Chilean Custody Decision Violated Lesbian Judge's Rights
By Daniela Estrada
SANTIAGO, Apr 9, 2010 (IPS) - The attorneys representing Chilean Judge Karen Atala, a lesbian who brought her case before the Inter-American Commission on Human Rights claiming discrimination in the loss of custody of her three daughters, accused the Chilean state of sending out "unequivocal" signals of a lack of will to implement the regional body's recommendations.
The Inter-American Commission on Human Rights (IACHR), a Washington-based Organisation of American States (OAS) body, found that "the Chilean state violated Karen Atala's right to live free from discrimination," and issued recommendations.
But Supreme Court chief magistrate Milton Juica said Thursday that he would not join the working group proposed by the government to comply with the suggestions issued in February.
"The courts do not discriminate in any way," Juica said, referring to the case. "We are not going to take part in any working group."
Although the government of right-wing President Sebastián Piñera said it accepted the IACHR's recommendations, Juica's remarks are "an unequivocal signal of the state's lack of will" to live up to them, said Jorge Contesse, director of the private Diego Portales University's (UDP) human rights centre.
In a May 2004 decision, the Supreme Court stripped Atala of custody of her three daughters because she was living with her lesbian partner, Emma de Ramón, a history professor.
In so doing, the Court overturned the rulings of two lower courts that had granted her custody after she separated from her husband, who is also a judge.
With no further chance to appeal the ruling, Atala took her case to the IACHR in November 2004, with the backing of the UDP human rights centre, Corporación Humanas, a women's rights organisation, and the Lawyers Association for Public Freedoms.
In March 2006, the Chilean government and Atala's defence counsel began to negotiate a friendly settlement agreement, but the effort failed.
The IACHR declared the case admissible in July 2008, and early this year it issued its final report, which found that Atala's rights were violated and urged the state to make reparations to her and to take steps to adopt legislation, policies, and programmes to prohibit and end discrimination based on sexual orientation.
The Piñera administration announced this week that in line with the IACHR's recommendations, it would set up a working group comprised of representatives of all of the concerned parties, to propose public policies and legislative reforms aimed at preventing a repeat of what happened in Atala's case.
But the Supreme Court has refused to participate.
In the next few weeks, the Chilean government is to submit to the IACHR a report on the steps it plans to take. The Commission must then decide whether or not to refer the case to the Costa Rica-based Inter-American Court of Human Rights.
Atala's defence attorneys believe the case will end up in the Inter-American Court if the Supreme Court does not agree to join the working group.
The Supreme Court's decision surprised Atala's lawyers because of Juica's well-known work in cases of human rights abuses committed during the 1973-1990 dictatorship of Gen. Augusto Pinochet (1915-2006).
"What stands out about this case is the concept of human rights held by the Supreme Court, because human rights not only involve the widespread, systematic violations that occurred during the dictatorship, but also have to do with people with a diverse sexual orientation," said Contesse.
Atala "is happy with the Commission's decision, and is waiting to see what happens. This has been a long process, and the damage is irreparable," Corporación Humanas lawyer Helena Olea told IPS.
"Chile has not shown signs of moving in the direction of living up to recommendations in favour of sexual minorities," said Contesse, who pointed out that for years the country has been debating a draft law containing anti-discrimination measures.
According to the lawyer, the IACHR report is "historic and unprecedented. This is the first decision of this kind on the rights of people of diverse sexual orientation to be handed down in the inter-American system" of human rights.
The resolution in this case "was awaited in countries like the United States, Colombia, Argentina. Karen Atala's case is forging new ground," Contesse told IPS.
The Inter-American Court has issued rulings against Chile in several cases: in 2001, for violating freedom of expression by censoring the film "The Last Temptation of Christ", and in 2005 for trying cases involving civilians in military courts.
In 2006, two other sentences were handed down, involving access to public information and the incompatibility of the 1978 amnesty decreed by Pinochet, which let human rights violators off the hook, with the American Convention on Human Rights.