Sentencia 00926-2007-AA, Constitutional Tribunal of Peru (3 November 2009)
The plaintiff filed an amparo action against the police school’s decision to expel him. The 47th Civil Court of Lima dismissed the amparo and the Lima Superior Court confirmed the dismissal. The plaintiff then appealed to the Constitutional Tribunal.
The plaintiff was a student at the police academy. On 13 October 2003, the school director adopted a report affirming that the plaintiff and another student of the police school had had a homosexual sexual relationship. According to the report, this constituted a serious offence against police morals.
In order to prepare this report, the school director had taken the statements of the two students in addition to statements of witnesses and other students at the school. The school director had also ordered a psychological examination of the two students to discover their sexual orientation and required them to undergo anal examinations.
On 16 October 2003 the school director decided to expel the plaintiff and the second student on the grounds that they had had a relationship and on several occasions had sex within the school premises.
Whether the police school’s decision to expel the plaintiff violated his right to due process.
Constitution of Peru, Articles 1 (protection of the individual and respect for dignity) and 2 (equality before the law and non-discrimination).
Reasoning of the Court
The decision was formed by the votes of 3 judges, who differed on the relevant legal grounds but agreed on the decision to allow the amparo. Two other judges dissented from the decision. What follows is the opinion of Justice Mesía Ramírez.
Having ruled for the admissibility of the claim, the Court analysed the disciplinary regime governing police premises. It noted that the police school’s disciplinary council based its decision to expel the plaintiff and his fellow student on the fact that they had committed serious offences against police morals which “affected the prestige of the school and the institution, undermined morals and discipline and affected honour”.
According to the Court, the issue at stake was whether the administrative process carried out by the school’s authorities sought to discipline the plaintiff for sexual activity conducted on school premises or punish the plaintiff for his sexual orientation.
The Court affirmed that any kind of sexual conduct (whether heterosexual or homosexual) on school premises was a disciplinary offence, especially in light of the role and structure of the institution involved. However, clear proof was required before applying a disciplinary measure; mere supposition was insufficient.
The Court next examined whether guarantees of due process had been respected. It noted that, after rumours of an alleged homosexual relationship, the disciplinary council had interrogated the plaintiff and his fellow student. The two students at first admitted having had homosexual relations in, as well as outside the school premises. However, they later retracted their confessions and said they had made them because of fear and pressure.
The Court then dealt with the other evidence taken: the psychological and anal examinations carried out with the aim of determining whether the two students were homosexuals. According to the Court, it was adoption of these procedures that violated the plaintiff’s rights. In fact, neither examination was decisive in determining whether the two students had had sexual relations within the school premises. Their aim was rather to demonstrate that the students were homosexual. It was therefore their sexual orientation that constituted the serious offence causing their expulsion.
In particular, the Court criticised the decision to subject the two students to a psychological examination. This procedure left room to suppose that homosexuality was a mental disorder that had to be cured. The Court affirmed that these ideas were anachronistic and retrograde and violated the right to privacy, the right to free development of the personality, and the right to integrity, and amounted to discriminatory treatment. According to the Court, homosexuality was a legitimate sexual choice that was part of the individual’s sphere of intimacy. The exercise of this freedom was grounded in the right to privacy and the right to free development of the personality. It followed that every discriminatory treatment based on sexual orientation was contrary to the Constitution.
Furthermore, the Court held that the decision to subject the two students to anal examinations constituted ill treatment violating personal integrity, and therefore amounted to degrading treatment.
The Court allowed the plaintiff’s amparo action against the police school’s decision to expel him, on the grounds that the administrative procedure against him had violated his rights to human dignity, integrity, privacy, free development of the personality and due process, and his rights not to be subjected to degrading treatment. The Court declared void the resolution that expelled the plaintiff from the police school and issued an order to accept him back as a student.
Sentencia 00926-2007-AA, Constitutional Tribunal of Peru – Spanish (full text of judgment in Spanish, PDF)