D. The right to equality and the prohibition of non-discrimination Arguments of the parties 216. The representatives argued that Ms. Atala “had a stable relationship with her partner that was no different from other couples, except for the fact that her partner was of the same sex,” thus “the order to investigate and carry out a visit to the court where Judge Atala worked was based exclusively on a discriminatory rejection of her sexual orientation.” 217. The State argued that “the report submitted by Judge Lillo to the full Court of Appeals of Temuco includes a number of serious precedents that called for a ‘severe warning´” and that his warning to Ms. Atala “is not at all related to her homosexuality, but instead concerns complaints and facts verified by Judge Lillo.” Considerations of the Court 218. The Court notes that the Court of Appeals of Temuco received a complaint on March 17, 2003 against Ms. Atala for the use of implements and employees of the Court for personal matters (supra para. 210). However, the Court notes that, according to the visiting judge’s report, other considerations were expressed as the reason for carrying out the visit to Ms. Atala’s work place. These expressly referred to Ms. Atala’s sexual orientation since they were related to “the reports published in the newspapers “La Cuarta” on February 28, [2003] and “Las Últimas Noticias” dated March 1, [2003], in which the public was informed of the content of a custody claim filed by [Mr. López] against his wife […] because the latter maintained a lesbian relationship with another woman” 246. Thus, one of the reasons for the visit to Ms. Atala’s work place was to confirm the press reports about her sexual orientation. 219. The Court notes that the disciplinary investigation and the extraordinary visit mentioned have their legal basis in Articles 544 No. 4,247 559,248 and 560249 of the Organic Code of Courts. Since one of the purposes of the visit was to investigate Ms. Atala’s sexual orientation based on the press reports, the Court finds that Ms Atala received a differentiated and unlawful treatment by having her sexual orientation and her relationship 246 Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco, April 2, 2003 (record of merits, volume XII, page 5934). 247 Article 544 No. 4, upon which the Report prepared by Judge Lenin Lillo of the Court of Appeals of Temuco of April 2, 2003 is based (record on merits, volume XII, page 5927), states that: “the disciplinary powers that correspond to the Supreme Court or the Courts of Appeals must be exercised especially regarding officials of the judiciary that are in any of the following situations: [...] 4. When, due to irregularity in their moral behavior or due to vices that are not well regarded by the public, they compromise the decorum of their ministry. Available at: http://www.leychile.cl/Navegar?idNorma=25563 (last access February 20, 2012), electronic address provided by the State (record of merits, volume XII, page 5914). 248 Article 559 states that: The Superior Courts of Justice will order extraordinary visits by any of its ministers at the courts within their respective jurisdictional territory, provided this is required for a better judicial service. Available at: http://www.leychile.cl/Navegar?idNorma=25563 (last access February 20, 2012) (record of merits, volume XII, page 5914). 249 Article 560 states: The Court will extraordinarily order these visits in the following cases: 1. When it concerns civil cases that may affect international relations and over which the courts of justice have competence; 2. When it concerns an investigation of facts or crimes that must be heard by the military justice system and that may affect international relationships or that cause public alarm and they demand a prompt repression due to their seriousness and damaging consequences, and 3. Whenever it is necessary to investigate facts that affect the behavior of judges in the exercise of their duties and when there is a notable delay in the processing of the matters submitted to said judges. Available at: http://www.leychile.cl/Navegar?idNorma=25563 (last access February 20, 2012) (record of merits, volume XII, page 5914). 67