JOINT PARTIALLY DISSENTING OPINION OF
JUDGES MANUEL E. VENTURA ROBLES, EDUARDO VIO GROSSI
AND EDUARDO FERRER MAC-GREGOR POISOT
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF MÉMOLI v. ARGENTINA
JUDGMENT OF AUGUST 22, 2013
(Preliminary objections, merits, reparations and costs)
INTRODUCTION
This dissenting opinion is emitted because, for the reasons set out below, the signatories
disagree with the second and third operative paragraphs of the Judgment of August 22, 2013,
Preliminary objections, merits, reparations and costs, Case of Mémoli v. Argentina
(hereinafter “the Judgment”), delivered by the Inter-American Court of Human Rights
(hereinafter “the Court”), declaring that the State is not responsible for the violation of the
right to freedom of expression, recognized in Article 13 of the American Convention on
Human Rights (hereinafter “the Convention”), or for the violation of the principle of legality
and of retroactivity recognized in Article 9 of this instrument. 1
a. The competence of the Court
The Court is required to determine whether the State has complied with its commitment 2 to
respect and to ensure to all persons subject to its jurisdiction the rights and freedoms
recognized in the Convention. 3 To this end, the Court must interpret and apply the provisions
of the Convention 4 and, if it concludes that a right protected by the Convention has been
violated, it must establish that the victim be ensured the enjoyment of that right, 5 a decision
1
Article 66(2) of the American Convention on Human Rights indicates that: “[i]f the judgment does not
represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to have his dissenting or
separate opinion attached to the judgment,” and Article 65(2) of the Court’s Rules of Procedure establishes that:
“[a]ny Judge who has taken part in the consideration of a case is entitled to append a separate reasoned opinion to
the judgment, concurring or dissenting. These opinions shall be submitted within a time limit to be fixed by the
Presidency so that the other Judges may take cognizance thereof before notice of the judgment is served. Said
opinions shall only refer to the issues covered in the judgment.”
2
Article 33 of the Convention establishes that: “[t]he following organs shall have competence with respect to
matters relating to the fulfillment of the commitments made by the States Parties to this Convention: (a) the
Inter-American Commission on Human Rights, referred to as “the Commission”; and (b) the Inter-American Court of
Human Rights, referred to as “the Court.”
3
Article 1(1) of the Convention indicates that: “[t]he States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise
of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or
other opinion, national or social origin, economic status, birth, or any other social condition.”
4
Article 62(3) of the Convention stipulates that: “[t]he jurisdiction of the Court shall comprise all cases
concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that
the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to
the preceding paragraphs, or by a special agreement.”
5
Article 63(1) of the Convention indicates that: “[i]f 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.”