Wednesday, November 2, 2016

Inter-American Court condemns Ecuador for discriminating against a military official for exercising his sexual orientation

On November 4, 2013, the Inter American Commission (IACHR) concluded that the Ecuadorian State was responsible for violating the rights enshrined in Articles 8(1), 24, and 25 of the American Convention in relation to its Articles 1(1) and 2, to the detriment of Homero Flor Freire. The IACHR recommended that Ecuador: (1) make full reparation to Mr. Homero Flor Freire in the terms indicated in this report, both materially and morally, including measures of satisfaction for the harm caused; (2) publicly recognize that Mr. Homero Flor Freire was discharged from the Ecuadorian Army in a discriminatory fashion; (3) adopt the state measures necessary to ensure 3 that the persons who work in the Ecuadorian Army or any office or section of the Ecuadorian army are not discriminated against based on their actual or perceived sexual orientation; (4) adopt the necessary state measures for the personnel of the Ecuadorian Army or any office or section of the Ecuadorian army, as well as the judges at law in the military jurisdiction, to become familiar with the inter-American standards and with the provisions of Ecuadorian domestic law regarding non-discrimination on the grounds of sexual orientation, actual or perceived; and (5) 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.

The case involves the international liability of the Ecuadorean State, stemming from decisions that led to the separation of Mr. Homero Flor Freire from the Ecuadorean Ground Forces, under then-applicable Rules of Military Discipline. Those Rules punished, with separation from service, sexual acts between persons of the same sex. The Commission found that, although “maintaining discipline within an armed force” is a legitimate purpose, punishing “homosexual acts” in the armed forces is not a valid means of protecting the military values in question, such as honor, dignity, discipline, and civility. The Commission stated that to say otherwise would be to ascribe a negative value to sexual activity per se between persons of the same sex, and would encourage stigmatization of lesbians, gays, bisexuals, or persons so perceived.

The Commission also found that the Rules then in force provided a less damaging punishment for “illicit sexual acts” than for acts characterized in those Rules as “homosexual acts.” On this point, the Commission found such difference in treatment to be discriminatory. The Commission also found that the specific proceedings, both in the presentation of evidence and in the court's explanation of its reasoning, were biased by discriminatory prejudices concerning a person's ability to carry out his or her functions within a military institution on the basis of his or her actual or perceived sexual orientation. Finally, the Commission found that the proceedings against Mr. Homero Flor Freire violated the guarantee of impartiality and that the petition for protection lodged did not constitute an effective recourse for protecting his rights.

Although public apologies were issued on July 28, 2014, the Commission, considering the disagreement between the parties on the remaining reparations and the consequent lack of full reparations, decided to submit to the jurisdiction of the Court all of the facts and human rights violations described in report 81/13 on the merits, given the need to obtain justice for the victim in this case.

This was the Inter-American Court's first opportunity to rule on punitive actions of states based on a person's sexual orientation, whether actual or perceived. Specifically, the Court is asked to rule on the compatibility with the principle of equality and nondiscrimination of regulations and procedures that, with the stated purpose of maintaining discipline or order in a military institution, punish sexual acts between persons of the same sex, or have the effect of punishing its members for their sexual orientation, whether actual or perceived.

On August 31, 2016 the Court held that the separation of Mr. Flor Freire from the Armed Forces was a discriminatory act .  The case was notified to the Government of Ecuador on November 1, 2016. The disciplinary proceedings carried out against Mr. Flor Freire, for allegedly having committed homosexual acts within a military installation were declared discriminatory.

During the military disciplinary proceedings Flor Freire denied that a homosexual act had taken place and denied being a homosexual. The Court found that the disciplinary regimen treated homosexual acts more severely than non-homosexual acts. For that reason it determined that there was discrimination in the disciplinary proceedings against Flor Freire because of his different sexual orientation, whether this was true or only perceived.  Sexual orientation of persons is a protected category of the American Convention on Human Rights.  For that reason, no norm or decision or practice of internal law, either on the part of the state authorities or individuals, can reduce or restrict in any way, the rights of a persons due to his/her sexual orientation, real or perceived.   The Court declared the State of Ecuador responsible internationally for the violation of the right to equal protection before the law and the prohibition of discrimination against Mr. Flor Freire.  It also considered the State responsible for the impact on his right to honor and reputation as a consequence of the disciplinary proceedings. 

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