98.
Third, the Court finds that the content of Decree 924 does not establish differences in treatment
between persons on the basis of their sexual orientation or on the basis of any other categories
especially protected by Article 1(1) of the American Convention. On the other hand, this Court notes
that it has not been alleged or proven that this norm constitutes a form of indirect discrimination. 143
99.
However, the Court observes that the aforementioned decree does not expressly establish any
means by which the decision of the religious authorities to grant or not a certificate of suitability may
be subject to subsequent review by the administrative authorities, or to appropriate and effective
remedies before the jurisdictional authorities to protect the rights of persons against discriminatory
or arbitrary acts contrary to the Convention (supra para. 17).
100. With respect to the above, it should be recalled that in a State governed by the rule of law,
there cannot be decisions that affect human rights that are outside the legal control of the State
authorities. In this regard, although there is no doubt that religious communities can appoint the
persons who will teach their own creed, when this takes place in public establishments, the State must
enable persons whose rights may be harmed to have access to an administrative or judicial review of
decisions involving an authorization to exercise the teaching profession. In these areas, such decisions
must be subject to proper State control and must respect the principles and guarantees established
in domestic law and in the American Convention.
101. In the instant case, the Court found that Decree 924 unconditionally delegates the power to
grant certificates of suitability to persons to teach religion classes in public schools, without there
being a clear mechanism to challenge such decisions (supra para. 98). In these situations, the State
cannot relinquish its oversight role and has the obligation to establish clear and effective rules for the
protection of the rights that may be affected by such delegated acts. In the chapter on judicial
guarantees and judicial protection, the Court will analyze the availability and effectiveness of the
remedies and judicial review in the case sub judice (infra paras. 157 to 159).
B.3. Alleged discrimination and the alleged violation of the rights to privacy and autonomy, access
to public service and to work, to the detriment of Sandra Pavez Pavez
102. The arguments presented by the parties and the Commission address aspects related to the
attribution of State responsibility, the autonomy of religious freedom, and the existence of a “tension”
between rights (between religious freedom and the rights to privacy and autonomy, access to public
service under conditions of equality and to work). Accordingly, the Court will now examine the
arguments regarding the alleged discrimination suffered by Sandra Pavez Pavez and the alleged
violations of her rights to personal liberty, privacy, equal access to public service, and to work. For
such purposes, the Court will carry out an analysis in the following order: a) the attribution of the
facts to the State in the present case; b) the selection of religious education teachers by religious
authorities and the autonomous nature of their decisions; c) the alleged restrictions to the rights to
privacy and autonomy, equal access to public service and to work, to the detriment of Sandra Pavez
Pavez, and d) conclusion.
a) Attribution of the facts to the State in the present case
103. In the instant case, the Commission and the representatives argued that the facts of the case
were attributable to the State in two different ways: 1) for a breach of the duty to respect, as a result
of the revocation of the certificate of suitability by a third party empowered by the State to exercise
public authority, and 2) for a violation of the duty to guarantee, resulting from the lack of a subsequent
review of that decision by the public authorities of Chile (the competent authorities in the educational
and judicial spheres).
143
Cf. Case of Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica, supra, para. 286, and Case of Manuela et al. v.
El Salvador, supra, para. 251.
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