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REPORT Nº 71/99*
I.
SUMMARY
1.
On May 18, 1996, Marta Lucía Álvarez Giraldo (hereinafter
“the víctim” or “the petitioner”) presented a complaint against
the Republic of Colombia (hereinafter “the State” or “the
Colombian State”) to the Inter-American Commission on Human Rights
(hereinafter “the Commission”) alleging violations of rights
protected under Articles 5(1) (2), 11(1), and 24 of the American
Convention on Human Rights (hereinafter the “Convention” or the
“American Convention”).
2.
The petitioner alleges that her personal integrity, honor and
equality are violated by the prison authorities’ decision not to
authorize the exercise of her right to intimate visits because of her
sexual orientation. The State argues that allowing homosexuals to
receive intimate visits would affect the internal disciplinary regime of
prison establishments and that Latin American culture has little
tolerance towards homosexual practices in general. 3.
After analyzing the positions of both parties, the domestic
remedies available to the petitioner, and all other admissibility
requirements set forth in Articles 46 and 47 of the Convention, the
Commission finds the case admissible.
II.
PROCESSING BY THE COMMISSION
4.
On August 1, 1996, the Commission opened case 11.656 and
forwarded the pertinent parts of the complaint to the State, giving it
90 days in which to present its reply.
The State presented its reply on November 21, 1996, and this was
duly forwarded to the petitioner. On
October 15, 1996, the petitioner presented additional information.
On February 6, 1997, the State sent additional information, and
on March 5, 1997, the petitioner sent a further communication.
The pertinent parts of each communication were duly forwarded to
the opposing party.
5.
On September 23, 1997, the Commission placed itself at the
disposal of the parties with a view to reaching a friendly settlement of
the matter. The petitioner
presented her reply on October 21, 1997.
On November 18, 1997 and April 2, 1998, the State requested
successive extensions in order to examine the petitioner’s proposals.
Finally, on August 12, 1998, the State rejected the possibility
of a friendly settlement. On
November 5, 1998, the petitioner, through her legal representative,
presented written observations which were duly forwarded to State.
III.
POSITIONS OF THE PARTIES
A.
THE POSITION OF THE PETITIONER
6.
During the time pertinent to this complaint, the petitioner had
been serving a lower court prison sentence in the Dosquebradas “La
Badea” Women’s Prison, in Pereira, since March 14, 1994.
The legislation in force in Colombia enshrines the right of
inmates to intimate visits. Therefore
Marta Lucía Alvarz Giraldo requested the Ombudsman for Pereira to
present a request to the competent authorities for permission to be
visited by her female life partner.
On July 26, 1994, the 33rd Prosecutor's Office in
Santuario, the judicial office that was carrying out the criminal
investigation at the time, issued the corresponding authorization. This
decision was communicated to the Dosquebradas Women's Prison Directorate
on July 27, 1994, and ratified in official letter Nº 635, dated August
19, 1994.
7.
The petitioner alleges that, on receiving the official letter
confirming her authorization to receive intimate visits, the Director of
the Prison requested that the Sectional Director of the Prosecutor's
Office review the decision of the 33rd Prosecutor's Office in
Santuario. In view of this situation, the Ombudsman for Pereira sent the
decision of the 33rd Prosecutor’s Office authorizing the
intimate visit to the Director of the “La Badea” Women's Prison.
The following day, the Director of the prison applied to the
competent judge of the Santuario Circuit for authorization to transfer
the petitioner to another prison. On
October 20, 1994, the Ombudsman for Pereira requested information on the
matter, since the Director of the Women’s Prison had still not issued
a decision on the request for an intimate visit.
In response, he was told that the petition had been forwarded to
the Regional Directorate of the National Penitentiary and Prison
Institute (hereinafter “INPEC”).
8.
In response, the Ombudsman for Pereira filed a tutela
(a motion for protective relief) on behalf of the petitioner.
The Criminal Court of Dosquebradas allowed the motion on the
basis that the petitioner’s right to petition had been violated.
Consequently, the Director of the Women’s Prison of Pereira was
ordered to decide on the petitioner’s request.
On February 7, 1995, the Director of the Prison issued a decision
on the petition, denying authorization for the intimate visit on the
basis of the prisoner’s sexual orientation.
9.
The Ombudsman for Pereira appealed the Director’s decision,
which was upheld on June 13, 1995, by the Criminal Court of the Santa
Rosa de Cabal Circuit. Finally, on May 22, 1995, the Constitutional
Court refused to review the decision on the action for protective
relief.
10.
With regard to the legal arguments on the merits, the petitioner
argues that the applicable Colombian legislation does not take exception
to intimate visits for prisoners on the basis of their sexual
orientation. She maintains that there are no provisions allowing a
distinction to be made between the right of a heterosexual prisoner to
intimate visits and that of a homosexual.
She argues, therefore, that the penitentiary authorities have
engaged in discriminatory treatment that is not authorized by domestic
law and that, from any standpoint, violates Articles 5, 11, and 24 of
the American Convention.
B.
THE POSITION OF THE STATE
11.
The State has not questioned the admissibility of the case.
As regards the merits of the case, the State initially sought to
justify its refusal to allow the intimate visit on the grounds of
security, discipline, and morality in penitentiary institutions. 12.
Subsequently, the Colombian State recognized the legitimacy of
the complaint presented, based on a report of the Ministry of Justice
and Law acknowledging that the petitioner is being treated in an inhuman
and discriminatory manner. Nevertheless
the State maintained the arguments presented in support of its initial
position, that the prohibition is based upon a deeply rooted intolerance
in Latin American culture of homosexual practices.
13.
In support of its position, the State cited considerations
regarding prison policy and personal behavior.
In its view, accepting the petitioner’s request would involve
“applying an exception to the general banning of such [homosexual]
practices which would affect the internal discipline of prisons.”
It also referred to the alleged ”bad behavior” of the inmate,
who was apparently involved in some incidents relating to the
functioning of the human rights committee of the prison.
IV.
ANALYSIS
A.
Competence
14.
The Commission is competent to examine the petition in question.
The petitioner has legal standing to appear and has presented
claims regarding noncompliance with provisions of the Convention by a
State party. When the
events alleged in the petition took place, the obligation to respect and
guarantee the rights set forth in the Convention was already in force
for the Colombian State.[1] The
Commission will now determine the admissibility of this case in the
light of the requirements set forth in Articles 46 and 47 of the
Convention.
B.
Admissibility requirements
a.
Exhaustion of domestic remedies
15.
The Commission finds that the appropriate administrative and
judicial actions were taken to correct the alleged violations.
Domestic remedies were effectively exhausted with the decision of
the Constitutional Court of Colombia not to review the decision on the tutela.
Therefore, the Commission finds that the admissibility
requirement set forth in Article 46(1)(a) has been met.
b.
Timeliness
16.
The petition was filed on May 18, 1996.
Article 46(1)(b) of the American Convention establishes that
petitions must be presented within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment.[2]
17.
The final judgment in this case, the decision of the
Constitutional Court not to review the tutela decision, was rendered on May 22, 1995. 18.
The petitioner maintains that she was never notified of the
judgment of the Constitutional Court and therefore the six-month period
established in Article 46(1)(b) should not be calculated as from May 22,
1995. This allegation has
not been disputed by the State. Indeed,
as the Commission has confirmed in previous decisions,[3]
the six-month period established in Article 46(1)(b) should be
calculated from notification of the final judgment.
Given that this judgment was never formally notified, the
requirement could not have been satisfied. 19.
The Commission also observes that, despite having had several
opportunities to do so, the State has never disputed compliance with
this requirement, which amounts to a tacit waiver of the right to object
to the admissibility of the case on this basis.
Consequently, it must be concluded that the time limit stipulated
in Article 46(1)(b) does not apply to this case.
c.
Duplication of proceedings and res
judicata
20.
The Commission finds that the matter addressed in the petition is
not pending settlement before another international organ and is not
substantially the same as any matter previously examined by this or any
other international organization. Therefore,
the requirements set forth in Articles 46(1)(c) and 47(1)(d) have been
met.
d.
Colorable claim of violation 21.
The Commission finds that, in principle, the claim of the
petitioner refers to facts that could involve, inter
alia, a violation of Article 11(2) of the American Convention in so
far as they could constitute an arbitrary or abusive interference with
her private life. In the
merits phase, the Commission will determine the scope of this concept
and the protection to be afforded to persons legally deprived of their
liberty. 22.
Therefore, given that the claim is not manifestly groundless or
out of order, the Commission finds that the requirements provided for in
Articles 47(b) and 47(c) of the Convention have been met.
VI.
CONCLUSIONS
23.
The Commission concludes that it is competent to hear this case
and that it is admissible pursuant to Articles 46 and 47 of the
Convention.
On the basis of the legal and factual arguments presented above,
and without prejudging the merits of the case,
THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS DECIDES:
1.
To declare this case admissible;
2.
To send this report to the Colombian State and to the petitioner;
3.
To continue analyzing the merits of the case, including the scope
and meaning of Article 11(2) of the American Convention;
4.
To reiterate its offer to place itself at the disposal of the
parties with a view to reaching a friendly settlement based on respect
for the rights protected in the American Convention; and to invite them
to present their positions on such a possibility; and
5.
To publish this decision and include it in the Annual Report to
the General Assembly of the OAS. [ Table of Contents | Previous | Next ] *
Commissioner Alvaro Tirado Mejía, a Colombian national, did not
participate in the discussion and decision of this report as
required by Article 19(2)(a) of the Commission’s Regulations.
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