7
petitioners reiterated that the precautionary measures ordered by the Commission
had not been complied with, and underscored the absence of progress in the
domestic proceedings. The State indicated that there had been delays in the judicial
proceedings because the parties – petitioners and guardians – had taken advantage
of the procedural guarantees provided by domestic law and, also, a series of
children’s judges had disqualified themselves “for reasons attributed to each of the
parties.”
4.
The Commission’s arguments to support its request for provisional measures,
including the following:
a) From a preliminary assessment of the proceedings, there are, prima facie, a series
of elements that, taken together, constitute a situation of extreme gravity that, to
date, has been causing irreparable damages to the child L.M., namely:
i.
One year and nine months have elapsed since the main proceeding for the
custody of L.M. began, and to date no first instance decision has been taken
regarding his situation. This proceeding has been almost paralyzed since
October 2010, when an appeal was filed against the decision of October 19,
2010;
ii.
The stalling of the proceeding has resulted, among other factors, from the
impossibility of establishing an appeals court to decide the appeal, due to the
judges disqualifying themselves;
iii.
The legal time limits within which the State indicated these cases must be
resolved expired a long time ago;
iv.
There are other related proceedings in which the judges have also disqualified
themselves, and other incidents that have prevented a final ruling;
v.
the State has not adopted any measure to expedite the proceedings, and has
not complied with the Commission’s precautionary measures;
b) In the said exceptional circumstances, in which the domestic authorities must take
decisions on these aspects, the principle of special protection measures for children
is closely related to the timeliness of the respective decisions. This exceptional
diligence is due to the fact that the passage of time inevitably becomes a defining
element for emotional ties that are difficult to undo without harming the child;
c) On several opportunities there have been unjustified delays in the proceedings and
throughout the proceedings a number of the judicial authorities from the children
and adolescents’ jurisdiction have disqualified themselves;
d) Despite the precautionary measures ordered by the Commission, which included a
specific time frame to conclude the proceedings, the State has failed to adopt
measures aimed at expediting the domestic proceedings;
e) The situation of delay and absence of decisions in the domestic proceedings entails
a risk that is not only imminent but is also materializing, without any likelihood that
the situation will change unless the mechanism of provisional measures is activated;
and
f) The special celerity of the proceedings, their swift resolution, and the urgent
decision concerning contact with the biological family, in addition to being