Colombia: Discrimination in Prisons Must End

Support Marta Alvarez Now!

SUMMARY

To be legally deprived of freedom is not to lose one's human dignity. Marta Alvarez, a Colombian lesbian imprisoned in that country for the crime of murder, has struggled in detention to defend a principle integral to the impartiality of justice. Since 1994, she has been demanding a right allotted to other prisoners, but refused to those with same-sex partners--the right to conjugal visits. She now faces further obstacles in her long campaign for equality, and her supporters request international help to pressure the Colombian prison system to comply.

Alvarez's requests were repeatedly rejected at the local and national levels--although Colombia allows such conjugal visits in prisons for married and some unmarried heterosexual partners. In 1999, Alvarez and her attorney, Marta Tamayo, brought the case before the Interamerican Human Rights Commission, the international body which monitors adherence to the Interamerican Convention on Human Rights. The Commission agreed to mediate between the plaintiffs and the Colombian government, acknowledging that the denial constituted discrimination based on sexual orientation--a finding which itself marked a historic precedent in Latin America.

Apparently responding to such international pressure, in October 2001 the Supreme Court of Colombia granted the right to conjugal visits for another lesbian inmate, Alba Nelly Montoya, who was also represented by Marta Tamayo. Tamayo and Alvarez hoped this decision would set a precedent and help the latter's case. However, on May 6, 2002, they received a new denial from the authorities of the Armenia Women's Jail, where Alvarez is serving time.

Both women, and the local movements supporting them, believe that the denial is a reprisal for Alvarez's continuing determination to press for her rights, and those of other lesbians and other women in prison.

ACTION

Marta Alvarez, Marta Tamayo and the International Gay and Lesbian Human Rights Commission (IGLHRC) ask for IMMEDIATE e-mails to the INPEC (Instituto Nacional Penitenciario de Colombia, or Colombian National Penitentiary Institution--the governing body of the penitentiary system). Demand the immediate granting of conjugal visitation rights to Ms. Alvarez and an end to discriminatory practices directed against her. A sample letter is found below.

Please write to:

CORONEL SILVIO BALLESTEROS MONCADA -
DIRECTOR REGIONAL DEL INPEC VIEJO CALDAS :
(Director, Viejo Caldas section of the INPEC)
rvcaldas@inpec.gov.co
GENERAL VICTOR MANUEL PEZ -
DIRECTOR NACIONAL DEL INPEC
(INPEC's Director at the National level)
vmpaez@inpec.gov.co OR
direccion@inpec.gov.co
MS. MARCELA BRICEÑO -
Directora de Derechos Humanos del Ministerio de Relaciones Exteriores
(Director, Human Rights office at the Ministry of Foreign Affairs)
eecorresp@minrelext.gov.co

And please send a copy to Marta Alvarez's attorney:

Marta Tamayo Rincón
tamayorincon@yahoo.com

SAMPLE LETTER

Dear Director,

I/we write to urge you to end to discrimination against Ms. Marta Lucia Alvarez Giraldo, who is an inmate at the Armenia Women's Reclusion and has been denied the right to conjugal visitations with her female partner by the Reclusion's Director, Ms. Maria Dignory Quintero Ospina (Official Note 615-RMA-Nro. 321 D, May 6 2002). This discrimination violates the clear intent of the Interamerican Commission on Human Rights in its interventions in this case; it also violates Colombia's clear commitments under international law.

Ms. Alvarez's case was argued before the Interamerican Human Rights Commission in 1999 as a violation of the fundamental rights to equality and privacy (case 11.656)--rights which are protected by the Colombian Constitution and by international human rights treaties ratified by Colombia, such as the Interamerican Convention on Human Rights (IACHR) and the International Covenant on Civil and Political Rights (ICCPR). The Commission agreed to oversee negotiations between the Colombian government and Ms. Alvarez and her lawyer.

Colombia's own legal system has acceded to these requirements. In the case of Alba Nelly Montoya Castrillión (Expediente No. 6600122100002001-0012-01, October 11 2001) the Colombia Supreme Court of Justice has clearly stated that depriving lesbian inmates of conjugal visits violates their constitutionally protected rights to privacy (Article 15 of the Colombian Constitution), to freedom from discrimination based on sex, and to equality before the law (Article 13 of the Colombian Constitution). The judges also stated that allowing conjugal visits to lesbian women in prison--under the same conditions of privacy and security required for heterosexual visits--constitutes no threat to the prison regime or to the well-being of other inmates or visitors, including children.

The UN Standard Minimum Rules for the Treatment of Prisoners recognize as a "basic principle" of prison regulations that they should be "applied impartially" with "no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" Pparagraph 6.1). Such prohibited discrimination includes discrimination based on sexual orientation, according to the United Nations Human Rights Committee (see its 1994 decision in Toonen v Australia, which found that unequal treatment based on sexual orientation fell under the status of "sex" and violated protections in the the ICCPR.) Paragraph 37 of the Standard Minimum Rules further affirms that: "Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and receiving visits."

There is no logical explanation for denying Marta Alvarez a right that has been recognized as such by the Colombian justice system and granted to other women in her same situation. Since she began to demand her rights, at the local, national and international levels, she has suffered repeated reprisals by penitentiary authorities--including being transferred to 13 different facilities since 1994. We hope, but are not confident, that this latest denial differs from that pattern of unjust punishment.

We urge you to immediately review this decision and recognize Ms. Marta Alvarez' right to enjoy conjugal visits from her partner at the Armenia Women's Prison. In doing so, you will be showing your commitment to fairness and justice.

Respectfully,

(your name and organization)

BACKGROUND INFORMATION

The Marta Alvarez case was heard at the Interamerican Commission on Human Rights (IAHRC) on October 1, 1999, after all legal recourses in Colombia had been exhausted over the preceding five years. In her petition to the Commission, Alvarez argued that her rights to personal dignity, integrity, and equality were violated by the refusal to allow her conjugal visits in prison. The National Institute for Penitentiaries and Prisons (INPEC) grants conjugal visitation rights in prison to men and women with partners of the opposite sex. (In a further twist of discrimination, men are allowed visits from women to whom they are not married; women are restricted to visits from their husbands. Same-sex couples are denied the right to legal marriage in Colombia.)

The Colombian government admitted in 1999 before the Interamerican Commission that the denial ofvisitation rights to Alvarez constituted "inhuman and discriminatory" treatment. Astonishingly, though, it continues to deny these visits--arguing that inequality and inhumanity are justified if the denial fosters security, discipline, and morality in prisons. The government also alleges that Latin American cultures do not tolerate homosexuality. The last argument contradicts a string of decisions by Colombian courts which recognize the rights of Colombian gays and lesbians to equality and non-discrimination. (See citations in Spanish of Constitutional Court decisions, affirming the constitutional rights of homosexuals in the teaching profession and in the army, at http://www.iglhrc.org/news/press/pr_011023_2_es.html.)

Following a hearing at the Interamerican Commission the parties embarked on over two years of negotiations, overseen by the Commission, in order to reach a friendly settlement. At the start of negotiations Alvarez was transferred to a men's prison and submitted to other disciplinary measures, apparently in retaliation for her having pursued her case. After a domestic and international protest campaign the disciplinary measures were rescinded.

The Alvarez case is case #11656 at the Interamerican Human Rights Commission. Co-petitioners before the Interamerican Commission are: the Colombia National Women's Network, represented by Lic. Marta Lucía Tamayo Rincón; the lesbian group Triángulo Negro; the gay groups Equiláteros and Trenza; the Latin-American Institute of Alternative Legal Services; the Center for Justice and International Law (CEJIL); the International Human Rights Law Group; and the International Gay and Lesbian Human Rights Commission (IGLHRC).

Alvarez had exhausted all legal avenues in Colombia before reaching the Interamerican Commission. Alvarez first petitioned in 1994 for same-sex conjugal visits: conjugal visits in general are allowed in Colombia under Article 12 of the Penitentiary and Prison Code (Law 65/93). The office of the prosecutor granted her request on July 26, 1994. Prison authorities, however, did not acknowledge receipt of the decision and refused to implement it. Under pressure from the Office of the Ombudsperson, prison authorities admitted receiving the decision on September 30, 1994, but continued to refuse to implement it.

The Office of the Ombudsperson filed a complaint with a Municipal Court on January 20, 1995, alleging that Alvarez's rights to the free development of her personality, to equality, to privacy, and to the right to appeal, were being denied. The Court rejected the complaint, and the case went through subsequent appeals in the Colombian courts. until May 22 1995, when the Colombian Supreme Court declined to rehear it.

This left international law as Alvarez's only recourse. The IAHRC admitted the case in May 1999. The admissibility report is in itself a landmark in that it is the first time a sexual-orientation case was admitted by the IAHRC. The case was heard before the IAHRC in October 1999.

In the meantime, however, Colombia's own judicial system had moved forward on the issue. In a separate case, Alba Nelly Montoya's right to same-sex conjugal visits while in prison was affirmed by the Colombian Supreme Court in 2001. Initially, Alvarez and Tamayo had hoped that this would transform the local legal horizon for their pursuit of justice. However, Alba Nelly Montoya obtained her verdict from the Supreme Court through a "tutela" or protective measure. Such measures are not precedent-setting: they cannot be considered mandatory in other cases, though they must be taken into account by judges and authorities considering comparable issues. This left penitentiary authorities confident of their own latititude in continuing to deny Alvarez her rights.

For more information on the Marta Alvarez case, see IGLHRC's September 30, 1999 press release, "Discrimination Against Same Sex Love," at http://www.iglhrc.org/news/press/pr_990930.html, and IGLHRC's December 17, 1999 Action Alert, "Lesbian Inmate Subjected to Punitive Sanctions and Inhuman Treatment," at http://www.iglhrc.org/world/southamerica/Colombia1999Dec.html. (In recognition of their symbolic and substantive work on behalf of women's equality, Marta Alvarez, Marta Tamayo, and Alba Nelly Montoya received IGLHRC's 2002 Felipa Award; information about their lives and work can be found at http://www.iglhrc.org/felipa/2002_Martas.html.)

IN THE LAW

Discrimination based on status is barred by the Universal Declaration of Human Rights (UDHR) in its Articles 1 and 2; by the International Covenant on Civil and Political Rights (ICCPR) in its Articles 2 and 26; and by the Interamerican Convention on Human Rights in its Article 2. These provisions do not expressly mention "sexual orientation": however, the United Nations Human Rights Committee held in the 1994 case Toonen v Australia that the ICCPR's anti-discrimination provisions should be understood to include sexual orientation as a protected status.

The right to privacy is protected by the UDHR in its Article 12, the ICCPR in its Article 17, and the IACHR in its Article 11.

The right to equality before the law is protected by the UDHR in its Article 7, the ICCPR in its Article 26, and the IACHR in its Article 24.

Article 10 of the ICCPR and 5 of the IACHR state that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

Colombia has ratified both the ICCPR and IACHR. The UDHR is considered a part of customary international law, and binding on all member States of the United Nations.

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