Women and Justice: Jurisdiction

Domestic Case Law

Sentencia T-627/12 Constitutional Court of Colombia (2013)

Gender discrimination

A group of 1280 Colombian women filed a writ of constitutional challenge for the protection of their fundamental rights to information, dignity, autonomy, free development of the individual, health, education, reproductive rights, and the right to benefit from scientific progress. They claimed that the Inspector General’s Office had breached their rights by misrepresenting the Constitutional Court’s order by, inter alia, making statements contrary to the jurisprudence of the Constitutional Court, contrary to determinations made by the World Health Organization, and making false assertions about the existence of a right to life of the unborn and the public’s demand for protection of the unborn by the civil servants. The Court held that the Inspector General had issued false information about the Court’s order in sentence T-388 of 2009 (asserting that the Court’s decision promoted abortion where in fact it promoted access to information on sexual and reproductive rights, including information on abortion) and thus had violated his duty to provide accurate information. The Court held that the Inspector General’s statement that emergency contraceptives are abortive contradict the WHO’s findings and ordered the official position of the Inspector General’s Office be rectified accordingly. The Court held that Deputy Inspector General Hoyo’s letter, which relieved health clinics of the obligation to remove obstacles to abortion, was a violation of the duties of that office and ordered the letter be rectified. The Court also found for the Applicants the right to receive accurate information with respect to: (1) institutions’ rights to claim conscientious objection or the possibility of its collective exercise regarding abortion; and (2) the inclusion in the Compulsory Health Plan of misoprostol, a drug which was authorized by the Food and Drug Surveillance Institute and the WHO in voluntary interruption of pregnancy but was inaccurately alleged by the Deputy Inspector’s letter as dangerous for women’s health. The Court for the first time held that it was the obligation and duty of public servants to provide accurate, reliable and timely information to women regarding their rights to sexual and reproductive health. This decision is significant not only within Colombia but in the Latin American region with respect to women’s access to the sexual and reproductive health services.

Sentencia T-636/11 Constitutional Court of Colombia (2011)

Gender discrimination

In 2011, Ms. Tenjo Hernandez discovered that she was six weeks pregnant and requested voluntary termination of pregnancy based on information provided by the medical staff that her epilepsy medications could cause congenital deformities in the fetus. The doctor refused to perform the procedure unless a court order was issued. Ms. Hernandez filed a writ of constitutional challenge to enforce her rights, which the Courts of first and second instance denied based on the reasoning that Ms. Hernandez’s grounds for relief did not fall under any of the prongs of Decision C-355 of 2006 which permitted Colombian women and girls the right to voluntary termination of pregnancy. The Constitutional Court reviewed the case, despite the fact that there were not any deformities in the fetus and Ms. Hernandez had withdrawn her request for relief. The Court held that women do not carry the burden of establishing their health conditions and the status of their pregnancy; healthcare facilities and doctors are responsible to determine any fetal deformities incompatible with life outside the womb. Therefore, the Court ruled that healthcare facilities should comply with the Constitutional Court’s rulings in Decision C-355 of 2006, should not make value judgments of women who request voluntary termination of pregnancy and are prohibited from requesting court orders to perform voluntary termination of pregnancy.

Sentencia T-841/11 Constitutional Court of Colombia (2011)

Gender discrimination

A twelve-year-old girl requested voluntary termination of pregnancy after having consensual sex with her boyfriend on the grounds that her mental and physical health, particularly with respect to the effects from obstetric complications, were in jeopardy as a result of the pregnancy. The healthcare provider denied her request, despite the fact that the request fulfilled legal requirements, on the grounds that the medical certificate to the girl’s health conditions was issued by a doctor who did not belong to the same healthcare provider network as the girl’s healthcare network. The pregnancy was carried to term and the girl’s mother filed a writ of constitutional challenge to enforce the girl’s right to abortion when the girl was not yet five months pregnant. After nearly a month, the Court of First Instance denied the writ, finding that the girl’s life was not in danger. The Constitutional Court ruled, however, that insurance providers and healthcare providers should not erect improper obstacles to the performance of voluntary termination of pregnancy except for the conditions established by Decision C-355 of 2006, and that they have a duty to take all necessary measures to ensure that women meeting the legal requirements under Decision C-355 of 2006 may have the procedure performed. In this case, one medical certificate would have been sufficient to clear the girl for the performance of voluntary termination of pregnancy as there was no requirement under Decision C-355 of 2006 that the medical certificate must come from doctors in the network of the healthcare provider of the girl or women requesting the procedure. The Court also ruled that the healthcare provider violated its duty to provide timely and clear diagnosis when they took almost a month to deny the request. The Court ordered the healthcare provider to pay restitution damages to the girl including all damages caused by its improper refusal to perform the procedure and any medically necessary services resulting from the birth.

Process No. 23508 (Nelson Armando Otalora Cardena) Supreme Court of Justice (2009)

Sexual violence and rape

In 2002, Ms. Sandra Patricia Lamprea Duque, a 23 year old Colombian woman, reported that she was raped by Nelson Otalora, the accused. The rape was part of multiple instances of mistreatments, threats, harassments and economic exploitations that lasted for eight years between 1994 and 2002. Due to statutory limitations, the accused was only charged with rape which took place in 2002. The Court of First Instance acquitted the accused based on the reasoning that Sandra Patricia had had a relationship, albeit a difficult one, with the accused and therefore the act at issue could not be ascertained as without consent. The Court of Second Instance found the accused guilty and sentenced him to imprisonment on the reasoning that occurrence of violence renders historical sexual intimacy and lack of resistance during the act at issue irrelevant. The Court also concluded that the credibility of the victims of sexual violence could not be questioned by the court based on previous sexual relations, that lawyers must respect fundamental human rights and that a victim of sexual violence should not be “re-victimized” by legal professionals during legal proceedings involving sexual violence. The Court noted, however, that lack of consent could not be inferred from a dysfunctional relationship, as was the case between the aggressor and the accused.

Decision T-946/08 Constitutional Court of Colombia (2008)

Gender discrimination

The plaintiff’s daughter suffered from Prader Willi syndrome or Down Syndrome and was mentally disabled. The mother noticed changes in her daughter’s body and discovered that she had been pregnant as a result of rape. The mother asked the healthcare provider to terminate pregnancy and filed a writ of constitutional challenge after her request was denied by the healthcare provider on conscientious objection. The Court of First instance denied the writ on the grounds that there was no medical certificate showing that the daughter’s life was jeopardized by the pregnancy, that the fetus had deformities, or that a crime had been reported. The mother appealed the decision and stated that Decision C-355 of 2006 specifically contained a rape prong as a ground for requesting voluntary termination of pregnancy. The Court of Second Instance also denied abortion on the grounds that even though a rape may have occurred, the pregnancy had reached an advanced gestational age (25 or 26 weeks). The Constitutional Court found for the plaintiff mother and held that the healthcare provider violated the rights of the daughter, a victim of a violent sex crime. The Court ruled that conscientious objections must be made with sufficient number of professionals in a network and may only be claimed by natural persons, that the healthcare provider must provide the service in a timely manner, i.e., within five days of request (so as to not let the pregnancy be carried to term), failure to perform the procedure under discriminatory circumstances carry the consequence of investigations by the disciplinary bodies of both the healthcare provider and the lower court judges, which the Constitutional Court ordered.

Decision T-045 of 1995 Constitutional Court of Colombia (1995)

Domestic and intimate partner violence

The plaintiff filed a writ of constitutional challenge and requested the respondents, the plaintiff’s common-law partner for fifteen years and his current live-in partner, not disturb her home and that the house in which she was currently residing be granted to her. The trial court denied the relief sought on the grounds that the plaintiff could resort to other legal means such as liquidation of the partnership at will. The appeal court affirmed. The Constitutional Court denied the writ on lack of evidence showing torture or cruel, inhumane or degrading treatment. The Court did not equate a declaration of intent to sue (by the respondents over the property) to taking the law into one’s own hands, duress or threats against the person or family of the petitioner. The Court concluded that the plaintiff was independently employed and was not defenseless or subordinate to her former partner, and she had other legal means to enforce her rights.

Decision T-420/92 Constitutional Court of Colombia (1992)

Gender discrimination

Plaintiff dropped out from her high school in 1990 due to pregnancy after attending from 1985 to 1989. After giving birth, she requested re-admission and was denied based on moral grounds by the principal, including the fact that she was a single mother. The plaintiff filed a writ of constitutional challenge for readmission. The trial court granted relief and the Constitutional Court affirmed. The Court found that the school violated the plaintiff’s right to education by denying re-admission on moral basis and without due process. The Court also held that the plaintiff’s right to equality was violated because she was discriminated against based on her status as a single mother. The Court also ruled that the plaintiff’s right to free development of personality was violated as this right includes the path of motherhood.

Sentencia T-988/07 Constitutional Court of Colombia (2007)

Gender-based violence in general

The Court ordered defendant, a health-care provider, to provide a mentally and physically-disabled woman with an abortion after she became pregnant from nonconsensual sexual intercourse. The Court held that because of her mental disability, the woman's parents could request the abortion, despite the fact that the woman was 24-years old. The Court also held that the rape need not have been reported to the authorities, as was argued by the defendant.

Sentencia C-534/05 Constitutional Court of Colombia (2005)

Gender discrimination

The Court held that 4, while prima facie unconstitutional, is acceptable if done with the constitutional purpose of furthering the rights of women, considered a constitutionally-protected class, and not with the purpose of maintaining traditional societal roles. The Court held that "the special protection of women allows for discriminatory treatment with constitutional ends." The Court also affirmed that minors are a protected class, protected both by the Colombian Constitution but also by the international treaties to which Colombia is a signatory.

Sentencia C-667/06 Constitutional Court of Colombia (2006)

Gender discrimination

The Court held that existing legal provisions and international treaties that provide women with special rights and considerations were not in violation of the Colombian Constitution's equal rights provision. The Court reasoned that such provisions were not aimed at withholding rights from men, but instead were aimed at correcting any shortcomings in the rights owed to women. 

Sentencia T-058/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing an appellate court ruling and affirming a trial court ruling, the Court reaffirmed the rights to employment of pregnant and nursing women.  

Sentencia T-088/08 Constitutional Court of Colombia (2008)

Gender-based violence in general

Recognizing the constitutional vulnerability of pregnant women and unborn and newborn children, the Court ordered defendant, and insurance company, to insure plaintiff, an 18-year old pregnant woman, who had lost the right to her parents' insurance upon reaching the age of 18. 

Sentencia T-209/08 Constitutional Court of Colombia (2008)

Gender-based violence in general

Therapeutic abortion in cases of rape, incest, and to save the health and life of the woman. The Court reaffirmed that a ban on abortion in all instances would an unconstitutional violation of women's fundamental rights. 

Auto 102-07 Constitutional Court of Colombia (2007)

Gender-based violence in general

The Court ordered the Secretary General of the Court to hold a planning session along with several other governmental and non-governmental entities to address issues of forced displacement of women.

Sentencia T-496/08 Constitutional Court of Colombia (2008)

Gender violence in conflict

Court recognized the special vulnerability of women in situations of armed conflict and ordered the Ministry of the Interior and the Ministry of Justice, as well as the Attorney General, to implement and revise programs to protect victims and witnesses of armed conflicts, consistent with national and international law and practice.

Sentencia A092/08 Constitutional Court of Colombia (2008)

Gender violence in conflict

The Court recognized the special constitutional protection that women displaced by armed conflict are entitled to, as well as international obligations applicable to women displaced by armed conflict. The Court ordered the creation of programs to bring attention to the plight of displaced women and to strengthen their constitutional rights. The court also granted protective orders to more than 600 displaced women. Finally, the court alerted the Attorney General of numerous sexual crimes committed against women during Colombia's armed conflict. 

Sentencia T-549/07 Constitutional Court of Colombia (2007)

Sexual violence and rape

Court held that plaintiff, who was accused of raping two women, did not have his due process rights violated when tried by an indigenous tribunal because the due process followed by the indigenous tribunal was consistent with the due process requirements of the national courts. 

Sentencia C-101/05 Constitutional Court of Colombia (2005)

Gender discrimination

Explaining that the right to marry or remarry is a fundamental right, the Court held that wills and testaments that required a woman to remain single or widowed were unconstitutional. 

Sentencia T-549/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing a lower court's finding, the Court ordered defendant to reinstate plaintiff in her prior place of employment after it found that defendant had improperly fired plaintiff due to her pregnancy, thereby violating her rights as a pregnant woman. 

Sentencia C-322/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court was asked to reexamine the domestic implications of Colombia's adoption of the CEDAW. Those opposing the CEDAW argued that its adoption would have grave consequences and be inconsistent with the Colombian Constitution. The Court affirmed the constitutionality of Colombia's participation in the CEDAW.

Sentencia T-622/05 Constitutional Court of Colombia (2005)

Custodial violence, Gender-based violence in general, Sexual harassment

The Court held that prison procedural rules that required vaginal inspections of female visitors, and that did not allow female visitors to enter the prison while menstruating, violated female visitors' right to dignity, personal liberty and health. The Court ordered the National Institute of Prisons and Jails (Instituto Nacional Penitenciario y Carcelario) to stop such intrusive inspections and install at the prison in question, the Cárcel Distrital Villahermosa de Cali, equipment necessary to accomplish the safety objectives of a vaginal inspection without needing to conduct such an inspection.

Sentencia C-355/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court ruled that a complete ban on abortion was unconstitutional and legalized abortion in cases of incest, danger to the health of the mother, and rape, involuntary insemination, serious deformity to the fetus, or when the mother is under the age of 14. In instances of deformity to the fetus or danger to the mother, the Court required that medical evidence be provided.  The Court relies on its obligations in international law to protect women's rights to health and life, among others.

Sentencia T-877/07 Constitutional Court of Colombia (2007)

Gender discrimination

The Court affirmed that an employer is not only constitutionally-required to provide adequate maternal leave for pregnant workers, but also bound by regional and international treaties to which Colombia is a signatory, such as the Additional Protocol to the American Convention on Human Rights  ("Protocol of San Salvador").

Sentencia C-507/04 Constitutional Court of Colombia (2004)

Forced and early marriage, Gender discrimination

The Court was asked to examine the constitutionality of Article 34 of the Colombian Civil Code, which established the minimum age of marriage for women as 12, while the minimum age for men as 14. The Court struck the wording from the Civil Code that differentiated in age based on gender, and set the minimum age of marriage at 14.