66.
Thus, the Commission considers that the nature of Sandra Pavez’s employment as a
schoolteacher also involved the exercise of a public service, as a result of which discrimination in the
continuance of this job performed for many years of her professional career involved a violation of the rights
to access to public service under conditions of equality and to non-discrimination in the labor sector, protected
by Articles 23.1(c) and 26 of the American Convention.
67.
Finally, the Commission highlights that the way in which the protection remedy was decided
upon, stressed how completely defenseless Sandra Pavez was in respect to the discriminatory act that she
sustained, because the Court of Appeals of San Miguel did not examine whether or not the withdrawal of the
certificate of suitability breached her constitutional rights and her rights under the Convention, but rather
confined itself to establishing the legality of the action taken by the religious authority, because Decree 924
was in force. Although Sandra Pavez, in her appeal proceedings, explicitly referred to the need to assess the
arbitrariness of the measure in the light of her rights, the Supreme Court of Justice upheld the entire ruling of
the Court of Appeals of San Miguel without providing any grounds or responding to the victim’s allegation that
this was essential, because it provided a ruling which, completely apart from the legality of the withdrawal,
would determine if it had violated her human rights. In that respect, in addition to failing to fulfill its duty to
guarantee in response to the violation of the rights examined up until then, the protection remedy violated the
rights to benefit from duly reasoned decisions and judicial protection.
68.
By virtue of the considerations indicated above, the Commission concludes that the state of
Chile is responsible for the violation of the right to privacy and autonomy, the principle of equality and nondiscrimination, access to public service under conditions of equality, to work, to benefit from reasoned
decisions and to judicial protection, as enshrined in Articles 11.2, 24, 23.1(c), 26, 8.1, and 25.1 of the American
convention in connection with the obligations established in Articles 1.1 and 2 of the same instrument, to the
detriment of Sandra Pavez.
V.
CONCLUSIONS AND RECOMMENDATIONS
69.
On the basis of the determinations of fact and law, the Inter-American Commission concluded
that the state is responsible for the violation of Article 8 (fair trial), Article 11 (privacy and autonomy), 23.1(c)
(access to public services under conditions of equality), Article 24 (equality before the law), Article 25.1
(judicial protection), and Article 26 (right to work) of the American Convention in connection with the
obligations set forth under Articles 1.1 and 2 of the same instrument.
70.
By virtue of the conclusions indicated above,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT THE
CHILEAN STATE,
1.
Reinstate Sandra Pavez to the post she held as a teacher in a public school, if that is what she
wishes and in coordination with her.
2.
Integrally repair the human rights violations stated in the present report against Sandra Pavez
in both material and immaterial aspects. The material aspect must take into account the differences in the
salary-based economic amounts and the social benefits that she would have received as a teacher. In addition,
the state must adopt the corresponding measures of economic compensation and satisfaction.
3.
Establish mechanisms to prevent repetition including: i) adjustment of the regulatory
framework under domestic law, including Decree 924 of 1983 of the Ministry of Education, in order to ensure
that it does not promote acts of discrimination based on sexual orientation in its implementation; ii) the
adoption of the measures needed to ensure due administrative and judicial control over possible
discriminatory situations in the context of the application of said regulatory framework; and iii) training of
persons in charge of assessing the suitability of teaching staff and judicial civil servants of all instances that are
required to hear appeals on the protection of basic rights and on the scope and contents of the principle of
equality and non-discrimination, including the prohibition to discriminate because of sexual orientation.