ALBERTO PÉREZ MEZA
PROCESSING BY THE IACHR
The complaint was received on July 30, 1999, during the on-site
visit to Paraguay. The IACHR acknowledged receipt of the complaint and
reported that it was being studied on October 26, 1999.
On February 2, 2001, the petitioner was asked to provide updated
information on the allegations and on the remedies pursued under the
On June 6, 2001, the IACHR asked the petitioner for additional
information, a copy of the case file, and a report on the "apparent
marriage" system under Paraguayan law.
Alleged violation of Article 24 of the Convention (equality before
ALLEGATIONS AND ARGUMENTS
On July 24, 1999, the petitioner, José Alberto Pérez Meza began
ordinary proceedings for the recognition of a de
facto partnership against the estate of Mr. Jenaro Antonio Espínola
Tami, represented by his sole heir, Carlos Alfredo Espínola Tami, on the
grounds of the sentimental and de facto relations he maintained with the deceased on an
uninterrupted basis from 1967 to 1987.
Over the course of this relationship, the two of them made their
respective economic contributions and, together, they set themselves the
task of creating the Pindú Museum Foundation; thus, claims the
petitioner, they established a commercial and an intimate partnership.
In the first instance in these proceedings, on September 2, 1998,
the suit was dismissed because, in the court’s opinion, there was a de
facto partnership between the deceased and the petitioner that lasted
until 1980 but, in December 1981, the petitioner enacted a notarial deed
in which he freely and voluntarily waived the right to any sort of action,
including action taken as a partner in the deceased’s undertakings, and
was therefore disqualified from pursuing any claim in that regard.
In June 1999 the petitioner filed for appeal and annulment with
Paraguay’s Civil and Commercial Appeals Tribunal, the first chamber of
which decided to overturn the judgment because the lower court had not
correctly resolved the objection based on statutory limitations invoked by
the defendant. It thus decided to annul the first-instance judgment and
then to reject the application for the recognition of the de facto partnership, stating that although the partnership existed
up until 1980, the petitioner had freely and voluntarily renounced all
right to make claims; consequently, his suit was not admissible.
In July of that year, the petitioner filed for a motion of
unconstitutionality against that ruling with the Paraguayan Supreme Court.
The Supreme Court, however, resolved to reject the unconstitutionality
action in limine because it
failed to specifically identify the affected constitutional provisions and
to clearly and concretely substantiate the facts.
Finally, in October 1999, the petitioner filed for the reversal and
revocation of the judgment before the Supreme Court. The Court responded
that the situation was not one of those provided for in law and
consequently the remedy was not admissible.
As a result of the failure to secure recognition for his de
facto partnership with the deceased and in light of the loving
relationship the petitioner maintained with the deceased, which kept them
together as a couple and as an economic partnership, and faced with the
imminent seizure of their common goods by the deceased’s only heir, on
November 1, 1999, the petitioner began proceedings for the recognition of
an "apparent marriage. "
His suit was dismissed in
limine as inadmissible since the Paraguayan Civil Code specifically
prohibits marriage between persons of the same sex and, in addition, the
Paraguayan Constitution only allows an apparent marriage or common-law
union between a man and a woman.
The petitioner appealed against this judgment to the fifth chamber
of the Civil and Commercial Appeals Tribunal; this court resolved to
uphold the decree dismissing the suit and to rule the appeal nonexistent
on the grounds of inadequate substantiation.
Finally, the petitioner filed for a motion of unconstitutionality
with the Supreme Court of Justice which, on November 3, 2000, rejected the
suit in limine because it failed
to identify the unconstitutional provision in question and to explain the
specific harm caused.
In his different submissions to the IACHR, the petitioner states
that on repeated occasions he has been a victim of discrimination on
account of his sexual choice.
BY THE IACHR
First of all, attention should be paid to the proceedings begun to
secure recognition of the de facto partnership between the petitioner and the deceased.
As can be seen in the case file, the Paraguayan courts analyzed the
evidence submitted by the petitioner in depth and resolved that he had
failed to demonstrate the existence of such a de
facto partnership. The
petitioner wants the IACHR to reassess the evidence submitted to the
domestic courts in order to determine whether or not a de
facto partnership actually existed.
The IACHR cannot review evidence already assessed by the domestic
courts unless a violation of the Convention has been committed.
The petitioner’s arguments and the evidence provided contain no
elements that could tend to establish a violation of Article 25 of the
Convention. The petitioner
has neither argued nor proven that the evidence was assessed by the
Paraguayan judicial authorities in an arbitrary fashion that would tend to
establish a violation of the Convention.
On the contrary: he has merely indicated his disagreement with the
analysis of the evidence carried out by the Paraguayan authorities, and
the case file contains nothing that could constitute a violation of the
Convention. Consequently, as
regards the first claim, the Commission must declare the petition
inadmissible for noncharacterization of the facts.
With respect to the proceedings for securing recognition of the
apparent marriage, it is clear that Paraguayan law only allows apparent
marriages or common-law unions between men and women.
Thus, Article 51 of the Constitution provides that: “De
facto unions between a man and woman with no legal impediments for
contracting matrimony that meet the requirements of stability and
exclusivity shall produce effects similar to those of marriage, in
accordance with the terms set by law.”
In addition, Article 140(g) of the Paraguayan Civil Code expressly
prohibits marriage between persons of the same sex.
It is therefore clear that the situation invoked by the petitioner
(marriage between persons of the same sex) is not provided for by
Paraguay’s domestic laws and, consequently, he does not enjoy legal
protection in his claim for recognition as the spouse of the deceased.
The case file indicates that the courts rejected his applications
because that circumstance was not legally provided for.
The Commission notes that the petitioner has at no time argued,
before either the Paraguayan legal authorities or the Inter-American
Commission, that those legal provisions are discriminatory.
The Commission notes that the case file documents do not indicate
that the petitioner ever invoked the corresponding domestic remedies to
attack those laws. Neither
has the petitioner claimed, before either the Paraguayan courts or the
IACHR, that the enforcement of Paraguayan laws, in the different legal
venues at which he has appeared, discriminates against homosexual couples.
The Commission must therefore declare the petition inadmissible on
the grounds that domestic remedies have not been exhausted.
The IACHR concludes that the petition is INADMISSIBLE in that the
allegations regarding the proceedings to secure recognition for the de
facto partnership between the petitioner and the deceased are
manifestly groundless in accordance with Article 47(c) of the American
Convention, since the Commission is not authorized to rule on a
With respect to the regulations governing marriage in Paraguay, the
documents submitted to the IACHR do not indicate that the petitioner
pursued and exhausted the corresponding domestic remedies and,
consequently, the provisions of Article 46(a) of the American Convention
have not been met.
Decision: The IACHR
concludes that the petition is INADMISSIBLE in that the allegations it
contains are manifestly groundless in accordance with Article 47(c) of the
American Convention and because domestic remedies have not been exhausted
as required by Article 46(a) of the American Convention.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights on the tenth day of October, 2001. (Signed):
Claudio Grossman, President; Juan Méndez, First Vice-President; Marta
Altolaguirre, Second Vice-President; Commissioners Robert K. Goldman,
Peter Laurie, and Julio Prado Vallejo.