Darwinia Rosa Monaco de Gallicchio v. Argentina

• CCPR

International Covenant on Civil and Political Rights: Articles 2, 3, 7, 8, 9, 14, 16, 17, 23, 24 and 26

Optional Protocol to the International Covenant on Civil and Political Rights: Article 5 paragraph 2 (b)

General Comment No. 17 - Rights of the child, (Article 24)

The author of the communication is Darwinia Rosa Monaco de Gallicchio, a citizen of Argentina born in 1925, who at the time of submission resided in Buenos Aires. She submitted the communication on her behalf and on behalf of her granddaughter, Ximena Vicario, born in Argentina on 12 May 1976 and 14 years of age at the time the communication was submitted.

On 5 February 1977, Ximena Vicario’s mother was taken to the headquarters of the Federal Police in Buenos Aires with Ximena who was nine-month-old at the time. Ximena’s father was also apprehended in the city of Rosario on the following day. Since then, Ximena’s parents remain disappeared. In 1984, the author found Ximena Vicario residing in the home of a nurse, S.S., who claimed to have been taking care of Ximena since after her birth. A DNA report revealed that there was a 99.82 % probability that Ximena was the author’s grandchild. In light of this, the prosecutor ordered the preventive detention of S.S. on the ground of committing the offence of concealing the whereabouts of a child and forgery of documents.

On 2 January 1989, the author was granted provisional guardianship of Ximena. S.S. then applied for visiting rights which were granted by the Supreme Court on 5 September 1989. The Supreme Court also held that the author had no standing in the proceedings about the child's guardianship since only the parents and the legal guardian had standing and could directly participate in the proceedings. On 23 September 1989, the author requested the court to rule that the S.S. discontinued visiting Ximena due to the psychological effects on Ximena. The author’s case was dismissed on account of lack of standing. On appeal, this decision was upheld on 29 December 1989. The author therefore submitted that available and effective domestic remedies had been exhausted. She added that it would be possible to file further appeals in civil proceedings, but submitted that these would be unjustifiably prolonged, to the extent that Ximena Vicario might well reach the age of legal competence by the time of a final decision. Furthermore, until such time as legal proceedings in the case were completed, her granddaughter continued to bear the name given to her by S.S.

The author claimed that the judicial decisions in the case violated Articles 23 (protection of the family) and 24 (rights of the child) of the Covenant. She further submitted that S.S.'s regular visits to the child entailed some form of "psycho-affective" involuntary servitude in violation of Article 8 (prohibition of slavery; protection against servitude and forced labour) of the Covenant. The fact that the author was denied standing in the guardianship proceedings constituted a violation of the principle of equality before the law, as guaranteed by Articles 14 (right to justice and fair trial) and 26 (equality before the law) of the Covenant.

The author also claimed a violation of the rights of her granddaughter, whom, she contended was subjected to psychological torture, in violation of Article 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment) of the Covenant, every time she was visited by S.S. Another alleged breach of the Covenant concerned Article 16 (right to recognition before the law), under which every person had the right to recognition as a person before the law, with the right to an identity, a name and a family. The author argued that if Ximena Vicario had to continue to bear the name given to her by S.S. until legal proceedings were completed, then it constituted a violation of her right to an identity. Moreover, the uncertainty about her legal identity had prevented her from obtaining a passport under her real name. The author submitted that the forced acceptance of visits from S.S. violated her granddaughter's rights under Article 17 (protection against arbitrary or unlawful interference with privacy and family), which should protect Ximena Vicario from arbitrary interference with her privacy. Moreover, the author contended that her own right to privacy was violated by the visits of S.S., and by her exclusion from the judicial proceedings over the guardianship of Ximena Vicario. According to the author, Article 23, which protects the integrity of the family and of children, was violated in that Ximena Vicario was constantly exposed to, and maintained in, an ambiguous psychological situation.

On 7 September 1992, the State party forwarded the text of the decision adopted on 11 August 1992, according to which the nullity of Ximena Vicario's adoption was affirmed. On 6 July 1994, the State party informed the Committee that S.S. had appealed the nullity of the adoption before the Supreme Court of the Province of Buenos Aires and that Ximena Vicario had been heard by the court. With regard to the visiting rights initially granted to S.S. in 1989, the State party indicated that these were terminated in 1991, in conformity with the express wishes of Ximena Vicario, then a child. With regard to the guardianship of Ximena Vicario, which had been granted to her grandmother on 29 December 1988, the court terminated it on 15 June 1994, since Ms. Vicario had reached the age of 18 years. In 1993 the Federal Court issued Ximena Vicario identity papers under that name. As to the criminal proceedings against S.S., an appeal was pending. In the light of the above, the State party contended that the facts of the case did not reveal any violation of Articles 16, 17, 23, 24 or 26 of the Covenant.

On 10 February 1993, the author expressed her concern over the appeal lodged by S.S. against the nullity of the adoption and contended that this uncertainty constituted a considerable burden to herself and to Ximena Vicario. On 3 February 1995, the author stated that the Supreme Court of the Province of Buenos Aires had issued a final judgement confirming the nullity of the adoption.

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Consideration of admissibility

The Committee found that the communication was admissible in part. In respect of the author's claims under Articles 2, 3, 7, 8 and 14, the Committee found that the author had failed to substantiate her claims, for purposes of admissibility. The Committee found that her claims under Articles 16, 17, 23, 24 and 26 were sufficiently substantiated and proceeded to the merits.

Consideration of the merits

The Committee was of the view that the facts revealed a violation by Argentina of Article 24 paragraphs 1 (protection of child) and 2 (right of child to be immediately registered after birth), of the Covenant.

With regard to the alleged violation of Article 16 (right to recognition before the law) of the Covenant, the Committee found that the facts did not reveal a finding that the State party had denied Ximena Vicario recognition as a person before the law. The Committee added that the courts of the State party had endeavoured to establish her identity and issued her identity papers accordingly. As to the author’s claim that her right to recognition as a person before the law was violated, the Committee noted that, although her standing to represent her granddaughter in the proceedings about the child's guardianship was denied in 1989, the courts did recognize her standing to represent her granddaughter in a number of proceedings, including her suit to declare the nullity of the adoption, and that she was granted guardianship over Ximena Vicario. The Committee held further that whilst these circumstances did not raise an issue under Article 16 of the Covenant, the initial denial of the author’s standing effectively left Ximena Vicario without adequate representation, thereby depriving her of the protection to which she was entitled as a child. Taken together with the fact that the duration of the various legal proceedings extended over 10 years, the denial the author’s standing constituted a violation of Article 24 (rights of the child) of the Covenant.

The Committee added that it was evident that the abduction of Ximena Vicario, the falsification of her birth certificate and her adoption by S.S. entailed numerous acts of arbitrary and unlawful interference with their privacy and family life, in violation of Article 17 (protection against arbitrary or unlawful interference with privacy and family) of the Covenant. The same acts also constituted violations of Articles 23 paragraph 1 (protection of family), and 24 paragraphs 1 and 2, of the Covenant. The Committee noted however that these acts, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina on 8 November 1986. Therefore, the Committee was not in a position ratione temporis to decide in that respect. The Committee could, however, make a finding of a violation of the Covenant if the continuing effects of those violations were found to constitute violations of the Covenant. As to the visiting rights initially granted to S.S., the Committee observed that the competent courts of Argentina first endeavoured to determine the facts and balanced the human interests of the persons involved and that in connection with those investigations a number of measures were adopted to give redress to Ximena Vicario and her grandmother, including the termination of the regime of visiting rights accorded to S.S, following the recommendations of psychologists and Ximena Vicario's own wishes. Nevertheless, these outcomes appear to have been delayed by the initial denial of standing of the author to challenge the visitation order.

The Committee observed that the duration of the various judicial proceedings extended for over 10 years, and that some of the proceedings had not yet been completed. The Committee noted that in the meantime Ms. Vicario, who was 7 years of age when found, reached the age of maturity (18 years) in 1994, and that it was not until 1993 that her legal identity as Ximena Vicario was officially recognized. The Committee found that the protection of children stipulated in Article 24 of the Covenant required the State party to take affirmative action to grant Ms. Vicario prompt and effective relief from her predicament. The Committee recalled its General Comment No. 17 - Rights of the child, (Article 24), in which it stressed that every child had a right to special measures of protection because of his/her status as a minor; those special measures were additional to the measures that States were required to take under Article 2 to ensure that everyone enjoyed the rights provided for in the Covenant. Bearing in mind the suffering already endured by Ms. Vicario, who lost both of her parents under tragic circumstances imputable to the State party, the Committee found that the special measures required under Article 24 paragraph 1 of the Covenant were not expeditiously applied by Argentina, and that the failure to recognize the standing of the author in the guardianship and visitation proceedings and the delay in legally establishing Ms. Vicario's real name and issuing identity papers also entailed a violation of Article 24 paragraph 2 of the Covenant, which was designed to promote recognition of the child's legal personality. As to an alleged violation of Article 26 of the Covenant, the Committee concluded that the facts before it did not provide sufficient basis for a finding that either Ms. Vicario or her grandmother were victims of prohibited discrimination.

The State party was ordered to provide the author and her granddaughter with an effective remedy, including compensation from the State for the undue delay of the proceedings and resulting suffering to which they were subjected. Furthermore, the State party was under an obligation to ensure that similar violations did not occur in the future.

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