73.
Furthermore, two judges of the Superior Court of Entre Ríos who ruled, in a majority
vote, on the non-applicability of the law with regard to the Chamber’s judgment on the legal
guardianship, referred to the delay in the guardianship proceedings. One of them attributed
the delay to the backlog of cases before the domestic courts, indicating that “all the
paperwork that has mounted up […] explains the slowness of the court system” and that
“[t]he delay in the proceeding […] had an impact on the decision” of that court. Also,
another judge of the Superior Court stated, inter alia, that “[t]he duration of this proceeding
has not been reasonable; in other words, [international] standards have not been complied
with” (infra paras. 102 and 103).
74.
In this regard, this Court has established that it is not possible to argue domestic
obstacles, such as the lack of infrastructure or personnel to conduct judicial proceedings, in
order to be relieved of an international obligation.71 Similarly, the European Court of Human
Rights has determined that a chronic backlog of cases is not a valid explanation for
excessive delay.72
75.
Lastly, this Court has indicated that, to determine the reasonableness of the time,
the impact of the duration of the proceedings on the legal situation of the person involved in
them must be taken into account, considering, among other elements, the matter in
dispute. Thus, the Court has established that, if the passage of time has a relevant impact
on the legal situation of the individual, the proceedings must advance more rapidly so that
the case is decided as soon as possible.73
76.
Both the first instance judge and the Superior Court of Entre Ríos granted the legal
guardianship of the child to the married couple B-Z based, principally, on the ties that M had
formed with her guardians over time. This means that, even though Mr. Fornerón is the
child’s biological father – and acknowledged this before the authorities shortly after her birth
– he has been unable to exercise his rights or comply with his obligations as a father, and M
has been unable to enjoy the rights that correspond to her as a child in relation to her
biological family. In addition, the absence of a decision and the failure to establish a visiting
regime has prevented father and daughter from getting to know each other and establishing
a relationship; all this, in the first 12 years of the child’s life, a fundamental stage in her
development. Consequently, taking into account the rights and interests in play, the delay
in the judicial decisions led to significant, irreversible and irremediable harm to the rights of
Mr. Fornerón and of his daughter
77.
Based on the above, in this case, the total duration of the proceedings on the legal
guardianship and on the visiting regime of more than three and ten years, respectively, is
categorically in excess of a time frame that could be considered reasonable in proceedings
relating to the guardianship of a child and the visiting regime with her father, so that it
constitutes a violation of Article 8(1) of the Convention, in relation to Articles 17(1) and 1(1)
of this instrument, to the detriment of Mr. Fornerón and of his daughter M, as well as in
relation to Article 19 of the Convention to the detriment of the latter.
71
Cf. Case of Garibaldi v. Brazil. Preliminary objections, merits, reparations and costs. Judgment of
September 23, 2009. Series C No. 203, para. 137.
72
Cf. ECHR. Case of Probstmeier v. Germany (No. 20950/92), Judgment of July 1, 1997, para. 64, and Case
of Samardžić and AD Plastika v. Serbia (No. 2844/05), Judgment of July 17, 2007, para. 41.
73
Cf. Case of Valle Jaramillo et al. v. Colombia. Merits, reparations and costs. Judgment of November 27,
2008. Series C. No. 192, para. 155, and Case of Kawas Fernández v. Honduras. Merits, reparations and costs.
Judgment of April 3, 2009, Series C No. 196, para. 115.
24
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