Marta Lucia Alvarez Giraldo v. Colombia, Case 11.656, Report Nº 71/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 211 (1999).
REPORT Nº 71/99*
MARTA LUCÍA ÁLVAREZ GIRALDO
May 4, 1999
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”).
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.
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
PROCESSING BY THE COMMISSION
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
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.
POSITIONS OF THE PARTIES
THE POSITION OF THE PETITIONER
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.
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
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.
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.
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.
THE POSITION OF THE STATE
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.
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.
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.
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. 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.
Exhaustion of domestic remedies
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.
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.
The final judgment in this case, the decision of the Constitutional
Court not to review the tutela decision, was rendered on May 22, 1995.
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,
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.
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.
Duplication of proceedings and res
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.
Colorable claim of violation
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.
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.
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:
To declare this case admissible;
To send this report to the Colombian State and to the petitioner;
To continue analyzing the merits of the case, including the scope and
meaning of Article 11(2) of the American Convention;
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
To publish this decision and include it in the Annual Report to the
General Assembly of the OAS.
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.