145.
In the instant case, there is no disagreement as to whether in the domestic forum itself it was
determined that the child D was wrongfully removed by his mother. By resolution upheld by the Supreme Court
of Paraguay on September 18, 2006, it was decided to approve his return. On that basis, the Commission will now
proceed to examine the question as to whether the State took the steps required to fulfill the obligations set forth
above. To that end, the Commission will analyze whether the State fulfilled its duty of exceptional diligence and
with the required celerity.
-
Failure to discover the whereabouts of D. and the measures taken to find him
146.
The Commissions notes that following the return hearing on September 28, 2006, M.R.G.A
disappeared with the child D. The record shows that the authorities discovered the whereabouts of the child only
in 2015, that is, nine years after his return was ordered.
147.
In order to analyze the current situation, as indicated by the European Court of Human Rights in the
case of Shaw v. Hungary,186 the Commission considers it relevant to establish whether, given the need to locate a
boy or girl following his or her disappearance, the authorities took adequate and effective steps to effect the
return. In that case, the Court noted that for nearly eleven months from the issuing of the judgment that ordered
the return and the disappearance of mother and daughter, the only measures taken were unsuccessful requests
by the bailiff for voluntary return of the girl and the imposition of a relatively small fine on one occasion. The
European Court considered that other measures available to the authorities were not used, including the
possibility of police assistance and the repeated imposition of fines, and that, although the mother was
subsequently arrested, the authorities did not take steps to enforce the return order, despite the final order for
this to be done.
148.
In the instant case, in analyzing the actions of the Paraguayan State, the IACHR notes that although
D’s mother indicated that she did not agree to the return, no immediate special steps were taken to prevent her
from taking the child into hiding, which ultimately did occur. In this regard, the IACHR considers that, according
to the standards governing this area, the court had a duty to determine whether it was necessary for protective
measures to be adopted to prevent the concealment or removal of the child, and to expedite his return, a matter
that it is not shown took place in this case. In that regard, the Commission considers that it was important, after
the return order was issued, for the child as soon as possible to be protected from any other danger, including
the risk of concealment. The IACHR does not note that steps were taken to that end.
149.
Moreover, the information provided in the framework of the instant case shows that the following
steps were taken by the State with a view to implementing the return decision: (i) when M.R.G.A. failed to appear
on the day of the hearing, an order was issued to verify that situation at the mother’s home, a procedure carried
out by the court’s court report accompanied by the forensic psychologist, with assistance from the police, and the
court then issued an official letter to the Command of the National Police; (ii) a raid on the home of D’s extended
family; (iii) following Mr. Córdoba’s request in October 2006, a court ordered the case file to be forwarded to the
Office of the Criminal Prosecutor for it to open an investigation for an “act punishable with the public
administration—resistance,” given the impossibility of implementing the return order and the subsequent
international arrest warrant ordered by the prosecutor’s office; (iv) on January 10, 2007, the Court reiterated the
search warrant; (v) the Secretariat for Children and Adolescents requested the court to forward a search warrant
to INTERPOL in Itapua Department; (v) on April 17, 2008, the First Guarantees Court of Asunción issued an arrest
warrant for M.R.G.A “for purposes of extradition”; (vi) in May of that year, a raid of the Atyrá residence was
ordered and the Court reiterated the order to search for and locate the child D at the national and international
levels; (vii) in November 2008, “in view of [D’s] medical history,” the Court requested the Secretariat for Children
and Adolescents to order an interdisciplinary team to visit the maternal residence of the child to provide guidance
to the family member regarding M.R.G.A.’s recalcitrant behavior; (viii) INTERPOL allegedly made searches for the
child and his mother in both the aunt’s and the maternal grandparents’ home between 2006 and 2009, without
success.
186
European Court of Human Rights, Case of Shaw v. Hungary (Application No. 6457/09), 26 July 2011.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos