5. The petitioner also holds that on October 1, 2004 the alleged victim filed a complaint for discrimination on
sexual orientation against Supermercados Peruanos S.A. before the National Institute of Defense of Competition
and Protection of Intellectual Property (hereinafter “INDECOPI”), however, on August 31, 2005 the complaint
was dismissed by the Commission of Protection of the Consumer arguing that the alleged victim did not prove
the discriminatory treatment and that the best interest of the child enabled companies to request any couple
the cease of their manifestations and affectionate exchanges.
6. Petitioner affirms that against such sentence the alleged victim filed an appeal and the Defense of
Competition Chamber of the Tribunal of INDECOPI, by means of decision dated May 17, 2006 confirmed the
previous decision, arguing that the alleged victim had not submitted evidence on the facts occurred on August
11, 2004.
7. The same party adds that, versus such resolution, on September 13, 2006 the alleged victim requested
partial nullity, before the 2nd Specialized Contentious Administrative Chamber of the Higher Court of Lima,
which on June 10, 2008 declared the request unfounded, arguing that the evidence provided was not enough
for being brought forth by the very claimant and that the video of the report was after the alleged facts. The
petitioner points out that against such sentence filed an appeal, however on June 14, 2010 the Civil Chamber of
the Supreme Court of Justice confirmed the first instance sentence, arguing that the burden of proof befalls
upon who claims discrimination and that upon absence of enough evidence, the presumption of innocence of
Supermercados Peruanos S.A. is to prevail. Finally, states that filed a cassation remedy and that on April 11,
2011 the Permanent Constitutional and Social Law Chamber of the Supreme Court of Justice declared the
remedy inadmissible, stating it was not the competent instance to perform acts of new assessment of evidence.
8. As for law, argues the violation of the principle of equality. The petitioner claims that when jurisdictional
authorities rejected the complaint filed by the alleged victim, they infringed such principle considering the
burden of proof demanded, which they consider must be reverted when a person presents signs of unequal
treatment. Petitioner adds that the decisions were based on stereotypes related to the expression of gender
and homosexual orientation.
9. Likewise, claims the violation of the right to privacy and freedom of thought and expression because
by arbitrarily using arguments related to public morals and the best interest of the child to justify the
discriminatory treatment suffered by the alleged victim, the State affected the free development of his
personality and the public expression of a specially protected speech.
10. Along the same lines, argues the violation of fair trial and judicial protection. In this regard claims that
the 2nd Specialized Contentious Administrative Chamber employed in its decision as one of the arguments to
motivate its sentence, the best interest of the child, although previously discarded during administrative
proceedings, which is why acted against the prohibition of the figure of reformatio in peius which prevents a
second instance judge from worsening the situation of a person who has challenged a first instance resolution.
Adding that the aforesaid also affected the right to defense of the alleged victim since he had no chance to
challenge whether the best interest of the child justified the unequal treatment to which he was subject. On the
other hand, holds that the State breached the guarantee of reasonable time for the domestic duration of the
proceeding which took over 7 years although it had no particular complexity.
B. The State
11. The State does not question the facts narrated by the petitioner, but considers that the case was decided
domestically, and the fact of attaining unfavorable decisions does not imply a violation of a conventional right.
12. The State continues to present allegations related con lack of exhaustion of domestic remedies. It requests
the IACHR to reconsider its admissibility report, upon absence of explanations referred to the exhaustion of
domestic remedies, in particular on the alleged affectations on rights of protection of honor and dignity and
freedom of thought and expression. It adds that INDECOPI cannot assess the affectation of these rights as the
protection of honor and dignity and the right to freedom of thought and expression, since those not being
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