On 18 May 1996, Marta Lucía Álvarez Giraldo filed a complaint to the Inter-America Commission on Human Rights against the Republic of Colombia. The complainant was serving a lower court prison sentence since March 1994.
Legislation in Colombia enshrines the right of inmates to intimate visits. The complainant requested permission to be visited by her female life partner. The Prosecutor’s Office issued authorisation for the visit and communicated this to the prison. The Director of the prison requested that the Sectional Director of the Prosecutor’s Office review the decision. The request was then forwarded to the Regional Directorate of National Penitentiary and Prison Institute. The Ombusdman for Pereira filed a motion for protective relief on behalf of the prisoner and consequently the Direction of the prison was ordered to make a decision. The Director denied authorisation for the intimate visit on the basis of the prisoner’s sexual orientation. The decision was upheld by the Criminal Court of the Santa Rosa de Cabal Circuit and the Constitutional Court. The complainant alleged that the penitentiary authorities had engaged in discriminatory treatment and had violated her rights protected under Articles 5 (right to humane treatment) 11 (right to privacy) and 24 (right to equal protection) of the American Convention on Human Rights.
The Colombian state argued 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.
In this report on the admissibility of the case, the Commission found that there was an exhaustion of domestic remedies. Considering the timeliness of the petition, the Commission addressed Article 46 of the Convention establishing that petitions should be presented within a six month period from the party being notified of the judgment by the Constitutional Court. The petitioner claimed that she was not notified of the judgment at the time and the state did not dispute this. Having never disputed compliance with this requirement, the Commission concluded tacit waiver of the right to object admissibility by the state.
The Commission found that there was a colourable claim of violation in that the facts could involve a violation of Article 11(2) of the Convention so far as they could constitute an arbitrary of abusive interference with her private life.
The Commission concluded the report by declaring the case admissible and referring the report to the Colombian state and the petitioner. The Commission stated that it would continue to analyse the merits of the case, including the scope and meaning of Article 11(2) of the Convention. It also reiterated its offer to assist with reaching a friendly settlement between the state and petitioner.
Download the report