internationally wrongful act.” It argued that this was a dispute of a private nature, to which
the Court’s legal doctrine concerning the different threshold for protecting the honor of certain
public persons does not apply. It explained that “the individuals who filed a lawsuit against
the presumed victims are private citizens,” and none of the parties involved the municipality
at any stage of the proceedings. It argued that the connection that the representatives are
attempting to make with the municipal cemetery “is absolutely tangential and anecdotic in
relation to the central element and the real origin of the dispute,” because the statements
considered defamatory did not refer to the administration of municipal functions. It indicated
that “no one could consider that the erroneous interpretation of the Association Mutual […],
attempting to obtain title to the graves, could be attributed to the State.” The State argued
that, “[t]he deciding factor is not the public nature of the property, but rather the conduct of
those persons who exercise public functions or are involved voluntarily in matters related to
this exercise.” It indicated that “[t]he State regulates the activities of the Mutual Associations
as it regulates any other type of association, [but t]he mere existence of a monitoring body
does not convert what is private into something public,” because “the State’s responsibility, in
its function of control, exists even when it does not inspect or verify,” which did not occur in
this case where “INAM fulfilled its functions.” It clarified that article 110 of the Criminal Code
was not repealed, but rather statements relating to matters of public interest or those that
are not affirmative were decriminalized.
A.2) Considerations of the Court
A.2.1) Freedom of expression and protection of honor and reputation
117. The Court notes that Messrs. Mémoli were convicted based on statements that were
considered defamatory or derogatory to the reputation of three members of the Management
Committee of the Italian Association of San Andrés de Giles, in the context of public,
administrative and criminal allegations by the presumed victims concerning the administration
of the Italian Association and what, at the time, they alleged was presumed fraud committed
by the said members of the Management Committee in relation to the invalid sale of burial
niches in the town’s municipal cemetery (supra paras. 73 to 88).
118. As in other cases submitted to this Court, in this one there is an underlying conflict
between the right to freedom of expression, recognized in Article 13 of the Convention, and
the protection of honor and reputation established in Article 11 of this instrument. Thus, the
Court must determine whether the State acted in a manner that was contrary to the
Convention when deciding a conflict of rights between private individuals in the domestic
sphere.
119. The Court’s case law has developed extensive content for the right to freedom of
thought and expression embodied in Article 13 of the Convention. The Court has indicated
that this article protects the right to seek, receive and impart ideas and information of all
kinds, as well as to receive and be aware of the information and ideas imparted by others. 220
The Court has indicated that freedom of expression has both an individual and a social
dimension, 221 which are both equally important and must be ensured fully and simultaneously
in order to ensure the complete effectiveness of this right in the terms of Article 13 of the
220
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and
29 of the American Convention on Human Rights). Advisory opinion OC-5/85 of November 13, 1985. Series A No. 5,
para. 30, and Case of Vélez Restrepo and family members v. Colombia, supra, para. 137.
221
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and
29 of the American Convention on Human Rights), supra, paras. 30 to 33, and Case of Vélez Restrepo and family
members v. Colombia, supra, para. 137.
48
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