IACHR refers case on Peru to the Inter-American Court

July 8, 2021

Washington, D.C. - On June 4, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of Crissthian Manuel Olivera Fuentes regarding Peru before the Inter-American Court of Human Rights. The case refers to the international responsibility of the State for the violation of the rights of Crissthian Manuel Olivera Fuentes to equality and non-discrimination, privacy, judicial guarantees and judicial protection, as a consequence of acts of discrimination based on the expression of his sexual orientation.

On August 11, 2004, Mr. Olivera and his same-sex partner were reprimanded by the staff of the Dulces y Salados cafeteria of the Santa Isabel Supermarket in San Miguel, for publicly displaying affectionate behavior. According to a report from the mall, the victim was asked to cease his affectionate behavior because a customer had complained that two men "were committing acts of homosexuality" by kissing and caressing each other, which made him uncomfortable because he was with his minor children. On August 17, 2004, Mr. Olivera went to another shopping center of the same company with a heterosexual couple who engaged in affectionate behavior. However, only the victim and his partner were reprimanded for expressing such conduct. On October 1, 2004, Mr. Olivera filed a complaint for discrimination before INDECOPI, which was rejected, obtaining a final unfavorable decision in cassation on April 11, 2011.

In its Report on the Merits, the Commission analyzed, first, whether Mr. Olivera was subjected to an interference in his private life and a difference in treatment based on his sexual orientation, and whether these had a reasonable basis. Second, it analyzed whether the State guaranteed the right to effective judicial protection in the face of the allegations of discrimination made in the domestic venue. Given that the facts refer to the actions of a private entity, to determine the responsibility of the State, the Commission analyzed the effectiveness of its response to the appeals filed by the victim.

Based on the available evidence, the Commission concluded that Mr. Olivera was subjected to interference in his private life and to a distinction in treatment based on expressions of his sexual orientation. For the purposes of determining whether such difference in treatment was conventional, the Commission applied a graduated proportionality judgment that includes the following elements: (i) the existence of a legitimate aim; (ii) appropriateness, that is, the determination of whether there is a logical relationship of means-to-ends causality between the distinction and the aim pursued; (iii) necessity, that is, the determination of whether there are less restrictive and equally suitable alternatives; and (iv) proportionality in the strict sense, that is, the balance of the interests at stake and the degree of sacrifice of one with respect to the other.

Regarding the legitimate purpose of the interference or difference in treatment, the Commission considered that guaranteeing "the peace of mind of [the] customers" is not a compelling purpose as it should correspond to a case of this nature in which it is indispensable to justify with very weighty reasons the limitation to a right. On the other hand, it emphasized that, in examining the requirement of appropriateness, the Inter-American Court has rejected generic allegations that refer to the purpose of ensuring the best interests of the child without demonstrating why a distinction in treatment based on sexual orientation contributes to that end. For this reason, the Commission noted that the claimed purpose of ensuring the peace of mind of a client in the presence of his children, who was disturbed by the affectionate behavior of the victim and his partner, is not legitimate under inter-American standards.

In view of these determinations, the Commission concluded that the reprimand as a result of the victim's expressions of affection, without having a basis or legitimate justifications, resulted in an affectation of Mr. Olivera's rights to privacy, as well as the principle of equality and non-discrimination.

Regarding the State's response to the appeals filed by the victim, the Commission observed that the main reason for the denial of the appeals was the lack of sufficient evidence to corroborate the alleged unequal treatment. The IACHR considered that the domestic administrative and judicial bodies imposed an excessive argumentative and evidentiary burden on the victim, even though the respondent entity itself acknowledged the difference in treatment. The Commission considered that the evidence and indicia available were sufficient to establish prima facie the existence of interference or unequal treatment, and therefore the burden of proof should be shifted to the respondent to demonstrate that its intervention on August 11, 2004, had no discriminatory purpose or effect.

The IACHR noted that the domestic bodies imposed on the victim the burden of proving the distinction in treatment and its discriminatory nature with an evidentiary standard of proof. The Commission considered that the high standard of proof imposed by the domestic courts, in the presence of all the existing evidence and indications, nullified the right to effective judicial protection to which the victim was entitled. It also pointed out that the lack of a reasonableness and proportionality analysis of the interference and distinction in treatment validated the violation of the right to privacy and the principle of equality and non-discrimination.

On the other hand, the Commission concluded that the State violated the guarantee of reasonable time due to the time that each authority took to resolve the appeals filed, without the State having provided reasons to justify the time that elapsed for the decision of each appeal.

By virtue of these considerations, the Commission concluded that the Peruvian State is responsible for the violation of the principle of equality and non-discrimination, privacy, judicial guarantees and judicial protection provided in Articles 24, 11, 8 and 25 of the American Convention, in relation to its Article 1(1), to the detriment of Crissthian Manuel Olivera Fuentes.

In its Report on the Merits, the Commission recommended that the State:

1. Make full reparations for the human rights violations declared in the report, including the payment of compensation for material and non-material damages. In particular, adopt the payment of compensation for the lack of effective judicial protection with respect to the discrimination based on sexual orientation suffered by the victim in the case, as well as the excessive delay in the proceedings.
2. Adopt measures aimed at avoiding the repetition of the facts of the present case. In particular:
   1. Elaborate and implement a public policy to promote in society respect for the rights of LGBTI persons and their social acceptance, especially through education and general culture, through the elaboration and implementation of informative campaigns of sensitization and awareness in the public and private media on sexual orientation, gender identity, gender expression, bodily diversity and gender approach, promoting equality and non-discrimination, respect, acceptance and comprehensive social inclusion of LGBTI persons;
   2. Create or strengthen specialized training mechanisms for all justice operators (including judges, prosecutors, public defenders, court officials) and State security forces on equality and non-discrimination, gender perspective and human rights of LGBTI people. Particularly, justice operators must have guidelines that allow them to ensure that the rules of argumentation and burden of proof are compatible with Inter-American standards on the matter and do not impose an excessive burden on those who allege discrimination.
   3. Adopt measures that require, promote and guide companies to conduct human rights due diligence within their processes or operations related to consumer protection with respect to equality and non-discrimination of LGBTI persons in accordance with Inter-American standards on the matter. Such measures should include training activities, and the development of indicators that allow the State to verify companies' compliance with the above measures. Among such measures, the State should require companies, including Supermercados Peruanos S.A., to make visible in their facilities open to the public a message promoting respect for the right to equality and non-discrimination of LGBTI persons in their operations related to consumer protection in coordination with the victim and her representatives in this case.
   4. Adopt the necessary measures to promote the ratification of the Inter-American Convention against all forms of Discrimination and Intolerance.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 168/21

9:39 AM