REPORT Nº 48/96
October 16, 1996
I. The petition alleges that the municipal organizers of athletic competitions in Costa Rica discriminated against women athletes, in particular, against the applicant, Emérita Montoya González, by arbitrarily establishing lower prizes for female athletes as compared with male athletes despite a regulation that provides that the categories and prizes shall be equal. Since the organizers were a municipality, state responsibility for the action is imputed. The applicant alleges that the authorities established fewer categories for women than men and that the prizes for the women were lower than for men in the same category of competition. In particular, Mrs. Montoya, on August 28, 1993, wished to participate in the marathon in the municipality of Heredia, and the regulations for the 12 kilometer race established categories for male "juveniles" and "veterans" which were not established for females.
2. The applicant alleges that the State of Costa Rica has violated Articles 1.1 (obligation to respect rights), 8.1 (right to a fair trial), 24 (right to equal protection) and 25.1 (right to judicial protection) of the American Convention on Human Rights.
The applicant, Mrs. Emérita Montoya González, is represented in
this case by the Center for Justice and International Law (CEJIL), the
Asociación Ventana and Disabled People International (DPI).
The petition was presented to the Commission by letter dated
November 3, 1995, which was received on November 7th.
On August 28, 1993 the municipality of Heredia and the Costa
Rican Federation of Athletics organized the Second Municipal Race.
The rules for the 12 kilometer race, in Article 11, excluded the
categories of "juveniles" and "veterans" for female
runners although these categories were established for male runners.
Article 19 of these rules established a first place prize for
male runners in the amount of 20,000 Costa Rican colones whereas the
first place prize for female runners was set at 10,000 colones.
The second place prize for male runners was set at 15,000 colones,
whereas the second place prize for female runners was only 5,000 colones.
In addition, the rules contemplated a third place only for male
runners, and the prize was 10,000 colones, equivalent to the first place
prize for female runners.
The applicant stated that Mrs. Emérita Montoya registered to run
the race but without the possibility of obtaining a prize in case she
would have been first in her category since the rules had eliminated her
category ("veterans") for female runners.
The domestic law of the Costa Rica, in particular, Decree Law
number 191189-c, provides that all competitive sports must provide equal
prizes for men and women. Applicant
alleges that Costa Rican law promotes equality between men and women and
does not allow for arbitrary discrimination based on sex.
Applicant further alleges that the law is not observed in
practice as is shown by the activities of state authorities, such as the
municipality of Heredia, which organize discriminatory footraces.
The applicant alleges that the State of Costa Rica has violated
Articles 1.1 (obligation to respect rights), 8.1 (right to a fair
trial), 24 (right to equal protection) and 25.1 (right to judicial
protection) of the American Convention on Human Rights.
Mrs. Montoya presented a writ of amparo to the Constitutional
Chamber of the Supreme Court of Costa Rica on August 23, 1993, alleging
that the failure to establish the same categories for female runners
that existed for male runners, and the difference in the prizes for male
and female runners were discriminatory actions which prejudiced her.
The applicant states that the Constitutional Chamber of the Costa
Rican Supreme Court rejected ad portas the writ of amparo
presented on the applicant's behalf.
The applicant was not notified until May 1995 that the writ had
been rejected and she alleges that there is no other simple and
effective remedy available in Costa Rica for the human rights violation
which is the subject matter of this case.
The applicant requests that 1) the case be opened and processed
pursuant to Articles 46-51 of the American Convention and Article 19 of
the Rules of Procedure of the Commission; that the complaint be
transmitted to the Government of Costa Rica pursuant to Article 48 of
the Convention; and that 2) Costa Rica be found to have violated
Articles 1.1, 8, 24 and 25.1 of the Convention; and that compensation be
ordered and paid pursuant to Article 63 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
December 5, 1995, the Commission acknowledged receipt of the complaint
and transmitted the pertinent parts of the complaint to the Government
of Costa Rica and requested it to provide whatever information it deemed
appropriate within 90 days.
note dated January 16, 1996, and faxed to the Commission on the same
date, the Government of Costa Rica indicated that it did not receive the
complaint until January 10th and requested an extension of time within
which to respond. By letter
dated January 24, 1996, the Commission granted an additional period (of
45 calendar days from the date of its letter) for the Government to
note dated March 13, 1996 the Government of Costa Rica responded to the
complaint. The Government
argued that the case should be declared inadmissible by the Commission
pursuant to Article 47.b of the American Convention for failing to
"state facts that tend to establish a violation of the rights
guaranteed by this Convention."
Government disputed the applicant's allegation that the writ of amparo
is not a simple and efficient means of redressing violations of
fundamental human rights in Costa Rica.
The Government pointed out that this writ is invoked massively by
Costa Rican nationals and foreigners and that the Constitutional Chamber
of the Supreme Court has decided more than 25,000 cases in the last 6
years. In addition, the
Government noted that the writ of amparo is also used to impugn
administrative norms and actions. It
does not follow, however, the Government concluded, that when one
presents a writ of amparo that one will win one's case, and that
although the writ of amparo is the appropriate remedy in this case, it
does not follow that the Costa Rican Supreme Court will automatically
favor the position of the applicant.
Government pointed out that there were also other remedies that Mrs.
Montoya could have invoked such as the writ of amparo of legality
("el amparo de legalidad"), which is set forth in Article 357
of the Law on Public Administration (#6227 of 1978); precautionary
measures set forth in Article 242 of the Code of Civil Procedure by
which a civil judge is empowered to suspend an action which, in his
opinion, could be prejudicial to the interests of one of the parties, or
by which an administrative judge is empowered to suspend a similar
addition, the Government stated that the applicant could have
challenged, in the Costa Rican Supreme Court, the constitutionality of
the rules for the 12 kilometer race that became the subject matter of
the case before the Commission. Costa Rican law permits challenging the constitutionality of
a law as part of a writ of amparo action.
Having presented a writ of amparo, Mrs. Emérita Montoya could
have challenged the constitutionality of the rules of procedure of the
race, since they were legal
norms issued by the municipality of Heredia for the event.
The fact that she did not do so, the Government alleged, was not
due to any legal obstacle but rather to incorrect legal advice or her
own negligence. In
addition, the Government noted, she could have challenged the legality
of the rules of the race in an administrative action, pursuant to Costa
Rican administrative law.
Government of Costa Rica argued further, in its response dated March 13,
1996, that the applicant had no standing to bring this action.
At the time of the race, August 28, 1993, she could not have
participated in the "juveniles" category since she was 36
years of age and not a juvenile. She
also could not have participated in the "veterans" category,
since the lowest age to participate in that category would have been 40
years of age. Consequently
Mrs. Montoya only qualified for the category of "adults" which
did in fact exist.
In order to apply for a judicial, administrative or other remedy
before an international body it is necessary that the applicant
demonstrate standing to bring the action.
addition, the Government of Costa Rica pointed out that the applicant,
Mrs. Montoya did not even participate in the race, although her category
existed and she could have competed.
Since she did not participate, the Government argued, there could
not have been a violation of her rights since none of her interests
could have been affected. From the information submitted by the municipality of Heredia,
the Government stated that from the 13 participants who registered for
the 12 kilometer race on August 28, 1993, only Mrs. Emérita Montoya is
missing from the final list of runners whose times were registered,
leading it to conclude that she either did not run the race or abandoned
Government of Costa Rica emphasized that in the 1992 race only one woman
wished to run in the "veterans" category and only four in the
"juveniles" category, and for that reason these categories
were excluded in the 1993 race for female runners.
In the 1993 race, the Government pointed out, the prizes for the
female runners were not less than the prizes for the male runners, but
were in proportion to their participation in the race, since the prizes
are derived from the entry fees paid by the participants.
In the 1993 race only 13 female runners participated, and they
were between the ages of 26 and 38 years of age, all in the
"adult" category, compared to the 116 male runners who
the differences in prizes was not arbitrary discrimination but in direct
proportion to the participation of the runners and their payment of
entry fees from which the prizes were derived.
conclusion, the Government of Costa Rica requested that the Commission
declare this petition inadmissible for failure to state a violation of
the American Convention. The
Government stated that Mrs. Montoya accepts that it is not
discriminatory to create separate categories for male and female
runners; accepts that to create one category for female runners is not
discriminatory; accepts that her interest is not in competition but in
winning prizes; has no right to request inclusion in a category to which
she does not belong (in the 1993 12 kilometer race held in Heredia); has
no right to request prizes different from the category for which she
qualified, first, because she did not place well in the race since she
did not run or complete it; has no standing to present complaints of a
general character since there are no identified victims or no one who
can show that her interests have been negatively affected; and, in
addition, she has presented no information to show that she has
exhausted her domestic remedies.
Government's reply was transmitted to the applicant on April 9, 1996,
who were requested to submit their observations thereon within a period
of 45 days. By note dated
May 22, 1996, the applicant requested an extension of time within which
to formulate her observations on the reply of the Government.
By letter dated May 24, 1996, the Commission gave the applicant
an extension of 45 days from the date of the letter to submit her reply.
applicant submitted her observations on the Government's reply by letter
dated July 8, 1996, and requested that the Commission formally admit the
case and grant a hearing to the applicant during the next period of
sessions. The applicant's
observations were transmitted to the Government of Costa Rica by letter
dated July 18, 1996. A
hearing was held on the admissibility of this case on October 8, 1996
from 9:00 am until 10:30 am at the headquarters of the Commission in
Washington, D.C. Representing
the Government of Costa Rica were Ambassadors on Special Mission, Lic.
Fabián Volio and Dr. Linnetthe Flores Arias, and representing the
applicants were the lawyers, Mr. Ariel Dulitzky and Ms. Marcela
Matamoros from CEJIL, and CEJIL/MESOAMERICA, respectively.
THE QUESTION REGARDING ADMISSIBILITY AT ISSUE IN THIS CASE
Grounds of Inadmissibility
Government of Costa Rica has requested the Commission to declare
case inadmissible on the grounds that the petition "does not state
facts that tend to establish a violation of the rights guaranteed by
47 of the American Convention states that the Commission shall consider
a petition inadmissible if:
any of the requirements indicated in Article 46 have not been
the petition or communication does not state facts that tend to
establish a violation of the rights guaranteed by this Convention;
the statements of the petitioner or of the State indicate that
the petition or communication is manifestly groundless or obviously out
of order; or
the petition of communication is substantially the same as one
previously studied by the Commission or by another international
formal admissibility requirements sets forth in Article 46 of the
American Convention have been met by the applicants.
Applicant alleged that a writ of amparo was presented to the
Supreme Court and dismissed in 1993.
The petition was lodged within a period of 6 months from the date
(May 1995) on which the applicant was notified of the dismissal of the
writ of amparo. Applicant
alleged that the domestic legislation of Costa Rica is inadequate in
protecting the rights of the victim, since there is no simple and rapid
remedy for the violation alleged and, therefore, there are no further
domestic remedies to exhaust. The
subject matter of the petition is not pending in another international
proceeding for settlement. The
petition contained the name, nationality, profession, domicile and
signature of the individual and organizations lodging the petition.
petition is not manifestly groundless or obviously out of order and the
petition is not substantially the same as one previously studied by the
Commission or by another international organization.
eliminated the grounds sets forth in Article 47.a, c. and d., the
Commission now proceeds to consider the remaining condition, set forth
in Article 47.b.
Does the petition state facts that tend to establish a violation
of the rights guaranteed by this Convention?
44 of the American Convention provides that "[A]ny person or group
of persons, or any nongovernmental entity legally recognized in one or
more member states of the Organization, may lodge petitions with the
Commission containing denunciations or complaints of violation of this
Convention by a State Party." Unlike the provisions of the European Convention and the
United Nations Covenant on Civil and Political Rights the applicant need
not claim to be the victim of the violation of the Convention in the
liberal standing requirement of the inter-American system should not be
interpreted, however, to mean that a case can be presented before the
Commission in abstracto. An
individual cannot institute an actio popularis and present a
complaint against a law without establishing some active legitimation
justifying his standing before the Commission.
The applicant must claim to be a victim of a violation of the
Convention, or must appear before the Commission as a representative of
a putative victim of a violation of the Convention by a state party.
It is not sufficient for an applicant to claim that the mere
existence of a law violates her rights under the American Convention, it
is necessary that the law have been applied to her detriment.
If the applicant fails to establish active legitimation, the
Commission must declare its incompetence ratione personae to
consider the matter.
this case the issue is whether Mrs. Emérita Montoya González suffered
a violation of any right protected by the American Convention as a
result of an action taken by the State of Costa Rica, sufficient to give
her standing to bring this action before the Inter-American Commission
on Human Rights.
applicant, Mrs. Montoya, was 36 years of age at the time of the race
that she wished to enter on August 28, 1993.
At the time the rules for the female runners, established by the
municipality of Heredia which organized the race, provided for only one
category of female runners. That
category was for "adult" runners, and excluded the categories
of female "juveniles" or "veterans."
Mrs. Montoya claims to belong in the category of female
"veterans," although in 1992 the "veterans" category
was comprised of female runners aged 40 and above and Mrs. Montoya in
1993 was only 36 years of age. During
the hearing on this case the representatives of the applicant admitted
that Mrs. Montoya did not run in this race, the rules of which she is
challenging, because the category of "veterans," into which
she felt she belonged, did not exist.
When the representatives of the applicant were asked why Mrs.
Montoya wanted to run as a "veteran" since she was only 36
year old, the reply was that she wanted the category of
"veterans" to be established for women aged 35 and above.
is clear that the applicant in this case has not established active
legitimation to appear before the Commission and that the Commission
must consider itself incompetent to consider this matter ratione
personae. The applicant
did not qualify to run in the "veterans" category since she
was under the age of 40 at the time of the race in 1993, and she chose
not to run in the "adult" category for which she qualified,
which might have demonstrated the need for a "veterans"
category for female runners, had female runners over the age of 35
participated in significant numbers and placed significantly behind the
female runners under the age of 35.
In fact, the Government of Costa Rica provided information which
proved the contrary, in that the three female athletes who placed first,
second and third in the 1993 race in which Mrs. Montoya did not
participate, all running in the "adult" category, were
respectively 36, 33 and 26 years of age.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
declare inadmissible ratione personae, in accordance with Article
47.b of the American Convention, the petition presented in the instant
case, number 11.553.
send this report, declaring inadmissible the petition, to the Government
of Costa Rica and to the applicants.
publish this report in the Annual Report to the General Assembly of the
 The Government pointed that the rules for the 12 kilometer
race had been amended in 1993 and the categories for
"juveniles" and "veterans" eliminated for women.
In 1992 the category "juveniles" included those up
to the age of 17 years 11 months and 29 days; "adults"
included those from 18 - 39 years, 11 months and 29 days;
"veterans" included those aged 40 and above.