I/A Court H.R., Case of Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24, 2012. Series C No. 239.

Non official brief


This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-1-e.pdf




When interpreting the words «any other social condition» of Article 1.1 of the American Convention on Human Rights (hereinafter, «ACHR»), it is always necessary to choose the alternative that is most favourable to the protection of rights enshrined in the treaty, based on the principle of the rule most favourable to the human being. The specific criteria set out in Article 1.1 ACHR do not constitute an exhaustive or limited list. The inclusion of the term «another social condition» in Article 1.1 ACHR allows for the inclusion of other categories that have not been explicitly indicated within these criteria, in virtue of which discrimination is prohibited.


A person’s sexual orientation is a category protected by the American Convention on Human Rights (under Article 1.1 ACHR). Therefore, any regulation, act, or practice that discriminates based on a person’s sexual orientation is prohibited. Consequently, no domestic regulation, decision, or practice, whether by State authorities or individuals, may diminish or restrict the rights of a person based on his or her sexual orientation. A right granted to all persons cannot be denied or restricted under any circumstances based on their sexual orientation.


A person’s sexual orientation or the exercise thereof cannot provide grounds, under any circumstances, for a disciplinary proceeding. The reason is that there is no connection between the correct performance of a person’s professional duties and his or her sexual orientation.


The determination of a child’s best interest in cases involving the care and custody of minors must be based on an assessment of specific parental behaviours and their negative impact on the well-being and development of the child, or of any real and proven damage or risks to the child’s well-being, and not those that are speculative or imaginary. Speculations, assumptions, stereotypes, generalised considerations regarding the parents’ personal characteristics, or cultural preferences for traditional conceptions of the family are not admissible for such a determination.


«The child’s best interest» is a legitimate goal in abstract terms, but the mere reference to this purpose, absent specific proof of the risks posed to the child by a parent’s sexual orientation, cannot serve as a basis upon which to restrict a protected right. A determination based on unfounded and stereotyped assumptions about the parent’s capacity and suitability to ensure and promote the child’s well-being and development is not appropriate for the purpose of guaranteeing the legitimate goal of protecting the child’s best interest.


Pre-conceptions regarding the attributes, behaviours, or characteristics of homosexual persons or the impacts these may have on children are not admissible in custody proceedings.


The justification of a difference in treatment and the restriction of a right based on the alleged possibility of social discrimination, proven or not, that a minor might face due to his or her parents’ situation cannot be used as legal grounds for a decision. While it is true that certain societies can be intolerant toward a person because of their race, gender, nationality, or sexual orientation, States cannot use this as justification to perpetuate discriminatory treatment.


Potential social stigma due to a parent’s sexual orientation cannot be considered as a valid «harm» for the purposes of determining the child’s best interest. If the judges who analyze such cases confirm the existence of social discrimination, it is completely inadmissible to legitimise that discrimination with the argument of protection the child’s best interest.


The scope of protection of the right to privacy has been interpreted broadly by international human rights courts, and in this sense, the sexual orientation of a person is connected to the concepts of freedom and self-determination. These concepts imply the possibility to choose freely the options and circumstances that give meaning to one’s existence, according to one’s own choices and convictions. The emotional life with a spouse or permanent companion, including sexual relations, is one of the main aspects of this area or circle of intimacy.


Sexual orientation is an essential component of a person’s identity. To require a mother to limit her lifestyle options implies using a «traditional» concept of women’s social role as mothers, according to which it is socially expected that women bear the main responsibility for their children’s upbringing and that in pursuit of this she should have given precedence to raising her children, renouncing an essential aspect of her identity.


The American Convention on Human Rights does not establish a limited concept of family, nor does it protect only a «traditional» model of the family. The concept of family life is not limited only to marriage, and must encompass other de facto family ties such as cohabitation outside of marriage.


Privacy is an ample concept that is not subject to exhaustive definitions and includes, among other protected realms, the sex life and the right to establish and develop relationships with other human beings. Thus, privacy includes the way in which the individual views himself or herself and to what extent and how he or she decides to project this view to others.


The right to a hearing established in Article 8.1 ACHR must be interpreted according to Article 12 of the Convention on the Rights of the Child. Article 12 of the Convention on the Rights of the Child contains stipulations on the child’s right to be heard, for the purposes of facilitating the child’s intervention in a proceeding according to his or her circumstances and ensuring that the proceeding does not harm his or her interests. Children should be informed of their right to be heard directly, or through a representative, if they so wish.




I. A custody proceeding was brought before the Chilean courts by the father of the girls M., V., and R. against their mother, Karen Atala Riffo. The father believed that her sexual orientation and living with a same-sex partner would harm the three girls. Ms. Atala lost custody of her daughters due to a ruling issued by the Supreme Court of Justice that found, inter alia, that the girls could become the object of discrimination and could become confused with respect to gender roles, and that by living with a same-sex partner, Ms. Atala had put her own interests before those of her daughters. Additionally, Ms. Atala, a judge, was subjected to a disciplinary investigation ordered by the Court of Appeal of Temuco because she had revealed to the press that she was lesbian.


On 17 September 2010, the Inter-American Commission on Human Rights filed a claim against the Republic of Chile alleging the violation of Article 8.1 ACHR (Right to a Fair Trial), Article 11 ACHR (Right to Privacy), Articles 17.1 and 17.4 ACHR (Rights of the Family), Article 19 ACHR (Rights of the Child), Article 24 ACHR (Right to Equal Protection) and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR. Likewise, the Commission requested that the Court order the State to adopt measures of reparation.


On the merits, the Court found that Chile violated Article 24 ACHR, in relation to Article 1.1 thereof, to the detriment of Karen Atala Riffo, and in relation to Article 19 ACHR, to the detriment her three daughters. The Court held that although the judgments of Chilean courts sought to protect the best interest of Atala Riffo’s daughters, a legitimate and imperative aim, it was not demonstrated that the grounds stated in the decisions were appropriate to achieve the said purpose. The Chilean courts did not prove that Ms. Atala’s cohabitation with a same-sex partner affected her daughters negatively in any way, but instead relied upon abstract, stereotyped, and/or discriminating arguments to justify taking custody away from her.


Furthermore, because the Chilean courts discussed Atala Riffo’s sexual orientation in the course of the proceedings, aspects of her private life were exposed. The Chilean courts should have limited themselves to examining parental behaviour without exposing and scrutinising Atala Riffo’s sexual orientation. As a result, the Court found that during the custody proceeding, there was an arbitrary interference into Atala Riffo’s private life, based on a stereotyped vision of her sexual orientation. This action constituted a violation of Article 11.2 ACHR, in conjunction with Article 1.1 ACHR, to the detriment of Ms. Atala Riffo.


With regard to the alleged violation of the right to family life, the Court emphasised that the ACHR contains two provisions that protect this right in a complementary manner. The Court indicated that a judicial imposition of a single concept of family should be analysed not only as an arbitrary interference into family life, in accordance with Article 11.2 ACHR, but also in terms of the impact it may have on a family unit, in light of Article 17 ACHR. The Court found that Atala Riffo had created a family unit with her partner and her children. As such, this family unit was protected under Articles 11.2 and 17 ACHR. Thus, because the rulings issued by the Chilean courts constituted arbitrary interference into Atala Riffo’s private life and had the effect of separating her family, they also constituted a violation of Articles 11.2 and 17 ACHR to the detriment of Atala Riffo and her daughters. With regard to the latter, these rulings also constitute a violation of Article 19.


Addressing the allegations related to judicial protections, the Court found that a violation of Article 8.1 ACHR for alleged lack of judicial impartiality must be based on specific, concrete evidentiary elements that indicate a situation in which judges have clearly allowed themselves to be influenced by aspects or criteria outside of the legal provisions. The Court found that neither the Commission nor the representative had provided specific evidence to disprove the presumption of the judges’ subjective impartiality. Consequently, the Court found no violation of Article 8.1 ACHR with regard to the decisions of the Chilean courts in the case.


However, with regard to the alleged violation of Article 8.1 ACHR to the detriment of Atala Riffo’s daughters, in relation to their right to be heard and to have their opinions taken into consideration, the Court considered the provisions of this Article in conjunction with those of Article 19 ACHR. The Court also considered other provisions of the Convention on the Rights of the Child (Articles 3 and 12). In the present case, the decision of the Supreme Court of Justice of Chile based its decision on the alleged best interest of the three minors without giving reasons for why it considered it legitimate to contradict the wishes expressed by the girls during the custody proceeding, particularly given the connection between a child’s right to participate and the goal of complying with the principle of the child’s best interest. As a result, the Court concluded that the decision issued by the Supreme Court of the Justice violated Article 8.1 ACHR, in connection with Articles 19 and 1.1 ACHR, to the detriment of Ms. Atala’s three daughters.


In regard to the professional disciplinary hearings initiated against Atala Riffo in her capacity as a judge due to her sexual orientation, the Court found that this action constituted a violation of Articles 24, 11.2, and 8.1 ACHR, in conjunction with Article 1.1 ACHR, to the detriment of Atala Riffo. There is no connection between the correct performance of a person’s professional duties and his or her sexual orientation.


Accordingly, the Court ordered that the State: provide medical and psychological or psychiatric care free of charge, through its specialised public health institutions, to those victims who so request it; issue publications of the Court’s judgment; hold a public act of acknowledgment of international responsibility; continue to implement permanent education and training programs directed at public officials at the regional and national levels; and pay pecuniary and non-pecuniary damages.