by Mr. Olivera, together with the use of stereotypical arguments related to public
morality and the best interests of the child to justify such discriminatory treatment, also
violated his rights to privacy (Article 11(2)), to the free development of his personality
(Article 7) and to freedom of expression protected by the American Convention (Article
13(1)).
79. Finally, the representatives added – along the same lines as the Commission - that
the Peruvian State also violated the rights enshrined in Articles 8(1) (judicial guarantees)
and 25 (judicial protection) of the American Convention by not respecting the guarantee
of reasonable time. In their final written arguments, they asked the Court to declare that
in this case the State also violated the right to psychological and moral integrity to the
detriment of Mr. Olivera, protected by Article 5(1) of the American Convention.
80. For its part, the State pointed out that, in this case, it was not proven that there
was a difference in treatment, much less that it was motivated by Mr. Olivera’s sexual
orientation, especially as the representatives of Supermercados Peruanos S.A. always
maintained that a heterosexual couple would also have been asked to modify their
behavior in such circumstances. It noted that, taking into account that the principle of
presumption of innocence requires a certain standard of proof in order to determine a
person’s guilt, a defendant in an administrative disciplinary proceeding cannot be
required to assume the burden of proof in order to demonstrate his innocence under
penalty of being sanctioned.
81. Regarding the alleged violation of Article 11 of the American Convention, the State
indicated that (a) it could not be affirmed that there had been an intervention by State
agents, since this was not duly supported or accredited in the decisions of the domestic
administrative and judicial proceedings and (b) the domestic courts denied using
stereotyped arguments to justify their position, since the outcome of the proceedings
was justified by the lack of evidence and, therefore, there was no interference in Mr.
Olivera’s private life. The State also argued that, according to the factual framework
discussed in the merits stage before the Commission, it was not possible to analyze the
violation of the right to free development of the personality after the facts that comprise
the factual framework. As for the alleged violation of Article 24 of the American
Convention, the State argued that (a) there was no structural discrimination in Peru,
since the authorities, through legislative, administrative and case law measures, have
proscribed discriminatory acts and have implemented positive measures aimed at
achieving equality, (b) there was no de facto discrimination in the specific case, since
there was no point of comparison and (c) there was no de jure discrimination, since the
national courts applied the domestic legislation without discriminatory motives.
82. Regarding the alleged violation of Article 7 of the Convention, the State indicated
that both the Inter-American Court and the European Court of Human Rights (hereinafter
“ECHR”) consider that there is an infringement of personal liberty when any restriction
is imposed through measures of restraint, detention or any similar practice that prevents
a person’s physical movement, a situation dissimilar to that of this case, specifying
further that this case differs from the cases of I.V. v. Bolivia and Atala Riffo and
Daughters v. Chile.
83.
In relation to the alleged violation of Article 13 of the American Convention, the
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