Backtracking on Freedom of Expression at the Inter-American Court of Human Rights
by José Miguel Vivanco (HRW / Op-Ed El País)
– Jailing a journalist for informing about the obvious maladministration of public property sets a regrettable precedent
With the stroke of a pen, the Inter-American Court of Human Rights led by Judge Diego Garciá-Sayan has jeopardized both freedom of expression and basic guarantees in criminal procedure. Within the region, institutional weakness is the norm, so the judgment amounts to a serious reversal that will weaken rights and fundamental freedoms. But it also makes the fight against corruption more difficult, and that’s a battle we continue to lose.
In a recent judgment – decided by a narrow majority – the Court has backtracked on important precedents it has defended for years. Three of the seven judges cast valuable votes that show deep divisions exist at the Court.
The regrettable decision in Mémoli v. Argentina deals with a criminal sentence against a journalist who informed about the evident maladministration of public property. Pablo Mémoli, editor of a newspaper in a small city in the province of Buenos Aires, warned that a private society had sold public property belonging to the town. Thanks to the news, the justice system intervened. Those affected by, and who learned of, the illegitimate sale recovered their money. Surprisingly, the same judge who canceled the contracts decided that the society’s directors had acted unaware that the public property did not belong to them.
In a strange twist, the only ones tried for these facts were those who spread the news. Mémoli was found guilty of defamation and sentenced to five months in prison. His father, who belonged to the society and had filed a complaint with the relevant authorities, was sentenced to a month in prison. As if that weren’t enough, the criminal sentences imposed a lien on the Mémolis’ property and also made them liable for suit in civil jurisdiction.
In 2008 – in the case of Kimel v. Argentina – the Inter-American Court decided that its criminal defamation law was incompatible with the American Convention on Human Rights. For the Court, the crime’s definition was ambiguous, violating the legal principle that criminal behavior must be precisely stated. As a result of the Court’s judgment in Kimel, Argentina decriminalized slander and libel when the offensive statements referred to subjects of public interest.
In this case the Court should have required that the Mémolis – guilty for a crime now inexistent in Argentina – benefit from the principle that when one law is more favorable to the accused than another, the more favorable should apply. However, without any reasonable explanation, and going against the grain of its jurisprudence, the Court backtracked, validating the criminal sentence and its effects.
This case centered on freedom of expression, and the Court redefined that right in ways that pale in comparison to its precedents. For example, for the majority of judges, the maladministration of public property did not pass the public interest test; or, still more serious, the continent’s highest human rights court gave its blessing to criminalizing opinion. The four judges in the majority never even asked if the Mémolis’ complaints were truthful – according to its own jurisprudence truthful statements can´t be considered offensive. For the Court, the sentence against the journalist did not violate his right to freedom of expression, and he was denied relief.
In a Court hearing, Catalina Botero, the Organization of American States (OAS) Freedom of Expression Rapporteur, argued that the sentence against the Mémolis “discourages [freedom of speech] and encourages juridical uncertainty” suggesting that it affects “hundreds of journalists in the region who are now more defenseless.”
Thankfully – and perhaps because it wasn’t a part of this litigation – the Inter-American human rights jurisprudence still stands that decriminalizes insulting public officials, protecting criticism of them.
It’s very sad that García-Sayán’s Court has cast aside the established jurisprudence built on the sacrifices of those who have risked themselves to rein in official abuse about matters of public interest. In the Americas those who can regularly intimidate judges, so the Court has deprived the region of a key tool to fight against the abuse of power and corruption.
Human rights defender José Miguel Vivanco is executive director of the Americas Division of Human Rights Watch. This article first appeared in El País on 11 November 2013 bearing the title, “El Tribunal de las Américas Retrocede en la Libre Expresión,” available at http://internacional.elpais.com/internacional/2013/11/11/actualidad/1384198105_138110.html.