I/A Court H.R., Case of Flor Freire v. Ecuador. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 31, 2016. Series C No. 315.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – The applicant, Mr Homero Flor Freire, was    a member of the Ecuadorian Armed Forces when he was dismissed from his position as lieutenant for allegedly engaging in homosexual acts inside military quarters with another soldier. However, he continuously denied such acts and did not identify as homosexual.

 

After the alleged acts, his commander released him from his functions and responsibilities. Disciplinary proceedings were initiated on the basis of Article 117 of the Regulations on Military Discipline, which provided for the dismissal of members of the armed forces, inter alia, when caught in homosexual acts inside or outside military facilities. Article 67 of the Regulations provided for the temporary arrest or suspension of members of the armed forces engaging in non-homosexual acts inside military facilities.

 

During the disciplinary proceedings, the commander acted as judge and, after finding that the applicant had engaged in homosexual acts, recommended his dismissal. This recommendation was accepted by the Council of Officers. A subsequent constitutional complaint filed by the applicant was found inadmissible on the grounds that the judgment rendered in the disciplinary proceedings was in accordance with the rule of law.

Law

(a)     Articles 24 (right to equal protection) of the American Convention on Human Rights (ACHR), in con- junction with Articles 1(1) (obligation to respect and ensure rights without discrimination) and 2 (domestic legal effects) – The Inter-American Court stressed that a person’s sexual orientation depends entirely on his or her self-identification. Discrimination based on perception has  the  effect  and  purpose of hindering and nullifying the recognition, enjoyment and exercise of a person’s human rights and fundamental freedoms, irrespective of whether the person identifies with a certain category or not. As   a consequence, the person is reduced to the only characteristic attributed to him or her regardless of other personal conditions.

 

In this context, sexual orientation is a category protected under Article 1(1) of the ACHR, whether real or perceived. The prohibition of discrimination based on sexual orientation is not limited to the fact of being a homosexual per se, but includes its expression and the ensuing consequences in a per- son’s life project. The prohibition of discrimination based on sexual orientation in the armed forces has been recognized in international instruments and jurisprudence, including that of the European Court of Human Rights.

 

The Inter-American Court acknowledged the reasonableness and legitimacy of restrictions on sexual acts inside military facilities or during active duty with the purpose of preserving military discipline. Nevertheless, in the case at hand, it found that there had been an unjustified difference between the sanction of non-homosexual acts and homo- sexual acts, with the latter receiving a much harsher punishment. The Court ruled that the State had the burden to provide an objective and reasonable justification for the more severe punishment assigned to homosexual acts. Since the State had failed to provide such a justification, it was responsible for a violation of the right to equal protection before the law and the prohibition of discrimination.

Conclusion: violation (unanimously).

 

(b)     Articles 9 (principle of legality) and 11(1) (right to have honour respected and dignity recognised)   of the ACHR, in conjunction with Article 1(1) – The applicant argued that the conduct for which he had been punished was not established by  law.  The Inter-American Court noted that the sanction imposed on the applicant was  not  exclusively  based on an administrative regulation, but also on the Law of Personnel of the Armed Forces. It held that in matters of disciplinary sanctions, certain undetermined legal concepts could be specified, in terms of their interpretation and content, through infra-legal regulations or jurisprudence in order to avoid an excessive discretion in their application.

 

There was no conventional obligation prohibiting conduct not considered as a criminal offence from being sanctioned through disciplinary procedures. Therefore, the decriminalisation of homosexuality in Ecuador did not imply a general prohibition on sanctioning the applicant for engaging in sexual acts inside military facilities.

 

However, the applicant´s honour and reputation had been harmed by the discriminatory disciplinary proceedings he had been subjected to, which had led to a distortion of public opinion regarding his person.

Conclusion: no violation of Article 9; violation of Article 11(1) in conjunction with Article 1(1) (unanimously).

 

(c)      Articles 8(1) (right to a fair trial) and 25(1) (right to judicial protection) of the ACHR in conjunction with Articles 1(1) (obligation to respect and ensure rights) and 2 (domestic legal effects) – With regard to the guarantee of impartiality, the mere fact that the applicant´s superior was the one who exercised disciplinary power over him was not contrary to the ACHR. However, the fact that the same commander who had released the applicant from his functions and responsibilities had later acted as a judge in the disciplinary proceedings, implied a prior judgment of the facts. It was therefore not possible to affirm that his approximation to the facts lacked prejudice or preconceived notions with respect to the incident, in a way that could have allowed him to form an opinion solely based on the evidence gathered during the proceedings.

 

Finally, Ecuador had demonstrated that the applicant could have lodged a contentious administrative appeal to challenge the disciplinary decisions leading to his dismissal. However, even if this remedy may have been adequate to obtain an effective judicial protection, the applicant had not used it so the Court could not assess its suitability and effectiveness in the present case.

Conclusion: violation of Article 8(1) in conjunction with Article 1(1); no violation of Article 25(1) in con- junction with Articles 1(1) and 2 (unanimously).

 

(d)     Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation and ordered the State, inter alia, to: (i) give the applicant the status of a military officer in retirement with the corresponding rank and social benefits of his colleagues; (ii) eliminate the reference to the disciplinary proceedings from his military résumé; (iii) publish the  judgment  and its official summary; (iv) implement training programmes for members of the armed forces about the prohibition of discrimination based on sexual orientation, and (v) pay compensation in respect of pecuniary and non-pecuniary damage, as well as costs and expenses.