Atala Riffo and Daughters v. Chile: Perbedaan antara revisi
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Baris 4.792:
Rights in Early Childhood, CRC/C/GC/7, September 30, 2005, para. 12.
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a decision justified with the child’s best interest, understood as the protection of his rights,
cannot at the same time expect to legitimize a discriminatory decision prima facie, or
in abstract, that affects the child’s right to be taken care of by his mother172.
153. For his part, the expert Robert Wintemute emphasized that:
“discrimination based on […] the sexual orientation of the child’s parent is never in the best
interest of the child” 173.
154. By having used the mother’s sexual orientation as grounds for its decision, the
Supreme Court, in turn, discriminated against the three girls, since it took into account
considerations it would not have used if the custody proceedings had been between two
heterosexual parents. In particular, this Court reiterates that the child’s best interest is a
guiding principle in the drafting of provisions and in their application in all aspects of the
child’s life. 174
155. Furthermore, the discriminatory treatment against the mother had repercussions for
the girls, since it was used as grounds to decide that they should not continue to live with
their mother. Thus, the effects of this decision were extended when the girls were separated
from their mother due to her sexual orientation. Therefore, the Court concludes that Article
24, in conjunction with Articles 19 and 1(1)of the American Convention, was violated in
detriment of the girls M., V., and R.
D. Right to private life and right to family life
Arguments of the parties
156. With respect to the alleged violation of Article 11175 of the American Convention, the
Commission argued that “the right to a private life encompasses all spheres of the intimate
realm and autonomy of an individual, including his or her personality, identity, decisions
over his or her sexual life, personal and family relations [, given that] sexual orientation
constitutes a fundamental component of an individual’s private life.” It held that “the State’s
interference in the private life of Karen Atala was arbitrary, since the custody decision was
based on discriminatory prejudices driven by her sexual orientation [….] and it also
arbitrarily interfered in her autonomy to make decisions on her personal life based on said
orientation. The latter […since] in the absence of objective reasons, the Supreme Court of
Justice, based on the expression of her sexual orientation, deprived her of the custody of
her daughters and a life in common with them, a fundamental aspect of her life plan.”
172 Written statement rendered by expert Miguel Cillero Bruñol, August 4, 2011 (Merits file, volume II, page
929).
173 Written statement rendered by expert Robert Wintemute, September 16, 2011 (Merits file, volume XI,
page 5355).
174 Advisory Opinion OC-17/02, supra note 122, para. 137, opinion 2.
175 Article 11 of the Convention states that:
1. Everyone has the right to have his honor respected and his dignity recognized.
2. No one may be the object of arbitrary or abusive interference with his private life, his family, his
home or his correspondence, or of unlawful attacks on his honor or reputation.
3. Everyone has the right to the protection of the law against such interference or attacks.
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157. For their part, the representatives argued that “the interference is arbitrary because
the only justification is the expression of the mother’s sexual orientation, which is part of
her personal identity, an essential characteristic of all individuals, which has no bearing
whatsoever on the daughters’ well-being.” The representatives pointed out that “there is no
question that both [Ms.] Atala and her daughters suffered arbitrary interference in their
private life.”
158. Furthermore, in relation to Articles 11(2) and 17176 of the American Convention, the
Commission and the representatives alleged “unlawful and arbitrary interference in the right
to private and family life, which extends to the development of relationships between
members of a family and the role of emotional relationships in the life project of each
member.” The representatives pointed out that “there is no single concept of family” and
that “[Ms.] Atala, her daughters and [Ms.] De Ramón undoubtedly constituted a family unit
which was broken up by decisions based on prejudice against Judge Atala’s expression of
her sexual orientation.”
159. The State argued that “in a custody trial, whose purpose is to consider which parent
shall take charge of the personal care of the children, the judge not only has the power but
also the obligation to assess each and every one of the specific conditions and
circumstances that determine the child’s best interest. [...] It is therefore inherent to the
custody trial […] that the judge may, according to law, investigate intimate details of the life
of the persons. It argued “that the pursuit of the child’s best interest must prevail over an
unalterable conception of the right to intimacy, since the realm of private life cannot be
excluded from the judge’s knowledge and consideration.” It added that “neither [the]
Supreme Court nor the other domestic courts have violated the right enshrined in Article
11(2)of the American Convention in the decisions on the custody trial […] but, on the
contrary, have merely issued rulings regarding considerations that are inherent to a trial of
that nature.”
160. Finally, the State argued that “the separation of the family is not attributable to the
actions of the Chilean courts [since] the task of the Chilean courts was precisely the
opposite, that is, responding to the petition of the parties […] to decide, according to the
girls’ best interest, which new family unit provided the best support for their development.”
Considerations of the Court
161. Article 11 of the Convention prohibits all arbitrary or abusive interference in a
person’s private life, and encompasses various spheres of the intimate realm as well as the
private lives of their families. In that regard, the Court has held that the realm of privacy is
exempt and immune from abusive or arbitrary intrusion or aggression by third parties or by
the public authorities177.
162. Furthermore, regarding Article 11 of the American Convention, the Court has
specified that, although this provision is titled “Protection of Honor and Dignity” (in Spanish)
176 In this regard, Article 17 of the Convention states:
1. The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State.
177 Cf. Case of the Ituango Massacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2006 Series C No. 148, para. 194 and Case Fontevecchia and D`Amico, supra note 28, para.
48.
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its content includes, among others, the protection of privacy178. Privacy is an ample concept
that is not subject to exhaustive definitions and includes, among other protected realms,
the sex life and the right to establish and develop relationships with other human beings.179
Thus, privacy includes the way in which the individual views himself and to what extent and
how he decides to project this view to others180.
163. The Court observes that the Commission’s arguments regarding the alleged violation
of Ms. Karen Atala’s right to privacy were focused on the judgment issued by the Supreme
Court. On their part, the representatives added the ruling on the provisional custody as
another fact that allegedly generated the violation of Ms. Atala’s right to privacy. Therefore,
these two facts will be analyzed.
164. The Court has established in its case law that the right to private life is not an
absolute right and, therefore, may be restricted by States provided that the intrusions are
neither abusive nor arbitrary. For this reason, these must be regulated by the law, pursue a
legitimate goal and comply with the requirements of suitability, necessity and
proportionality, in other words, they must be necessary in a democratic society181.
165. In this regard the Court emphasizes that Ms. Atala’s sexual orientation is part of her
private life, and therefore any interference in it must meet the standards of “suitability,
necessity, and proportionality.” This differs from the context of a custody proceeding, where
specific parental behaviors that have allegedly caused damage to the child may be analyzed
(supra paras. 109 and 111).
166. Given that the domestic courts gave importance to the issue of Ms. Atala’s sexual
orientation in the custody decision, they exposed different aspects of her private life
throughout the proceedings. The Court notes that the reason given by the courts for
interfering in Ms. Atala’s private life was the same one used to justify the discriminatory
treatment (supra para.107), namely, the alleged best interest of the three girls. The Court
considers that, although that principle is related in abstracto to a legitimate goal (supra
para.110), the measure was unsuitable and disproportionate to achieve that purpose, since
the domestic courts should have limited themselves to examining parental behavior– which
could be part of their private life – but without exposing and scrutinizing Ms. Atala’s sexual
orientation.
167. The Court finds that during the custody proceeding, based on a stereotyped vision on
the scope of Ms. Atala’s sexual orientation (supra para. 146), there was arbitrary
178 Cf. Case of the Massacres of Ituango v. Colombia, supra note 177, para. 193 and Case of Rosendo Cantú
et al. v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 31, 2010. Series C No.
216, para. 119.
179 Cf. Case of Rosendo Cantú et al, supra note Error! Bookmark not defined., para. 119, and Case of
Fernández Ortega et al. v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 30,
2010 Series C No. 215, para. 129, quoting ECHR, Case of Dudgeon v. United Kingdom, (No. 7525/76), Judgment of
October 22, 1981, para. 41, Case of X and Y v. The Netherlands, (No. 8978/80), Judgment of March 26, 1985,
para. 22. Case of Niemietz, supra note 159, para. 29, and Case of Peck, supra note 159, para. 57.
180 Cf. Case Rosendo Cantú et al., supra note Error! Bookmark not defined., para. 119, and Case
Fernández Ortega et al., supra note Error! Bookmark not defined., para. 129, citing ECHR, Case Niemietz, supra
note 159, para. 29, and Case Peck, supra note 159, para. 57.
181 Cf. Case of Tristán Donoso v. Panama. Preliminary Objection, Merits, Reparations and Costs. Judgment
January 27, 2009. Series C No.193, para. 56 and Case of Escher et al. v. Brazil. Preliminary Objection, Merits,
Reparations and Costs. Judgment of July 6, 2009. Series C No. 200, para. 116.
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interference in her private life, given that sexual orientation is part of a person’s intimacy
and is not relevant when examining aspects related to an individual’s suitability as a parent.
Therefore, the Court concludes that the State violated Article 11(2), in conjunction with
Article 1(1)of the American Convention, to the detriment of Karen Atala Riffo.
168. Furthermore, the Court notes that one of the central arguments considered in the
judgment of the Supreme Court of Justice and the decision of the Juvenile Court of Villarica
in the provisional custody proceeding, was Ms. Atala’s cohabitation with her lesbian partner
(supra paras. 41 and 56). Accordingly, this Court considers it essential to examine the
alleged violation of the right to family life alleged by the Commission and the
representatives.
169. In this regard, the Court reiterates that Article 11(2) of the American Convention is
closely linked to the right to protection of the family and to live in a family, recognized in
Article 17 of the Convention, which requires the State not only to provide and directly
implement measures of protection for children, but also to favor, in the broadest possible
terms, the development and strength of the family unit182. The Court has established that,
under certain conditions, the separation of children from their family constitutes a violation
of said right183, since even legal separations of a child from his family may only proceed if
these are duly justified184.
170. With regard to Articles 11(2) and 17(1) of the American Convention, every person’s
right to protection against arbitrary or unlawful interference with his or her family is
implicitly a part of the right to protection of the family, and is also explicitly recognized by
Article 12(1) of the Universal Declaration of Human Rights,185 V of the American Declaration
of Rights and Duties of Man,186 17 of the International Covenant of Civil and Political
Rights,187 and 8 of the European Human Rights Convention.188 These provisions are
especially significant when separation of a child from his family is being analyzed189.
171. According to the case law of the European Court of Human Rights, the mutual
enjoyment of harmonious relations between parents and children is a fundamental
182 Cf. Advisory Opinion OC-17/02, supra note 122, para. 66 and Case Chitay Nech et al., supra note Error!
Bookmark not defined., para. 157.
183 Cf. Advisory Opinion OC-17/02, supra note 122, paras. 71 and 72 and Case Chitay Nech et al., supra note
Error! Bookmark not defined., para. 157.
184 Cf. Advisory Opinion OC-17/02, supra note 122, para. 77.
185 Article 12(1) states that “[n]o one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection
of the law against such interference or attacks.”
186 Article V of the American Declaration of Rights and Duties of Man states that “every person has the right
to the protection of the law against abusive attacks upon his honor, his reputation and his private and family life.”
187 Article 17 of the International Covenant of Civil and Political Rights states that “[n]o one shall be subjected
to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on
his honour and reputation.”
188 In this regard, Article 8(1) of the Convention for the Protection of Human Rights and Fundamental
Freedoms states that: “[e]veryone has the right to respect for his private and family life, his home and his
correspondence.” Likewise, Article 8(2) states that “[t]here shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
189 Cf. Advisory Opinion OC-17/02, supra note 122, para. 71.
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component of family life,190 and the purpose of Article 8 of the European Convention on
Human Rights is to protect individuals against arbitrary interference by public authorities
and to require the State to take affirmative measures to promote effective respect for family
life.191
172. With regard to the concept of family, various human rights organs created by
treaties, have stated that there is no single model for a family, which may have many
variations192. Similarly, the European Court has interpreted the concept of “family” in broad
terms. With regard to different sex couples, it has repeatedly indicated that:
The notion of family [...]is not confined solely to families based on marriage and may encompass other de
facto ties where the parties are living together out of wedlock. A child born of such a relationship is ipso
jure part of that “family” unit from the moment and by the very fact of his birth. Thus there exists
between the child and his parents a bond amounting to family life. The Court further recalls that the
mutual enjoyment by parent and child of each other's company constitutes a fundamental element of
family life, even if the relationship between the parents has broken down, and domestic measures
hindering such enjoyment amount to an interference with the right protected by Article 8 of the
Convention193.
190 Cf. Advisory Opinion OC-17/02, supra note 122, para. 72, citing ECHR, Case of Buchberger v. Austria, (No.
32899/96). Judgment of December 20, 2001. Final, March 20, 2003, para. 35; Case of T and K v. Finland,
Judgment of July 12, 2001, para. 151; Case of Elsholz v. Germany, Judgment of July 13, 2000, para. 43; Case of
Bronda v. Italy, Judgment of June 9, 1998, para. 51; Case of Johansen v. Norway, Judgment of August 7, 1996,
para. 52.
191 Cf. ECHR, Case of Olsson v. Sweden, Judgment of March 24, 1988, para. 81. 192 Cf. United Nations, Committee on the Elimination of Discrimination Against Women, General
Recommendation No. 21 (13th period of sessions, 1994). Equality in marriage and in family relationships, para. 13
(“The form and the concept of a family can vary from State to State and even between regions within a State.
Whatever form it takes, and whatever the legal system, religion, custom or tradition within the country, the
treatment of women in the family, both at law and in private, must conform to the principles of equality and justice
for all people, as Article 2 of the Convention requires”); Committee on the Rights of the Child, General Comment
No. 7. Implementing Child Rights in Early Childhood, supra note 171, paras. 15 and 19 (“The Committee
recognizes that ‘family’ here refers to a variety of arrangements that can provide for young children’s care,
nurturance and development, including the nuclear family, the extended family and other traditional and modern
community-based arrangements, provided that these are consistent with children’s rights and best interests.
[…]The Committee notes that in practice family patterns are variable and changing in many regions, as is the
availability of informal networks of support for parents, with an overall trend towards greater diversity in family
size, parental roles and arrangements for bringing up children”); Human Rights Committee, General Comment No.
19 (39th period of sessions, 1990). The family (Article 23), HRI/GEN/1/Rev.9 (Vol.I), para. 2 (“The Committee
notes that the concept of family may differ in some respects from State to State, and even between regions within
a State, and that it is therefore not possible to give the concept a standard definition”), and United Nations, C
Human Rights Committee, General Comment No. 16 (32nd period of sessions, 1988). Right to Privacy (Article 17),
HRI/GEN/1/Rev.9 (Vol. I), para. 5 (“Regarding the term "family", the objectives of the Covenant require that for
the purposes of Article 17, this term be given a broad interpretation that includes all those comprising the family,
as understood in the society of the State Party concerned.”)
193 ECHR, Case of Schalk and Kopf, supra note 158, para. 91 (“the notion of family […] is not confined to
marriage-based relationships and may encompass other of facto “family” ties where the parties are living together
out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment and
by the very fact of his birth. Thus there exists between the child and his parents a bond amounting to family life.
The Court further recalls that the mutual enjoyment by parent and child of each other's company constitutes a
fundamental element of family life, even if the relationship between the parents has broken down, and domestic
measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the
Convention”), citing ECHR, Case Elsholz, supra note Error! Bookmark not defined., para. 43; Case Keegan,
supra note 166, para. 44, and Case of Johnston et al. v. Ireland, (No. 9697/82), Judgment of December 18, 1986,
para. 56; see also ECHR, Case of Alim V. Russia (No. 39417/07), Judgment of September 27, 2011, para. 70; Case
of Berrehab v. The Netherlands, (No. 10730/84), Judgment of June 21, 1988, para. 21, and Case of L. v.
Netherlands, (No. 45582/99), Judgment of June 1, 2004. Final, September 1, 2004, para. 36.
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173. In the Case of X, Y and Z v. United Kingdom, the European Court of Human Rights,
following an ample concept of family, acknowledged that a transsexual, their female partner
and a child may comprise a family, stating that:
When deciding whether a relationship can be said to amount to “family life”, a number of factors may be
relevant, including whether the couple live together, the length of their relationship and whether they
have demonstrated their commitment to each other by having children together or by any other means194.
174. In the first place, and with respect to the conventional protection of same-sex
couples in the Case Schalk and Kopf v. Austria, the European Court revised its case law in
force at that time, which only accepted that the emotional and sexual relationship of a
same-sex couple constitutes “private life,” but had not considered what constituted “family
life,” despite the applicants having lived together in a long-term relationship195. Applying a
broader concept of family, the European Court established that “a cohabiting same-sex
couple living in a stable de facto partnerships, falls within the notion of ‘family life’, just as
the relationship of a different-sex couple in the same situation would196,” considering it
“artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple
cannot enjoy ‘family life’ for the purposes of Article 8” of the European Convention197.
175. The Court emphasizes that, unlike the provisions of the European Convention, which
only protect the right to family life under Article 8, the American Convention contains two
provisions that protect family life in a complementary manner. Indeed, the Court considers
that the imposition of a single concept of family should be analyzed not only as possible
arbitrary interference with private life, in accordance with Article 11(2) of the American
Convention, but also, because of the impact it may have on a family unit, in light of Article
17 of said Convention.
176. In the instant case, the Court notes that from November 2002, up until the decision
on provisional custody was issued, in May 2003, there was a close relationship between Ms.
Atala, Ms. De Ramón, Ms. Atala’s older son and the three girls. In this regard, Ms. Atala
stated that “we were an absolutely normal family. A boy, three girls, a cat, a male dog, a
female dog, a house, we had projects as a family. We had dreams as a family”198. In
addition, Ms. De Ramón stated that the “life of the five family members, six [with her …]
was almost idyllic, since [they] had a relationship based on plenty of communication, at
least among the women in the family”199.
194 Cf. ECHR, Case of X, Y and Z v. United Kingdom, (No. 21830/93), Judgment of April 22, 1997, para. 36
(“When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant,
including whether the couple live together, the length of their relationship and whether they have demonstrated
their commitment to each other by having children together or by any other means”); ECHR, Case of Marckx V.
Belgium, (No. 6833/74), Judgment of June 13, 1979, para. 31; Case of Keegan, supra note 166, para. 44, and
Case of Kroon et al., supra note 166, para. 30.
195 ECHR, Case Schalk and Kopf, supra note 158, para. 92 (“the Court's case-law has only accepted that the
emotional and sexual relationship of a same-sex couple constitutes ‘private life’ but has not found that it
constitutes ‘family life’, even where a long-term relationship of cohabiting partners was at stake”).
196 ECHR, Case Schalk and Kopf, supra note 158, para. 94 (“a cohabiting same-sex couple living in a stable of
facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same
situation would”) and Case P.B. and J.S. v. Austria, (No. 18984/02), Judgment of July 22, 2010. Final, October 22,
2010, para. 30.
197 ECHR, Case Schalk and Kopf, supra note 158, para. 94 (“the Court considers it artificial to maintain the
view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of
Article 8”) and the Case of P.B. and J.S., supra note 196, para. 30.
198 Statement by Ms. Karen Atala Riffo before the Inter-American Court at the public hearing in the present
case.
199 Statement by Ms. Emma of Ramón, August 4, 2011 (Merits file, volume II, page 762).
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177. Therefore, it is clear that they had created a family unit which, as such, was
protected under Articles 11(2) and 17(1) of the American Convention, since they shared
their lives, with frequent contact and a personal and emotional closeness between Ms.
Atala, her partner, her eldest son and the three girls. The aforementioned, without prejudice
to the fact that the girls shared another family environment with their father.
178. This Court has already concluded that the grounds presented both by the Supreme
Court of Justice and by the Juvenile Court of Villarica in the provisional custody decision
were not an appropriate measure to protect the girls’ best interest (supra para. 146), which
also had the result of separating the family constituted by the mother, her partner and the
girls. This amounts to arbitrary interference with the right to private and family life.
Therefore, the Court rules that the State violated Articles 11(2) and 17(1), in conjunction
with Article 1(1) of the American Convention to the detriment of Karen Atala Riffo and the
girls M., V. and R. Regarding the latter, said violations of family life also occurred in relation
to Article 19 of the Convention, given that they were separated in an unjustified manner
from one of their family environments.
E. Judicial guarantees and judicial protection
1. Judicial guarantees and judicial protection regarding Ms. Atala
Arguments of the parties
179. The Commission and the representatives argued the alleged violation of the judicial
guarantee of impartiality due to the judges’ stereotyped approach to the case. The
Commission pointed out that given “their consideration of [Ms. Atala’s] sexual orientation as
a key element in her fitness as a mother, together with the evident use of discriminatory
prejudices,” it may be concluded that Ms. Atala “was not afforded the guarantees of
impartiality.” The representatives added that the annulment of the Appeals Court judgment
by the Supreme Court of Justice was a violation of judicial independence. The Commission
and the representatives argued that all the aforementioned affects access to justice, for
which reason they alleged the violation of Article 8(1)200 and Article 25201 of the American
Convention.
180. Furthermore, the representatives argued that the Supreme Court “admitted [d] a
remedy of complaint […], in a case that was inadmissible, breaching the rules of due
process and the [internal objective] independence of judges” and by ordering a disciplinary
sanction to be applied to the Judges of the Court of Appeals of Temuco “for having a specific
200 Article 8(1)of the American Convention(Right to a Fair Trial) establishes that:
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.
201 Article 25(1)of the American Convention(Right to Judicial Protection) provides:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights recognized by
the constitution or laws of the state concerned or by this Convention, even though such violation may
have been committed by persons acting in the course of their official duties.
57
interpretation” of the Civil Code. They considered that “through a remedy which by legal
stipulation does not constitute an instance, as is the case of the recurso de queja (remedy
of complaint), the Supreme Court heard and issued a ruling in a case that had already been
decided and processed by the pertinent authorities before the respective competent courts.”
Moreover, the representatives argued a violation of the right to judicial fairness because the
decision of the Supreme Court “is based on prejudice and lack[ed] a rational and juridical
basis.” Finally, they indicated that Ms. Atala does not wish “once again [...] to subject [the
girls] to the pressure of a custody trial [...] renouncing the return [... of] the girls to the
family unit with their mother.”
181. The State argued that “the Supreme Court of Justice did not exceed its powers, nor
did it abuse them when, after confirming the grave misconduct or abuse, and endorsing the
remedy of complaint, it decided to annul the appealed ruling, issuing instead a replacement
judgment.” On the other hand, the State denied a violation of Article 25(1) of the
Convention with the argument that the petitioner “could have and can still try to revoke the
decision of the Supreme Court by filing […] a new custody petition regarding the girls, with
the only requirement of proving that any of the circumstances that prompted the judgment
has changed,” given that the ruling that grants custody to the girls’ father “only has formal
res judicata.” It concluded that “in order to affect the right to appeal against a judicial
ruling, it is necessary to prove the existence of a violation of the due process when this was
issued, without the aggrieved party having a means of appeal, whatever that may be,
through which it may revert the alleged breach of fundamental rights.”
Considerations of the Court
182. In the instant case, the Supreme Court of Justice considered that the judges of the
Appeals Court of Temuco “committed a fault or abuse both in applying the legal provisions
that govern the matter, and in assessing the background of the case in which they issued
the judgment that gave rise to the remedy [of complaint]” 202.
183. In this regard, the Court noted that the argument of the representatives regarding
the wrongful acceptance of the remedy of complaint by the Supreme Court of Justice is
directly related to the alleged non-existence of a grave fault by the Court of Appeals of
Temuco. In this regard, it should be noted that the recurso de queja (remedy of complaint)
in Chile is established in Article 545 of the Organic Code of Courts.203 It is a disciplinary
202 Judgment of the Supreme Court of Justice of Chile, May 31, 2004 (File of appendices to the petition,
volume V, page 2673).
203 Cf. Article 545 of the Organic Code of Courts states: The sole purpose of the recurso of queja (remedy of
complaint or complaint appeal) is to correct serious faults or abuses committed in the issuance of a jurisdictional
ruling. It shall only be admissible when the fault or abuse is committed in an interlocutory decision that puts an
end to the case or makes its continuation impossible, and there is no ordinary or extraordinary remedy available,
without prejudice to the ability of the Supreme Court to act ex officio in the exercise of its disciplinary powers.
Final, first or single-instance rulings issued by arbitrators are exempted, in which case the recurso of queja shall be
admissible, in addition to the cassation appeal with respect to procedure. The decision that accepts the recurso of
queja shall contain precise considerations to demonstrate the fault or abuse, as well as the obvious and serious
errors and omissions that constitute them and that exist in the decision that produces the recurso, and shall
determine the measures conducive to remedying said fault or abuse. In no case may it modify, amend, or
invalidate judicial decisions with respect to which the law provides ordinary or extraordinary jurisdictional
remedies, unless a recurso of queja filed against a first or single instance final decision issued by arbiters or
arbitrators is involved. In the event that a superior court of justice, making use of its disciplinary authorities,
annuls a jurisdictional ruling it must apply the disciplinary measure or measures considered appropriate. In the
event that a superior court, making use of its disciplinary powers, invalidates a jurisdictional decision, it shall apply
the relevant disciplinary measure or measures. In such case, the chamber shall provide that the full court is
informed regarding the history for purposes of imposing the appropriate disciplinary measures, given the nature of
the faults or abuses, which may not be less than a private admonition” (Merits file volume XI, page 5398).
58
remedy that has its source in Article 82 of the Constitution204 and, in general is based on
the jurisprudential practice of the Superior Courts of Justice, the Courts of Appeals, and the
Supreme Court of Justice.205
184. In the opinion of the expert Marín, the practice of using the remedy of complaint as
a means to have judgments revised distorted the procedural system by using the cassation
appeal, as the natural jurisdictional appeal established in domestic law, to correct the errors
of lower court judges.206 According to the expert, the complaint appeal caused de facto the
creation of a third instance, where the Supreme Court distorted the facts proven in the
respective court and the way in which the judges had assessed said evidence.207
185. Furthermore, the Court notes that, according to the Chilean legal doctrine forwarded
by the State, the complaint appeal is defined as “the procedural juridical act directly
presented by a party before a higher Court and against the judge or judges who issued a
ruling in a given proceeding containing a serious fault or abuse, and requesting a prompt
remedy to the wrongdoing that prompted the filing of their appeal through its correction,
annulment, or invalidation, without detriment to the application of the appropriate
disciplinary sanctions, according to that Court, regarding the judge or judges against whom
the appeal was filed.”208 Said remedy is filed “directly before a Court of higher rank than the
one that issued the ruling with the serious fault or abuse, so that it may be considered and
resolved by that court.” It is not filed against a ruling, but against the judge or judges that
issued the ruling with a serious fault or abuse, so that it may be modified, corrected, or left
without effect. The appeal has not been “created to correct simple errors of interpretation,
but judicial faults or abuses that fall within the scope of the disciplinary jurisdiction of the
higher court. Therefore, it does not constitute an instance for the revision of all matters de
facto and de iure, but it only allows the superior court to examine if a serious fault or abuse
was committed. The higher court is empowered to revoke, correct, or invalidate the
ruling209. The fault or abuse committed by a judge may stem from the formal breach of the
law, an erroneous interpretation of the law, or a faulty assessment of the background of the
proceedings210.
204 Article 82 of the Political Constitution states that “the Supreme Court is entrusted with the executive,
correctional and economic supervision of all the Courts of the nation. The Constitutional Court, the Elections
Qualifying Court and the Regional Electoral Courts are exempted from this norm” (Merits file, volume XI, page
5393).
205 Cf. Written report of the expert Dr. Juan Carlos Marín González on complaint appeals in Chile (Merits file,
volume XI, page 5393 and 5411).
206 Cf. Written report of the expert Dr. Juan Carlos Marín González on complaint appeals in Chile (Merits file,
volume XI, page 5411).
207 In this regard, expert Marín cited the legislative reasons for the approval of law 19.374 of 1995, which
modified the complaint appeal and jurisprudence of the Supreme Court of Justice, to explain that Chilean
legislators modified the complaint appeal with the objective of limiting this disciplinary recourse and preventing the
distortion of the procedural system and of the jurisdictional function of the superior courts of justice, in order to
prevent abusive practices and, therefore, the revision of trials through a third instance that openly breaches the
principle of bilateralism of the hearing. Cf. Written report of the expert Dr. Juan Carlos Marín González on the
complaint appeal in Chile (Merits file, volume XI, page 5397, 5398, and 5400).
208 Cf. Mario Mosquera Ruíz, Cristián Maturana Miquel, Los Recursos Procesales, 2010, Juridical Editorial of
Chile, Santiago, Chile, page 383, as documentary evidence enclosed by the State with the brief on final arguments
(Merits file, volume XII, page 5945).
209 Cf. Mario Mosquera Ruíz and Cristián Maturana Miquel, Los Recursos Procesales, pages 383 and 384,
supra note Error! Bookmark not defined., pages 5945 and 5946.
210 Cf. Mario Mosquera Ruíz, Cristián Maturana Miquel, Los Recursos Procesales, page 387, supra note Error!
Bookmark not defined., volume XII, page 5949.
59
186. In considering whether or not, in this case, the guarantees of judicial independence
were ignored by accepting the remedy of complaint, the Court recalls that one of the main
objectives of the separation of public powers is to guarantee the independence of judges,
for the purpose of preventing the judicial system and its members from being subject to
wrongful restrictions in the exercise of their role by bodies foreign to the Judicial Power or
even by senior judges that carry out review or appeal duties.211 Moreover, the guarantee of
judicial independence includes guarantees against external pressures212, and therefore the
State must abstain from undue interference with the Judiciary or its members, that is, in
relation to a specific judge, and must prevent such intrusions and investigate and sanction
those who commit them.213
187. The Court considers that in this case there are not sufficient evidentiary elements to
infer the existence of external pressures against the judges who considered the case of the
ruling against Ms. Atala. On the other hand, given that the judges of the Court of Appeals of
Temuco who were sanctioned for the remedy of complaint are not alleged victims in the
present case, this limits any ruling that the Court may issue in relation to a possible
violation of Article 8(1) of the Convention for said decision to sanction.
188. Finally, the Court has previously emphasized that, since it is not a fourth instance, it
cannot assess the evidence regarding which of the parents of the three girls offers them a
better home (supra para. 66). Similarly, since this Court is not a fourth instance, it cannot
issue a ruling on the dispute between different sectors of the local doctrine on the scope of
domestic law regarding the requirements for the admissibility of a remedy of complaint.
189. On the other hand, regarding the Supreme Court’s impartiality in issuing its decision
on the remedy of complaint, the Court recalls that judges who intervene in a particular
dispute are required to approach the facts of the case impartially, without subjectivity or
prejudice and, at the same time, offer sufficient guarantees of an objective nature that
would eliminate any concerns that a defendant or the community might have regarding a
lack of impartiality. While personal or subjective impartiality is presumed unless there is
evidence to the contrary, for example proof that a member of a court or the judge has
shown personal prejudice or partialities against the parties, the so-called objective evidence
consists in determining whether the questioned judge provided convincing elements that
would dispel any legitimate fears or well-based suspicions of prejudice regarding their
conduct. Thus, a judge must appear to act without being subject to influences, incentives,
211 Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, para. 55 and Case
of Reverón Trujillo v. Venezuela, para. 67.
212 Cf. Case of the Constitutional Court v. Peru, Merits, Reparations and Costs. Judgment of January 31,
2001. Series C No. 71, para. 75, and Case of Reverón Trujillo, supra note Error! Bookmark not defined., para.
80. See also ECHR. Case of Campbell and Fell v. the United Kingdom, (No. 7819/77; 7878/77), Judgment of June
28, 1984, para. 78, and Case of Langborger v. Sweden, (No. 11179/84), Judgment of June 22, 1989, para. 32. See
also Principles 2, 3, and 4 of the Basic Principles of the United National regarding the Independence of the
Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held in Milan on August 26-September 6, 1985, and confirmed by the General Assembly in resolutions
40/32 of November 29 1985 and 40/146 of December 13, 1985.
213 Cf. Case of Reverón Trujillo supra note Error! Bookmark not defined., para. 146.
60
pressures, threats, or interference, direct or indirect,214 but instead only and exclusively
according to the Law.215
190. The Inter-American Court points out that, while it is true that in the case at hand
some violations to the Convention have been declared, a violation of Article 8(1) of the
Convention for the alleged lack of judicial impartiality must be established based on specific,
concrete evidentiary elements that indicate a situation in which the judges have clearly
allowed themselves to be influenced by aspects or criteria outside of the legal provisions.
191. The Court finds that neither the Commission nor the representatives have provided
specific evidence to disprove the presumption of the judges’ subjective impartiality. Nor are
there any convincing elements that might call into question the objective impartiality of the
Villarica Court’s decision regarding provisional custody or of the judgment of the Supreme
Court. An interpretation of the provisions of the Chilean Civil Code in a manner contrary to
the American Convention in matters of child custody involving a homosexual individual is
not enough, in itself, for this Court to declare a lack of objective impartiality.
192. Therefore, the Court considers that the State did not violate the judicial guarantees
recognized in Article 8(1) of the Convention, in relation to the decision of the Supreme
Court of Justice and the Villarrica Court in this case.
2. Right of the girls M., V., and R. to be heard and to have their opinions be taken into
consideration
Arguments of the parties
193. The Commission noted as “particularly serious in the custody proceedings, the
Supreme Court’s failure to take the girls’ preferences and needs into account, in contrast
what occurred in the lower courts.” It added that “the Supreme Court of Justice of Chile
made no efforts to hear the girls.”
194. The representatives argued that even though “there are procedural mechanisms
carefully designed to make sure that children’s views are taken into consideration in the
decisions that affect them and that decisions are in fact made in their interest, before that
of any other person that intervenes[,] [t]he Supreme Court completely ignored these
mechanisms and arbitrarily decided to give greater weight to opinions based on prejudice
and stereotypes, to the detriment of the expert opinion of professionals and, even more
important, of the girls themselves, unlike the action of the lower-instance courts.”
195. The State indicated that “in the context of considering a mechanism of appeal, such
as a remedy of complaint, there is no procedural opportunity to repeat the statements given
by the girls, and this is unnecessary based on due process. From the standpoint of the girls’
interest and protection it is counterproductive, as well as unnecessary, to require them to
make another statement in the same proceedings regarding their parents’ separation and
their desire to live with one of them, thereby increasing their level of victimization.” The
State added that “the girls were heard by the lower courts and the Supreme Court had
access to these prior statements.” Furthermore, it indicated that, “on the other hand, the
214 Principle 2 of the Basic Principles of the United Nations regarding the Independence of the Judiciary, supra
note 212.
215 Case of Apitz Barbera et al. supra note Error! Bookmark not defined., para. 56.
61
principle of recognizing the girls’ autonomy and subjectivity in no case implies, nor can it
seek to impose upon them, the final responsibility of deciding their fate. […] When there is
conflict between the views and wishes of the boy, girl, or teenager and their “best interest”,
[...], and their compatibility is not possible, their interest must necessarily prevail over their
wishes, since otherwise the special regimen of protection they enjoy would no longer have a
reason to exist.”
Considerations of the Court
196. The Court emphasizes that children enjoy the rights established in the American
Convention, in addition to the special measures of protection contemplated in 19 of the
Convention, which must be defined according to the circumstances of each specific case.216
In the instant case, the Court notes that Article 8(1) of the American Convention embodies
every person’s the right to be heard, including children, in proceedings in which their rights
are determined. This right must be interpreted in light of Article 12 of the Convention on the
Rights of the Child,217 which contains appropriate stipulations on the child’s right to be
heard, for the purpose of facilitating the child’s intervention according to his age and
maturity and ensuring that it does not harm his genuine interest218.
197. Specifically, General Comment No. 12 of 2009 of the United Nations Committee on
the Rights of the Child emphasizes the relationship between the “best interest of the child”
and the right to be heard, when it states that “there can be no correct application of Article
3 if the components of Article 12 are not respected [(best interest of the child)]. Likewise,
Article 3 reinforces the functionality of Article 12 facilitating the essential role of children in
all decisions affecting their lives.” 219
198. In order to determine the scope of the terms described in Article 12 of that
Convention, the Committee clarified a number of points such as: i) “States parties cannot
begin with the assumption that a child is incapable of expressing her or his own views;”220
ii) “it is not necessary that the child has comprehensive knowledge of all aspects of the
matter affecting her or him, but that she or he has sufficient understanding to be capable of
216 Case of Gelman v. Uruguay, Merits and Reparations, Judgment of February 24, 2011, Series C No. 221,
para. 121.
217 Article 12 of the Convention on the Rights of the Child states: 1. States Parties shall assure to the child
who is capable of forming his or her own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For
this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law.
218 Cf. Advisory Opinion OC-17/02, supra note 122, para. 99. For its part, the United Nations, Committee on
the Rights of the Child has established that the right "to be heard in any judicial and administrative proceedings
affecting the child" implies that “this provision applies to all relevant judicial proceedings affecting the child,
without limitation”. United Nations, Committee on the Rights of the Child, General Comment No. 12 (2009). The
right of the child to be heard, CRC/C/GC/12, July 20, 2009, para. 32. In particular, UNICEF has indicated that “‘any
judicial […] proceedings affecting the child’ covers a very wide range of court hearings, including all civil
proceedings such as divorce, custody, care and adoption proceedings, name-changing, judicial applications relating
to place of residence, religion, education, disposal of money and so forth, judicial decision-making on nationality,
immigration and refugee status, and criminal proceedings; it also covers States’ involvement in international
courts.” UNICEF, Implementation Handbook for the Convention on the Rights of the Child (Third edition fully
revised) 2007, p. 156.
219 Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 74.
220 Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 20
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appropriately forming her or his own views on the matter”221; iii) the child can express her
or his views without pressure and can choose whether or not she or he wants to exercise
her or his right to be heard; iv) “implementation of the right of the child to express her or
his views requires that the child be informed about the matters, options and possible
decisions to be taken and their consequences by those who are responsible for hearing the
child, and by the child’s parents or guardian;”222 v) “the capacity of the child […]has to be
assessed in order to give due weight to her or his views, or to communicate to the child the
way in which those views have influenced the outcome of the process;”223 vi) “children’s
levels of understanding are not uniformly linked to their biological age,” for which reason
the maturity of the child must be determined based on “the capacity […]to express their
views on issues in a reasonable and independent manner” 224.
199. On the other hand, the Court reiterates that children exercise their rights
progressively as they develop a greater level of personal autonomy225. Consequently, those
responsible for applying the law, whether in the administrative or judicial sphere, must take
into account the specific conditions of the child and his or her best interests to decide on the
child’s participation, as appropriate, in determining his or her rights. This consideration will
seek as much access as possible by the minor to the examination of his or her own case226.
Likewise, the Court considers that children should be informed of their right to be heard
directly, or through a representative, if they so wish. In this regard, where a conflict of
interests arises between the mother and the father, the State must guarantee, as far as
possible, that the child’s interests are represented by someone outside said conflict.
200. In this regard, the Committee on the Rights of the Child has emphasized that Article
12 of the Convention on the Rights of the Child not only establishes the right of each child
to express his views in all matters affecting him, but also includes the subsequent right to
have these views taken into consideration, according to the child’s age and maturity227. It is
not sufficient to listen to the child; the child’s views must be seriously considered when he
or she is capable of forming his or her own opinion, and for this reason the views of the
child must be assessed on a case-by-case basis228. If the child is capable of forming his or
her own views in a reasonable and independent manner, the decision maker must consider
the child’s views as a significant factor in the settlement of the issue229. Therefore, in the
context of judicial decisions on custody, all legislation on separation and divorce must
protect the child’s right to be heard by those responsible for making decisions230.
201. In the instant case, the Court notes that on April 8, 2003 the Juvenile Court of
Villarrica heard M., V., and R., in a private hearing and that “records of the private hearing
221 Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 21
222 Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 25
223 Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 28
224 Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 30
225 Cf. Committee on the Rights of the Child, General Comment No. 7, supra note 171, para. 17.
226 Advisory Opinion OC-17/02, supra note 122, para. 102
227 Cf. Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 15.
228 Cf. Committee on the Rights of the Child, General Comment No. 12, supra note 218, paras. 28 y 29.
229 Cf. Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 44.
230 Cf. Committee on the Rights of the Child, General Comment No. 12, supra note 218, paras. 28 y 29.
63
were kept in a closed envelope in the Court’s merits box”231. In addition, the ruling on the
provisional custody petition by the Juvenile Court of Villarrica on May 2, 2003, stated
“[t]hat, as recorded in the main custody file, the girls were heard at a private hearing” 232.
202. For its part, the judgment of the lower court indicated “[i]t is proven in the records
kept in the court’s safe that the minors were heard by this [Court]. In this hearing it was
confirmed that the three minors wish for their parents to get back together, and in the last
of the hearings held on October 8, 2003, [R.] and [V.] expressed their desire to go back to
living with their mother, and in the case of [M.] the court only detected a slight preference
for the mother figure”233. Furthermore, the Court clarified that “the hearings ordered to
listen to the girls had the exclusive purpose of complying with the mandate of […] Article 12
of the Convention of the Rights of the Child and are simply an element to be considered, but
they do not determine the decision […], by reason of their young age [the girls] are not in a
position to issue a legally valid opinion regarding their situation and considering also that
the opinion of the minors can be “affected artificially by outside factors that influence them,
distort them, or make them unsuited to the proposed goal”234. Finally, the Juvenile Court
took into consideration a series of psychological reports which it ordered to determine the
girls’ psychological and emotional status235.
203. In this regard, the Court finds that the first instance court in the custody proceeding
complied with the obligations arising from the child’s right to be heard in a judicial
proceeding that affects them, since it is clearly stated that the views of the three girls were
taken into account, bearing in mind their maturity and capacity at that time.
204. On the other hand, the Court notes that there is no evidence in the custody case file
stating that the girls were heard again by the Supreme Court of Justice of Chile in the
context of the decision on the remedy of complaint, nor is there any mention in the ruling
issued by the Supreme Court regarding the decision to set aside the wishes expressed by
the girls during the proceedings.
205. In the present case, the Court takes note of the unique nature of the remedy of
complaint, which is mainly a disciplinary recourse against lower court judges and in which
no evidence other than at already presented during the entire custody hearing is gathered
(supra para. 185). Likewise, this Court cautions that a child must not be interviewed more
often than necessary, particularly when disturbing events are investigated, since the
process of “hearing” a child may be difficult and may cause traumatic effects in the child236.
Therefore, the Court does not consider that the Supreme Court needed to hold a new
hearing in the context of the decision on the remedy of complaint to hear the girls express
their preferences regarding which parent they would rather live with, if there were already
several pieces of evidence in the custody case file that confirmed their wishes.
231 Records of the Juvenile Court of Villarrica of April 8, 2003 (File of appendices to the petition, volume I,
page 350).
232 Decision on the provisional custody petition by the Juvenile Court of Villarrica, May 2, 2003, considering
paragraph No 7. (File of appendices to the petition, volume V, page 2565).
233 Cf. Judgment of the Juvenile Court of Villarrica of October 29, 2003, considering clause No. 36 (File of
appendices to the petition, volume V, page 2605). 234 Cf. Judgment of the Juvenile Court of Villarrica of October 29, 2003, considering clause No. 36 (File of
appendices to the petition, volume V, page 2605).
235 Cf. Judgment of the Juvenile Court of Villarrica of October 29, 2003, considering clause No. 36 (File of
appendices to the petition, volume V, page 2589).
236 Cf. Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 24.
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206. However, the fact that a judicial authority is not required to gather the testimony of
a child once again in the context of a judicial proceeding, does not release it from the
obligation to duly consider and assess, in one way or another, the views expressed by the
child in the lower courts, according to the child’s age and maturity. If appropriate, the
respective judicial authority must argue specifically why it will not take into account the
child’s views. In this regard, the expert García Méndez stated that:
In any type of conflict between children’s views and those of the parental authority or institutional
authorities, […] the child’s opinion cannot be thrown out discretionally. In other words, this means that
[…] very sophisticated arguments must be developed to eventually oppose the children’s views. [T]he
child’s opinion does not automatically create case law […]. But similarly, the child’s views cannot be
automatically disregarded without offering weighty and profound arguments237.
207. Likewise, the expert Cillero Bruñol stated that:
[There is] an obligation [on the part of the state authorities] to consider their opinion in deliberations that
lead to a decision that affects children. […] [T]he adults responsible for the decision must not decide
arbitrarily when the child says something relevant to the decision […]. […] If the children are sufficiently
developed in their opinions and points of view, these must prevail in matters affecting them, unless there
are very serious reasons against them. This means that if the children’s opinions are well-based, precise,
with sufficient knowledge of the facts and the consequences they imply, they must prima facie prevail
over other arguments to determine the decision that will affect the child in what refers to the facts and
states that involve him. This priority is demanded by the principle of the best interest of the child of Article
3 of the [Convention on the Rights of the Child]. The foregoing does not mean that the determination of
the child’s best interest is always going to coincide in the specific case with the child’s opinions, even when
the child has the required age and maturity to have his own opinion […] The judge or person responsible
for the proceedings must reasonable assess the weight of the child’s opinions, in relation to their
consequences for the totality of their fundamental rights, as well as with regard to the level of maturity of
the child, but this assessment […] demands a superior argumentative burden for the decision that is
different to the child’s opinion238.
208. The Court finds that the Supreme Court of Justice did not explain in its judgment
how it assessed or took into consideration the statements and preferences expressed by the
girls and included in the case file. Indeed, this Court notes that the Supreme Court did not
adopt a decision that considered the relevance attributed by said Court to the living
arrangements preferred by the minors and the reasons why it did not rule in accordance
with the wishes expressed by the three girls. On the contrary, the Supreme Court simply
based its decision on the alleged best interest of the three minors without giving reasons for
why it considered it legitimate to contradict the wishes expressed by the girls during the
custody proceeding, particularly given the connection between a child’s right to participate
and the goal of complying with the principle of the child’s best interest (supra para. 197).
Accordingly, the Court concludes that the aforementioned decision by the Supreme Court of
Justice violated the girls’ right to be heard and be duly taken into account, embodied in
Article 8.1, in connection with Articles 19 and 1(1)of the American Convention, to the
detriment of the girls M., V. and R.
VI
RIGHT TO EQUALITY AND THE PROHIBITION OF NON-DISCRIMINATION,
RIGHT TO A PRIVATE LIFE AND RIGHT TO JUDICAL GUARANTEES
237 Statement by expert García Méndez at the hearing in the present case held on August 23, 2011.
238 Expert report offered by Miguel Cillero Bruñol on the treatment of the principle of the best interest of the
child in International Law, July 2011 (Merits file, volume II, pages 935, 939, 940)
65
IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEE RIGHTS IN
RELATION TO THE DISCIPLINARY INVESTIGATION
209. One of the aspects of the dispute is the disciplinary proceeding carried out against
Ms. Atala. Regarding this matter, this chapter will establish the proven facts in that case and
will then analyze the controversies surrounding: i) the right to equality; ii) private life, and
iii) judicial guarantees.
C. Facts proven regarding the disciplinary investigation against Ms. Atala
210. On March 17, 2003 the President of the Committee of Judges of the Court of Oral
Trials in criminal matters of Villarrica informed the Visiting Minister of the Court of Appeals
of Temuco, Mr. Lenin Lillo, “of a specific situation that occurred on the 12th” of March, 2003.
In said brief, the President of the Committee of Judges stated that Ms. Atala had requested
that one of her subordinates “transcribe, draw up and print official letters on behalf of the
Juvenile Court of Villarrica, requesting proceedings in the custody case […] in which said
superior judge [was] a litigating party”. Moreover, he stated that “he held a private meeting
[with] the Judge Atala Riffo […] warning of the inappropriateness of her actions and her
interference in the sphere of another Court, where she [was] not a judge but a defendant” 239.
211. On that same day and on March 19, 2003, the full Court of Appeals of Temuco
appointed Judge Lenin Lillo240 to conduct an extraordinary visit to the criminal court of
Villarrica where Ms. Atala was serving as a judge. It was stated that the visit “respond[ed]
to two basic facts: one, the publications that appeared in the newspapers Las Últimas
Noticias […] and La Cuarta […] which mentioned the fact that [Ms.] Atala was a lesbian”241
and the other concerned the facts described in the complaint filed on March 17, 2003.
212. After the visit to the Court where Ms. Atala served as a judge, Mr. Lillo filed a report
before the Court of Appeals of Temuco,242 making reference to three alleged irregularities,
namely: i) “use of resources and employees to comply with proceedings ordered by the
Judge […] of the Juvenile Court;” ii) “improper use of the court’s seal,” and iii) “publications
made in the press.” Regarding the first point, he described the facts reported by the
President of the Committee of Judges and concluded that said facts “were, in the opinion of
[that] visitor especially serious given that Ms. […] Atala […], making use of resources and
employees of the Court of which she forms part, has become directly involved in complying
with actions ordered in the trial that is taking place in the Juvenile Court.” Regarding the
second point, Mr. Lillo stated that “it was especially serious because Judge Karen Atala had
overstepped her powers by using elements of the Court that are under the responsibility of
third parties in order to favor people related to her circle of friends.”
239 Brief of the President of the Committee of Judges of the Court of Oral Criminal Trials of Villarrica, March
17, 2003 (Merits file, volume XIII, page 7040).
240 Report prepared by the Minister Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003 (Merits file,
volume XII, page 5927).
241 Report prepared by the Minister Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003 (Merits file,
volume XII, page 5927).
242 Report prepared by the Minister Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003 (Merits file,
volume XII, pages 5927 to 5934).
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213. Finally, Mr. Lillo referred to the publications made in the newspapers “Las Últimas
Noticias” and “La Cuarta”, informing the public of the custody suit and referring to Ms.
Atala’s “lesbian relationship.”
214. Referring to these matters in his report, Mr. Lillo concluded that:
This visitor is not inclined to issue value judgments regarding the sexual inclination of Judge Atala.
However, it is impossible to sidestep the fact that her peculiar emotional relationship has transcended the
private sphere with the appearance of the above-mentioned publications, which clearly damages the
image of both Ms. Atala and the Judiciary. All the foregoing takes on a seriousness that merits the notice
of the Ilmo Court243.
215. On April 2, 2003, the Court of Appeals of Temuco approved the visit carried out by
Mr. Lillo and filed charges against Ms. Atala244. Subsequently, on May 9, 2003 the Court of
Appeals issued “a severe warning for the use of resources and staff to comply with
proceedings ordered by the Judge of the Juvenile Court […] in a case in which she is one of
the parties to the dispute” 245.
D. The right to equality and the prohibition of non-discrimination
Arguments of the parties
216. The representatives argued that Ms. Atala “had a stable relationship with her
partner that was no different from other couples, except for the fact that her partner was of
the same sex,” thus “the order to investigate and carry out a visit to the court where Judge
Atala worked was based exclusively on a discriminatory rejection of her sexual orientation.”
217. The State argued that “the report submitted by Judge Lillo to the full Court of
Appeals of Temuco includes a number of serious precedents that called for a ‘severe
warning´” and that his warning to Ms. Atala “is not at all related to her homosexuality, but
instead concerns complaints and facts verified by Judge Lillo.”
Considerations of the Court
218. The Court notes that the Court of Appeals of Temuco received a complaint on March
17, 2003 against Ms. Atala for the use of implements and employees of the Court for
personal matters (supra para. 210). However, the Court notes that, according to the visiting
judge’s report, other considerations were expressed as the reason for carrying out the visit
to Ms. Atala’s work place. These expressly referred to Ms. Atala’s sexual orientation since
they were related to “the reports published in the newspapers “La Cuarta” on February 28,
[2003] and “Las Últimas Noticias” dated March 1, [2003], in which the public was informed
of the content of a custody claim filed by [Mr. López] against his wife […] because the latter
maintained a lesbian relationship with another woman” 246. Thus, one of the reasons for the
visit to Ms. Atala’s work place was to confirm the press reports about her sexual orientation.
243 Report prepared by Minister Lenin Lillo of the Court of Appeals of Temuco, April 2, 2003 (Merits file,
volume XII, page 5934).
244 The Court of Appeals of Temuco stated that it “approved the visit carried out by Judge Lenin Lillo […] and
charges are filed against Ms. Karen Atala Riffo on the three counts mentioned in the report by the visitor.” Decision
of the Court of Appeals of Temuco, April 2, 2003 (Merits file, volume XII, page 5935).
245 Ruling of the Court of Appeals of Temuco, May 9, 2003 (Merits file, volume XII, page 5937).
246 Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco, April 2, 2003 (Merits file, volume
XII, page 5934).
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219. The Court notes that the disciplinary investigation and the extraordinary visit
mentioned have their legal basis in Articles 544 No. 4,247 559,248 and 560249 of the Organic
Code of Courts. Since one of the purposes of the visit was to investigate Ms. Atala’s sexual
orientation based on the press reports, the Court finds that Ms Atala received a
differentiated and unlawful treatment by having her sexual orientation and her relationship
with a person of the same sex included as an aspect to be investigated in the disciplinary
proceedings.
220. Finally, the State argued that the “warning” issued by the Court of Temuco was
based “solely” on “the use of resources and employees to carry out proceedings diligences
ordered” by the court in charge of the custody trial, and therefore Ms. Atala was not being
sanctioned, according to that argument, for her sexual orientation. However, the Court
notes that the report prepared by the visiting judge, which was later approved by the Court
of Appeals of Temuco, and based on which charges were filed against Ms. Atala, stated that
“it is impossible to ignore the fact that her peculiar emotional relationship has transcended
the private sphere with the appearance of the aforementioned publications, which clearly
damages the image of both [Ms.] Atala and the Judicial Branch. All the foregoing takes on a
seriousness that merits the Court’s notice”250. Therefore, although the Court of Temuco did
not expressly sanction Ms. Atala for her sexual orientation, that aspect was included in the
considerations of the report prepared by the visiting judge, whose legitimacy was not
disavowed or questioned by the Court of Temuco.
221. Now, regarding the legitimate purpose pursued by said investigation, the Court notes
that the report submitted did not clearly state the purpose of the visit with respect to the
inquiry regarding sexual orientation, since it only referred to the press reports published. In
that regard, although the legitimate purpose was not made explicit in the report, from the
comments made therein it is possible to infer that the inquiry regarding Ms. Atala’s sexual
orientation sought to protect the “image of the judicial branch.” However, the alleged
protection of the judiciary’s image cannot justify a difference in treatment based on sexual
orientation. Furthermore, the purpose served by making a difference in treatment of this
nature must be concrete and not abstract. In this specific case, the Court does not find any
connection whatsoever between the desire to protect the “image of the judicial branch” and
247 Article 544 No. 4, upon which the Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco
of April 2, 2003 is based (Merits file, volume XII, page 5927), states that: “the disciplinary powers that correspond
to the Supreme Court or the Courts of Appeals must be exercised especially regarding officials of the judiciary that
are in any of the following situations: [...] 4. When, due to irregularity in their moral behavior or due to vices that
are not well regarded by the public, they compromise the decorum of their ministry. Available at:
<nowiki>http://www.leychile.cl/Navegar?idNorma=25563</nowiki> (last access February 20, 2012), electronic address provided by
the State (Merits file, volume XII, page 5914).
248 Article 559 states that: The Superior Courts of Justice will order extraordinary visits by any of its ministers
at the courts within their respective jurisdictional territory, provided this is required for a better judicial service.
Available at: <nowiki>http://www.leychile.cl/Navegar?idNorma=25563</nowiki> (last access February 20, 2012) (Merits file, volume
XII, page 5914).
249 Article 560 states: The Court will extraordinarily order these visits in the following cases: 1. When it
concerns civil cases that may affect international relations and over which the courts of justice have competence;
2. When it concerns an investigation of facts or crimes that must be heard by the military justice system and that
may affect international relationships or that cause public alarm and they demand a prompt repression due to their
seriousness and damaging consequences, and 3. Whenever it is necessary to investigate facts that affect the
behavior of judges in the exercise of their duties and when there is a notable delay in the processing of the matters
submitted to said judges. Available at: <nowiki>http://www.leychile.cl/Navegar?idNorma=25563</nowiki> (last access February 20,
2012) (Merits file, volume XII, page 5914). 250 Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003 (Merits file,
volume XII, page 5934).
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Ms. Atala’s sexual orientation. A person’s sexual orientation or the exercise thereof cannot
provide grounds, under any circumstances, to undertake a disciplinary proceeding, since
there is no connection between the correct performance of a person’s professional duties
and their sexual orientation.
222. Therefore, since differentiation in a disciplinary inquiry based on sexual orientation is
discriminatory, the Court concludes that the State violated Article 24 in conjunction with
Article 1(1)of the American Convention to the detriment of Karen Atala Riffo.
C. Right to private life
Arguments of the parties
223. The representatives stated that the investigation amounted to interference with the
private life of Ms. Atala, since her “office was searched […], including her computer and
printer, staff members of the court [were] interviewed […] on possible visits [Ms.] Atala had
received from women [and Ms.] Atala was questioned about her private life and her
relationship with her partner.” They added that “[Ms.] Atala was unlawfully exposed before
her social and professional community, violating her private life.”
224. The State indicated that the visit “did not result in any administrative sanctions
against [Ms.] Atala, since the Court of Appeals of Temuco considered that her private
activities and her family life did not hinder her judicial work.”
Considerations of the Court
225. As mentioned previously (supra para. 161), Article 11 of the Convention prohibits
any arbitrary or abusive interference with the private life of persons, and therefore the
realm of privacy is exempt and immune to abusive or arbitrary intrusion or aggression by
the public authorities251. According to the Court’s jurisprudence, to determine whether there
was arbitrary interference with private life it is necessary to analyze, among other
requirements, the legality and purpose of the measure.
226. In this case, Ms. Atala stated the following regarding the visit paid to her work place:
“the minister [Lillo] sat down at my desk, in my office, checked my personal computer, checked all the
websites I had visited. Afterwards he questioned all the staff members at the Court, one by one, and also
questioned the cleaning staff and then my fellow judges because I was member of a three-judge collegiate
and he went to the Court of Guarantees, because I was a member of the Oral Criminal Court. He
questioned the two judges there as well as the secretary of the Court of Villarrica. That is, he questioned 6
colleagues asking them whether or not I was a lesbian” 252.
227. Faced with this treatment, Ms. Atala stated that:
“I felt deeply humiliated, exposed, as if I had been stripped naked and thrown into a public square”253.
251 Cf. Case of the Ituango Massacres, supra note 177, para. 194 and Case Fontevecchia and D`Amico, supra
note 28, para. 48.
252 Statement by Ms. Karen Atala Riffo rendered before the Inter-American Court at a public hearing in the
present case.
253 Statement by Ms. Karen Atala Riffo rendered before the Inter-American Court at a public hearing in the
present case.
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228. Ms. Atala also explained that, prior to the extraordinary visit, the Court of
Appeals of Temuco had sent the officials of the Court of Villarrica a questionnaire with
questions to investigate Ms. Atala’s sexual condition254. These statements were not
contested by the State.
229. Specifically, the Court notes that in the report on Judge Lillo’s visit the following
facts were stated as conclusions: i) that Ms. Atala “began to be visited in her office by a
large number of women starting in mid 2002,”255 including her current partner “with whom
she would spend hours in her office;” ii) that she asked a court employee to “sketch a ring
based on some models she gave him[,]downloaded from the internet from a page called
“breaking the silence”, which was managed by sexual minorities;” iii) that Ms. Atala “was
visited at the Court by” her partner’s “parents” and that she introduced them “as her in-
laws;” iv) that Ms. Atala used the Court’s fax “to send information about sexual minorities to
institutions,” and v) that Ms. Atala “openly expressed her homosexuality” to Mr. Lillo and
“defended her determination to openly communicate it to the Court’s officials and Senior
Judges”256.
230. The Court finds that, although the disciplinary investigation began with legal
grounds257 and did not end with any disciplinary sanctions against Ms. Atala for her sexual
orientation, it did investigate this in an arbitrary manner, which constitutes interference with
Ms. Atala’s right to privacy, and which extends to her professional sphere. Therefore, the
State is responsible for violating the right to privacy, recognized in Article 11(2) in
conjunction with Article 1(1) of the American Convention, to the detriment of Karen Atala
Riffo.
D. Judicial guarantees
231. The Commission described the “content of the extraordinary visit ordered by the
Court of Appeals of Temuco as an example of the lack of fairness and the discriminatory
prejudice existing in the Chilean judicial power at the time of the custody trial.” It also
argued that “the impact of this visit on the custody case with regard to prejudgment, since
Judge Lenin Lillo ended up participating in the granting of the injunction on November 24,
2003”.
232. The representatives argued that “[w]hen a Court of Appeals of the State of Chile
decides to begin a disciplinary proceeding against a judge and appoints a minister to
conduct an extraordinary visit because her sexual orientation has been leaked [in the
media], there is also a violation of impartiality, since the visit is a procedure that originates
254 Statement by Ms. Karen Atala Riffo rendered before the Inter-American Court at a public hearing in the
present case.
255 Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003, supra note Error!
Bookmark not defined., page 5933.
256 Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003, supra note Error!
Bookmark not defined., page 5934.
257 See disciplinary standards (supra para. 219).
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due to prejudice.” They also argued that the “violation of the right to be judged by an
impartial court occurred from the moment that, on November 24, 2003, two judges who
had issued a negative opinion regarding Judge Atala’s sexual orientation participated in
granting the injunction.” In particular, the representatives stated that “Judges Lenin Lillo
and Archibaldo Loyola were legally disqualified” from participating in granting the injunction
issued against the lower-court ruling, since “the first [had] act[ed] as visiting judge in the
context of the disciplinary investigation and the second had “directly urged [Ms.] Atala to
renounce [custody of] her daughters.”
233. The State did not comment on the allegations regarding the extraordinary visit. At
the same time it argued that “it is not accurate that the respective chamber of the Court of
Appeals of Temuco […] included two Judges legally disqualified to act, given that since the
grounds for disqualification were not invoked, it is understood that the party with the right
to invoke it waived the exercise of their right.”
Considerations of the Court
234. The Court reiterates that the personal impartiality of a judge is to be presumed,
unless there is evidence to the contrary (supra para. 189)258. In an analysis of subjective
impartiality, the Court should attempt to determine the personal interests or reasons of a
judge in a particular case259. As to the type of evidence required to prove subjective
impartiality, the European Court has indicated the need to ascertain whether the judge has
displayed hostility or ill will if he has arranged to have a case assigned to himself for
personal reasons260.
235. The Court has already established (supra paras. 222 and 230) that the extraordinary
visit affected Ms. Atala’s right to equality, non-discrimination and private life. Likewise, it
has concluded that it was discriminatory to include Ms. Atala’s sexual orientation or her
relationship with her partner in the disciplinary investigation, since this had no bearing
whatsoever on her professional performance (supra para. 221 and therefore there were no
grounds to conclude that Ms. Atala’s sexual orientation could result in a disciplinary offense.
However, the report on the visit to her work place determined that the findings regarding
Ms. Atala’s sexual orientation “take on a great seriousness that merits the Court’s [of
Appeals of Temuco] notice. (supra para. 214).
236. Furthermore, the Court notes the circumstances in which the extraordinary visit took
place, since prior to and during the visit, officials and employees of the Court of Villarrica
258 In European case law, see ECHR, Case Kyprianou v. Cyprus, (No. 73797/01), Judgment of January 27,
2004, para. 119 (“In applying the subjective test, the Court has consistently held that the personal impartiality of a
judge must be presumed until there is proof to the contrary”), citing ECHR, Case of Hauschildt v. Denmark, (No.
10486/83), Judgment of May 24, 1989, para. 47.
259 Cf. ECHR, Case Kyprianou, supra note Error! Bookmark not defined., para. 118 (“a subjective
approach, that is endeavoring to ascertain the personal conviction or interest of a given judge in a particular
case”).
260 Cf. ECHR, Case Kyprianou, supra note Error! Bookmark not defined., para. 119 (“As regards the type of
proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will or
has arranged to have a case assigned to himself for personal”). Also see ECHR, Case Bellizzi v. Malta, (No.
46575/09), Judgment of June 21, 2011. Final, November 28, 2011, para. 52 and the Case of Cubber v. Belgium,
(No. 9186/80), Judgment of October 26, 1996, para. 25. The European Court also noted that the subjective
impartiality of a judge may be determined, according to the specific circumstances of the Case, based on the
judge’s conduct of the proceeding, the content, arguments and language used in the decision, or the reasons for
carrying out the investigation, which would indicate a lack of professional distance regarding the decision. Cf.
ECHR, Case Kyprianou v. Cyprus, (No. 73797/01), G.C., Judgment of December 15, 2005, paras. 130 to 133.
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