Difamación/ Injuria/ Reputación
González v. Serrano
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The Inter-American Court of Human Rights (IACtHR) did not hold Argentina responsible for the violation of the right to freedom of expression in respect of Carlos and Pablo Mémoli. However, it considered that the state failed to guarantee the right to a trial in a reasonable time and the right to property, recognized by Articles 8.1 and 21 of the American Convention on Human Rights (ACHR), respectively. Carlos and Pablo Mémoli were convicted on charges of defamation based on reports that they denounced the management of the Asociación Italiana de Socorros Mutuos, Cultural y Creativa “Porvenir de Italia” [an Italian Mutual Association, usually a type of civil association integrated by migrants or their descendants] and, specifically, spoke of fraud by members of the Management Committee who irregularly sold recesses in the municipal public cemetery. The IACtHR determined that the protection of the rights to the honor and reputation of the accused by Carlos and Pablo Mémoli were sufficient ground to prosecute them, and consequently the reasoning of the domestic court that held them responsible for defamation was in accordance with the ACHR. The IACtHR also considered that the standards on decriminalization of expressions of public interest did not apply to this case. However, it stated that the claim for damages against them exceeded a reasonable time and, particularly, the duration of the precautionary measures had disproportionally affected their right to private property.
Mr. Carlos Mémoli, was a pediatrician and a member of the Management Committee of the Asociación Italiana de Socorros Mutuos, Cultural y Creativa “Porvenir de Italia” (hereinafter “the Italian Association”). He resigned from the association on April 16, 1991, due to a series of internal conflicts with other members. His son, Pablo Mémoli, was a “journalist and a lawyer, and Managing Director of La Libertad, a newspaper founded in 1945 and published twice a month in San Andrés de Giles, a town 100 kilometers away from Buenos Aires (the capital of Argentina)” [para. 64].
In 1994, both father and son were convicted on probation by a local court – one of them to a month and the other to five months – on charges of defamation, defined by Article 110 of the Criminal Code in force at the time. The conviction was based on the statements published in newspapers and radio shows by the Mémolis against three members of the Management Committee of the Italian Association. They have also filed a complaint before the National Mutual Action Institute in which they reported fraud by members of the Management Committee who according to them had irregularly sold recesses in the municipal cemetery of the city of San Andrés de Giles.
In 2009 the Argentinian Criminal Code was modified to reduce the sanctions on defamation and to exclude public interest or non-assertive expressions from the criminal jurisdiction. Carlos and Pablo Mémoli filed various unsuccessful remedies at the domestic level, claiming that they should not be prosecuted for a conduct that was no longer a crime. In December 2009, the appeal was rejected by the Appellate Court and later the Supreme Court of Justice of the Province of Buenos Aires declared it inadmissible.
In December 1997, the members of the Management Commission that were reported, Antonio Guarracino, Humberto Romanello, and Juan Bernardo Piriz, filed an action for damages against Carlos and Pablo Mémoli based on the criminal conviction for defamation. In this context, a precautionary measure was ordered that prevented them from selling or seizing their property to guarantee the eventual payment of the damages. However, by the time the process reached the IACtHR, the first instance decision had not yet been delivered and, as a result, the precautionary measure had been in force for over 17 years.
In December 2011, the Commission submitted the case to the IACtHR for the violation of Articles 8.1 and 13 of the ACHR, in relation to Articles 1.1 and 2.
The central issue that the IACtHR had to decide upon was whether the liability imposed was compatible with Article 13 of the ACHR. Particularly, the Court had to determine whether the expressions of Carlos and Pablo Mémoli were of public interest and whether the domestic courts had examined in detail if criminal sanctions were appropriate in this case in accordance with the ACHR. Then, the Court had to analyze whether the change in legislation was applicable to this case. Finally, it had to determine whether the duration of the action for damages and of the precautionary measures ordered was reasonable, or if it violated the principle of reasonable time and the right to property in respect of the Mémolis.
The Court ruled that the convictions imposed on Carlos and Pablo Mémoli accorded with Article 13.2 of the ACHR, since the offence was expressly established by law, and it was meant to ensure the reputation of others. It also concluded that, given the circumstances of the case and the analysis of the domestic judicial authorities, the imposition of liability for the exercise of freedom of expression was not manifestly disproportionate. In this sense, the Court highlighted that, in strict observance of its subsidiary competence, its role was not to make an independent and autonomous weighing of the conflicting rights; rather, its role was to verify if the state’s authorities had done a reasonable and sufficient analysis.
The Court proceeded to evaluate the alleged public interest of the information contained in the reports made by the Mémolis as it understood this was a central aspect of the conflict between the parties. In this respect, the Court noted that “Article 13 of the Convention protects statements, ideas or information ‘of all kinds’, whether or not they are of public interest” [para. 145]. Nonetheless, the determination of the public interest of the information is relevant for judges to assess the cases where freedom of expression is restricted, for when there is a public interest involved, they should be especially careful. However, in the instant case, the Court considered that the expressions did not involve public figures or officials, nor did they relate to the functioning of State institutions. On the contrary, the expressions referred to a conflict between individuals that would only affect the members of a private mutual association. Furthermore, two domestic judicial cases analyzed and dismissed this argument by considering it insufficient to justify the defamatory or derogatory statements made against the reputation of the complainants [para. 139].
Having concluded that the sanction was compatible with Article 13 of the ACHR and that, specifically, the expressions of Carlos and Pablo Mémoli were not of public interest, the Court determined that the decriminalization of expressions of public interest contained in the new legislation were not applicable to this case. Moreover, the Court noted that, in any case, according to the Appellate Chamber, the application of the new provision to the conviction was inadmissible as the term of punishment had already finished.
The Court then analyzed the violation of the right to be trialed in a reasonable time and to the right to property. In this respect, the Court determined that the fact that the action for damages was still unresolved after 15 years was unreasonable, and that precautionary measures that prevented Carlos and Pablo Mémoli to dispose of their property for more than 17 years were disproportionate. In light of these findings, the Court pointed out that domestic courts did not evaluate the possibility of mitigating the impact of the precautionary measures on the victim’s property, resulting in punitive measures rather than precautionary. In consequence, the Court concluded that the State violated the principles of being judged in a reasonable time and the right to private property enshrined in Article 8.1 and Article 21 of the ACHR, respectively, in relation with Article 1.1 of the same document, to the detriment of Carlos and Pablo Mémoli [para. 180].
Joint partially dissenting opinion of Judges Ventura Robles, Vio Grossi, and Ferrer Mac-Gregor Poisot
The dissenting judges held differences with the majority vote in respect of the violation of the right to freedom of expression.
First, they considered that the main issue that should have been decided by the Court was if the criminal sanction was necessary, instead of defining whether the domestic courts could impose liabilities in accordance with the ACHR. According to them, the task was not to determine whether any restriction or imposition of liabilities to the exercise of the right to freedom of expression should be exacted, but whether or not the restrictions were necessary to ensure respect for the rights or reputations of others, pursuant to Article 13 of the ACHR. In this regard, the Court should not be acting as a fourth instance to the domestic courts, it should define instead whether the decisions of domestic courts agree with the ACHR.
In this reasoning, the dissenting opinion argued that the IACtHR should have weighed the right to freedom of expression in relation to the necessity of imposing an alternative liability to ensure the reputation of the plaintiffs. The majority considered that the domestic court was in a better position to evaluate the damage to the reputation of the plaintiffs. However, the minority vote noted that the domestic criminal proceedings did not analyze the reports in their context nor analyze whether they were justified.
Unlike the majority vote, the dissenting judges considered that the context is relevant to evaluating the public interest of the declarations and that it is not determined by the fact that it was also a conflict between individuals. They have also explained that by the time the reports referring to the illicit sale of recesses in the town’s Municipal Cemetery were made, three hundred out of eighteen thousand people living in San Andrés de Giles were members of the accused Italian association. In this regard, the dissenting vote concluded that it was evident that a considerable proportion of the town’s population had an interest in this information because “it not only concerned them, but it also referred to public or community property” [p. 10].
By considering that the expressions of the Mémolis were of significant public interest, the dissenting opinion stated that the new regulation on defamation was applicable to the case. They also pointed out that it was irrelevant that the term of the conviction had ended because the action for damages was based on the criminal conviction and it was still generating legal effects. In short, for the dissenting opinion, the conviction of the Mémolis should have been annulled and the most favorable criminal legislation should have been applied to analyze the case in accordance with Article 9 of the ACHR.
The dissenting opinion concluded by stating that even when the ACHR allows the imposition of liabilities in cases like this one, it also establishes that the question of whether the sanctions are excessive, disproportionate, or inadmissible should be analyzed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Inter-American Court of Human Rights did not analyze the necessity of the imposition of subsequent restrictions, it rather relied on the evaluation made by the domestic court that sanctioned two people for reporting alleged wrongdoings by the management of an Italian Association arguing that it was not information of public interest but rather a conflict between individuals. The dissenting opinion, however, claimed that the IACtHR should have weighed if the criminal conviction was necessary to ensure the reputation of the plaintiffs in accordance with Article 13 of the Convention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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