Report No. 46 (2018) IACHR. Petition No. 1638-12 (Colombia)

• Year: 2018
• Petition Number: 1638-12
• Report Number: 46
• Respondent State: Colombia
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Raiza Isabela Salazar

REPORT No. 46/18

PETITION 1638-12

REPORT ON ADMISSIBILITY

RAIZA ISABEL SALAZAR

COLOMBIA

OEA/Ser.L/V/II.168

Doc. 56

4 May 2018

Original: Spanish

Approved by the Commission at its session No. 2126 held on May 4, 2018.
168^th Special Period of Sessions.

Cite as: IACHR, Report No. 46/18, Petition 1638-12. A.. Raiza Isabel Salazar. Colombia. May 4, 2018.

www.cidh.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Líderes en Acción Association, Santamaría Foundation, Germán Humberto Rincón Perfetti, G.A.A.G. and Global Initiatives for Human Rights, Heartland Alliance for Human Needs and Human Rights (GIHR-HA)1
:	Raiza Isabel Salazar
Respondent S.:	Colombia2
Rights invoked:	Articles 4 (Life), 5 (Personal Integrity), 8 (Fair Trial), 11 (Right to Privacy), 13 (Freedom of Thought and Expression), 24 (Right to Equal Protection) and 25 (Judicial Protection), regarding articles 1 (Obligation to Respect Rights) and 2 (Domestic Legal Effects) of the American Convention on Human Rights3

II. PROCEEDINGS BEFORE THE IACHR⁴

Filing of the petition:	September 3, 2012
N. of the petition to the S.:	June 7, 2013
S.’s first response:	November 14, 2013
Additional observations from the petitioner:	February 21, 20145
Additional observations from the S.:	January 4, 2018

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit dated July 31, 1973); Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women6(instrument of accession deposited on November 15, 1996)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Y., Articles 4 (Life), 5 (Humane Treatment), 8 (Fair Trial), 11 (Privacy), 13 (freedom of Thought and Expression) 24 (Equal Protection) and 25 (Judicial Protection) of the American Convention in relation to its Articles 1.1 (Obligation to Respect Rights) and 2 (Domestic Legal Effects), and Article 7 of the Convention of Belém do Pará
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., the exception of Article 46.2.c of the Convention applies
Timeliness of the petition:	Y., under the terms of section VI

V. ALLEGED FACTS

1. The petitioners point out that this petition is framed in the context of violence suffered by trans people in Colombia by individuals as well as state agents. T. state that in Colombia there is no due protection of their rights, and that although the Constitutional Court has recognized rights to the LGBTI community and issued orders to the public authority in order to make their protection effective, such orders have been circumvented. T. argue that there is a prejudiced attitude in investigations related to crimes committed against LGBTI persons, which is mainly reflected in homicide investigations, by characterizing offenses as crimes of passion; and by erroneous collection and preservation of the evidence.

2. In the aforementioned context, they argue that the alleged victim, Raiza Isabela Salazar, is a transvestite woman who in 2001 acquired a property in the municipality of Dagua, Department of Valle, Colombia. T. note that since her arrival at the site, she was the victim of repeated threats from neighbors and butlers of the condominium, in order to force her to leave the place. T. state that this situation continued until 2005, when the threats worsened and came to be attacked with rubber bullets, receiving an impact on the head, seriously compromising one eye. T. indicate that she was forced to leave her home that year, being recognized by the state as displaced. T. claim that in 2009 she returned to reside in the property for personal reasons and, since the threats and violent acts continued, she decided to report the facts.

3. T. add that in 2009, R.I.S. filed a criminal complaint with the Office of the Prosecutor and went to the Personería de Cali (Ombudsman Office in Cali) in order to receive protection. In the complaint, she alleged the repeated threats and persecution, indicating that since she arrived to the premises, her neighbors, the administrator and the steward together with their children and other relatives, "have dedicated themselves to making her life impossible" in order to force her to leave the place. In the same complaint, she denounced that she had to leave the place years ago because of the attack on her life, indicating that she was wounded with a shotgun shot of pellets on her head, and detailed that in the month of October 2009 she received threats and insults, and that the accused threw garbage and horse feces, as well as rocks to her house, and that the accused entered her property by climbing on the roof, ordering her to leave, indicating that they would kill her, saying first that "they were paramilitaries and then that they were with the guerrilla." T. explain that in October 2009, the Ombudsman of Cali delegated the ombudsman of the Municipality of Dagua to do the follow-up of what had happened. T. add that in June 2011, she filed a right of petition to the Office of the Prosecutor to report the status of her complaint, without receiving a response, and that in December of that year she presented the case to the Prosecutor of Valle through the Santamaría Foundation. She states that her complaint was processed as a contravention, which is known to the police authorities in accordance with the National Police Code, which they allege constitutes a discriminatory treatment, as it involves actions that threaten life and integrity, which constitutes a crime and not contravention, which differs in the severity of the offense and the graduation of penalties, the offenses being minor offenses.

4. T. allege that the S. was aware of her situation since 2005 when she was granted the status of displaced by violence, and that despite having reported the facts, there has been no result in the investigations even though the persons who participated in the events have been individualized in her complaint. For the foregoing, they allege that the exception contemplated in Article 46.2.c of the Convention is applicable given the unjustified delay in the decision of the actions undertaken. A., they affirm that, regarding the contentious administrative action referred by the S. as suitable, the Commission has indicated in its decisions that said action seeks only compensation for damages caused, and the protection requested to the Commission goes beyond this type of compensation.

5. The S. alleges that the facts reported are groundless, and that the context, which has not been proven, cannot be considered to determine the S.'s international responsibility in this case, since there is no connection between the specific case and the alleged context of violation of the rights of the LGBTI population. In addition, it rejects the existence of state inactivity in cases of LGBTI victims, and refers to various public policies established in order to prosecute the crimes perpetrated against the LGBTI community.

6. It argues that the petition is inadmissible due to lack of exhaustion of domestic remedies, since the investigation is still open. It indicates that the alleged victim reported the facts in 2009 and that the Office of the Prosecutor, after analyzing the complaint, on August 29, 2009, forwarded it to the Secretariat of the Mayor's Office of Dagua, V.d.C., on the grounds that the facts were raised by problems of coexistence, and therefore they were of a contravention nature. It indicates that in turn, the Government Secretary, in compliance with the decision of the Sectional Council of the Judicature in Cauca Valle, which resolved a conflict of jurisdiction, sent the matter to the Dagua’s Contraventions Office of the Police on November 30, 2009, which is the office investigating the facts. It alleges that, because these were facts that affected the healthy coexistence of the alleged victim, the authority considered that they should be investigated as a contravention, which does not constitute a discriminatory act, but rather is an assessment of facts based on the legal system of the moment.

7. It adds that both the ombudsman office from Santiago de Cali as well as the ombudsman office from Dagua have followed up on the case, guiding the alleged victim in the process within their jurisdiction. It also indicates that the authorities took the matter to the Regional Attorney´s Office of Valle, in order to analyze the facts within the disciplinary jurisdiction and establish possible penalties. Therefore, it argues that the investigation remains open, so the complaint does not meet the requirement of admissibility...