Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Contracts Expression
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The Argentine Supreme Court dismissed a request to implement a judgment by the Inter-American Court of Human rights and thus overturn a previous decision by the Supreme Court. The Inter-American Court ordered Argentina to relieve the director and editor of a magazine of all civil liability in a case concerning the violation of a public figure’s right to private life. The Argentine Supreme Court acknowledged that judgments by the IACtHR are binding. However, in the present case it found that complying with the order would effectively turn the IACtHR into a fourth instance court, which would exceed its authority as a subsidiary and complementary Tribunal under the American Convention. The Court concluded that complying with the IACtHR would be in contravention of the fundamental principles of the Argentine legal system.
On September 25, 2001, the Argentine Supreme Court decided that Mr. Jorge Fontevecchia and Mr. Hector D’Amico, the director and editor of a magazine, respectively, were civilly liable over information published in a series of news articles. The published information concerned the unrecognized son of the then president of Argentina, Carlos Saul Menem; Menem’s relationship with the boy’s mother, a congresswoman; and the president’s relationship with his son. The Supreme Court of Argentina held the publication of these articles violated the president’s right to a private life.
On November 29, 2011, the Inter-American Court (IACtHR) heard the case and found the published information was already publicly available from other sources and was in the public interest. As a result, the Inter-American Court considered the subsequent imposition of liability on the editor and publisher which did not meet the necessity requirement and infringed the right to freedom of expression. Consequently, the Court ordered the Argentine State to revoke its decision and to relieve Mr. Fontevecchia and Mr. D’Amico from all civil liability or the orders compelling them to pay compensation.
After the judgment, the Ministry of Foreign Affairs and Culture requested the Supreme Court deliver a final judgment rendering its previous decision as null and void as a consequence of the ruling of the IACtHR.
The Argentine Supreme Court had to decide two issues. First, whether the order rendered by the IACtHR to the Supreme Court to revoke a decision that violated the right to freedom of expression has been rightfully delivered within the authority granted by the American Convention to the IACtHR. Second, whether such order may be carried out by the Supreme Court in accordance with its national constitutional framework.
First, the Court clarified that there is no doubt that the judgments issued by the IACtHR in cases against the Argentine State, are, in principle, binding.
Second, the Court considered that the Inter-American system of human rights protection is of a subsidiary nature as stated in preamble of the ACHR: “[…] the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states” .
According to the Supreme Court, this relationship is embodied in the principle of exhaustion of domestic remedies and in the principle of subsidiarity. In this sense, for the Court, the IACtHR does not constitute a national fourth instance that could revise or revoke domestic decisions, but rather “it is subsidiary, coadjutant and complementary.” [para. 8]
It further argued that, in light of the aforementioned principles, implementing the decision of the IACtHR and overruling the Supreme Court decision would effectively render the IACtHR a “fourth instance”, which would constitute a clear violation of the principles codified in the Convention since the IACtHR would be exceeding its authority as a subsidiary and complementary Tribunal.
The Court recalled that the European Court of Human Rights has also considered the role of international human rights tribunal as subsidiary. Specifically, with the “margin of appreciation” and the “fourth instance” doctrine.
The Court then examined the wording of article 63.1 of the ACHR which establishes that “If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party”. The Court stated that the norm does not include the possibility that the Inter-American Court may order a domestic court to revoke decision. For the court, this interpretation is confirmed by the travaux préparatoires [drafting history] of the American Convention.
For the Court, rendering the judgment of Supreme Court as ineffective would surpass the principle of res judicata [cosa juzgada], and thus it would contravene the fundamental principles of the Argentine legal system.
Based on the above findings, the Argentine Supreme Court dismissed the request submitted by the Ministry of Foreign Affairs and Culture on the ground that orders delivered by the IACtHR must be in accordance with obligations set forth in the convention.
Judge Juan Carlos Maqueda issued a dissenting vote. For Maqueda the Court should comply with the IACtHR decision and annul the judgment against Mr. Fontevecchia and Mr. D’Amico. For him, according to the Constitution, the judgments rendered by the IACtHR on issues that involve the Argentine State, “must be fulfilled by the State powers in accordance to their competency. Consequently, they are obligatory for the Supreme Court.” [p.24] Maqueda stated that the duty to comply with the decisions adopted by the IACtHR answers “to a basic principle of the law on international responsibility of the States, according to which States must comply with their international conventional obligations in good faith [pacta sunt servanda].” The Judge emphasized that in accordance with the provisions of the 1969 Vienna Convention on the Law of Treaties, States cannot fail to fulfill their obligations for reasons of internal order.
 ACHR, preamble.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression as it constitutes a major shift away from Argentina’s Supreme Court prior jurisprudence which affirms that Inter-American Court rulings are binding and hence, should be followed and complied with. This decision departs from that principle, establishing the supremacy of the national court over the regional one, thereby opening the door for further debate on the legitimacy of the Inter-American Court’s interpretation of the American Convention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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