eNotes  -  August 2006

Amicus Briefs Submitted in Cases in Colombia, Chile

Two amicus briefs facilitated by the Vance Center's Amicus Network were recently filed at the Constitutional Court in Colombia and the Inter-American Commission on Human Rights. The first case, Colombia Diversa v. State of Colombia deals with equal protection for lesbian, gay, bisexual and transgender persons. The second, Carlos Baraona Bray v. State of Chile, involves freedom of expression issues. 

Colombian Case Challenges Discrimination Against Same-Sex Couples

In 2006, Colombia Diversa — a Colombian NGO that promotes the rights of gay, lesbian, bisexual and transgender persons — brought a challenge against a 1990 statute in Colombia that extends the economic benefits of marriage to unwed heterosexual couples who have lived together for more than two years. Colombia Diversa claims that the statute violates equal protection for LGBT persons because it does not extend comparable benefits to homosexual couples. The Constitutional Court of Colombia declared the matter admissible on July 31, 2006 and the case will be decided by February 2007.

Colombia Diversa hopes that this case will secure equal protection to LGBT persons under the law, as well as open the door to same–sex civil unions, Esteban Restrepo, a lawyer from Colombia Diversa's Legal Committee and a professor at Los Andes University School of Law in Bogotá, said.

The Court previously heard a case regarding same-sex civil unions in 1996. At the time, it rejected the petition but remained open to future consideration of the issue. Now, 10 years later, it could be time for the Court to rethink its previous decision, Mr. Restrepo said. "Colombia has changed a lot in the last 10 years, as has the rest of the world. Many countries have allowed same sex civil unions and marriages so the Court may reconsider the issue here."

The amicus brief focuses on the constitutional fairness of legal arrangements granting economic benefits to same-sex couples. It surveys the legal developments on this issue in jurisdictions from Massachusetts and Vermont to Canada and Australia as well as in International Human Rights Law.

"We were able to find quite a bit of favorable law for the brief," Carrie Davenport, a first year associate — pending admission to the bar — at Weil, Gotshal & Manges LLP, said. Ms. Davenport worked with Caryn Lederer, a second year associate at Weil, Gotshal & Manges LLP, on the brief. "We found that quite consistently throughout the world — South Africa, Australia, Europe — courts have held that a person's enjoyment of certain basic economic rights cannot depend on his or her sexual orientation."

The Colombian Constitution allows the Court to consider foreign law in its decisions, and foreign amicus briefs have begun to play an important role in constitutional litigation in Colombia, Mr. Restrepo said. Briefs submitted by U.S.–based human rights groups, for example, have been influential in recent decisions on abortion and the Colombian peace process.

"Many justices in Colombia have said that in very difficult issues the Court feels alone and does not have enough information," Mr. Restrepo said. "Amici have an enormous impact because they provide information that might not reach the Court otherwise."

Amicus briefs can also have an impact outside of an individual case or country. They can help secure justice for the party and thereby secure good precedent. This precedent, in turn, can influence legal decisions in other national and international legal forums. While the Colombia Diversa case has important implications for Colombia's LBGT community, the outcome could have legal implications for minority rights around the world.

"It is important for lawyers and bar associations to be involved in this sort of cross-border amicus work because by doing so we encourage and assist national courts to develop and interpret national law in light of that country's obligations under international law and in accordance with evolving international standards of justice," said Erin Kelly, a member of the New York City Bar's International Human Rights Committee and an associate at Shearman & Sterling LLP who worked on the Colombia Diversa brief.

The Colombia Diversa v. Colombia brief was prepared by the Los Andes University School of Law and by lawyers in the New York office of Weil, Gotshal & Manges LLP on behalf of the New York City Bar Association; Human Rights Watch; the International Gay & Lesbian Human Rights Commission; the National Center for Lesbian Rights; the Lowenstein International Human Rights Clinic at Yale Law School; Professor Katherine M. Franke at the Center for the Study of Law and Culture at Colombia Law School; Professor Nan D. Hunter at the Center for Health, Science and Public Policy at Brooklyn Law School, and Red Latinoamericana de Académicas/os del Derecho (Red Alas).

Amicus Brief Defends Freedom of Speech

The Vance Center's Amicus Network also facilitated the drafting and filing of a brief in the case of Carlos Baraona Bray v. State of Chile. Mr. Baraona was taken to court when he accused Chilean Senator Sergio Paez of corruption in connection with the alleged granting of "political" favors to people who had illegally cut down Alerce trees. These trees are classified as endangered and were declared a national monument in Chile in 1976. Several Chilean courts, including the country's Supreme Court, have upheld charges of libel and slander against Mr. Baraona.

Mr. Baraona claims that he was publicly questioning the role of the Senator in these matters. The Chilean courts, however, found that the damage to the Senator's honor was actionable and that Mr. Baraona's speech was not protected because he had not proven the truth of the charges against the Senator.

The Baraona v. Chile brief examines issues of criminal defamation and the legal safeguards that need to be in place to ensure freedom of expression, particularly when it relates to matters of public concern.

"The use of criminal defamation statutes as a tool to silence dissension and limit free speech is well documented," John Maltbie, an associate at Torys LLP who worked on the brief, said. "While the elimination of all criminal defamation statutes should be the goal, arguing for international standards that provide, at a minimum, some procedural safeguards for the accused should go a long way towards protecting free speech in the meantime."

According to Maltbie, the Baraona case is significant on two levels. First, it re-emphasizes the importance of protecting speech, particularly when it is used to critique and question those in power. Second, it demonstrates that the protection of natural resources is a matter of vital public concern.

The Baraona v. Chile brief was prepared by lawyers in the New York office of Torys LLP on behalf of the Media Law Resource Centre, Inc.; Canadian Journalists for Free Expression; and Ad Idem/Canadian Media Lawyers Association.

For more information on the Vance Center's Amicus Network and Global Clearinghouse click here or contact Elise Colomer Grimaldi.

  Back to eNotes August 2006