13 49. In his action Homero Flor alleged that the proceeding before the First Court of Investigation of the Fourth Military Zone had been brought for “alleged homosexualism” based on Article 117 of the Rules of Military Discipline. In this respect, it held that this provision should be understood as derogated, since the “crime of homosexualism” had been declared unconstitutional by resolution 106-1-97 of the Constitutional Court of November 27, 1997, thus he could not be punished for conduct which, according to the legal order in place, was not criminalized. 50. In his amparo action Mr. Flor also argued that a series of irregularities were committed during the summary information proceeding that violated his right to defense and due process. He noted in particular that in receiving testimonial evidence, one day before the hearing was held, “an auxiliary of the Division’s personnel transmitted the order from [his] General Zabala, Commander of the Division,” for certain activities to be carried out in the city of Ambato. Mr. Flor argued in this regard that “the day [of the hearing he had] to go through a great deal to have that order rectified” to be able to be present with his defense counsel at the hearing. 51. Similarly, he adduced that his defense had presented a recusal against the prosecutor of the Military Zone for having acted in a “biased manner and against his professional obligations,” it having been by petition of the prosecutor that Mr. Flor was not allowed to be present at the statements of the witnesses who testified against him.34 Mr. Flor argues that said recusal had been rejected by the First Court of Investigation, which had limited itself to “publicly admonishing” the representative of the prosecution.35 He also argued that when he went to the GIM-4 to give a report about what had happened, he did not have “the advice of legal counsel.”36 52. By decision of January 29, 200137, the Sixth Court for Civil Matters of Pichincha admitted the constitutional amparo action and called the parties to a hearing on February 5, 2001.38 53. As appears in the record of the hearing held on February 5, 200139 and the briefs filed by the parties with the Sixth Court for Civil Matters of Pichincha40, the representative of the respondents raised different arguments related to the amparo action being inadmissible, including that: (i) the 34 Annex 3. Constitutional amparo action filed by Homero Flor Freire before the Judge for Civil Matters, January 23, 2001. Annex to the initial petition of August 20, 2002. 35 Annex 3. Constitutional amparo action filed by Homero Flor Freire before the Judge for Civil Matters, January 23, 2001. Annex to the initial petition of August 20, 2002. 36 Annex 10. Brief filed by Homero Flor with the Sixth Court for Civil Matters of Pichincha, February 6, 2001. Annex to the initial petition of August 20, 2002. 37 Annex 11. Ruling by the Sixth Court for Civil Matters of Pichincha, January 29, 2001. Annex to the initial petition of August 20, 2002. 38 Annex 12. Record of Hearing before the Sixth Court of Pichincha, February 5, 2001. Annex to the initial petition of August 20, 2002. 39 Annex 12. Record of Hearing before the Sixth Court for Civil Matters of Pichincha, February 5, 2001. Annex to the initial petition of August 20, 2002. 40 Annex 13. Briefs filed with the Sixth Court for Civil Matters of Pichincha within constitutional amparo action No. 742001, by the Ministry of National Defense, February 8, 2001; by the General Commander of the Army and his legal counsel, February 5, 2001; by the Legal Representative of the Presidency of the Republic, February 6, 2001; and the Director of Legal Representation, delegate of the Chief Defense Counsel of the State, February 6, 2001. Annexes to the initial petition of August 30, 2001.