. The IACHR is competent ratione temporis, because the obligation to respect and ensure the
rights recognized in the American Convention was already in force for the State when the facts
alleged in the petition are said to have occurred. Finally, the Commission is competent ratione
materiae because the petition alleges violations of human rights protected by the American
Convention.
32
33
34
35
36
37
38
Note from the State received by the IACHR on April 16, 2008.
Note from the State received by the IACHR on April 16, 2008.
Note from the State received by the IACHR on April 16, 2008.
Note from the State received by the IACHR on April 16, 2008.
Notes from the State received by the IACHR on December 19, 2007 and March 31, 2008.
Notes from the State received by the IACHR on December 19, 2007 and March 31, 2008.
IACHR, Hearing, Case 12.502, Karen Atala and Daughters, 124th Regular Session, March 7, 2006.
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