brief, in this case, what the Court had competence to decide was whether or not the State
had incurred international responsibility for having violated an international obligation. Thus,
what must now be clarified are the actions of the State, whether acts or omissions, that
could result in its international responsibility 358 in this regard.
b. The action of the State to be considered in this case
According to the case file, this action by the State is the judgment in second instance of
December 28, 1995, of the Second Chamber for Criminal and Correctional Matters of the
Judicial Department of Mercedes, province of Buenos Aires, confirming the judgment of
December 29, 1994, of Court No. 7 for Criminal and Correctional Matters of the Judicial
Department of Mercedes which was not annulled by the subsequent decisions on the
appeals on unconstitutionality and for clarification, and the special appeal on
unconstitutionality. 359
This second instance judgment confirmed the sentence against Messrs. Mémoli for having
committed the offense of defamation because, in newspaper articles and on radio programs,
they made statements categorized as such concerning both the sale of burial niches in the
Municipal Cemetery of San Andrés de Giles by the Asociación Italiana de Socorros Mutuos,
Cultural and Creativa “Porvenir de Italia,” and the complaint they had filed before the
National Mutual Action Institute requesting that it investigate the said Association and some
of its directors for accounting and administrative irregularities within the Association. 360 The
statements considered to be defamatory consisted in considering that those directors were
authors or accessories to the offense of presumed fraud, or criminals; that the sale involved
corruption, and that they had acted with wilful intent and with “subterfuges (tretas) and
deceit (manganetas).” 361
The litis in this case related to the violation of the provisions of Articles 13, 9, 8(1), 21, 23,
24 and 25, the first in relation to Articles 1(1) and 2, and the others in relation to Article
1(1), all of the Convention. 362
c. Determination of the possible internationally wrongful act of the State
Having defined the above-mentioned act that can be attributed to the State, it is now
necessary to relate it to the provisions of Articles 13 and 9 of the Convention, so as to be
able to determine its legitimacy or, to the contrary, its international wrongfulness and,
consequently, the responsibility of the State, all of this considering that it is with regard to
357
Article 68(1) of the Convention establishes that: “[t]he States Parties to the Convention undertake to comply
with the judgment of the Court in any case to which they are parties.”
358
Draft articles on Responsibility of States for internationally wrongful acts, prepared by the International Law
Commission of the United Nations, attached to Resolution 56/83, approved by the General Assembly (based on the
report of the Sixth Committee (A/56/589 and Corr.1)]. Responsibility of States for internationally wrongful acts,
eighty-fifth plenary session, 12 December 2001, Official Documents of the General Assembly, fifty-sixth session,
Supplement No. 10 and corrections (A/56/10 and Corr.1 and 2). 2 Ibid., paras. 72 and 73.
359
Paras. 92 to 94 of the Judgment.
360
Even though paragraphs 66 and 67 consider that the fact relating to the appointment of the wife and son of
the Vice President of the said Association in teaching positions within it has been proved, to the detriment of the
wife of Carlos Mémoli, this does not form part of the instant case because Messrs. Mémoli were not convicted for
statements concerning their complaints based on these supposed irregularities.
361
Paras. 75 to 84 of the Judgment.
362
Operative paragraphs 2 to 5 of the Judgment.
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