considers it should declare unfounded the extent that assigns alleged infraction to the established in article 8 of the Consumer Protection Law7. 21. The Commission takes note that two members of INDECOPI voted in disagreement. On this point they held that: The arguments held by the defendant and adopted in the decision with which we disagree, hold the validity of an unequal treatment upon homosexual expressions of affection, for alleged considerations of Protection to the rights of the child, which we do not accept as valid, even when such presence may have been possible. We consider that the right to nondiscrimination based on sexual orientation does not run counter to the Protection of the Rights of the Child. In our opinion, by juridically disregarding the right of persons for not being discriminated for their sexual orientation, an equal treatment is being given to heterosexual and homosexual persons, which makes it illegal and forbidden to approach differently the rights of freedom of expression of couples, due to the sexual orientation of their members. (…) It is therefore not consequent, along with the right to not being discriminated for sexual orientation, to demand that expressions of affection in homosexual couples be made strictly in private or out of the possibility to be perceived by children. That is why, it is the parents’ duty to educate children within limits established by society and concerning the legality of fundamental rights of persons. (…) In short, we consider that the complaint should have been declared founded keeping in mind that while the claimant was not deprived of access to the place of the defendant nor the access to the products and services sold therein, he was treated unequally by being called upon for performing a conduct that would be normal in a heterosexual couple, as are expressions of affection, without having corroborated that such conduct was excessive, had motivated complaints from other customers, had happened in the presence of children or may affect them, thereby conforming discrimination for subjective reasons8. B. Appeal 22. On September 22, 2005 the alleged victim appealed such decision arguing that the unequal treatment was proven and that the same defendant entity accepted having reprehended him for exchanging expressions of affection with his couple9. On May 17, 2006 the Tribunal of Defense of Competition and Intellectual Property dismissed the appeal under the following arguments: In this regard, neither the mere physical proximity nor the exchange of looks between two people may be considered as a conduct that disturbs the tranquility, security or proper use of the facilities of an establishment. These are conducts allowed by establishments from Supermercados Peruanos and, in most commercial premises, for heterosexual couples, which is why there is no justification for, the same conduct to be forbidden for homosexual couples. Equal treatment demands the same levels of tolerance with homosexual couples and, upon such kind of conducts, it is discriminatory to require any modification of behavior. (…) In the present case, the facts matter of controversy (…) are exclusively grounded in the allegations by both parties. However, the one subject to study by this Chamber is the conduct of Supermercados Peruanos and, as aforesaid, it cannot be punished mainly by imputations from a party, since for that it is necessary to have full certainty on the infraction committed, either by means of proof or signs that yield a reasonable degree of conviction regarding the truthfulness of the reported facts (…) The claimant has not provided any means of proof whatsoever regarding the facts matter of this proceeding occurred on August 11, 2004. The evidential elements provided by the claimant in the proceeding- images from August 17, 2004, in Santa Isabel supermarket of Dos de Mayo Ave. in San Isidro-are rather referred to conducts developed on a later date, even in some case, had been recorded by mass media (…) (…) In order to prove their statements Supermercados Peruanos has presented the reports form its store and security personnel which from pages 49 through 51 of the casefile, in which these employees narrate the incidents pointing out that the claimant and his partner “were kissing and caressing”; performing “unbecoming acts (caressing)”; and behaved in an “immoral manner”. (…) the expressions contained therein are to be taken into Annex 5. Decision by INDECOPI of August 31, 2005. Annex to the writ by the petitioner of November 29, 2011. Annex 6. Disagreement vote by Adriana Giudice and Uriel García to the Decision of INDECOPI of August 31, 2005. Annex to the writ by the petitioner of November 29, 2011. 9 Annex 7. Decision of the Defense of the Competition and of Intellectual Property Tribunal de 17 de mayo de 2006. Annex to the writ by the petitioner of November 29, 2011. 7 8 6