Washington DC Update

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

I just came back from Washington D.C. where Hannah Wallace and I, and two adoptive parents who work in that city, one as a journalist and the other as a lobbyist, had interviews with the offices of the Committee on Foreign Relations of the United States Senate, of the Senators Debbie Stabenow (Michigan) and Don Nickles (Oklahoma) and of Congressman Bob Ney (Ohio). My impression is that the people we talked with, were receptive of the situation, but that it will help if there is a deluge of letters, especially from families of their states.

The points I stressed with each of them were: a) the need of the United States to assert its Third State Status, as it is stated in the Vienna Convention of 1969, in order to remove from the scope of the Hague Convention for Inter Country Adoptions, the adoptions of Guatemalan children by US citizens, as a way to mitigate the devastating consequences of the ill applied Hague Convention by the PGN, and c) the need that the US BCIS admits and process documents for the pre-approval of visas submitted by notaries, since the law that norms the notarial process is very valid –despite what the PGN says- and that the BCIS continues monitoring the DNA test as before, since this is one of the requirements for the pre approval of visas.

In your letters please refrain from using the expressions “after March. 5th.”,”after July 1st.” “transition cases” “pipleline” “grandfather”, etc., because all those expressions give the false impression that there was a change in the legislation, when in fact there was not. The Hague Convention does not have the power to alter anything. An appointment by the president of Guatemala does not overrule the Constitution, and that is exactly what the PGN is trying to make everybody to believe. The Central Authority does not have the power to do anything, unless new legislation is passed by Congress and even then, that new legislation has to be congruent with the Constitution. Everything that opposes the Constitution is null and void.

I really hope that your letters keep pouring in.

I will let Hannah to report about the interviews and I will inform about the situation in Guatemala:

1. THE AMPAROS

Amparo is a legal resource to protect the petitioner from any violation to his/her rights, when there is no other legal resource available for that specific situation. The position taken by the PGN constitutes grounds for amparo for the following reasons:

a.To make the PGN to apply to adoptions the same legislation that is still valid. The Hague Convention is not a Human Rights treaty ratified by Guatemala, as stated in Article 46 of the Constitution, so it does not have the power to supersede the existing legislation regarding adoptions. The allegations of the PGN that the adoption files files must comply with the Hague Convention lack legal basis and constitute an abuse of power.

b. The notarial process and the legal practice of the lawyers with regard to adoptions cannot be eliminated because it is forbidden to do so in articles 81 and 87 of the Constitution. The allegations of the PGN that all parties must agree to do a notarial process instead of a judicial process, lack legal basis because the only parties in an adoption process are the adoptive parents and the person who has the parental custody or the legal custody of the child being adopted. The PGN is not a party to the process.

c. The PGN or the Central Authority cannot pass laws, because that power is exclusive of Congress. Any kind of rule or regulation passed by the executive branch must be in compliance with the existing legislation and above all, with the Constitution. Whatever opposes the Constitution is null and void.

2. THE PROCESS OF AN AMPARO:

The amparo petition is filed before the proper court, which is determined by the Amparo, Habeas Corpus and Constitucionalidad

Law, according to the position of the person against whom the amparo is filed. In the case of the State Attorney, the amparo must be filed before the Court of Appeals. The Court while presiding over the amparo proceedings is called “Court of Amparo”,

Once the amparo petition is filed, the Court orders the authority whose acts have caused the petition, to inform about the acts stated in the complaint by the petitioner. Based on the evidence at hand, and to avoid causing further damage, the court may order the suspension of the law or of the act(s) denounced in the amparo, until the petition is ruled on the matter. That temporary suspension may be appealed. All appeals on amparos are ruled by the Constitutional Court. The temporary suspension also may be revoked at any time and/or reinstated again if the Court deems it necessary. That ruling could also be appealed. If the person who is ordered to suspend the actions keepd doing them, the court must order that criminal procedure should initiated against such person.

The judges must give immediate priority to the amparo. If a third party might be affected by the result, the court has to notify such party of the amparo and hear what he/she ha to say about it. If it necessary, there could be an eight day period, for the parties to present their evidence. After the evidence is presented, the court hears the parties for a 48 hours period. If evidence is not needed –when it is a matter of law, not of fact – the court must rule within three days. There could be a public hearing if one of the parties requests it. The final ruling can be appealed and against the ruling on appeal of the Constitutional Court, there is no other legal resource.

3. EFFECTS OF THE AMPARO:

a) To suspend, with regard to the petitioner, the law, the ruling, the resolution or the act, and to restore the affected legal situation or to stop the illegal measure taken by the authority.

b) To set a reasonable period of time to stop the delay, if the case were of a delay in ruling, or to do an act that was ordered beforehand.

Failure to comply with the final ruling of the Court of Amparo

constitutes criminal offense.

4.THE AMPAROS ALREADY FILED.

There are several amparos pending resolution, against the illegal and unspeakable behavior of the PGN. In some of them,the temporary suspension of the Hague Convention has been already granted.

The reaction of the PGN regarding the amparos that were granted by the Court of Amparos has been to disregard the order to proceed with the petitioners’ cases, maintaining their customary attitude of “we are higher than the law”. The situation is worsening for the PGN authorities because the lawyers have requested the Court of Amparo to initiate criminal procedures against them. This week the Court of Amparo should rule on such petition. Bear in mid that the time periods start running until all parties are notified of the ruling, and then, a proper petition must be filed to continue the process.

There are other amparos filed by other lawyers, and even though the PGN filed an appeal in every case, they were rejected by the Court of Amparo, because the arguments were totally unrelated to the petition and because the PGN made a mistake on the dates of the rulings, so the Amparo Court stated that it never ruled something regarding that amparo on such specific date.

5. SHOULD YOU FILE AN AMPARO?

In case you wonder if your case needs an amparo to move forward, the answer is yes. For the last five months, the PGN has failed to give an opinion on the adoption files, arguing “lack of compliance with the Hague Convention”. Recently, the Central Authority started returning all files that only gathered dust at their offices, with a “previo”: “In conformity with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, it belongs to the Central Authority to obtain the requisites detailed in article 4 of such convention, therefore, this filed must be according to what such international instrument establishes”. That resolution constitutes grounds for an amparo aside from the fact that the Central Authority withheld the files for months, under false promises that “adoptions were not suspended”.

This week we expect to have the ruling on the Amparo filed by 83 lawyers. If the Court of Amparo grants the suspension of the Hague Convention to those lawyers, their cases either will be processed by the PGN or the lawyers will request the Court of Amparo to start criminal procedure against the PGN lawyers.

If the lawyer who is handling your case has not filed an amparo, your case will not be processed, unless the PGN changes its current position. Instruct your lawyer to contact us. We are organizing another “sort of class action” amparo suit.

6. THE CRIMINAL PROCEDURE.

The attitude taken by the PGN make us believe that criminal procedures must be initiated against the PGN, as the only way the PGN lawyers will understand that what they have been doing to adoptions is wrong, and that by doing so, they are jeopardizing their jobs, their profession (a conviction brings automatic disbarment) and their freedom. The amparos are the first step.

7. RUMORS AND INFORMATION.

Last week there were rumors of the following:

a. Family courts not accepting more adoption files. This is not true.

b. The director of Central Authority quitting her post Elizabeth Hernández de Larios, the director of the Central Authority is still in that position, although the “previos” rejecting the files that were presented to the Central Authority were signed by Luis Fernando de Paz González and Rudio Lecsán Mérida Herrera, director of the Procuraduría section of the PGN.

c. The Constitutional Court ruling on the Hague Convention accession. The CC has not ruled yet, and even when it does, the ruling will not be effective immediately, since it has to be signed by the seven magistrates of the court –that sometimes takes a while - and then published in the Official Newspaper, being effective until such publication is made. We are still hopeful that the outcome will be in favor of the children, because first and last, it is them, who are being hit by the current situation.

Be assured that we are aware of your need to be informed. Any news will be posted right away. Before spreading a rumor, feel free to contact me, to verify the information. Remain calmed, but active, writing letters to those people who can make thing happen. Talk to anybody who would listen. Use the “six-degrees of separation” to contact people who could help. Remember that it is the PGN who is causing all this disruption, not your lawyer neither your adoption agency, so don’t be hard on them. Crisis may be a disaster or an opportunity, depending on how you approach it.

Best regards,

Susana Luarca,

Attorney at Law

Asociación Defensores de la Adopción

Posted by Kelly at August 4, 2003 08:21 AM