HC/E/USf 799
Estados Unidos de América - Competencia Federal
United States District Court for the District of Columbia (Estados Unidos)
Primera Instancia
Colombia
Estados Unidos de América - Competencia Federal
31 March 2005
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Derechos humanos - art. 20
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CONSTITUTIONAL CLAIMS It was argued that the defendants took actions in furtherance of an alleged conspiracy which allegedly resulted in the frustration of a custody suit brought by the father in the immediate aftermath of the wrongful retention in the Virginia Juvenile and Domestic Court. It was further alleged that the plaintiffs had been deprived of their fundamental rights as father and a son in their respective society and companionship, and their rights as U.S. citizens to be safe and remain in the United States without government interference. The federal defendants moved to dismiss the claims arguing, inter alia, that the plaintiffs' claims against the individual federal defendants in their personal capacities must be dismissed for lack of service of process, and that claims against the federal organizations and individual defendants in their official capacities must be dismissed because there had been no waiver of sovereign immunity for such claims. The private defendants moved to dismiss the claims, arguing, inter alia, that the complaints failed to state a claim because it asserted only conclusory allegations, unsupported by facts of a conspiracy to deprive the plaintiffs of their constitutional rights. Furthermore the private defendants argued that in accordance with US Supreme Court case law they were not valid defendants, and even if they were they would be entitled to qualified immunity from such claims. The Court held that because the plaintiffs had failed to serve process on the individual federal defendants in their individual capacities, and because these individuals were entitled to sovereign immunity from suits for money damages against them in their official capacities, the constitutional claims against these individuals would be dismissed. The Court further held that because the federal organizations had sovereign immunity from suits for money damages, the constitutional claims would also be dismissed as to these defendants. The Court found that the private organizations and some of the private individuals were not proper defendants under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and accordingly the constitutional claims would be dismissed as to them. The Court dismissed the constitutional claims against the remaining individual private defendants because, even if they were proper Bivens defendants, the plaintiffs had not stated a claim against those defendants which would withstand qualified immunity. CLAIMS UNDER FEDERAL TORT CLAIMS ACT The plaintiffs alleged that certain defendants had violated the Federal Tort Claims Act ("FTCA"), in that their actions violated the plaintiffs' rights to the society and companionship of the father-son relationship and access to the courts, and constituted an "illegal shanghaiing of Isidoro from the United States," negligent supervision, intentional infliction of emotional distress, violation of freedom to petition the government, falsification of official documents, and invasion of privacy. The federal defendants contended that the FTCA claims against them should be dismissed for failure to exhaust administrative remedies and for failure to state a valid claim under the FTCA. The private defendants further contended that only the United States was a proper defendant to an FTCA claim, and that the claim was foreclosed in any event by the failure to file an administrative complaint. The Court held that because the United States had not waived sovereign immunity with respect to constitutional torts, because the plaintiffs had failed to present some of their alleged non-constitutional tort violations at the agency level, and because, with regard to the alleged tort violation they did present at the agency level, they failed to state a claim upon which relief could be granted, their claims under the Federal Tort Claims Act had to be dismissed. CLAIM OF CONSPIRACY TO VIOLATE CIVIL RIGHTS UNDER 42 U.S.C. § 1985(3) AND ACTION FOR NEGLECT TO PREVENT UNDER § 1986 The plaintiffs alleged that some or all of the defendants and others conspired to violate their constitutional rights based on a discriminatory animus towards United States Hispanic men, in violation of 42 U.S.C. §§ 1985(3) and 1986. The Court dismissed these claims finding that the plaintiffs had failed to sufficiently state a claim that any alleged conspiracy was based on racial or other class-based animus. WRIT OF MANDAMUS Father and son also petitioned for a writ of mandamus directing the Department of State to keep the boy safe in Colombia, assure the father had access to him, and to seek the boy's return to the United States. The Court dismissed the request on the basis that the plaintiffs had failed to show that their right to a writ of mandamus was clear and indisputable.
A summary of the first instance decision may be found at: Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002) [INCADAT Reference: HC/E/USf 798].
The Convention has been found to be in accordance with national constitutions or charters of rights in other Contracting States, see:
Argentina
W. v. O., 14 June 1995, Argentine Supreme Court of Justice, [INCADAT cite: HC/E/AR 362];
Belgium
N° 03/3585/A, Tribunal de première instance de Bruxelles, [INCADAT cite: HC/E/BE 547];
Canada - Canadian Charter of Rights and Freedoms
Parsons v. Styger, (1989) 67 OR (2d) 1, [INCADAT cite: HC/E/CA 16];
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.), [INCADAT cite: HC/E/CA/369];
Czech Republic
III. ÚS 440/2000 DAOUD / DAOUD, 7 December 2000, Ústavní soud České republiky (Constitutional Court of the Czech Republic);[INCADAT cite: HC/E/CZ 468];
Germany
2 BvR 982/95 and 2 BvR 983/95, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 310];
2 BvR 1126/97, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 338];
Ireland
C.K. v. C.K. [1993] ILRM 534, [INCADAT cite: HC/E/IE 288];
W. v. Ireland and the Attorney General and M.W. [1994] ILRM 126, [INCADAT cite: HC/E/IE 289];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Switzerland
5P.1/1999, Bundesgericht (Tribunal fédéral), [INCADAT cite: HC/E/CH 427];
5A_479/2007 /frs, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 953];
United States of America
Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (2001) [INCADAT cite: HC/E/US 484];
Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT cite: HC/E/US 971];
Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, 2005 U.S. Dist. LEXIS 5658 (D.D.C., Mar. 31, 2005) [INCADAT cite: HC/E/US 799].
However, several challenges have been upheld in Spain, see:
Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a, [INCADAT cite: HC/E/ES 244];
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].