José Alberto Pérez Meza v. Paraguay, Petition 19/99, Report No. 96/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 396 (2001).
PROCESSING BY THE IACHR
The complaint was received on July 30, 1999, during the on-site visit
to Paraguay. The IACHR acknowledged receipt of the complaint and reported
that it was being studied on October 26, 1999.
On February 2, 2001, the petitioner was asked to provide updated information
on the allegations and on the remedies pursued under the domestic jurisdiction.
On June 6, 2001, the IACHR asked the petitioner for additional information,
a copy of the case file, and a report on the "apparent marriage"
system under Paraguayan law.
Alleged violation of Article 24 of the Convention (equality before
ALLEGATIONS AND ARGUMENTS
On July 24, 1999, the petitioner, José Alberto Pérez Meza began ordinary
proceedings for the recognition of a de
facto partnership against the estate of Mr. Jenaro Antonio Espínola Tami,
represented by his sole heir, Carlos Alfredo Espínola Tami, on the grounds
of the sentimental and de facto relations he maintained with the deceased on an uninterrupted
basis from 1967 to 1987. Over
the course of this relationship, the two of them made their respective economic
contributions and, together, they set themselves the task of creating the
Pindú Museum Foundation; thus, claims the petitioner, they established a commercial
and an intimate partnership.
In the first instance in these proceedings, on September 2, 1998, the
suit was dismissed because, in the courts opinion, there was a de
facto partnership between the deceased and the petitioner that lasted
until 1980 but, in December 1981, the petitioner enacted a notarial deed in
which he freely and voluntarily waived the right to any sort of action, including
action taken as a partner in the deceaseds undertakings, and was therefore
disqualified from pursuing any claim in that regard.
In June 1999 the petitioner filed for appeal and annulment with Paraguays
Civil and Commercial Appeals Tribunal, the first chamber of which decided
to overturn the judgment because the lower court had not correctly resolved
the objection based on statutory limitations invoked by the defendant. It
thus decided to annul the first-instance judgment and then to reject the application
for the recognition of the de facto partnership, stating that although the partnership existed
up until 1980, the petitioner had freely and voluntarily renounced all right
to make claims; consequently, his suit was not admissible.
In July of that year, the petitioner filed for a motion of unconstitutionality
against that ruling with the Paraguayan Supreme Court. The Supreme Court,
however, resolved to reject the unconstitutionality action in
limine because it failed to specifically identify the affected constitutional
provisions and to clearly and concretely substantiate the facts.
Finally, in October 1999, the petitioner filed for the reversal and
revocation of the judgment before the Supreme Court. The Court responded that
the situation was not one of those provided for in law and consequently the
remedy was not admissible.
As a result of the failure to secure recognition for his de
facto partnership with the deceased and in light of the loving relationship
the petitioner maintained with the deceased, which kept them together as a
couple and as an economic partnership, and faced with the imminent seizure
of their common goods by the deceaseds only heir, on November 1, 1999,
the petitioner began proceedings for the recognition of an "apparent
His suit was dismissed in limine
as inadmissible since the Paraguayan Civil Code specifically prohibits marriage
between persons of the same sex and, in addition, the Paraguayan Constitution
only allows an apparent marriage or common-law union between a man and a woman.
The petitioner appealed against this judgment to the fifth chamber
of the Civil and Commercial Appeals Tribunal; this court resolved to uphold
the decree dismissing the suit and to rule the appeal nonexistent on the grounds
of inadequate substantiation.
Finally, the petitioner filed for a motion of unconstitutionality with
the Supreme Court of Justice which, on November 3, 2000, rejected the suit
in limine because it failed to identify
the unconstitutional provision in question and to explain the specific harm
In his different submissions to the IACHR, the petitioner states that
on repeated occasions he has been a victim of discrimination on account of
his sexual choice.
BY THE IACHR
First of all, attention should be paid to the proceedings begun to
secure recognition of the de facto partnership between the petitioner and the deceased.
As can be seen in the case file, the Paraguayan courts analyzed the
evidence submitted by the petitioner in depth and resolved that he had failed
to demonstrate the existence of such a de
facto partnership. The petitioner
wants the IACHR to reassess the evidence submitted to the domestic courts
in order to determine whether or not a de
facto partnership actually existed.
The IACHR cannot review evidence already assessed by the domestic courts
unless a violation of the Convention has been committed.
The petitioners arguments and the evidence provided contain no
elements that could tend to establish a violation of Article 25 of the Convention.
The petitioner has neither argued nor proven that the evidence was
assessed by the Paraguayan judicial authorities in an arbitrary fashion that
would tend to establish a violation of the Convention.
On the contrary: he has merely indicated his disagreement with the
analysis of the evidence carried out by the Paraguayan authorities, and the
case file contains nothing that could constitute a violation of the Convention.
Consequently, as regards the first claim, the Commission must declare
the petition inadmissible for noncharacterization of the facts.
With respect to the proceedings for securing recognition of the apparent
marriage, it is clear that Paraguayan law only allows apparent marriages or
common-law unions between men and women.
Thus, Article 51 of the Constitution provides that: De
facto unions between a man and woman with no legal impediments for contracting
matrimony that meet the requirements of stability and exclusivity shall produce
effects similar to those of marriage, in accordance with the terms set by
law. In addition, Article
140(g) of the Paraguayan Civil Code expressly prohibits marriage between persons
of the same sex. It is therefore
clear that the situation invoked by the petitioner (marriage between persons
of the same sex) is not provided for by Paraguays domestic laws and,
consequently, he does not enjoy legal protection in his claim for recognition
as the spouse of the deceased. The
case file indicates that the courts rejected his applications because that
circumstance was not legally provided for.
The Commission notes that the petitioner has at no time argued, before
either the Paraguayan legal authorities or the Inter-American Commission,
that those legal provisions are discriminatory.
The Commission notes that the case file documents do not indicate that
the petitioner ever invoked the corresponding domestic remedies to attack
those laws. Neither has the petitioner
claimed, before either the Paraguayan courts or the IACHR, that the enforcement
of Paraguayan laws, in the different legal venues at which he has appeared,
discriminates against homosexual couples.
The Commission must therefore declare the petition inadmissible on
the grounds that domestic remedies have not been exhausted.
The IACHR concludes that the petition is INADMISSIBLE in that the allegations
regarding the proceedings to secure recognition for the de
facto partnership between the petitioner and the deceased are manifestly
groundless in accordance with Article 47(c) of the American Convention, since
the Commission is not authorized to rule on a fourth-instance basis.
With respect to the regulations governing marriage in Paraguay, the
documents submitted to the IACHR do not indicate that the petitioner pursued
and exhausted the corresponding domestic remedies and, consequently, the provisions
of Article 46(a) of the American Convention have not been met.
Decision: The IACHR concludes
that the petition is INADMISSIBLE in that the allegations it contains are
manifestly groundless in accordance with Article 47(c) of the American Convention
and because domestic remedies have not been exhausted as required by Article
46(a) of the American Convention.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights on the tenth day of October, 2001. (Signed): Claudio Grossman,
President; Juan Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President;
Commissioners Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.