Case Summary and Outcome

The Federal Administrative Contentious Court No. 11 of Argentina declared null and void Resolution 943/2023 of the National Ministry of Security, known as the “Protocol for the Maintenance of Public Order in the Event of Roadway Blockages.” The amparo action was brought by the Center for Legal and Social Studies (CELS), which argued that the Protocol arbitrarily and disproportionately restricted the rights to freedom of expression, assembly, and protest, and further usurped legislative powers reserved to Congress. The Ministry of Security defended the measure as an exercise of its authority to preserve public order and freedom of movement in the face of street blockages. The court held that, although the State may organize operations to facilitate and regulate traffic during demonstrations, it may not, through a ministerial resolution, redefine criminal offenses or regulate the scope of constitutional rights, as those matters fall within Congress’s authority. In particular, the court held that the Protocol’s broad definition of “obstruction of transit” improperly expanded Article 194 of the Criminal Code. The court also concluded that the resolution lacked sufficient reasoning, as it invoked urgency without adequate argumentative or statistical support. For these reasons, the court granted the amparo and declared the Protocol null and void.

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Facts

On December 26, 2023, the Center for Legal and Social Studies (CELS), a civil society organization dedicated to the defense of human rights, filed an amparo action against the National Ministry of Security of Argentina. In its complaint, CELS requested the nullification and declaration of unconstitutionality of Resolution 943/2023 (entitled the “Protocol for the Maintenance of Public Order in the Event of Roadway Blockages”), on the grounds that it affected the right to freedom of expression, the right of assembly, and the right to protest, as protected under Articles 14 and 14 bis of the National Constitution and Articles 13, 15, and 16 of the American Convention on Human Rights.

CELS argued that the Protocol constitutes a regulation that violates the right to express oneself freely and to demonstrate publicly, insofar as it discourages the exercise of those rights due to fear of state sanctions in the context of protests (including criminalization, use of force, and other reprisals). In this regard, CELS explained that the challenged measure has “the capacity to discourage the exercise of the right to freedom of expression due to fear of being criminalized or injured in the context of a protest, losing legal status, custody of children, or even losing social protection from the state.” [p. 1]

Also, CELS alleged that Resolution 943/2023 was not limited to establishing operational guidelines for security forces, but rather encroached upon matters reserved to Congress by defining the scope of constitutional rights such as the right of assembly and freedom of expression, imposing restrictions on their exercise, and incorporating sanctions. In particular, it argued that the Ministry of Security lacked the authority to issue a regulation of that nature and that the urgency grounds invoked did not authorize it to replace the legislative powers of the National Congress.

Further, CELS emphasized that the Protocol violated the principle of legality with respect to restrictions on freedom of expression and protest. In its claim, it specifically challenged the definition of “obstruction of transit” contained in the resolution and asserted that this formulation created a framework aimed at intimidating and discouraging participation in protests. [p. 2] In addition, CELS explained that the Protocol “deploys a series of state tools aimed at intimidating and discouraging the exercise of the right to protest that could be characterized as mechanisms of prior censorship (…) disregarding that the right to protest is a fundamental right of individuals.” [p. 2]

On June 14, 2024, Federal Administrative Contentious Court No. 11 declared itself competent to hear the case.

Subsequently, on August 28, 2024, the National Ministry of Security filed its response and requested dismissal of the amparo action brought by CELS. The State argued that CELS’s arguments were conjectural and had been disproven by subsequent events, noting that various protests and public demonstrations had taken place since the filing of the amparo action. It also explained that the Protocol had been issued for the purpose of preserving public order in the face of street blockages, without suppressing the exercise of the right to protest. In turn, it defended the validity of Resolution 943/2023, or the Protocol, asserting that the measure was compatible with the right to freedom of expression and protest, while pursuing a legitimate aim linked to the maintenance of public order.

Finally, the National Ministry of Security explained that the Protocol’s main objective was to instruct the intervening forces on how to act in the event of obstruction to the transit of persons or means of transport, and in cases of partial or total blockages of national routes and other circulation routes under federal jurisdiction. In that context, it maintained that CELS’s claim improperly interfered with powers inherent to the administration and to governmental action.

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Decision Overview

Judge Martin Cormick delivered the judgment of Federal Administrative Contentious Court No. 11. The main issue before the court was whether Resolution 943/23 —which created the “Protocol for the Maintenance of Public Order in the Event of Roadway Blockages” (hereinafter, the “Protocol”)— issued by Argentina’s Ministry of Security to regulate the intervention of federal forces in public demonstrations, constituted a regulatory excess by the Executive Branch that illegitimately restricted the rights to freedom of expression, peaceful assembly, and protest.

CELS argued that the Protocol constituted a form of prior restraint designed to intimidate and discourage public demonstrations. It maintained that the Ministry of Security had usurped legislative powers by redefining as a crime any protest that reduces circulation or traffic flow. It further argued that the Protocol was disproportionate because, under the pretext of protecting free movement, it emptied the rights to freedom of expression and assembly of their substance.

For its part, the State defended the validity of the Protocol as an administrative act issued in the exercise of ministerial powers to coordinate security forces and preserve public order and traffic flow in the context of protests.

First, the judge explained that the right to petition the authorities and the right of assembly are protected under Article 14 of the National Constitution and Article 21 of the International Covenant on Civil and Political Rights.

Then, citing the Supreme Court of Justice of Argentina in the “Arregui” case, he stated that the “competent State institutions have the duty to design adequate operational plans and procedures to facilitate the exercise of the right of assembly. This ranges from the reorganization of pedestrian and vehicular traffic in each area to persons participating in the assembly or demonstration, in order to guarantee their safety and facilitate the performance of the activities that motivate the gathering.” [p. 24]

Likewise, the judge explained that the “right of assembly has its origin in individual liberty, freedom of speech, and freedom of association. It is inconceivable how these rights could be exercised (…) without the freedom to assemble or associate, to teach or learn, to spread ideas, petition the authorities, guide public opinion, and pursue other lawful purposes.” [p. 25]

The judge recalled that the State’s power to regulate rights is not unlimited, since it requires, on the one hand, that regulation be issued by the constitutionally competent authority and in accordance with the prescribed procedure, and, on the other, that it respects the essential content of the right involved. In this regard, the court stressed that a regulation may not distort or empty a constitutional right of its content, such as the rights to freedom of expression and assembly.

The Court emphasized that, although the Ministry of Security had authority to issue instructions to its forces, it may not use administrative resolutions to regulate or restrict fundamental rights, as this power is reserved exclusively to the Legislative Branch under Article 28 of the National Constitution. The judge explained that “under the guise of an internal Protocol,” the Ministry had effectively assumed “legislative powers that do not belong to it.” [p. 27]

Next, the Court held that, by defining in an extremely broad manner what should be understood as “obstruction of transit” —including any gathering that reduced circulation even without creating a danger and without considering the existence of alternative routes— the Protocol authorized the intervention of security forces in situations not contemplated by Article 194 of the Criminal Code, which punishes obstruction of transit on public roads.

On this point, the judge explained that the Protocol redefined offenses established in the Criminal Code in the context of protests. The court reiterated that the Protocol expanded the scope of Article 194 of the Criminal Code by classifying any “gathering of persons” that reduces the width of a public roadway as a crime, even when no dangerous situation is created. [p. 26] The judge clarified that the authority to define which conduct affects legal interests and should be subject to criminal law belongs exclusively to the National Congress.

In turn, the Court held that the powers of the National Ministry of Security under the Ministries Law (Law 22,520) cannot be interpreted —even implicitly— as authorization to redefine the scope of Criminal Code provisions or regulate constitutional rights, such as the rights to freedom of expression or assembly.

The Court also held that the Protocol contained defects or flaws affecting its validity in light of Law 19.549 on administrative acts. In particular, the judge found that the resolution lacked sufficient reasoning because it invoked the “urgency” of the measures without providing “explanations” or data or “adequate statistics” to support it, and without explaining the reasons and purpose of the decision (“why” and “for what purpose” it was adopted). [p. 34]

For all these reasons, the judge concluded that Resolution 943/23, which implemented the Protocol, was unlawful because it exceeded the Executive Branch’s regulatory powers. Accordingly, the judge granted CELS’s amparo action and declared the “nullity” of the Protocol. [p. 37]

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