26. Finally, it is stated that the alleged victim filed a cassation remedy against the abovementioned decision.
On April 11, 2011 the Permanent Constitutional and Social Law Chamber of the Supreme Court of Justice
declared the remedy inadmissible, for considering that:
FOURTH: That, concerning the reported grievance, it is seen that the foundation of this remedy, points toward
establishing the existence of a discriminatory treatment for his sexual option, upon the request of one of the
customers of the commercial establishment for the to cease their acts of intimacy considered excessive, which
cannot be heard but from a new assessment of the evidence provided, aspect which becomes incompatible with
purposes of the cassation remedy foreseen in article 384 of the Procedural Civil Code modified by Law No 29364.
For the reasons exposed, by not satisfying the demand on merits referred to in article 388 of the Procedural Civil
Code modified by Law No 29364, in exercise of the faculty granted by article 392 of the aforesaid Code, declared:
the cassation remedy INADMISSIBLE (…)14.
IV. ANALYSIS OF LAW
A. Previous matter
27. The Commission takes note of the request by the State to reconsider the report on admissibility, “upon the
absence of explanations concerning the exhaustion of domestic remedies in particular on the alleged
affectations to the rights of protection of honor and dignity and freedom of thought and expression”.
28. On the matter, the IACHR insists on its decision of admissibility and recalls that the alleged victim used the
administrative and judicial channels to address his complaint regarding violations to rights of the consumer of
unequal treatment resulted from the expression of his sexual orientation concluding with the denial of the
cassation remedy by the Permanent Constitutional and Social Law Chamber of the Supreme Court of Justice on
April 11, 2011. Likewise, the Commission recalls that “it is not a practice of Inter American system bodies, for
not attending parameters of reasonability, to demand exhaustion of domestic remedies separately and
autonomously before each one of the effects resulted from a principal violation”15. In the case of Duque vs.
Colombia, the Inter American Court referred to this aspect stating that:
54. The Court confirms that the violation of the right to health claimed in the action for protection by Mr. Duque,
was closely connected to the claim of access to a specific regime of Protection of the right to health, contributive
regime to which, initially, the alleged victim allegedly could only access with the recognition of his beneficiary
condition of the pension of survivor. From this perspective, it is reasonable to infer that domestic remedies
were exhausted with the filing of the action for protection, beside what the State has claimed, in the sense that
Mr. Duque had specific judicial remedies available that were not exhausted concerning concrete violations of
the right to health16.
29. In virtue of the aforesaid, the Commission reiterates that in the present case the due exhaustion of domestic
remedies regarding the formulated complaint by the alleged victim did operate, which makes the request by
State inadmissible and what proceeds is to ratify the decision of admissibility granted by the IACHR.
Annex 12. Decision of the Constitutional Law and Social Permanent Chamber of de the Supreme Court of Justice of the Republic of April
11, 2011. Annex to the writ by the petitioner of November 29, 2011.
15 IHR Court. Case of Duque vs. Colombia. Preliminary Exceptions, Merits, Reparations and Costs. Sentence of February 26, 2016, Serie C
no. 310, parr.47.
16 IHR Court. Case of Duque vs. Colombia. Preliminary Exceptions, Merits, Reparations and Costs. Sentence of February 26, 2016, Serie C
no. 310, parr.54.
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