determinant factor for the Superior Court of Justice of the province of Entre Ríos to rule,
arguing the best interests of the child, that the legal guardianship of M should be awarded
to the couple B-Z. With this decision, the provincial Superior Court of Justice revoked the
Chamber’s ruling and confirmed the decision of the first instance judge, even though, in the
said proceedings, the legal requirements had not been strictly observed (supra paras. 79 to
86) and the ruling had been made without having probative elements, including some that
the judge was bound to obtain, and which had to be sought at a subsequent stage (supra
paras. 87 to 90).
105. This Court considers that the observance of legal provisions and diligence in judicial
proceedings are fundamental elements to protect the best interests of the child. Moreover,
the best interests of the child cannot be cited to legalize the failure to observe legal
requirements, or delay or errors in judicial proceedings.
106. Based on all the above, the Inter-American Court concludes that the judicial
authorities in charge of the guardianship proceedings did not act with due diligence and,
therefore, the State violated the right to judicial guarantees established in Article 8(1) of the
American 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.
v) Considerations of the Court on the right to an effective remedy
107. The Court has indicated that Article 25(1) of the Convention establishes the
obligation of the States Parties to ensure to all persons subject to their jurisdiction an
effective judicial remedy against acts that violate their fundamental rights. This
effectiveness supposes that, in addition to the formal existence of remedies, these obtain
results or responses to the violations of the rights established in the Convention, the
Constitution, or by law. In this regard, those remedies that, owing to the general situation
of the country or even to the specific circumstances of a given case, are illusory cannot be
considered effective. This can occur, for example, when their ineffectiveness has been
revealed in practice, because the means to execute their decisions are absent, or for any
other situation that constitutes a denial of justice. Thus, the proceedings must endeavor to
ensure the real protection of the right recognized in the judicial ruling by the appropriate
implementation of this ruling.85
108. Moreover, as it has indicated previously when assessing the effectiveness of remedies,
the Court must observe whether the decisions in the judicial proceedings have made a real
contribution to ending a situation that violated rights, ensuring the non-repetition of harmful
acts, and guaranteeing the free and full exercise of the rights protected by the Convention.86
109. As shown above, the time that passed exceeded the reasonable time for the State to
deliver judgments in the proceedings on guardianship and visiting rights. This delay gave
rise to other consequences in addition to the violation of reasonable time, such as an
evident denial of justice, the violation of the right to the protection of the family of Mr.
85
Cf. Case of Acevedo Buendía et al. (“Dismissed and Retired Employees of the Office of the Comptroller”) v.
Peru. Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 69,
and Case of Chocrón Chocrón v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of July
1, 2011. Series C No. 227, para. 127.
86
Cf. Case of the Mapiripán Massacre v. Colombia. Merits, reparations and costs. Judgment of September
15, 2005, Series C No. 134, para. 210, and Case of Chocrón Chocrón v. Venezuela, supra note 85, para. 128.
31
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