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. 352 a. The competence of the Court The Court is required to determine whether the State has complied with its commitment 353 to respect and to ensure to all persons subject to its jurisdiction the rights and freedoms recognized in the Convention. 354 To this end, the Court must interpret and apply the provisions of the Convention 355 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, 356 a decision that the State party to the case in question must comply with. 357 In 352 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.” 353 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.” 354 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.” 355 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.” 356 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.”