REPORT No. 81/13
CASE 12,743
MERITS
HOMERO FLOR FREIRE
ECUADOR
November 4, 2013
I.
SUMMARY
1.
On August 30, 2002, the Inter-American Commission on Human Rights (hereinafter “the
Inter-American Commission,” “the Commission,” or “the IACHR”) received a petition submitted by
Alejandro Ponce Villacís and Juan Manuel Marchán (hereinafter “the petitioners”) alleging the
responsibility of the Republic of Ecuador (hereinafter “the State” or “the Ecuadorian State”) for the
discharge of Homero Flor Freire (hereinafter “Homero Flor,” “Mr. Flor,” “the alleged victim” or “the copetitioner”), a Military Police Officer of the Ecuadorian Terrestrial Force (hereinafter “the Terrestrial
Force” or “the Army”) due to an alleged disciplinary infraction.
2.
On March 15, 2010, the Commission adopted Report No. 1/10, in which, without
prejudging on the merits, it decided to continue with the analysis of the merits in relation to the alleged
violation of Articles 8(1), 24, and 25 of the American Convention, all in conjunction with the general
obligation to respect and ensure the rights, set forth at Articles 1(1) and 2 thereof, to the detriment of
Homero Flor Freire.
3.
The petitioners argue that several rights of Homero Flor were violated beginning with
the disciplinary proceeding instituted against him, which culminated in the decision to order his
discharge from the Ecuadorian Army. They allege that this decision was based on alleged discriminatory
practices, and the arbitrary and unwarranted distinction established in the military legislation to punish
sexual conduct in a military facility, when involving homosexual practices. The petitioners also allege
violations of the rights to due process and judicial protection because in the course of the proceedings
that led to his discharge, Homero Flor did not have an opportunity to controvert the testimonial
evidence taken, and did not have adequate or effective remedies to challenge that decision.
4.
The State, for its part, argues that the instant case is related to the application of
normative provisions that have already been derogated from the Ecuadorian legal order, thus it is a
matter that was already resolved domestically, and also that the guarantees of due process and judicial
protection were observed in the case of Mr. Flor. In addition, and given that it was not possible to reach
a friendly settlement, it considers it appropriate for the IACHR to proceed to analyze the merits and to
issue the respective report.
5.
After analyzing the parties’ positions, the facts established, and the applicable human
rights framework, the Inter-American Commission concluded that the Ecuadorian State is 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. Based on the conclusions of this report, the
IACHR makes the following recommendations to the Ecuadorian State: (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