Inter-American Court: Ecuador Discriminatorily Discharged Soldier for Sexual Orientation
The Inter-American Court of Human Rights (IACtHR) has held Ecuador internationally responsible for discriminating against a military police officer of the army based on sexual orientation in a recently published opinion adopted in August 2016. Homero Flor Freire was dismissed pursuant to the army’s rules of military discipline, which punish sexual acts between persons of the same sex with discharge from service. See I/A Court H.R., Flor Freire v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of 31 August 2016. Series C No. 315. (Spanish only) [IACHR Press Release] Flor Freire v. Ecuador is the first time that the Court has ruled on whether military disciplinary regulations may punish sexual acts between persons of the same sex without violating the principle of equality and non-discrimination guaranteed in the American Convention on Human Rights. [IACHR Press Release]
Flor Freire v. Ecuador
In Flor Freire v. Ecuador, the IACtHR was specifically asked to answer whether Ecuador’s standards and regulations, which punish sexual acts between persons of the same sex or have the effect of punishing the actual or perceived sexual orientation of its members and are intended to maintain discipline and order within a military institution, are compatible with the Inter-American system’s principles of equality and non-discrimination. [IACHR Press Release] The Court found that the regulations violate these principles, explaining that the distinctions Ecuador made between sanctions for “homosexual acts” and sanctions for non-homosexual sexual acts discriminate based on sexual orientation, a protected characteristic. See I/A Court H.R., Official Summary of Caso Flor Freire v. Ecuador (Spanish only).
The events that led to the disciplinary proceedings against Freire occurred on November 9, 2009. Freire denies that he engaged in the alleged sexual acts and argued that he does not identify as a homosexual. However, witnesses testified that they saw Freire engaging in sexual conduct with another male soldier in his room located on military facilities. See id.
The Court emphasized that the focus of the case was not the sexual orientation of Freire, but rather the application of the military disciplinary provisions punishing sexual acts between persons of the same sex. Thus, the Court focused on the outcome of the disciplinary proceedings conducted in accordance with the rules of military discipline. Further, it reiterated that in defining a person’s sexual orientation, the only relevant fact is how a person identifies, but discrimination may be based on real or perceived sexual orientation. See id.
The Court found that that the disciplinary proceedings differentiated between sanctions for “homosexual acts” and sanctions for non-homosexual sexual acts. See id. Article 117 of the rules of military discipline established that if an officer of the army engages in “acts of homosexuality,” that person will be discharged in the interest of good service, whether due to “misconduct or professional incompetence.” This sanction differed from that applied in cases in which an officer committed “illegitimate sexual acts,” reserved for certain sexual activities between members of the opposite sex. These were considered a “severe infraction” that could result in strict arrest at another facility for three to 10 days and a suspension of 10 to 30 days, but not dismissal from the army. See IACHR, Merits Report No. 81/13, Case 12.743, Homero Flor Freire (Ecuador), 4 November 2013, paras. 116-17. The application of these provisions against Freire was sufficient for the Court to conclude that the disciplinary proceedings were discriminatory based on Freire’s sexual orientation, whether it be real or perceived. [IACtHR Press Release]
In addition to holding that the disciplinary proceedings against Freire were discriminatory, the Court also concluded that Ecuador did not respect Freire’s honor and dignity – protected under Article 11 of the American Convention on Human Rights – because the disciplinary sanctions against him were discriminatory in nature and distorted the public perception others had of him. See I/A Ct H.R., Official Summary of Caso Flor Freire v. Ecuador.
The Court also considered whether Ecuador violated the guarantee of impartiality in the proceedings. Military disciplinary proceedings, the Court reiterated, must comply with Article 8.1 of the American Convention, which guarantees the right to a fair trial. The judge who made the decision to discharge Freire was also involved in the initial phase of the investigation of Freire in his capacity as zone commander, and one month before he issued Freire’s disciplinary decision, he had required Freire to hand over his responsibilities and his room in light of the investigation. Based on the fact that the judge was also Freire’s immediate superior, the Court found that Ecuador violated the guarantee of impartiality in violation of Article 8.1. See I/A Ct H.R., Official Summary of Caso Flor Freire v. Ecuador.
The Inter-American Commission on Human Rights (IACHR) submitted Freire’s case to the Court’s jurisdiction on December 11, 2014 after granting Ecuador various extensions to comply with the IACHR’s recommendations issued in November 2013. [IACHR Press Release] In its Merits Report, the IACHR recommended that Ecuador make full reparations to Freire; publicly recognize that Freire was discharged from the army in a discriminatory fashion; adopt measures to ensure persons working in the army are not discriminated against based on their actual or perceived sexual orientation; adopt measures to ensure army personnel and military courts are familiar with Inter-American standards and domestic law provisions regarding non-discrimination based on sexual orientation, actual or perceived; and adopt measures guaranteeing the right to due process for members of the military during disciplinary proceedings, including the right to impartial judges and courts. See IACHR, Merits Report No. 81/13, Case 12.743, Homero Flor Freire (Ecuador), 4 November 2013, para. 5.
Referral of Cases to the IACtHR
After receiving and reviewing a petition and finding it admissible, the IACHR issues a merits report on the allegations and determines whether the State is responsible for any human rights violations. When the IACHR concludes that the facts of the case constitute human rights violations, the merits report includes recommendations to the State for repairing those violations. The IACHR may refer cases to the Court if it determines that a State party to the American Convention that has accepted the Court’s jurisdiction committed human rights violations and failed to follow the IACHR’s recommendations.
For more information about the Inter-American system, the IACHR, or the Inter-American Court, please visit IJRC’s Online Resource Hub. For additional information on discrimination against individuals for their actual or perceived sexual orientation, see IJRC’s Thematic Research Guide on LGBTI persons.