REPORT No. 5/14
CASE 12,841
MERITS
ÁNGEL ALBERTO DUQUE
COLOMBIA
April 2, 2014

I.

SUMMARY

1.
On February 8, 2005, the Inter-American Commission on Human Rights (hereinafter the
“Commission” or the “IACHR”) received a petition presented by the Colombian Commission of Jurists
and Germán Humberto Rincón Perfetti (hereinafter “the petitioners”) in which it is alleged that the
Republic of Colombia (hereinafter “the State,” “the Colombian State” or “Colombia”) is responsible for
violation of a number of provisions of the American Convention on Human Rights (hereinafter “the
American Convention”, “the Convention” or “the ACHR”). The petitioners contend that Ángel Alberto
Duque was the victim of unfair discrimination; because of his sexual orientation, he was denied the
pension he was entitled to receive as his partner’s survivor. The petitioners also allege that this
discrimination left Mr. Duque unprotected and also affected, inter alia, his chances of getting the health
services he needs because he is living with HIV. They also point out that the Colombian authorities
narrowly interpreted and applied the rules on social security and pension substitution; they also
contend that the responses to the claims filed did not ensure access to due process with the necessary
guarantees.
2.
The State, for its part, does not refute the facts as presented by the petitioners, but
argues that it is not internationally responsible for the human rights violations being alleged.
Specifically, the State believes that it has achieved significant progress on the subject of pensions
between same-sex couples; it argues that in the instant case, the focus should not be on whether Mr.
Duque is a victim of discrimination, since a situation of that nature might have happened due to the
principle of “progressive realization” of economic, social and cultural rights (hereinafter the “ESCR”), and
the margin of flexibility that States have to guarantee these types of rights to all their inhabitants. It also
argues that this case is about hypothetical injuries and damages, since Mr. Duque had access to the
medications needed to treat his illness. Finally, the State asserts that Mr. Duque was not denied the
opportunity to avail himself of the courts and the fact that the decisions taken in first and second
instance did not suit his interests does not mean that there was a violation of due process.
3.
On November 2, 2011, the Commission approved Report No. 150/11, in which it declared
that it was competent to take up the petition and that the petition was admissible for the possible
violation of the rights protected in articles 5, 8(1), 24 and 25 of the American Convention, read in
conjunction with the obligations established in articles 1(1) and 2 thereof. It also declared the petition
inadmissible with respect to the violation of the right recognized in Article 4, read in conjunction with
Article 1(1) of the American Convention.
4.
After examining the positions of the parties, the Inter-American Commission concludes
that the Colombian State is responsible for violation of the rights to the integrity of one’s person, judicial
guarantees, equality and non-discrimination, and judicial protection, recognized in articles 5(1), 8(1), 24
and 25 of the American Convention, read in conjunction with the obligations set forth in Convention
articles 1(1) and 2.

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