IACHR

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IACHR Takes Case concerning Ecuador to the Inter-American Court

April 30, 2015

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human Rights in Case 12.743, Homero Flor Freire with regard to Ecuador.

The case concerns the State of Ecuador’s international responsibility as a result of the decisions that led to the separation of Homero Flor Freire from the Ecuadorian Army, based on the Rules of Military Discipline then in effect. Under these regulations, the punishment for sexual acts between persons of the same sex was separation from service. The Inter-American Commission found that while “maintaining discipline within an armed institution” constitutes a legitimate aim, there is no real relationship of means and ends between punishing “acts of homosexuality” in the armed forces and upholding the military values sought to be protected, such as honor, dignity, discipline, and the promotion of civic-mindedness. Moreover, the IACHR indicated that to argue otherwise would imply ascribing a negative moral value to the sexual act between persons of the same sex, in addition to promoting the stigmatization of lesbian, gay, or bisexual persons or those perceived as such. In this decision, the IACHR further indicated that the fact that someone may be “perceived” as having a sexual orientation other than heterosexual does not necessarily mean that this person identifies with that orientation. However, this does not rule out the possibility of being exposed to the discrimination to which people have historically been and continue to be subjected due to their sexual orientation.

In addition, the Inter-American Commission found that the rules then in effect contemplated a less severe punishment for “illegitimate sexual acts” as opposed to those referred to in the regulations as “acts of homosexuality.” On this point, the Commission characterized such difference in treatment as discriminatory. The IACHR also found that, both in terms of evidence-gathering and legal grounds, the proceedings were marked by bias and discriminatory prejudice with regard to a person’s aptitude to perform his or her duties within a military institution based on his or her actual or perceived sexual orientation. Finally, the Commission found that the guarantee of impartiality was violated in the case pursued against Homero Flor Freire and that the appeal for protection that was filed did not constitute an effective remedy to protect his rights.

The Inter-American Commission submitted Case 12.743 to the Court’s jurisdiction on December 11, 2014, because despite the extensions granted and the efforts carried out to reach an agreement on compliance with recommendations, at the time the decision was adopted the main aspects of the recommendations had not been met. In its Merits Report, the IACHR recommended that the State of Ecuador make full reparation to Homero Flor Freire in the terms indicated in the report, both material and moral, including measures of satisfaction for the harm caused, and that it publicly recognize that Homero Flor Freire was discharged from the Ecuadorian Army in a discriminatory manner. The Commission also recommended adoption of the state measures needed to ensure that people who work in the Ecuadorian Army or in any of its offices or sections are not subject to discrimination based on their actual or perceived sexual orientation. The Inter-American Commission also requested that the State take the necessary state measures so that the personnel of the Ecuadorian Army or any of its offices or sections, as well as the courts of law in the military jurisdiction, become familiar with the inter-American standards and the provisions of Ecuadorian domestic law regarding non-discrimination based on actual or perceived sexual orientation, and that it adopt the necessary state measures to guarantee the right to due process for members of the military tried by courts in disciplinary proceedings, including the right to an impartial judge or court.

This case will enable the Inter-American Court, for the first time, to rule on punishment or sanctions exercised by States based on a person’s actual or perceived sexual orientation. Specifically, the Court is being asked to rule on the question of whether standards and procedures that for the alleged purpose of maintaining discipline or order within a military institution punish sexual acts between persons of the same sex, or have the effect of punishing the actual or perceived sexual orientation of its members, are compatible with the principle of equality and non-discrimination.

The IACHR is an autonomous organ of the OAS, and derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance of human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected by the General Assembly of the OAS in a personal capacity and do not represent their countries of origin or residence.

No. 043/15