33
When a State has ratified an international treaty such as the American Convention, all of its
bodies, including its judges, are also subject to such a treaty, and this obligates them to ensure
that the effects of the provisions of the Convention are not diminished by the application of
norms contrary to its object and purpose. The Judicial Branch must exercise “control of
conformity with the Convention” ex officio of the harmonization of the domestic norms with the
American Convention, evidently within the framework of their respective jurisdictions and the
corresponding procedural rules. In this task, the Judicial Branch should bear in mind not only the
treaty, but also the corresponding interpretation made by the Inter-American Court, the final
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interpreter of the American Convention.
127. In this respect, the Inter-American Commission observes that in the instant case the
domestic courts breached their obligation to bring the provisions of domestic law into line with the
requirements of the American Convention, in particular in relation to the right to equality before the
law, when they examined the domestic provisions related to the punishment of acts of homosexuality in
the Ecuadorian Armed Forces.
128. In view of the foregoing considerations, the Commission concludes that the Ecuadorian
State violated the right enshrined in Article 24 of the American Convention in relation to the general
obligations established in Articles 1(1) and 2 of the same instrument to the detriment of Mr. Homero
Flor.
3.
Right to a Fair Trial and Judicial Protection (Articles 8(1) and 25(1) of the American
Convention)
a.
Preliminary considerations on the application of judicial guarantees to disciplinary
proceedings against members of the military
129.
Article 8(1) of the American Convention establishes that:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the determination
of his rights and obligations of a civil, labor, fiscal, or any other nature.
130.
Article 25(1) of the American Convention provides:
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention, even though
such violation may have been committed by persons acting in the course of their official duties.
131.
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The Inter-American Court has held:
I/A Court H.R. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011 Series C No.
221, para. 193; I/A Court H.R. Case of Almonacid Arellano et al. v. Chile. Judgment of September 26, 2006. Series C No. 154,
para. 124; I/A Court H.R. Case of Gomes Lund et al. (Araguaia guerrilla movement) v. Brazil. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, para. 176; I/A Court H.R. Case of Cabrera García and
Montiel Flores v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 26, 2010. Series C No.
220, para. 225.