SEPARATE CONCURRING OPINION OF JUDGE ALBERTO PÉREZ PÉREZ
IN THE CASE OF MÉMOLI v. ARGENTINA
I agree fully with all aspects of the judgment delivered by the Court; hence, the purpose of
this separate opinion is to emphasize some points that I consider particularly important.
I. General principles established in the case law of the Court
1.
This case, as several others decided previously by the Court, 1 raises the issue of the
relationship between the right to honor and dignity, or private life, and freedom of thought
and expression. Both are rights recognized by the American Convention on Human Rights,
in Articles 11 and 13, regarding which the Court has established a series of important
general principles in its case law that are reaffirmed in this Judgment.
Two fundamental rights that must be harmonized
2.
As the Court has established, it is necessary to harmonize the two fundamental
rights that, in certain cases, are in conflict.
3.
When analyzing this exercise of harmonization, it is interesting to recall some
aspects of the drafting of the Convention. Articles 8 and 10 of the draft prepared by the
Inter-American Council of Jurists were similar to Articles 11 and 13 of the final text, but
contained some significant differences to the latter, particularly in the case of the right to
honor and dignity. Several of the changes approved finally by the Inter-American
Specialized Conference on Human Rights held in November 1969 in San José, Costa Rica,
arose from proposals made previously when the OAS Member States and the InterAmerican Commission on Human Rights commented on the original draft.
4.
At that stage, the 1959 Symposium held at the Faculty of Law and Social Sciences of
Montevideo, 2 with the participation of the Faculty’s foremost professors of constitutional
law, administrative law, and international law, had particular significance. During the
deliberations, special attention was paid to Articles 8 and 10 of the draft and several
amendments were proposed that, at the end of the day, became part of the text of the
Convention.
5.
With regard to Article 10 of the draft (then entitled “Freedom of expression of
thought and of information), an extremely important suggestion was made concerning
paragraph 4, which allowed prior censorship of public entertainments “for the sole purpose of
safeguarding national morals, prestige or security.” Professor Eduardo Jiménez de Aréchaga
recalled that the Uruguayan delegation had proposed the prohibition of prior censorship and
1
Case of Herrera Ulloa v. Costa Rica. Preliminary objections, merits, reparations and costs. Judgment of
July 2, 2004. Series C No. 107; Case of Ricardo Canese v. Paraguay. Merits, reparations and costs. Judgment of
August 31, 2004. Series C No. 111; Case of Kimel v. Argentina. Merits, reparations and costs. Judgment of May 2,
2008. Series C No. 177; Case of Tristán Donoso v. Panama. Preliminary objection, merits, reparations and costs.
Judgment of January 27, 2009 Series C No. 193, and Case of Fontevecchia and D’Amico v. Argentina. Merits,
reparations and costs. Judgment of November 29, 2011. Series C No. 238.
2
Simposio sobre el proyecto de Convención de Derechos Humanos de Santiago de Chile, Biblioteca de
Publicaciones Oficiales de la Facultad de Derecho and Ciencias Sociales de la Universidad de la República Oriental
del Uruguay, Montevideo, 1959.