account as the own expressions from employees of those levels of representation and formation who, merely credit the reasons why they approached the couple. Additionally, the parties have agreed in that- at a certain moment- in the incident there was an agent of the National Police present. This fact is possible as long as it is not strange that upon the approach on a customer, for whatever reason, an incident takes place the result of which in most cases may be unforeseeable. Likewise, the very participation of a police agent cannot lead this Chamber to consider that it configures the discriminatory act against the claimant, for it is impossible to know for sure how the facts unfolded. (…) Notwithstanding the prior reasoning, this Chamber wishes to underscore that the arguments of the defendant Supermercados Peruanos in the sense that the conduct of the claimant and his couple affected the presence of children in the coffee shop lacks pertinence to the extent that, as previously noted, if the conduct had been excessive the affectation would have been produced for all other customers, either adult or children. Consequently, all allegations invoking the best interest of the child do not fit the facts subject of the complaint. Therefore, what proceeds is to confirm the appealed decision which declared unfounded the complaint versus Supermercados Peruanos for alleged acts of discrimination in the consumption, modifying it on its foundations10. 23. The Commission notes that two members of such court voted in disagreement, under the following reasonings: (…) It is proven in the casefile that Mr. Olivera was reprimanded performing caresses with his couple and that he was disturbed while staying in the restaurant of the defendant, after having consumed. Even, the presence of a National Police official of Peru was requested, which-in our concept- in itself configures unequal and exaggerated treatment. It does not pertain an establishment to reprimand anyone the fact of exchanging caresses, provided that, these do not surpass decency and disturb the tranquility of the public. Likewise, us signatories don’t believe that upon circumstances of this nature, where there is no evidence of facts of violence that put the security of the restaurant at risk, nor of other customers; justify the presence of the National Police of Peru to request them to cease their attitudes. Finally, if the aim was a change of behavior, that request could have been formulated by the store administrator. The police presence is obviously an excess and, essentially shows already unequal, unfair, inequitable and, above all, discriminatory treatment, which even attempts against the dignifying treatment every customer deserves. (…) Instead it does create conviction in the signatories the fact that police personnel was resorted to request the claimant to cease his homosexual conduct, which is unsustainable, because as already proven in the oral report, it is not usual that the defendant requires the presence of personal of the National Police every time a heterosexual couple professes caresses inside its store, which leads to presume, with validity, that the tactics utilized by Supermercados Peruanos obviously was intended to disturb the claimant so he would leave the store and not allow his permanence in the store during night hours (between 9 and 10 pm) on a particular day (Tuesday) in which the presence of children and attendance of public which eventually resulted uncomfortable, was relative11. C. Nullity remedy 24. According to the information available the alleged victim filed a nullity remedy against the previous decision. On June 10, 2008 the 2nd Contentious Administrative Chamber of the Higher Court of Justice of Lima declared the remedy overruled based on the following reasons: FOURTH: That, the evidence provided by the claimant is not enough as to conform proof made by the very claimant, which means of only part of it and the video provided dated after the occurrence of the questioned facts, not being able to perform its assessment since it was edited as mentioned in the writ forwarded by Frecuencia Latina on May sixteen of two thousand and five on pages one hundred and two of the administrative casefile. FIFTH: That, as mentioned by Article 7-B of Legislative Decree No 716, Norm on Consumer Protection (…) the burden of proof as to the existence of unequal treatment pertains the affected consumer or, given the case, whomever represents him in the proceeding or the administration when it acts ex officio. Proving the existence of Annex 8. Decision of the Defense of the Competition and of Intellectual Property Tribunal of May 17, 2006. Annex to the writ by the petitioner of November 29, 2011. 11 Annex 9. Disagreement vote by Julio Baltazar Duran and José Alberto Oscátegui in the Decision of the Defense of the Competition and of Intellectual Property Tribunal of May 17, 2006. Annex to the writ by the petitioner of November 29, 2011. 10 7