Magistrate: MENDOZA JUAN JOSE JOVER

Magistrate: MENDOZA JUAN JOSE JOVER

Exp. 16-0357

On April 7, 2016, was received in this Constitutional Chamber of the Supreme Court of Justice, letter no. 1425-2016 of April 5, 2016, issued by the Third Court of First Instance Trial of the Judicial Circuit for the Protection of Children, Girls And Adolescents of the Judicial District of the Metropolitan Area of ​​Caracas and National of International Adoption, by means of which he forwarded the file containing the constitutional amparo action exercised by the lawyer José Manuel Simons Domínguez, inscribed in the Institute of Social Security of the Lawyer under the n ° 208471, acting in the capacity of legal representative of theMIRANDA MIGDELY RONDÓN citizen, holder of the identity card no. 16087297 and his son whose identity is omitted in accordance with Article 65 of the Organic Law for the Protection of Children and Adolescents,The Third Superior Court of the Judicial Circuit for the Protection of Children and Adolescents of the Judicial District of the Metropolitan Area of ​​Caracas and the National of International Adoption and the Tenth Court of First Instance of Mediation, Substance and Execution Of said Judicial Circuit of Protection.

Such referral is made by virtue of the decree of jurisdiction contained in the ruling of March 28, 2016, issued by the Third Trial Court of Trial of the Judicial Circuit for the Protection of Children and Adolescents of the Judicial District of the Metropolitan Area Of Caracas and National of Adoption International.

On April 11, 2016, he was announced in the Chamber, and Judge Juan José Mendoza Jover was appointed rapporteur, who, with this character, subscribes to this judgment.

On April 26, 2016, the legal representative of the plaintiff requested that once admitted this amparo is notified to the Ombudsman, "to send in a report their observations" under "promotion, surveillance and defense of Human Rights ".

On the same date the attorney referred appropriated "images in photography and video", to be "more broadly perceived the events described (...) a social reality that many families in Venezuela".

On April 26, 2016, José Manuel Simons Domínguez, acting on behalf of the Civil Equality Venezuela Association, registered on August 1, 2013, under Volume 9, Number 21, Folios 170 to 176, Protocol I of the Principal Registry of the State of Aragua, requested that its representative be admitted as a third party interested.

On May 10, June 7 and June 28, 2016, lawyer José Manuel Simons Domínguez, acting with the character of the case, requested that the interlocutory action be granted.

On July 27, 2016, lawyer José Manuel Simons Domínguez, acting with the representation of the cars, requested this Chamber to rule on their admission.

On September 28, 2016, again Simons lawyer Jose Manuel Dominguez, acting on behalf of the Civil Association Egalitarian Venezuela, asked: "formally the corresponding decision on admission".

On October 18, 2016, lawyer José Manuel Simons Domínguez appeared before this Chamber in order to:

Which replaced completely power but reserving their exercise, lawyers (sic) JARISVE JOSÉ GUERRA CARRIÓN, (...) the lawyer IMERLIS RIVERA STREDEL, (...) the lawyer MARIELVIZ JOSEPHINE OROPEZA VARGAS (...) for acting jointly Or separately, represent, defend, hold and exercise the same powers that were originally granted to me, as stated in an instrument dated August 19, 2015, granted to the Third Public Notary Public of Caracas of the Municipality of Libertador under No. 13, Volume 263, Folios 65 to 68, of the books of authentications carried by that notary.

I

BACKGROUND

On March 11, 2016, the amparo filed by the lawyer was received before the Unit of Reception and Distribution of Documents of the Judicial Circuit for Protection of Children and Adolescents of the Judicial District of the Metropolitan Area of ​​Caracas and National of International Adoption, Jose Manuel Dominguez Simons, acting in the capacity of legal representative of thecitizen MIGDELY MIRANDA RONDÓN and his son whose identity is omitted in accordance with Article 65 of the Organic Law for the Protection of Children and Adolescents, who was born in Argentina on August 28, 2014, for the purposes of his distribution.

On March 14, 2016, the Third Court of First Instance Judgment Judicial Circuit Protection of Children and Adolescents of the Judicial District of the Metropolitan Area of Caracas and Nacional of Intercountry Adoption, issued an order by which it established that: " (...) in accordance with the provisions of articles 18 paragraphs 3 and 19 of the Organic Law on Protection of Rights and Constitutional Guarantees: proceeds to enact this "DESPACHO sanitizer in order that the plaintiff clearly indicates against whom work the this Constitutional Protection Action (sic) because according to the narration of the facts do not indicate who (sic) is expressly tortious (...) ".

On March 16, 2016, the plaintiff party complying with the orders of the said Court, stated that: "(...) the constitutional protection presented goes against the actions of the National Civil Registry and against the High Court Third of Protection of Children and Adolescents of the Metropolitan Area of ​​Caracas before a decision dated July 29, 2015 (...) also against the Court of Mediation, Substance and Enforcement of Protection of Children and Adolescents number Tenth first Instance of the Metropolitan Caracas (sic) after decision dated April 16, 2015 (...) ".

On March 28, 2016, the plaintiff, through diligence, stated before the aforementioned Third Trial Court of Trial of the Judicial Circuit for the Protection of Children and Adolescents of the Judicial District of the Metropolitan Area of ​​Caracas and the National of International Adoption, that involuntary error (sic) brought the amparo before the Court being that the defense is tried against "(...) the Tenth Court Mediation Proceedings and Enforcement of Protection of Children and Adolescents of the Judicial District of Metropolitan area of Caracas and Nacional of Intercountry Adoption,by Decision (sic) delivered as of 16.04.2015 by which declared inadmissible the action Mero Declarative (sic) against the Third Superior Court (3rd) Judicial Circuit Protection of Children and Adolescents of the Metropolitan area of Caracas and National Constitutional acting on Intercountry Adoption headquarters decision rendered in date 29.07.2015, by which declared inadmissible the Amparo (sic) against Judicial Proceedings (sic) ... omissis ...;finally (...) against the National Civil Registry Office, for answers issued date 13/04/2015, marked with No. ONRC / 2056/2015 (...) ", so he requested it be declared incompetent to hear the amparo filed And the proceedings should be referred to this Constitutional Court (written blacks).

Also in that proceeding by way of "extending" the arguments of contentivo written under referred to the grounds of inadmissibility under Article 6, paragraph 4 of the Organic Law of Ampro Constitutional Rights and Guarantees, for which he brought Judgment of this Chamber relating to said case, requesting that the amparo filed be admitted.

On March 28, 2016, the Third Trial Court of Judgment of the Judicial Circuit for the Protection of Children and Adolescents of the Judicial District of the Caracas Metropolitan Area and National of International Adoption, declared itself incompetent to hear of the action of Constitutional amparo, and accordingly, ordered the referral of the proceedings to this Constitutional Chamber of the Supreme Court of Justice.

II

OF THE ACTION OF CONSTITUTIONAL AMPARO

The legal representative of theMiranda Rondon Migdely citizen, and his son whose identity is omitted in accordance with Article 65 of the Organic Law for the Protection of Children and Adolescents, raised his amparo, under the following terms:

That the present amparo action is based on articles 26 and 27 of the Constitution of the Bolivarian Republic of Venezuela.

As well as the duty of the State to guarantee the enjoyment and exercise of the inalienable, indivisible and interdependent exercise of human rights in accordance with article 19 of the Constitution of the Bolivarian Republic of Venezuela.

That, in its words, there was a violation of the constitutional right to the identity provided for in article 56 of the Constitution of the Bolivarian Republic of Venezuela.

So also, in relation to the aforementioned constitutional law occurred to his saying, the violation of the right that every child has to be registered and obtain an identity document provided for in Article 225 of the Organic Law for The Protection of Children and Adolescents.

That the development of the free development of personality should be respected as established in article 20 of the Constitution of the Bolivarian Republic of Venezuela.

That the State must, according to article 78 of the Constitution of the Bolivarian Republic of Venezuela, protect by means of legislation, specialized organs and tribunals children and adolescents as full subjects of law that they are.

That the State as provided for in Article 3 of the Constitution of the Bolivarian Republic of Venezuela has as essential purposes the recognition of the dignity and value of the human person.

That his representative and the citizen Ginyveth Soto Quintana, on June 28, 2013, entered into marriage in the Argentine Republic where the right to civil marriage is recognized without discrimination on the basis of sexual orientation.

Who decide to carry out in Venezuela the process by the method of oocyte donation of citizen Ginyveth Soto Quintana his wife Migdely Miranda Rondon, after being fertilized in-vitro egg Ginyveth Soto Quintana "(with semen from a bank) and implanting the zygote in the womb of Migdely Miranda (...) ", decided to return to Argentina, in order to guarantee the right to identity their fertilized son" in the right to double motherhood discrimination and the right to form family [sic] (...) ".

In relation to this he said that the state protects motherhood and fatherhood holistically as provided in Article 78 of the Constitution of the Bolivarian Republic of Venezuela and in this regard, he noted that: the "procreational will"bound techniques Assisted human reproduction is the foundation of a new class of affiliation, which although not regulated within our legal system, in the light of the dynamic and tuitive interpretation of human rights to equality and comprehensive protection of the family, Is absolutely compatible with it. "

That the State starts from the premise that all persons are equal before the law, so that no discrimination will be allowed in accordance with the provisions of Article 21 of the Constitution of the Bolivarian Republic of Venezuela.

Likewise, it is the duty of the State to protect families as a natural association of society and as the fundamental space for the integral development of persons as provided in Article 75 of the Constitution of the Bolivarian Republic of Venezuela.

He even said, that no one may invoke religious beliefs or discipline to avoid complying with the law as provided in Article 59 of the Constitution of the Bolivarian Republic of Venezuela "that impairs or prohibits the right to identity of a child based on Personal prejudices of those who occupy institutional positions, since it comes from the procreational will of a couple made up of people of the same sex. "

That on August 28, 2014, born in Argentina the child, who after his return to Venezuela "(...) try together to perform the insertion of the birth certificate of his son (...) to the National Registration Office civil as of November 18, 2014, and in turn they apply for recognition of the nationality of the child as the son of Venezuelan citizens by birth. "Before the "express decision of that body to the request (...) as of December 13, 2014, was killed GINYVETH SOTO QUINTANA (...)".

That his client met with the Director General of the National Civil Registry Office, and his team, "where the granting Venezuelan nationality was conditioned the child (...) once delivered the birth certificate duly apostilled where Health institution and the attending physician, attest, of which of the mothers is the person who gave birth to the child, emphasizing my represented, that his intention (sic) was to recognize the double maternity of his son, without alteration of the original Birth, which was recorded (...) in legal document and apostille ".

That "As of April 13, 2015, the National Civil Registry Office, by response No. ONRC / 2056/2015 provides that effectively (...) is Venezuelan and considers it appropriate to issue the Birth Certificate by the Registry Venezuelan civil, conditioning the same, to the ignorance of the relationship of kinship of one of the two mothers, stating that Venezuelan legislation does not contemplate or allow double maternal or paternal filiation (...) insisting that the Birth Certificate presented, does not mention To whom she gave birth to the child, so she proceeded to apply through the Ministry of Popular Power for Foreign Affairs and Venezuelan diplomatic representation in the Argentine Republic, document proving what was required, establishing the same National Registry Office that the subsidiary Maternal to be settled in the Birth Certificate that is issued, is that of a single mother ... the one of my represented, thus ignoring the double maternity of the child ...,

That "As of May 13, 2015, the Criminalistics Unit against Violation of Fundamental Rights of the Metropolitan Area, attached to the Public Ministry, issues a result of the expert 's Report on the Analysis of Genetic Profiles for estimation of filiation Heredo-Biological (...) where It states that between the child and the Cuyus, YES (sic) there is a relationship I inherit-biological ".

Whereas on 18 May 2015, "(...) his client requested a certified copy of the statement for purposes of demonstrating the double motherhood before the courts (...) and also, the citizen VICTOR MANUEL SOTO ROJAS (...) requests a certified copy the test result (...) in order to establish the genetic relationship `between my daughter (Ginyveth Soto) and child (...) in addition to the sucesoral statement to perform more adelante' (...)".

That "(...) as of April 16, 2015, the Tenth Court Mediation Proceedings and Enforcement of Protection of Children and Adolescents (sic) stated that the legal act concluded between citizens MIGDELY MIRANDA RONDÓN and GINYVETH SOTO QUINTANA, is valid only in Argentina;the only recognizable affiliation to our right is between the child (...) and citizen MIGDELY MIRANDA RONDÓN because of the collections contained in the file (...) it is evident that it was this (sic) who took pregnancy and birth;that despite subsidiaries and marital ties in Argentina, home as evidenced by the death certificate of citizen GINYVETH SOTO QUINTANA, he was in the city of Caracas and consequently (...) succession referred to the deceased , Must be carried out in accordance with Venezuelan laws;the Declaration as a Unique and Universal Heir (...) as the son of GINYVETH SOTO QUINTANA, is not appropriate, as it was recognized that citizen in the city of Argentina, under legal provisions (...) disagrees with the Venezuelan and which do not It can be granted the presumption of maternity, since from the collections and said, it is clear that it was not that of cuyus (sic) who (sic) lit the child and finally decides that the family and conjugal bonds that support the pedimento, they are compatible with current Venezuelan legislation (...) ".

That "(...) after the uncertainty about the familial relationship between my client and his son, is forced to apply to the Office of Municipal Civil Registration District Capital, Municipio Libertador, Parroquia Santa Teresa, the Registry of Birth (...) "who was registered with both names of his represented.

That, on July 17, 2015, its representative filed a constitutional amparo against the sentence issued on April 16, 2015 by the aforementioned Tenth Court of First Instance of Mediation, Substance and Execution of the Judicial Circuit of Protection;And on July 29, 2015, the Third Superior Court of the Judicial Circuit for the Protection of Children and Adolescents of the Judicial District of the Metropolitan Area of ​​Caracas and the National of International Adoption, acting at the Constitutional headquarters, stated that:

... Omissis ... it is clear to this point that the Tenth (19th) Court of First Instance acted correctly in the manner envisaged by the Venezuelan legislature, on the grounds that any hypothetical violation of the constitutional guarantees of the plaintiff in the amparo Would be based on a decision adjusted to law, but on an action different from that established in our Venezuelan Convention (sic) and finally declares inadmissible in limine litis the action of amparo filed.

That the amparo is the most appropriate way to reestablish the infringed legal situation.

That notwithstanding what is established in article 6, number 4 of the Organic Law of Amparo on Constitutional Rights and Guarantees, it is necessary to know the merits of the case, since the right to identity in the present case is affected.

Finally, the legal representative of the plaintiff requested the following:

1.- Declare your competence to hear this Constitutional Amparo (sic).

2.- Recognize our legitimacy and ... admit the present request ... for violation of the human right to the identity of the child ... because it is enshrined in Article 8 of the Convention on the Rights of the Child, as well as being violated The Fundamental Principles of the National Constitution, such as the progressiveness and pre-eminence of Human Rights, equality without any discrimination or subordination, full inclusion, social justice with equity as the basis for building a just, egalitarian and loving society Of peace, in a State whose essential purposes are the defense and development of the human person and respect for his dignity;For denying the registration of the birth certificate issued in Argentina and with it, all the rights derived from said administrative and judicial (sic) decisions.

3. Declare the rectification of the birth certificate of the child (...) and the insertion of a new birth certificate, where the name of my client with their two surnames of origin, Venezuelan nationality by Ius sanguinis as recognition is appropriate , Together with the recognition of their family relationships, the filiation with their respective mothers and all the rights that this derives.

4.- Declare with Place the present Constitutional Amparo (sic) for violation of the Human Right to the identity of the child (...).

5.- Declare that according to Article 75 of the Venezuelan Constitution, my representative has affiliation with his family of origin, without discrimination in the sexual orientation, identity or gender expression of their parents, whether foreign or Venezuelan.

6.- Declare on the basis of the recognition of an increasingly latent reality, the constitutionality of the Right to Conform (sic) families in the Plurality of my represented and without Discrimination of the people that conform them, as established in Article 75 of the Constitution of the Bolivarian Republic of Venezuela.

III

OF THE COMPETITION DECLINATOR

On 28 March 2016, theThird Court of Judgment Judicial Circuit Protection of Children and Adolescents of the Judicial District of Caracas Metropolitan Area and National Adoption International,decided as follows: