Juan Asensi Martínez v. Paraguay
Communication No. 1407/2005
27 March 2009
International Covenant on Civil and Political Rights
Article 23(1): right to family
Article 24(1): special protection of children
Article 26: equality and non-discrimination
Mr. Martínez and Ms. Mendoza married and had two daughters in Paraguay. They moved to Barcelona in relation to Mr. Martínez's work, but while he was on a business trip, his wife took their children to Paraguay and refused to return. The Paraguayan courts rejected Mr. Martínez's attempts to gain custody of the children, though it took four years for the case to be heard by the Supreme Court. Ms Mendoza did not comply with court orders allowing Mr. Martínez access to his children, and the Paraguayan authorities sentenced her to house arrest for an attack on Mr. Martínez when he visited his two daughters. Mr. Martínez alleged ill-treatment of the children whilst awaiting the final hearing in Paraguay.
While awaiting proceedings in Paraguay, Mr. Martínez launched proceedings in the Spanish courts and was awarded custody of the children, though Ms. Mendoza did not comply. The Spanish authorities also also sought the extradition of Ms. Mendoza in relation to allegations of child abduction.
The Human Rights Committee found that Paraguay had violated Mr. Martínez's right to family and had failed to provide special protection to the children. The Committee placed particular weight in their judgement on the fact that the State had not responded to Mr. Martínez's complaints that the children were being neglected, had not given due consideration to complaints that the children lived in unsafe conditions, and that the Supreme Court had waited four years before hearing the case when an expeditious hearing is essential in "a case such as this". The Committee also found a violation in the State's failure to ensure that Ms. Mendoza complied with court ordered visitation rights, and did not sufficiently address evidence of, and what is meant by, "the best interests of the child" and "psychological risk".
The Committee found that there was insufficient evidence to demonstrate that the State had discriminated against Mr. Martínez on the basis of his nationality.
Link to Full Judgement:
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