Case of Angel Alberto Duque (Report on the merits)

Duque and his same-sex partner lived together as a couple for over ten years, until his partner died from AIDS. Four years prior to the death, Duque was diagnosed with HIV and was being treated under support from his partner. When his partner died, Duque asked the COLFONDOS (the pension service) to ask what requirements he had to meet to apply for his partner’s survivor pension. COLFONDOS responded that he did not qualify because the law regarding survivor’s pension did not contain any provision providing for a same-sex partner beneficiary. Due to the lack of access, Duque lost his full medical coverage and had to find the means to pay for a reduced level of care.

Duque filed a tutela action, a special constitutional remedy, to have his right to the survivor’s pension recognized by the court. The court found Duque did not have a right because no legal provision existed to recognize the right for same sex couples. This decision was affirmed on appeal. The upper court went further to say that the survivor’s pension was intended to protect the family, and a family is formed by the union of a man and a woman; a same-sex couple cannot form a family. This case was filed with the Inter-American Commission on Human Rights regarding a violation of Articles 5, 8(1), and 25, when read in conjunction with the obligations established by Articles 1(1) and 2 of the American Convention on Human Rights (“Convention”). Article 5 protects the right to have one’s physical, moral, and mental integrity respected, Article 8(1) protects the right to be heard by an impartial and independent tribunal, and Article 25 protects the right to be free from non-discrimination. Article 1(1) and 2 provide that states must undertake to adopt such measures as necessary to give effect to the rights and freedoms protected by the Convention.

The Commission held that the Colombian judges violated Duque’s right to equality and non-discrimination under Article 24. The Commission also held that the combination of the previous denials of his rights and the suffering endured by Mr. Duque regarding the uncertainty over his access to medical care violated his right to the integrity of his person, especially his right to health, in violation of Article 5(1) of the Convention.

Regarding Article 24, the Court noted that sexual orientation has been recognized as a protected category from discrimination. Therefore, any restriction on the fundamental right to be free from discrimination would need to be justified by a very good reason, and the burden of proof is on the state to show that the purpose or effect of the restriction is not discriminatory. Colombia tried to argue that under the principle of “progressive realization,” the state had the flexibility to work towards ensuring these rights, as they had in subsequent case law after Duque’s situation arose. The Commission found this defense inadequate because the State never argued or demonstrated that the denial of Duque’s right to survivor’s pension was due to Colombia’s economic or technical limitations. In fact, no reason was cited in the denials other than the fact that they were a same-sex couple. Colombia provided no objective reason as to why the distinction between same sex and different sex couples was necessary. Even if “protection of the family” was a legitimate end, the means were not suitable given that the Convention protects beyond the “traditional” model of family.

Regarding the right to due process under Articles 8(1) and 25(1) of the Convention, the Commission noted that a remedy must be truly effective. If the remedy is “illusory because of the general conditions prevailing in the country,” it is not effective. Lack of sensitivity by members of the justice system regarding discrimination constituted continued discrimination. The judge in Duque’s tutela action said that it was not the proper remedy to challenge his denial, while, in contrast, the State had stated that the tutela action was the remedy to correct an improper interpretation of the law. In doing so, the judge in Duque’s action had not fully examined the questions before him, instead stating the remedy was incorrect and not investigating the merits of the arguments. Therefore, the Commission held that Mr. Duque did not have an effective judicial remedy to challenge the rationality, reasonableness, and proportionality of the provision at issue, in violation of the judicial guarantees in Articles 8 and 25 of the Convention.

The Commission recommended four remedies. Colombia should make adequate reparations to Mr. Duque, including granting the survivor’s pension, just compensation, and uninterrupted access to health services and treatment. Colombia should take the necessary measures to ensure this situation does not happen again. Colombia should provide training to their personnel to process these requests. Finally, Colombia should ensure same-sex couples are not discriminated against by the social security system and are allowed to present the same evidence required of different-sex couples to get access to the system.

“The IACHR defines discrimination based on sexual orientation as any distinction, exclusion, restriction, or preference made against a person on the grounds that they are lesbian, gay, or bisexual –or perceived as such–, which has the effect of the purpose – whether de jure, or de facto – of impairing or nullifying the recognition, enjoyment or exercise, on the basis of equality, of human rights and fundamental freedoms, taking into account the social and cultural attributes that have been associated with those persons. Additionally, the Court has established that “[a]s regards the prohibition of discrimination based on sexual orientation, any restriction of a right would need to be based on rigorous and weighty reasons. Furthermore, the burden of proof is inverted, which means that it is up to the authority to prove that its decision does not have a discriminatory purpose or effect.” Para. 67.

“The Commission notes that, in the instant case, the State submits that the concept of ‘progressive realization’, when applied to social security rights, would allow to gradually extend the coverage group by group; hence, it argues, the denial of pensions to same-sex couples is a problem that has been remedied with the passage of time. However, the IACHR has already established that ‘the first obligation ‘with immediate effect’ arising from economic, social, and cultural rights consists of ensuring that those rights shall be exercised in conditions of equality and without discrimination’. That is to say that, while implementation of the ESCR involves an obligation of ‘progressive realization’, the latter cannot be discriminatory. In the instant case, the State has not explained what objective reason —and necessary according to the standard of strict scrutiny— would justify access to pension rights in the case of different-sex couples, as a question of ‘progressive’ realization.” Para. 73.