Graciela Ato del Avellanal v. Peru

The author in the case is Graciela Ato de1 Avellanal, a Peruvian citizen born in 1934, employed as professor of music and married to Guillermo Burneo, who was allegedly discriminated against because of her gender as a woman.

She owned  two apartment buildings in Lima which she acquired in 1974. It appears that a number of

tenants took advantage of the change in ownership to cease paying rent for their apartments. After unsuccessful attempts to collect the overdue rent, the author sued the tenants on 13 September 1978. The court of first instance found in her favour and ordered the tenants to pay her the rent due since 1974. The Superior Court reversed the judgement on 21 November 1980 on the procedural ground that the author was not entitled to sue, because, according to article 168 of the Peruvian Civil Code, when a woman is married only the husband is entitled to represent matrimonial property before the Courts (” El marido es representante de la sociedad conyugal”). On 10 December 1980, the author appealed to the Peruvian Supreme Court, submitting inter alia that the Peruvian Constitution now in force abolished discrimination against women and that article 2 (2) of the Peruvian Magna Carta provides that “the law grants rights to women which are not less than those granted to men”. However, on 15 February 1984, the Supreme Court upheld the decision of the Superior Court. Thereupon, the author interposed the recourse of amparo on 6 May 1984, claiming that in her case article 2 (2) of the Constitution had been violated by denying her the right to litigate before the courts only because she is a woman. The Supreme Court rejected the recourse of amparo on 10 April 1985.

Having thus exhausted domestic remedies in Peru, pursuant to article 39 of the Peruvian Law No. 23506, which specifically provides that a Peruvian citizen who considers that his or her constitutional rights have been violated may appeal to the Human Rights Committee of the United Nations, the author sought United Nations assistance in vindicating her right to equality before the Peruvian courts.

The Human Rights Committee noted that the facts of the case, as submitted by the author, were not contested by the State Party.

The Court of First Instance decided in favour of the author, but the Superior Court reversed that decision on the sole ground that according to article 168 of the Peruvian Civil Code only the husband is entitled to represent matrimonial property, i. e. that the wife was not equal to her husband for purposes of suing in Court.

With regard to discrimination on the ground of sex the Committee noted further that under article 3 of the Covenant State parties undertake "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant" and that article 26 provides that all persons are equal before the law and are entitled to the equal protection of the law. The Committee found that the facts before it reveal that the application of article 168 of the Peruvian Civil Code to the author resulted in denying her equality before the courts and constituted discrimination on the ground of sex.

The Human Rights Committee held that the events of the case disclose violations of articles 3, 14, paragraph 1, and 26 of the Covenant.

The State party is under an obligation, in accordance with the provisions of article 2 of the Covenant, to take effective measures to remedy the violations suffered by the victim.

The Committee, accordingly, is of the view that the State party is under an obligation, in accordance with

the provisions of article 2 of the Covenant, to take effective measures to remedy the violations suffered by the victim. In this connection the Committee welcomed the State party's commitment, expressed in articles 39 and 40 of Law No. 23506, to co-operate with the Human Rights Committee, and to implement its recommendations.