35
obligations ... has the obligation to adopt decisions that are in consonance with the guarantees of due
legal process in the terms of Article 8 of the American Convention.”127
136. The IACHR has ruled similarly in a case related to the administrative proceeding against
a member of the Peruvian Army, indicating that all the judicial guarantees established in Article 8(2) of
the American Convention applied to the case.128 Finally, the Inter-American Court and the IACHR have
heard several cases in which it was established that the judicial guarantees set forth in Article 8 apply to
proceedings in military courts against members of the military for criminal offenses or disciplinary
infractions which by their very nature have constituted an attack on legal values particular to the
military order.129
137. In the instant case the IACHR observes that the petitioners make a series of arguments
related to the alleged violations of due process in the case of Mr. Flor, which will be analyzed separately
by this Commission. The State argues in general terms that the procedure was carried out with respect
for Mr. Flor’s due process guarantees.
b.
Alleged impossibility of being present at witness statements
138. In light of the foregoing considerations, the Commission observes that in the instant
case the petitioners have argued that in the course of the summary information proceeding Mr. Flor’s
defense did not have an opportunity to be present during the delivery of the statements by the
witnesses who declared against him, or to question them.
139. In this respect, and having already determined that the guarantees established at Article
8(2) of the American Convention apply to disciplinary proceedings such as that brought against Mr. Flor,
the IACHR takes note of the guarantee established at Article 8(2)(f), which notes the “the right of the
defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of
experts or other persons who may throw light on the facts.” Thus, if this allegation is corroborated, the
IACHR would find a violation of that guarantee set forth in the Convention.
140. Nonetheless, the IACHR notes that from the documentary evidence in the record it is
not possible to show that in effect Mr. Flor did not have an opportunity to be present at the witness
statements, which were the basis for determining his disciplinary liability and his discharge. Accordingly,
the Commission does not have sufficient information to analyze a possible violation of Article 8(2)(f) of
the Convention on this particular aspect of the arguments with respect to the summary information
proceeding. The IACHR also observes that the Rules of Procedure for Summary Information Proceedings
in force at the time of the facts, beyond containing a general provision to the effect that the judge shall
receive the statements after witnesses have taken the oath, does not make any mention of the right to
examine witnesses.
127
I/A Court H.R. Case of the Constitutional Tribunal v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 104.
128
IACHR, Report No. 20/99, Case 11.317, Rodolfo Robles Espinoza and Sons (Peru), February 23, 1999, para. 97.
129
I/A Court H.R. Case of Palamara Iribarne v. Chile. Judgment of November 22, 2005. Series C No. 135; I/A Court H.R.
Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009.
Series C No. 207. See also, IACHR, Report No. 135/11, Case 12.167, Merits, Hugo Oscar Argüelles et al. (Argentina), October 31,
2011.