CASO

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Nombre del caso

Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, 2005 U.S. Dist. LEXIS 5658 (D.D.C., Mar. 31, 2005)

Referencia INCADAT

HC/E/USf 799

Tribunal

País

Estados Unidos de América - Competencia Federal

Nombre

United States District Court for the District of Columbia (Estados Unidos)

Instancia

Primera Instancia

Estados involucrados

Estado requirente

Colombia

Estado requerido

Estados Unidos de América - Competencia Federal

Fallo

Fecha

31 March 2005

Estado

-

Fundamentos

Derechos humanos - art. 20

Fallo

-

Artículo(s) del Convenio considerados

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Artículo(s) del Convenio invocados en la decisión

-

Otras disposiciones
Derecho estadounidense
Jurisprudencia | Casos referidos

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Publicado en

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INCADAT comentario

Interrelación con instrumentos internacionales y regionales y Derecho interno

Compatibilidad del Convenio de La Haya con constituciones nacionales
Compatibilidad del Convenio de La Haya con las Constituciones Nacionales

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The child, a boy, was 12 at the date of the alleged wrongful retention. He had lived all of his life in Columbia. His American father and Columbian mother were divorced. In August 1997 a Columbian court made the mother the primary carer and awarded the father access.

In January 2000 the father left Columbia and moved to the United States. In the summer and winter of 2000 the boy travelled to the United States to stay with his father. In the spring of 2001 he again visited his father but on the day before his intended return (13 July) the father informed the mother that the boy would not be returning. The boy also wrote a note stating that he wished to stay. The mother petitioned for the boy's return.

On 6 May 2002 the United States District Court for the Eastern District of Virginia, Alexandria Division ordered the return of the child. On 11 December 2002 the United States Court of Appeals for the Fourth Circuit dismissed the father's appeal. In 2003 the US Supreme Court refused leave to challenge this decision.

The father then raised an action with his son against a variety of individuals and agancies, including the US Central Authority and the judges who had heard his various applications, in which he alleged that the defendants conspired to deprive him of his constitutional rights and committed violations of the Federal Tort Claims Act.

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.

Ruling

Constitutional claims dismissed, claims under the Federal Tort Claims Act dismissed, claim of a conspiracy based on racial or other class-based animus dismissed and writ of mandamus denied.

Grounds

Human Rights - Art. 20

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.

INCADAT comment

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].

Compatibility of the Hague Convention with National Constitutions

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].