argued only by the representatives. In this regard, this Court has established that the
alleged victim, the next of kin, or the representatives may invoke rights other than
those included in the Report on the Merits of the Commission, on the basis of the facts
presented by it. 60
85.
The Court has interpreted that such adaption of domestic norms with the
Convention, implies adopting two sets of measures, knowingly: a) repealing rules and
practices of any nature entailing violations of the guarantees provided for in the
Convention or disregarding the rights enshrined thereof or impeding the exercise of
such rights, and b) adopting rules and developing practices aimed at effectively
ensuring the said guarantees. The first is satisfied with reforming, derogating, or
otherwise annulling such rules or practices, as appropriate. The second, obligates the
State to prevent further violations of human rights, and therefore, it must therefore
adopt all legal, administrative and other measures necessary to prevent further
occurrence of similar facts in the future. 61
86.
The Court has ruled on restrictions to freedom of expression based in criminal
law. If the restriction stems from this area of law, it is necessary to strictly meet the
requirements of the criminal definition [codification], and it must be formulated
previously, in an express, accurate, and restrictive manner. 62 In the present case, the
representatives have questioned the compatibility of Article 1071 bis of the Civil Code
with the American Convention (supra paras. 23 and 77 to 81).
87.
This Article protects various areas of private life and personal privacy and
establishes the measures that a judge can order upon an infraction. The norm
challenged by the representatives: a) does not establish, beyond certain examples
provided, what is meant by meddling arbitrarily in the lives of others, b) indicates that
the impact on privacy, among other circumstances, may cause "mortifying others in
their feelings" or "disturbing, in any way, their privacy," and c) establishes as potential
reparations, the publication of the judgment and an "equitable compensation fixed by a
judge, under the circumstances."
88.
Specifically, regarding the alleged incompatibility of Article 1071 bis with the
American Convention, expert witnesses Saba 63 and Rivera 64 coincided in noting the
60
Cf. Case of the “Five Pensioners” v. Peru. Merits, Reparations and Costs. Judgment of February 28,
2003. Series C No. 98, para. 155, and Case of Family Barrios v. Venezuela. Merits, Reparations and Costs.
Judgment of November 24, 2011. Series C No. 237, para. 33.
61
Cf. Case of Salvador-Chiriboga v. Ecuador. Preliminary Objections and Merits. Judgment of May 6,
2008 Series C No. 179, para. 122.
62
Case of Kimel V. Argentina supra note 38, para. 63.
63
In this respect, the expert wtiness stated that the vague language of the Article 1071 bis allows the
judicial officer broad interpretative discretion that is not admissible in any legal tradition that had adopted
the principle of legality, central to the rule of law. The Article refers to the potential damage as the result of
statements that have disturbed "in any way a persons privacy", thereby giving the judge a virtually
unlimited ability when estimating the amount of compensation for the damage, stating "a fair compensation
shall be paid that is established in equity by a judge, pursuant to the circumstances." Finally, the Argentine
norm has also entrusted upon the judge, the decision, per request of the victim, of "ordering the publication
of the sentence in a journal or newspaper of wide circulation in the country," which in some cases consists of
publication via print mediums with the largest circulation in the country, which would also place in the hands
of the subject who exercised his or her freedom of expression, the huge cost of further liability. Legislation
that establishes a regimen of responsibility for damages that is designed in such a way that it leaves a wide
margin of discretion for the judge to make decisions and designate responsibility, creating uncertainty that
leads a prudent person to be inhibited from exercising his or her right to freedom of expression for fear of
the unknown and eventually serious risks if he or she were to be found guilty of having caused harm to
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