survivor’s pension and all other social benefits are eminently statutory rights, and, as such, are not in principle protected by the tutela action….3 34. In this respect, the Commission observes that the State itself indicated that subsequently, with the judgments of the Constitutional Court C-336 of 2008 and T-1241 of 2008, a change had taken place in the legal outlook that apparently should have permitted the alleged victim to access the survivor’s pension. Accordingly, the State argues that the petitioners, after initiating the procedure with Colfondos and obtaining a final decision, should have filed a tutela action to secure retroactive recognition of the de facto marital union made up of same-sex couples in keeping with the precedents of the Constitutional Court in judgments C-336 of 2008 and T-1241 of 2008. 35. In that regard, in keeping with its consistent practice 4, the Commission evaluates the requirement of exhaustion of domestic remedies in light of the current circumstances that the State has reported as relevant for the analysis of that requirement. 36. The Commission first observes that the Constitutional Court, by tutela judgment T-911-09, established that Judgment C-336 of 2008 only has future effect, and so … it is not possible to bring a claim for the derivative effects of Judgment C-336 of 2008 with respect to situations consolidated before it was handed down. Accordingly, although naturally it is valid to seek their application for the case of homosexual marital unions begun before that date, it is clear that in every case it will be necessary to have a notarial declaration to which reference was made there, and that obtaining said declaration, as well as the death of the person that would generate the right to the pension in the same-sex partner, must have occurred after the issuance of that judgment, which was on April 16, 2008. 5 37. Second, the Commission observes that in terms of the requirements for showing the de facto union when one partner has already died, which is a prerequisite to acceding to the survivor’s pension, contrary to what was indicated by the State, Judgment T-1241 of 20086 established that “there must be at least a sworn statement before a notary since the mere informal expression of one of the members of the purported couple is unable to show the decision to enter into a permanent bond,” and along those same lines Judgment T-911 of 2009 established that “there must be a sufficient showing, by a statement before a notary, of the will of the deceased to form a de facto marital union with the person who subsequently claims the right to the survivor’s pension.”7 In view of the constitutional precedents mentioned, the Commission observes that the death of Ángel Alberto Duque’s partner occurred prior to Judgment C-336 of 2008; therefore, he does not benefit from its effects. 38. In view of the foregoing, the Commission concludes that the petitioners’ claim, analyzed in light of current circumstances, fits within the exception to the prior exhaustion rule provided for at Article 46(2)(a) of the Convention, which establishes that the exception applies when “the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated.” 39. The invocation of the exceptions to the rule on exhaustion of domestic remedies provided for at Article 46(2) of the Convention is closely tied to the determination of possible violations of certain rights enshrined therein, such as the guarantees to access to justice. Nonetheless, 3 Twelfth Civil Court of the Circuit of Bogotá, Tutela Judgment of July 19, 2002. Annex 6 to the initial petition received at the Commission on February 8, 2005. 4 In situations in which the evolution of the facts initially presented domestically implies a change in fulfillment or failure to fulfill admissibility requirements, the Commission has indicated that its analysis should be done based on the situation at the moment of the decision on admissibility. IACHR, Report No. 20/05, Petition 714/00 (“Rafael Correa Díaz”), February 25, 2005, Peru, para. 32; IACHR, Report No. 25/04, Case 12,361 (“Ana Victoria Sánchez Villalobos et al."), March 11, 2004, Costa Rica, para. 45; IACHR, Report No. 52/00. Cases 11,830 and 12,038. (Dismissed Works of the Congress of the Republic), June 15, 2001, Peru, para. 21. 5 Constitutional Court of Colombia, Judgment T-911-09, December 7, 2009, Judge Nilson Pinilla Pinilla for the Court. 6 Constitutional Court of Colombia, Judgment T-1241-08, December 11, 2008, Judge Clara Inés Vargas Hernández for the Court. 7 Constitutional Court of Colombia, Judgment T-911-09, December 7, 2009, Judge Nilson Pinilla Pinilla for the Court. 7