April 15, 2016 -- The Inter-American Court of Human Rights (IACHR) published a landmark decision of 4 to 2 votes ruling that the Colombian State is accountable for the violation of denying Ángel Alberto Duque, a HIV positive gay man, his right to equality and not to be discriminated against.
There are now two IACHR rulings on lgbti rights : Atala Riffo and daughters vs. Chile
and --this one-- Duque vs. Colombia. Duque vs. Colombia is the first to rule on same- sex partnerships. The potential impact of this decision on regional jurisprudence and on the international human rights system is enormous.
In 2002, the private pension fund –Colfondos – denied to Mr. Duque the pension of his deceased partner of 10 years, Jhon Óscar Jiménez. Colfondos based its response on the fact that, under Colombian legislation on social security at the time, the union of two persons of the same sex was not legally recognized as basis for provision of beneficiary status to the surviving spouse. A judge dismissed the petition, arguing similarly to Colfondos’. The judge stated,
“No violation of fundamental constitutional rights was committed...since the survivor’s pension is intended to protect the family...formed by the union of a man and a woman, the only beings capable of preserving the species through procreation...a homosexual union does not, in itself, constitute a family…”
Germán Rincón Perfetti, a LGBTI activist and a lawyer for Mr. Duque’s case for the last 12 years, brought the case to the Inter-American Commission of Human Rights in 2011.
The Commission made recommendations to the Colombia State to remedy Mr. Duque’s situation. As the State failed to implement the recommendations, in 2014, the Commission sent the case to the Court that granted the review. Rincón Perfetti and the Comisión Colombiana de Juristas were Mr. Duque’s lawyers before the High Court.
Outright (IGLHRC) signed two Amici Curie (with the University of Texas Law School and Leitner Center for Justice and International Law at Fordham University) to support Duque's claim.
Regarding the relevance of this ruling Mr. Rincón says,
“This is a guarantee for same-sex couples globally and a strong wake up call to discriminatory religious fundamentalisms”
The Court has ordered the Colombian State to start paying the pension within three months and retroactively for 13 years plus $10,000 US dollars for immaterial injuries.
The decision also mandates to disseminate the summary of the decision in the Official Newspaper, a national circulating newspaper and to upload the full sentence on its official web page for at least a year.
For further information contact:
Germán Rincón Perfetti
To see the full sentence in Spanish :
Published on April 21, 2016 | OutRight Action International an LGBT human rights organization