39
Council of General Officers of the Army, which did not fulfill the duty to state the grounds in the terms
required by the domestic legal order and the American Convention.143
153. The Court has also noted that the exercise of the disciplinary power has the objective of
evaluating the conduct and performance of a public official.144 This means that the duty to state grounds
is all the greater for the organ entrusted with exercising that power145, thus it is required that it analyze
autonomously “how serious the conduct is and whether the penalty is proportionate.”146
154. Finally, equally relevant for the instant case, it should be noted that the Inter-American
Court has also argued that the reasoning used to make a decision “must also show that it has duly taken
into account the arguments of the parties and that the evidence has been analyzed.”147
155. In this respect, the decision of May 7, 2001, of the Council of Subaltern Officers,
indicates that after that body held a session to address the matter it was decided that there were no
“legal grounds” that would make it possible to overturn what was decided by the Court of Law, and so
one had to accept its request regarding the imposition of said disciplinary sanction. The facts of the case
make it possible to establish that in the proceeding before this body Homero Flor did not have a
mechanism for adequate participation by which he could exercise his right to defense. In effect, Mr. Flor
argued in the motion for reconsideration filed against that decision that during the proceeding before
that authority he had asked investigative steps be taken to clarify the facts, but that the request had not
been heeded and was not to be found in the record before the Ministry of National Defense, as his
defense counsel had proven. The Commission observes that in the same motion for reconsideration Mr.
Flor forwarded a series of requests: (i) to begin an investigation into the alleged irregularities committed
in that proceeding; (ii) to declare null and void the decision by the Council of Subaltern Officers; and (iii)
that his attorney be granted a hearing.
156. The Commission notes that the resolution by the Council of Subaltern Officers of June 5,
2001, by which Mr. Flor was notified that his request for reconsideration had been denied, only
indicated that it was based on there having been no “change in the factual and legal bases” of the
resolution challenged. Nonetheless, there was no ruling on the merits as to the admissibility of the other
requests filed by Mr. Flor, nor on the irregularities alleged to have plagued that stage of the proceeding.
157. As regards the appeal decided by the Council of Superior Officers of the Armed Forces
by resolution of July 18, 2001, the Commission notes that this decision did not include a pronouncement
143
I/A Court H.R. Case of Mejía Idrovo v. Ecuador. Preliminary Objections, Merits, Reparations and Costs, Judgment of
July 5, 2011, Series C, No. 228, para. 64. In this case the Inter-American Court determined that the Constitutional Court of
Ecuador had cured an omission by the Council of General Officers of the Ecuadorian Army by setting forth the reasoning behind
a decision.
144
I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 5, 2008, para. 86.
145
I/A Court H.R. Case of Chocrón Chocrón v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2011. Series C. No. 227, para. 120.
146
I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 5, 2008, para. 86.
147
I/A Court H.R. Case of López Mendoza v. Venezuela. Merits, Reparations and Costs. Judgment of September 1,
2011. Series C. No. 233, para. 141.