application in the particular case by the judicial authorities of the State, who did not
observe the mentioned standards on necessity.
92.
Although the arguments of the representatives and that noted by the expert
witnesses are persuasive arguments on the possible basis that the norm being
challenged entail decisions against the right to freedom of expression, the Court
considers that, in general, it allows a sufficient liberty to regulate their conduct and
reasonably foresee the consequences of that violation. Thus, whether its application is
in accordance with the Convention will depend on judicial interpretation in the case.
93.
This Tribunal has established in its jurisprudence that it is aware that the
domestic judges and tribunals are subject to the rule of law and that, therefore, they
are compelled to apply the regulations in force within the legal system. But, once a
State has ratified an international treaty such as the American Convention, its bodies
and judges, are also subject to it, which compels them to make sure that the effects of
the provisions of the Convention are not affected by the application or interpretation of
laws contrary to its object and purpose. Judges and bodies related to the
administration of justice at all levels shall exercise a “control of conformity with the
Convention” ex officio, between domestic regulations and the American Convention,
evidently under the framework of its respective competences and the corresponding
procedural regulations. Within this task, the judges and bodies related to the
administration of justice shall take into consideration not only the treaty but also the
interpretation the Inter-American Court has made of it. 67
94.
In this regard, the Court emphasizes the importance that the Argentine courts
ensure that domestic proceedings wherein debates may arise regarding the right to
freedom of expression, comply with the intent and purpose as well as other obligations
under the Convention, so that in the analysis of cases such as this, they take into
account the distinct threshold of protection for the right to private life of those who are
civil servants, the existence of a public interest regarding the information, and the
possibility that sanctions do not involve inhibition or self-censorship of those who
exercise their right to free speech and citizenship, which unlawfully restricts and limits
public debate on media pluralism that is necessary in a democratic society.
95.
Moreover, the Court takes note of the changes that have occurred domestically
in terms of freedom of expression, such as the legislative reforms arising from the case
of Kimel, which amended the Argentine criminal code, eliminating the possibility that
statements or opinions relating to matters of public interest be deemed libel or
slander, the enactment of Law 26.522 of the Audiovisual Communication Services, as
well as institutional and jurisprudential changes that occurred in the Supreme Court on
freedom of expression.
*
96.
Taking into account the above considerations, the Court concludes that the
extent of further liability imposed in this case failed to comply with the obligation to
adopt domestic legal effects in Article 2 of the American Convention, in relation to the
right to freedom of expression, regarding civil legislation.
67
Cf. Case of Almonacid Arellano et al. V. Chile. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 26, 2006. Serie C No. 154, para. 124, and Case of Cabrera García and Montiel
Flores V. México. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 26, 2010.
Serie C No. 220, para. 225.
30
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents