I/A Court H.R., Case of Duque v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of February 26, 2016. Series C No. 310.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 



Facts – The applicant, Mr. Ángel Alberto Duque, lived with his same-sex partner until the latter’s death on 15 September 2001 as a consequence of acquired immunodeficiency syndrome (Aids). The applicant’s partner was affiliated to the Colombian Fund Management Company of Pensions and Severance (COLFONDOS S.A.). On 19 March 2002 the applicant presented a written request to be informed about the requirements for obtaining a survivor’s pension. COLFONDOS indicated that he did not hold a beneficiary status in accordance with the applicable law. On 26 April 2002, given the negative response of COLFONDOS, the applicant filed a “tutela” action, requesting that the pension be recognised and paid to him. The Tenth Municipal Civil Court of Bogotá denied the “tutela” action, finding that “the petitioner does not meet the qualifications required by law to be recognised as the beneficiary of the pension and that no provision or judgment has recognised, in that regard, any right to same-sex couples”. The decision was appealed against by the applicant, and upheld in its entirety on 19 July 2002 by the Twelfth Municipal Civil Court of Bogotá.


The Colombian regulations in force at the time provided that the beneficiaries of the survivor’s pension were “for life, the spouse or the surviving permanent companion” (Law no. 100 of 23 December 1993) and that “[f]or all civil effects, a de facto partnership, is a partnership between a man and a woman who, without being married, form a single and permanent community of life” (Law no. 54 of 28 December 1990). The decree implementing Law no. 100 indicated that “for the purposes of entitlement to the survivor pension, the quality of permanent companion will be h[e]ld by the last person of different sex to the deceased to have shared marital life with the deceased for a period of not less than two (2) years” (Decree 1889 of 3 August 1994). However, since 2007 the Colombian Constitutional Court has recognised, through its jurisprudence, an entitlement to pension, social-security and property rights for same- sex couples. It established that Law no. 54 also applied to same-sex couples. Subsequently, it determined that the coverage afforded by the social- security system’s health contributory regime could also extend to same-sex couples. In 2008 the Constitutional Court concluded, in judgment no. C-336, that permanent partners in same-sex couples who demonstrated such status had the right to a survivor’s pension. It also ruled in 2010 that the death of one of the partners of a same-sex couple prior to notification of judgment no. C-336 did not justify the survivor being denied a survivor’s pension.


(a)     Preliminary objections – The State submitted two preliminary objections regarding the non- exhaustion of domestic remedies. The objections were rejected on the grounds that the State had not disclosed the necessary information to the Inter- American Commission when deciding on the admissibility of the case. A further preliminary objection was submitted regarding the facts invoked in support of the alleged violation of the rights to life and personal integrity. This was also rejected on the grounds that this argument could not be ana- lysed as a preliminary objection, since it related to the probative weight of the evidence for the determination of the facts.


(b)     Article 24 (right to equal protection) of the American Convention on Human Rights (ACHR), in relation to Articles 1(1) (obligation to respect and ensure rights) and 2 (domestic legal effects) – The Inter-American Court reiterated that Article 1(1) of the ACHR is a rule of general scope which ex- tends to all provisions of the treaty, and provides for the obligation of State Parties to respect and ensure the free and full exercise of rights and freedoms recognised thereof “without discrimination”. Article 24 of the ACHR prohibits de iure discrimination with respect to all laws passed by the State and its application.


During the proceedings the State recognised the existence of a “continued international wrongful act, during at least part of the period for which the provisions that did not allow for the recognition of pension benefits for same-sex couples were in force”. Accordingly, it argued that the internationally wrongful act had ceased with the issuance of the Constitutional Court’s C-336 judgment which amended the rules that were the cause of the applicant’s human-rights violations. Further, it stated that as of 2010 there was an appropriate and effective remedy available for the recognition of pension benefits to same-sex couples. However, the Inter- American Court concluded that, notwithstanding the changes that had occurred at the domestic level, the compatibility between the Colombian legal system and the principle of non-discrimination and of the right to equality before the law had to be analysed taking into consideration the time when the violations occurred.


Thus, in order to perform the analysis, it proceeded to determine: (a) whether the Colombian pro- visions established a difference in treatment; (b) if the difference in treatment referred to categories protected by Article 1(1) of the ACHR, and (c) if the difference in treatment was of a discriminatory nature.


The Court found that the Colombian legislation regulating de facto marital unions and the property regime between permanent companions, as well as the regulatory decree that created the social- security system, established a difference in treatment between heterosexual couples who could form a marital union and same-sex couples who could not form such a union.


It reiterated that sexual orientation and gender identity are protected categories under the ACHR. Therefore, the ACHR prohibited any discriminatory law, act or practice based on sexual orientation. Consequently, no provision, decision or practice of domestic law, whether by State or private authorities, could diminish or restrict, in any way, the rights of a person based on their sexual orientation. Any potential restriction of a right based on one of the protected categories would need to be based on rigorous and weighty reasons. This implied that the reasons used by the State to justify differential treatment should be particularly serious and grounded in an exhaustive analysis.


In the present case, the Court found that the State had not provided any explanation regarding the pressing social need for or purpose of the differential treatment, or why recourse to such differential treatment was the only way to achieve such purpose. It referred to regulations and jurisprudence of some of the countries in the region that had recognised access to survivor pensions for same-sex couples, stating that a person’s sexual preferences did not constitute an obstacle to the realisation of rights to access a survivor pension.


Moreover, the Court recalled that in the Case of Atala Riffo and daughters v. Chile[1] it had ruled that the alleged lack of consensus in some countries regarding full respect for the rights of sexual minorities could not be considered a valid argument to deny or restrict their human rights or to perpetuate and reproduce the historical and structural discrimination that these minorities have suffered and that the fact that this was a controversial issue in some sectors and countries and not necessarily a matter of consensus could not lead it to abstain from issuing a decision, since in doing so it must refer solely and exclusively to the stipulations of the international obligations arising from a sovereign decision by the States to adhere to the ACHR.


In Mr. Duque’s case, the Court concluded that the State had not presented objective and reasonable justification for the restriction on his access to a survivor’s pension based on sexual orientation. Accordingly, it found that the distinction set out in Colombian law on the basis of sexual orientation for access to a survivor’s pensions was discriminatory. By not allowing him equal access to a survivor’s pension Colombia was responsible for the violation of his right to equality and non-discrimination.


In addressing the State’s allegations that the inter- nationally wrongful act had ceased and had been remedied or repaired, the Court noted that, even if it was true that the applicant could, since 2010, have applied for a survivor’s pension without being discriminated against, it was also true that there was no certainty that the pension would be granted or that recognition would have retroactive effect to the time it was the subject of differential treatment in 2002. In this regard, the Court concluded that the internationally wrongful act that had operated to the applicant’s detriment had not yet been fully remedied, since the retroactive payments he could receive would not be equivalent to those he would have received if he had not been treated differently in a discriminatory manner.


With regard to the alleged violation of Article 2 of the ACHR, the Court considered that, in accordance with the normative and jurisprudential developments in Colombia concerning the recognition and protection of same-sex couples, it did not have the elements to conclude that there existed a violation of the obligation to adopt domestic legal provisions.

Conclusion: violation of Article 24 in relation to Article 1(1) (four votes to two); no violation of Article 2 in relation to Articles 24 and 1(1) (four votes to two).


(c)      Article 8(1) (right to a fair trial) and Article 25 (right to judicial protection) of the ACHR, in con- junction with Articles 1(1) and 2 thereof – In relation to the right to judicial protection, the Inter-American Court indicated that it had no means of verifying that there was not, in Colombia, a suitable and effective remedy to request payment of the survivor’s pension for same-sex couples. That conclusion was based on the fact that it was not possible to perform an analysis, in abstract terms, of the suitability and effectiveness of existent remedies in the contentious administrative jurisdiction, and the application for judicial review and appeal against the decision of COLFONDOS, since these remedies were not filed. Consequently, the Court considered that the State had not violated this right.


As to the alleged violation of the applicant’s judicial guarantees through the use of discriminatory stereotypes in judicial decisions, the Court held that the State was not responsible as it was not possible to verify whether the authorities had acted for reasons that went beyond the express provisions of Colombian law.

Conclusion: no violation (four votes to two).


(d)     Articles 4(1) (right to life) and 5(1) (right to personal integrity) of the ACHR in relation to Articles 1(1) and 1(2) thereof – The Inter-American Court found that the State was not responsible for the violation of the applicant´s rights to personal integrity and life because: (a) no evidence had been provided of damage to his psychological or moral integrity derived from the resolutions issued; (b) no evidence had been submitted to infer that his health had been affected or that the State had failed to provide medical care, and (c) no information had been provided that could lead to the conclusion that in the applicant’s case the alternative social-security system would have provided lower quality health protection than the contributory scheme.

Conclusion: no violation (four votes to two).


(e)     Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation and ordered that the State: (i) publish the judgment and its official summary; (ii) guarantee the applicant priority regarding the processing of any application for a survivor’s pension, and (iii)  pay compensation in respect of non-pecuniary damage, as well as costs and expenses.

[1] Case of Atala Riffo and daughters v. Chile (merits, reparations and costs), judgment of 24 February 2012. Series C No. 239, § 92.