nature of the establishment and with the intimacy of such conduct.” 185
122. Based on the documentary evidence provided, the administrative rulings biasedly
concluded that any expression of affection between same-sex couples could imply an
erotic aspect. This interpretation implies a negative stereotype based on sexual
orientation with a pejorative element that would not have been applied to a heterosexual
couple, 186 at least not automatically and without a detailed analysis of what actually
happened and of the specific acts of affection displayed by the couple. This tainted the
weighing of rights carried out by the administrative bodies and constituted an act of
discrimination based on sexual orientation. Indeed, this Court finds that the different
domestic proceedings examined and evaluated expert opinions and testimonies with a
significant stereotypical content. The assessment of the evidence cannot be guided by
personal prejudices or preconceived ideas about a minority sector of the population.
Evidence without a scientific basis and founded on prejudices, such as that assessed in
the instant case, is discriminatory and contrary to the categories protected by Article
1(1) of the American Convention. Furthermore, the Court notes that this discriminatory
attitude was not subsequently corrected or remedied by the domestic courts.
123. The Court reiterates that the right to be heard by an impartial judge or court is a
fundamental guarantee of due process. In other words, the person on trial must have
the guarantee that the judge or court presiding over his case brings to it the utmost
objectivity. 187 The Court has established that impartiality requires that the judge who
intervenes in a particular dispute should approach the facts of the case free of any
personal prejudices and, likewise, offer sufficient objective guarantees to inspire the
necessary confidence in the parties to the case, as well as in the citizens of a democratic
society. 188 The Court has recognized that personal prejudices and gender stereotypes
may affect the objectivity of the State officials responsible for investigating the
complaints presented to them, influencing their perception of whether or not an act of
violence has occurred, and their assessment of the credibility of witnesses and of the
actual victim. In this sense, stereotypes “distort perceptions and lead to decisions based
on preconceived beliefs and myths, rather than facts,” which in turn can result in the
185
Cf. Tribunal for the Defense of Competition and Protection of Intellectual Property, Defense of
Competition Chamber. Decision No. 0665-2006/TDC-INDECOPI, of May 17, 2006 (evidence file, folio 1918).
186
In this regard, the expert witness Laura Clérico noted that use of adjectives in the administrative file
and the judicial rulings describing Mr. Olivera and his partner’s conduct as “exaggerated”, “inappropriate”, or
contrary to “morals and good manners” indicate the presence of stereotypes. She also considered that the
characterization of homosexual men as ‘‘promiscuous, depraved, sexual predators and criminals by nature,”
as well as ‘‘liars,” produces interactions that result in human rights violations. Cf. Expert opinion of Laura
Clérico rendered at the public hearing on August 24, 2022, in the context of the Court’s 150th Regular Session
and written version of said expert opinion, para. 52 (file of merits, folio 1284).
187
Cf. Case of Herrera Ulloa v. Costa Rica. Preliminary objections, merits, reparations and costs.
Judgment of July 2, 2004. Series C No. 107, para. 171, and Case of Former Employees of the Judiciary v.
Guatemala. Judgment of November 17, 2021. Series C No. 445, para. 64. In this regard, the Court recalls
that, when Article 8(1) of the Convention refers to the right of every person to be heard by a “competent judge
or tribunal” for the “determination of his rights,” this expression refers to any public authority, whether
administrative, legislative or judicial, that through its decisions determines individual rights and obligations.
See Case of the Constitutional Court v. Peru, supra, para. 71, and Case of Colindres Shonenberg v. El Salvador,
supra, para. 64.
188
Cf. Case of Herrera Ulloa v. Costa Rica, supra, para. 171, and Case of Granier et al. (Radio Caracas
Television) v. Venezuela. Preliminary objections, merits, reparations and costs. Judgment of June 22, 2015.
Series C No. 293, para. 304.
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