Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, ARGENTINA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.24-15157 (E) 101224 101224
Human Rights Committee
Views adopted by the Committee under article 5 (4)
of the Optional Protocol, concerning communication
No. 4035/2021*, **, ***
Communication submitted by:
Juan Gasparini (represented by Víctor Rodríguez
Rescia of Servicios Internacionales de
Profesionales en Derechos Humanos)
Alleged victim:
The author
State party:
Argentina
Date of communication:
19 February 2021 (initial submission)
Document references:
Special Rapporteur’s decision under rule 92 of
the Committee’s rules of procedure, transmitted
to the State party on 25 October 2021 (not issued
in document form)
Date of adoption of Views:
19 July 2024
Subject matter:
Freedom of expression
Procedural issues:
None
Substantive issues:
Right to an effective remedy; freedom of
expression; right to an independent and impartial
tribunal; judicial guarantees; right to review by a
higher tribunal
Articles of the Covenant:
2 (3), 14 (1) and (5) and 19 (2)
Articles of the Optional Protocol:
None
1.
The author of the communication is Juan Gasparini, a national of Argentina. He
asserts that the State party has violated his rights under article 14 (1) and (5) and article 19 (2)
of the Covenant, both articles read alone and in conjunction with article 2 (3). The Optional
Protocol entered into force for the State party on 8 November 1986. The author is represented
by counsel.
* Adopted by the Committee at its 141st session (1–23 July 2024).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly
Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah
Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** An individual opinion of Committee member Laurence R. Helfer (concurring), a joint opinion of
Committee members Tania María Abdo Rocholl, Hernán Quezada Cabrera and Hélène Tigroudja
(concurring) and an individual opinion of Committee member Rodrigo A. Carazo (concurring) are
annexed to the present Views.
United Nations
CCPR/C/141/D/4035/2021
International Covenant on
Civil and Political Rights
Distr.: General
30 September 2024
English
Original: Spanish
CCPR/C/141/D/4035/2021
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Factual background
2.1
The author of the communication was granted political asylum in Switzerland in 1980
for having been subjected to torture at the Navy School of Mechanics, at which he was
detained for more than a year, during the Argentine dictatorship.
2.2
The author was accredited as a journalist by the United Nations Office at Geneva in
1988, has been a member of Impressum, a Swiss journalists’ association, since 1989 and has
published several books on human rights violations and corruption in Argentina.
2.3
The facts of the present communication relate to his investigation into how, with the
help of lawyers and accountants, marines attached to the Argentine Navy School of
Mechanics changed the names of the owners of real estate by altering documents and
falsifying signatures so as to be able to sell the property to third parties and pocket the money
from the sales, thus dispossessing the real owners, who were victims of enforced
disappearance.
2.4
In particular, in a book entitled La delgada línea blanca, the contents of which served
as the basis for allegations of corruption that are still pending before the Argentine courts,
the author reported the theft of 27 hectares in Chacras de Coria, in the Province of Mendoza,
which were sold for US$ 20 million. According to his investigation, this land belonged to the
three owners of the company Cerro Largo, all of whom disappeared.
2.5
After the publication of the book, Federico Gómez Miranda, the son of the adviser
and lawyer of Cerro Largo, who disappeared at the same time as the three owners of the
company, was reported in the press to be claiming that the findings of the author’s
investigations were false and that his father was also one of the owners of the land in Chacras
de Coria. The author’s response appeared in a published press release in which he was quoted
as stating that Mr. Gómez Miranda “is claiming ownership of property that does not belong
to him”.
2.6
In 2006, Mr. Gómez Miranda brought a civil libel suit against the author in which he
sought damages of 100,000 Argentine pesos1 and claimed that the author’s statements in the
press had impeached his honour, injuring his most intimate being and his feelings for his
missing father, brought discredit upon him, damaging his reputation with respect to the action
he had been taking since his father’s disappearance in an attempt to establish the truth.
2.7
The author responded to the lawsuit by denying that he had made injurious allegations
and asserting that he had in no way intended to cause injury to Mr. Gómez Miranda but that
the findings of his investigations had simply not shown Mr. Gómez Miranda’s father to be
one of the owners of the land in question.
2.8
On 19 April 2009, the Mendoza Federal Civil Court of First Instance ruled that the
author’s actions did not constitute libel since it had not been proved that he had acted with
malice.
2.9
On 26 May 2011, the Mendoza Federal Appeals Court ruled on the appeal filed by
Mr. Gómez Miranda, overturned the lower court’s ruling and declared the tort liability of the
author for the civil offence of libel. The author was not considered a journalist by the Federal
Appeals Court for the purposes of the case since he was not the author of the press release in
which his statements were reproduced. In the judgment, Mr. Gasparini was ordered to pay
compensation of 50,000 Argentine pesos.
2.10
The author recounts that two of the three judges of the Mendoza Federal Appeals
Court who were responsible for the Court’s ruling were subsequently sentenced to life
imprisonment for collusion and obstructing the investigation of serious human rights
violations that occurred during the dictatorship.2
2.11
The author lodged an extraordinary federal appeal with the Mendoza Federal Appeals
Court; in the appeal, he sought the recusal of the three judges on grounds of lack of
1 Approximately US$ 8,000 in 2006.
2 Federal Criminal and Correctional Court No. 1 of Mendoza, judgment of 20 September 2017.
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impartiality, as they were “sympathetic to the dictatorship”, and he had been a victim of State
terrorism during the dictatorship.
2.12
The three judges in question were removed from the case by the Judges Impeachment
Panel, and, as a result, the Mendoza Federal Appeals Court had a new composition when it
ruled on the extraordinary appeal filed by the author. On 18 December 2013, the Court
dismissed the appeal on the grounds that, as the appeal challenged only points of fact and
evidence, the requirement for extraordinary appeals to address a point of federal law was not
met.
2.13
On 19 February 2014, the author brought complaint proceedings before the Supreme
Court to challenge the dismissal of his extraordinary federal appeal. On 19 February 2019,
the Supreme Court, mentioning article 280 of the Code of Civil and Commercial Procedure,
ruled that the appeal was inadmissible.3
Complaint
3.1
First, the author alleges that the State party has violated his right to freedom of
expression under article 19 (2) of the Covenant, in that he was wrongly found liable for the
tort of libel in the exercise of his profession as an investigative journalist, without regard to
the special protection that the subject matter of his book merits as information of interest to
the public and that the court considered his case as if he were simply a private individual, not
a journalist.
3.2
The author adds that his being found responsible for alleged libel is having a chilling
effect on the journalistic investigation of abuse of authority during the dictatorship.
3.3
Secondly, the author claims that the State party failed to guarantee access to an
independent and impartial tribunal, in violation of article 14 (1) of the Covenant. While
judges are required not to have a direct interest in the cases they hear, a set position or a
preference for any of the parties and not to be in any way connected to the dispute, this
condition was not met by two of the judges who heard his case, as they were subsequently
given life sentences for collusion and obstructing the investigation of serious human rights
violations that occurred during the dictatorship.
3.4
Thirdly, the author claims that he did not benefit from the judicial safeguards that he
was entitled to, as the Supreme Court failed to give a reasoned explanation for the dismissal
of his complaint.
3.5
Lastly, although the author does not allege a violation of article 14 (5) of the Covenant
in his communication, in his communication he requests that the State party be called to
account for a violation of this article, affirming that, although he was not convicted of a
criminal offence, a civil and financial penalty undermines a journalist’s credibility and should
therefore be subject to review.
3.6
The author requests the Committee to order the State party: (a) to review the penalty
imposed on him; (b) to adjust the civil appeals system in order to allow persons found liable
on appeal on matters related to freedom of expression to bring an ordinary appeal for a review
of the facts and evidence before a higher judicial authority; (c) to provide compensation for
the damage and injury suffered as a result of the proceedings; (d) to make a public
acknowledgement of responsibility in which it issues an apology to him and underscores the
importance and the essential role of freedom of expression in democracy; (e) to distribute the
book on his investigation of corruption during the dictatorship; and (f) to finalize the criminal
investigations, which have been ongoing for more than twenty years, into the allegations of
fraudulent appropriation of the property of relatives of the disappeared persons that are at the
origin of this dispute.
3 The author refers to the Supreme Court, judgment No. 48/2014 (50/G)/SC1. Article 280 of the Code
of Civil and Commercial Procedure provides that the Supreme Court, “at its discretion and on the sole
basis of this law, may dismiss an extraordinary appeal if the federal grievance is insufficient or the
matters raised lack substance or significance”.
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State party’s observations on admissibility and the merits
4.1
In its observations of 13 May 2022, the State party notes the need to frame the present
communication within the unique memory, truth, justice and reparation processes through
which the serious human rights violations of the past are being addressed. The State party
specifies that the author was recognized in 1997 as a victim of the civilian and military
dictatorship and received compensation for the unlawful deprivation of liberty he
experienced and for his forced exile.4 The State party further specifies that, as the son of a
disappeared person, Mr. Gómez Miranda, the plaintiff in the civil suit against the author, is
also a victim of the dictatorship.
4.2
The State party accepts that the communication meets all the admissibility criteria, in
that it meets ratione temporis criteria, there is no international lis pendens and the author has
exhausted domestic remedies.
4.3
On the merits, the State party acknowledges its international responsibility for the
violation of the right to freedom of expression enshrined in article 19 (2) of the Covenant. In
the words of the State party, “the judgment of Mendoza Federal Court of 26 May 2011
violated Mr. Gasparini’s right to freedom of expression” insofar as
it constituted a disproportionate restriction of his right to publish information in that
it failed to recognize the special protection that information of interest to the public –
which the information whose publication resulted in his being found liable
undoubtedly was – merits, and because it failed to take account of the status of the
two parties in the dispute as victims of State terrorism, the direct injury suffered by
Mr. Gasparini as a result of the events reported in his publications and the possible
revictimization to which the judicial proceedings could give rise.
4.4
Referring to the jurisprudence of the Inter-American Court of Human Rights,5 the
State party adds that the Court should have considered whether the finding against the author
and the order to pay damages were reasonable. In the words of the State party, “there are
other means of protecting the right to honour that have less severe implications for freedom
of expression. Through the exercise of the right to rectification, for example, the offending
information could have been corrected, or a response issued, in the same medium in which
the information was published.” Referring again to the jurisprudence of the Inter-American
Court of Human Rights,6 the State party notes that “the judgment also had implications for
the right to the truth in the collective sense, since the information that Mr. Gasparini
published, which led to the finding against him, formed part of his account of investigations
into serious human rights violations”.
4.5
The State party also acknowledges its international responsibility for the violation of
the right to a fair trial, enshrined in article 14 (1) of the Covenant, which arose “as a result of
the participation of the judges of Chamber A of the Mendoza Federal Appeals Court that was
manifestly incompatible with memory, truth, justice and reparation processes and had a direct
impact on the outcome of the appeal”. The State party notes that two of the three judges were
sentenced in criminal proceedings to life imprisonment and an absolute and permanent
disqualification from public office for their active role in obstructing investigations into
criminal offences committed by State agents during the dictatorship. For the State party, “it
is thus evident that the judges […] were clearly ill-disposed towards the unique process of
transitional justice under way in Argentina and that this prejudice prevented them from ruling
impartially on the appeal brought before them. Such partiality was also made manifest by the
failure to take into account the extent to which the dissemination of the information at the
origin of the lawsuit was in the public interest”.
4 The author received the benefits provided for in Act No. 24.043 in respect of the period from
10 January 1977 to 1 August 1979 pursuant to decision No. 1339/97 of 11 July 1997 of the Ministry
of the Interior. Subsequently, he requested that the benefits be extended to cover the period until
28 October 1983, a request that was granted by Ministry of Justice and Human Rights decision
No. 474/2004 of 27 May 2004.
5 Herrera Ulloa v. Costa Rica, judgment of 2 July 2004, para. 103.
6 Anzualdo Castro v. Peru, judgment of 22 September 2009, para. 119.
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4.6
Lastly, the State party submits that the dismissal of the complaint proceedings brought
before the Supreme Court does not constitute a violation of the Covenant. The State party
specifies that Act No. 23.774 amended article 280 of the Code of Civil and Commercial
Procedure, by virtue of which the Supreme Court, “at its discretion and on the sole basis of
this law, may dismiss an extraordinary appeal if the federal grievance is insufficient or the
matters raised lack substance or significance”. The State party explains that this amendment
introduced what is referred to in doctrine as “Argentine certiorari” and served to reduce the
Court’s excess workload without being unreasonable in a similar way to the writ of certiorari
under the law of the United States of America, the Brazilian filtro da repercussão geral
(general legal relevance filter) and the German grundsätzliche Bedeutung (fundamental
significance filter).
Author’s comments
5.1
On 6 July 2022, the author welcomed the State party’s partial acceptance of
international responsibility, which effectively ended the dispute with regard to the particular
facts and rights.
5.2
With regard to the dispute over the violation of judicial guarantees resulting from the
dismissal without further explanation by the Supreme Court of the author’s appeal, the author
states that, while he understands that “ordering reparations that entail adjustments to the
Argentine justice system as currently conceived could create more problems in that it would
jeopardize the fine balance between the role of the judiciary and the role of government
institutions in the resolution of key conflicts of public interest”, it was the summary dismissal
of his appeal that crystallized the violation of his right to freedom of expression.
5.3
The author notes that the State party failed to comment on the reparations he requested.
The author takes this silence as an implicit acknowledgement of his right to reparation for
the violations of his rights and reiterates his request for the measures of reparation outlined
in his initial communication.
Additional information provided by the parties
6.
On 23 September 2022, the State party indicated that it stood by its previous
observations and expressed interest in initiating a dialogue with the author.
7.
On 3 November 2022, the author stated that he would not enter into a friendly
settlement process because he wanted his case to end with a finding by the Committee that
his human rights had been violated.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
8.2
The Committee notes the State party’s acknowledgement that the communication is
admissible insofar as it meets ratione temporis criteria, there is no international lis pendens
and the author has exhausted domestic remedies (see para. 4.2). The Committee also notes
that the author challenged the finding of liability up to the level of the Supreme Court. The
Committee is therefore of the view that article 5 (2) (a) of the Optional Protocol does not
constitute an obstacle to the admissibility of the communication.
8.3
The Committee is of the belief that the complaint regarding the violation of article 14
(5) of the Covenant is incompatible ratione materiae since this article does not apply to
proceedings determining rights and obligations in a civil suit or to any other proceedings that
are not part of a criminal appeal process.7 The Committee therefore finds this part of the
communication inadmissible.
7 General comment No. 32 (2007), para. 46.
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8.4
The Committee is also of the opinion that the complaint that the rejection by the
Supreme Court, without reasoned explanation, of the author’s appeal (see para. 5.2)
constitutes a violation of article 14 of the Covenant is inadmissible for want of sufficient
substantiation.
8.5
In the Committee’s opinion, the author has sufficiently substantiated, for admissibility
purposes, his claims under articles 14 (1) of the Covenant, in relation to the court’s alleged
lack of independence and impartiality, and 19 (2), read alone and in conjunction with article
2 (3). It therefore finds this part of the communication admissible and proceeds to its
consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
9.2
The Committee appreciates the State party’s offer to engage in dialogue with a view
to reaching a friendly settlement. The Committee also appreciates the State party’s
acceptance of the facts of the communication, as well as its acknowledgement of international
responsibility for violations of the right to freedom of expression under article 19 (2) of the
Covenant and the right to a fair trial under article 14 (1).
9.3
In particular, the Committee notes that the State party acknowledges that the author’s
right to freedom of expression was violated due to a disproportionate restriction of his right
to disclose information, in that the decision of the Mendoza Federal Appeals Court failed to
take account of the special protection that the information of interest to the public that the
author published, which led to his being found liable, should have been given and that the
Court failed to consider whether the finding of liability and the order to pay damages were
reasonable given that there were other ways of protecting the right to honour that would have
interfered less severely with the author’s freedom of expression. The State party adds that the
finding against the author also has implications for the right to the truth, in the collective
sense, as the information that the author published, which led to the finding, came to light as
a result of his investigations into serious human rights violations (see paras. 4.3 and 4.4).
9.4
The Committee notes that the State party also accepts that the right to a fair trial was
violated owing to the involvement of judges who were evidently opposed to the memory,
truth, justice and reparation process and who were subsequently sentenced in criminal
proceedings to life imprisonment and an absolute and permanent disqualification from
holding public office for their active role in obstructing investigations into crimes committed
during the dictatorship (see para. 4.5).
9.5
The Committee is of the view that the State party’s acknowledgement of the facts and
the violations of the Covenant make a positive contribution to the consideration of this
communication and have considerable material and symbolic value as assurances of the
non-repetition of similar incidents.8 As the parties do not disagree on these two issues, the
Committee is of the opinion that the dispute has been settled and accepts the parties’ view
that the facts of which it has been apprised constitute a violation of the author’s right to
freedom of expression under article 19 (2) of the Covenant and his right to a fair trial under
article 14 (1) of the Covenant, both articles read alone and in conjunction with article 2 (3).
10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts of which it has been apprised show that the State party violated articles 19 (2) and
14 (1) of the Covenant, read alone and in conjunction with article 2 (3).
11.
In accordance with article 2 (3) of the Covenant, the State party is required to provide
an effective remedy. Accordingly, the State party should: (a) review the penalty imposed on
the author, and (b) provide the author with full reparation, including adequate compensation,
8 Inter-American Court of Human Rights, Almeida v. Argentina, judgment of 17 November 2020,
para. 22, Cepeda Vargas v. Colombia, judgment of 26 May 2010, para. 18, Guerrero, Molina et al. v.
Bolivarian Republic of Venezuela, judgment of 3 June 2021, para. 31, and Vicky Hernández et al. v.
Honduras, judgment of 26 March 2021, para. 16.
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for the harm he has suffered. The State party is also under an obligation to take steps to
prevent similar violations from occurring in the future.
12.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State party, within 180 days, information about the measures that have been taken to give
effect to the present Views. The State party is also requested to publish the present Views in
its official languages and to disseminate them widely.
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Annex I
[Original: English]
Individual opinion of Committee member Laurence R. Helfer
(concurring)
1.
This case marks an important milestone: for the first time, a State party has
acknowledged its responsibility for violating the Covenant in response to a complaint under
the first Optional Protocol to the Covenant. In particular, Argentina recognizes that the
author’s rights to freedom of expression and to an impartial tribunal were infringed when he
was ordered to pay civil libel damages for publishing a book investigating human rights
abuses perpetrated during the military dictatorship in that country, and when his appeal was
reviewed by judges who had actively obstructed such investigations (see paras. 4.4 and 4.5
of the Views). The Committee rightly commends the State party for making a positive
contribution to memory, truth, justice and reparation processes in Argentina, which it notes
has considerable material and symbolic value as assurances of the non-repetition of similar
incidents (see para. 9.5 of the Views).
2.
I write separately for two reasons: first, to provide additional context for the
Committee’s remedial choices in this case; and second, to offer guidance regarding the
remedies of acknowledgement of responsibility and apology in international human rights
law, both which have evolved significantly in recent years.
3.
The Committee does not require Argentina to apologize or to publicly acknowledge
its responsibility (see para. 11 of the Views), although the author specifically requested both
remedies (see para. 3.6 of the Views). Such a public statement would have enhanced the
material and symbolic value of the State party’s admission and broadened awareness of the
violations in this case. However, the decision itself includes a detailed statement from
Argentina accepting the facts and legal claims alleged by the author (see paras. 4.1–4.5 of
the Views).1 Thus, the publication and dissemination of the Committee’s Views themselves
constitute a formal and public acknowledgment by Argentina of the country’s responsibility
for the violations of the author’s rights.
4.
The Committee’s general approach to remedies is set forth in its guidelines on
measures of reparation under the Optional Protocol to the International Covenant on Civil
and Political Rights. It states: “When the Committee finds that an individual communication
reveals violations of Covenant rights, it sets out measures designed to make full reparation
to the victims (restitution, compensation, rehabilitation and measures of satisfaction), as well
as measures aimed at preventing the reoccurrence of similar violations in the future
(guarantees of non-repetition).”2 As a measure of satisfaction, the Committee “may request
that States parties issue a public apology, particularly in cases of grave or systematic
violations where the injury cannot be fully redressed by restitution or compensation only”.3
In the guidelines, the Committee does not mention acknowledgments of responsibility, but
refers to public manifestations of such acknowledgments, including “having a monument
built, putting up a commemorative plaque or changing the name of a street or other public
place in cases involving grave or systematic violations”.4 The Committee, in the guidelines,
cites the Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, adopted by the General Assembly in 2005, which include
“public apology, including acknowledgement of the facts and acceptance of responsibility”
1 The State party contested only one aspect of the complaint: the challenge to the Supreme Court’s
rejection of the author’s extraordinary appeal without providing a reasoned decision (para. 4.6). The
Committee dismisses that claim of the author’s as insufficiently substantiated (para. 8.4).
2 Guidelines on measures of reparation under the Optional Protocol to the International Covenant on
Civil and Political Rights, para. 2.
3 Ibid., para. 11 (e).
4 Ibid., para. 11 (f).
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among the appropriate measures of satisfaction. In addition, in a 2019 report on apologies for
gross human rights violations and serious violations of international humanitarian law,
Fabian Salvioli, then Special Rapporteur on the promotion of truth, justice, reparation and
guarantees of non-recurrence (and a former member of the Human Rights Committee),
provided a comprehensive review of “key themes of relevance in the consideration of public
apologies, with a view to developing a practical schema to assist in the design and delivery
of more effective apologies”.5
5.
The Committee’s jurisprudence reflects similar concepts. In response to findings of
grave or gross breaches of the Covenant, the Committee sometimes indicates various forms
of apology.6 However, the case law is not fully coherent. For example, an author’s request
for an apology is neither a necessary nor sufficient condition for indicating that remedy. The
Committee has sometimes ordered a State party to apologize even though the author did not
request an apology,7 while in other instances it has considered such requests in fashioning
the remedy.8 In still other cases, the Committee has declined, without explanation, requests
for an apology or an acknowledgment of responsibility.9 In addition, authors often seek
measures of satisfaction that are more wide-ranging than those awarded by the Committee.10
6.
The Inter-American Court of Human Rights has developed the most extensive
jurisprudence on apologies and acknowledgements of responsibility. The Court typically
orders such measures of satisfaction “to repair violations to the rights to life, integrity and
personal liberty”,11 although it occasionally declines to indicate these remedies in such cases
even when petitioners request them.12 Significantly, States often apologize or acknowledge
their responsibility prior to or during proceedings before the Inter-American Court of Human
Rights, as Argentina did in two recent cases involving human rights abuses perpetrated during
the military dictatorship.13 If the acknowledgement is not “comprehensive”,14 however, the
Court may order the State to hold a “public ceremony”15 that refers to the facts and violations
declared in the judgment and specifies “who must participate in the public act, how it must
be conducted and disseminated, and when it must occur”.16
5 A/74/147, para. 4.
6 For example, in Devi Maya Nepal v. Nepal (CCPR/C/132/D/2615/2015), the author was raped and
subjected to other forms of violence and infringements of her privacy, honour, reputation and family
life. The Committee ordered Nepal to provide, inter alia, “appropriate measures of satisfaction to the
author for the violations suffered, including arranging an official apology in a private ceremony”
(para. 9). In Baruani v. Democratic Republic of the Congo (CCPR/C/110/D/1890/2009), para. 8, the
Committee required the State party to provide “a formal public apology to the author and his family”
after finding the State party had violated the Covenant prohibitions on torture and arbitrary detention.
7 Lecraft v. Spain (CCPR/C/96/D/1493/2006), paras. 8 and 9; and Baruani v. Democratic Republic of
the Congo, para. 8.
8 Abromchik v. Belarus (CCPR/C/122/D/2228/2012), paras. 2.9 and 12; and Tharu and Tharuni v.
Nepal (CCPR/C/134/D/3199/2018), paras. 3.6 and 9.
9 Fofana v. Ecuador (CCPR/C/124/D/2290/2013), paras. 3.10 and 10; and A.S. v. Nepal
(CCPR/C/115/D/2077/2011), paras. 3.10 and 10.
10 For example, in Guneththige and Guneththige v. Sri Lanka (CCPR/C/113/D/2087/2011) the author
requested “a public apology containing an unequivocal acknowledgement of the numerous violations
of the Covenant in the present case” (para. 3.12), but the Committee required only “a public apology
to the family” (para. 8).
11 See, for example, Castañeda Gutman v. México, Judgment, 6 August 2008, para. 239.
12 See, for example, Jenkins v. Argentina, Judgment, 26 November 2019, paras. 135 and 138; and
Fleury et al. v. Haiti, Judgment, 23 November 2011, paras. 124 and 125.
13 Inter-American Court of Human Rights, Julien Grisonas Family v. Argentina, Judgment,
23 September 2021, paras. 276 and 277; and Almeida v. Argentina, Judgment, 17 November 2020,
para. 14.
14 Inter-American Court of Human Rights, Almeida v. Argentina, para. 22.
15 Inter-American Court of Human Rights, Julien-Grisonas Family v. Argentina, para. 278.
16 Bridget Mayeux and Justin Mirabal, Collective and Moral Reparations in the Inter-American Court of
Human Rights (Human Rights Clinic, University of Texas School of Law, November 2009), p. 27,
available at https://law.utexas.edu/wp-content/uploads/sites/11/2015/04/2009-HRC-Cambodia-
CollectiveReparations.pdf. See also A/74/147, para. 14 (summarizing the Court’s jurisprudence in
this area).
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7.
Both the Human Rights Committee and the Inter-American Court of Human Rights
have previously ordered apologies or acknowledgements of responsibility for violations
similar to those at issue in this case, although the case law is not fully consistent. In one
example from the Committee, Marchant Reyes et al. v. Chile, the police had removed and
destroyed several artistic works that had been displayed to honour the defence of human
rights and democracy on the occasion of the fortieth anniversary of the 1973 coup d’état in
Chile.17 The State party had acknowledged the facts as violations of the Covenant without,
however, attempting to justify them.18 The Committee found a violation of the authors’ right
to freedom of expression under article 19 (2) of the Covenant, 19 and ordered a public
acknowledgement of the violation of their rights in accordance with the Committee’s Views
on the communication.20 In a similar example from the Inter-American Court of Human
Rights, Kimel v. Argentina, a journalist and writer had been convicted of criminal libel for
publishing a book criticizing an investigation into five clergymen murdered during that
country’s military dictatorship. 21 During proceedings before the Court, the State had
acknowledged its responsibility for violating the right to freedom of thought and expression
and the right to a fair trial.22 The Court accepted this “as a confession to the facts” and as
“acquiescence to the victim’s legal claims”,23 but nevertheless ordered the State to “hold a
public act of acknowledgment of responsibility”.24 However, in several other cases in which
violations of the right to freedom of expression were found, the Committee and the
Inter-American Court of Human Rights have declined to order apologies or
acknowledgements of responsibilities notwithstanding requests by the authors.25
8.
In future cases, the Committee should develop a more systematic approach to
determining when States parties should apologize and/or acknowledge their responsibility.26
Depending on the facts and circumstances presented, such measures of satisfaction may be
appropriate not only in response to grave or systemic violations of the Covenant but also for
other infringements of civil and political rights. Relevant factors may include the magnitude
or seriousness of the violations, whether a victim has requested such remedies, the State
party’s response to such a request, whether an acknowledgement or apology will confer
dignity on the victims or honour their memory, and whether the remedy will guard against
repetition of the violations.
17 Marchant Reyes et al. v. Chile (CCPR/C/121/D/2627/2015), paras. 2.2 and 5.1.
18 Ibid., para. 5.2.
19 Ibid., para. 7.8.
20 Ibid., para. 9. The Committee did not, however, accede to the authors’ request to order the police to
make a public apology in which they acknowledge their mistake and undertake to defend and respect
human rights (ibid., para. 3.6).
21 Kimel v. Argentina, Judgment of 2 May 2008.
22 Ibid., paras. 18–22.
23 Ibid., para. 25.
24 Ibid., para. 126.
25 See, for example, Human Rights Committee, Ibragimov v. Kazakhstan (CCPR/C/131/D/2452/2014),
paras. 5.4 and 15; Human Rights Committee, Arkadyevich v. Russian Federation
(CCPR/C/115/D/2141/2012), paras. 3.4 and 9; Inter-American Court of Human Rights, Moya Chacón
et al. v. Costa Rica, Judgment, 23 May 2022, paras. 105 and 107; and Inter-American Court of
Human Rights, Fontevecchia and D’Amico v. Argentina, Judgment, 29 November 2011, paras. 109
and 110.
26 The Committee has more often required States parties to apologize than to acknowledge their
responsibility, although it appears that the former remedy encompasses the latter. See A/74/147,
para. 3 (a) (defining a public apology to include “an acknowledgement of a wrong deliberately or
negligently inflicted that is named”).
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11
Annex II
[Original: Spanish]
Joint opinion of Tania María Abdo Rocholl, Hernán Quezada
Cabrera and Hélène Tigroudja (concurring)
1.
We fully agree with the Committee’s conclusion that the facts of which it has been
apprised constitute a violation of the author’s right to freedom of expression under article 19
(2) of the Covenant and of the right to a fair trial under article 14 (1), both read alone and in
conjunction with article 2 (3) (see para. 9.5).
2.
Furthermore, we agree that the complaint about the rejection by the Supreme Court,
without reasoned explanation, of the appeal lodged by the author was not sufficiently
substantiated (see para. 8.4). The right to a decision in which the grounds therefor are
provided is not protected per se in article 14 of the Covenant, but in international practice –
including in the judgments of the Inter-American Court of Human Rights – it is recognized
that the grounds “are the exteriorization of the reasoned justification that allows a conclusion
to be reached”.1 It is therefore possible to argue that the right is implicitly protected under
the judicial guarantees set forth in article 14, but on this point the author has not sufficiently
substantiated his claim (see para. 3.4).
3.
However, we consider it necessary to issue this joint opinion on the part relating to
measures of reparation, in particular with respect to the public apology or public
acknowledgement of international responsibility by the State party, which was requested by
the author and which the Committee did not call for in its Views.
4.
It should be noted that the State party first recognized its international responsibility
for the violation of the right to freedom of expression, because the author was sentenced by
the Mendoza Federal Appeals Court to pay compensation for the civil offence of libel as a
result of the publication of a book, an account of an investigation, in which he denounced the
illegal appropriation by members of the Navy School of Mechanics of real estate belonging
to persons detained and disappeared during the military dictatorship and of a press release in
which the author made certain statements related to his investigation. The State party also
recognized its responsibility for the violation of the right to a fair trial as a result of the
participation of Appeals Court judges that was “manifestly incompatible with memory, truth,
justice and reparation processes and had a direct impact on the outcome of the appeal” (see
paras. 4.3 and 4.5).
5.
The Committee requested the State party to: (a) review the penalty imposed on the
author and (b) provide the author with full reparation, including adequate compensation, for
the harm he has suffered, as well as to take steps to prevent similar violations from occurring
in the future (see para. 11). The author, for his part, requested several forms of reparation,
including those requested by the Committee and, in addition, a public acknowledgement of
responsibility in which he is offered an apology and the importance and the essential role of
freedom of expression in democracy are acknowledged (see para. 3.6), a form of reparation
that the Committee did not require in its Views.
6.
Let us recall, first of all, that public apologies have been recognized by the General
Assembly of the United Nations as a necessary and complementary measure of satisfaction
and reparation in cases of gross violations of international human rights law. 2 More
importantly, in the guidelines on measures of reparation under the Optional Protocol (para. 11
(e)), adopted by the Committee in 2016, public apologies are also among the measures of
1 Inter-American Court of Human Rights, Amrhein et al. v. Costa Rica, judgment of 25 April 2018,
para. 268.
2 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law, principle IX.
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satisfaction that the Committee may request of States parties, particularly in cases of grave
or systematic violations (either grave or systematic, not necessarily both) where the injury
cannot be fully redressed by restitution or compensation only. In addition, the guidelines also
state that, in decisions on measures of reparation, the position of the parties should be taken
into account (see para. 4 of this joint opinion).3
7.
Apologies offered by a State or public acknowledgements of responsibility are a
long-standing and uncontroversial measure of reparation used in the inter-American human
rights system4 as an important aspect of transitional justice,5 including in “memorialization”
processes.6 There are a number of reasons, both symbolic and practical, for the use of such
measures. When human rights are violated on a large scale, individual measures may be
impractical or even infeasible, and in such circumstances a public apology may be useful to
address collective harm. More profoundly, and as some human rights violations may result
in losses that cannot be quantified and therefore repaired by mere monetary compensation,
an apology may be the most powerful means, if not the only such means, of alleviating the
victims’ grief, pain and anger.7 As mentioned above, in the Committee’s guidelines on
measures of reparation, too, apologies are considered justified in cases of grave or systematic
violations.
8.
There is no doubt that the present case concerns grave violations of two rights
enshrined in the Covenant. The Committee has noted in its general comment No. 34 (2011)
that freedom of opinion and freedom of expression are indispensable conditions for the full
development of the person. They are essential for any society and constitute the foundation
stone for every free and democratic society; in addition, freedom of expression, in particular,
is a necessary condition for the realization of the principles of transparency and
accountability that are, in turn, essential for the promotion and protection of human rights
(paras. 2 and 3).
9.
In its general comment No. 32 (2007), the Committee has also noted that the right to
equality before the courts and tribunals and to a fair trial is a key element of human rights
protection and serves as a procedural means to safeguard the rule of law. Article 14 of the
Covenant aims at ensuring the proper administration of justice, and to this end guarantees a
series of specific rights (para. 2). In addition, the Committee has noted that the requirement
of competence, independence and impartiality of a tribunal in the sense of article 14 (1) is an
absolute right that is not subject to any exception (para. 19).
10.
It is clear, then, that the failures to respect the right to freedom of expression and the
guarantee of a fair trial constitute, in general, grave violations of the human rights enshrined
in the Covenant. In the present case, it is also necessary to add context: the violation of the
author’s rights arose from a civil finding of liability for statements made in a book in which
he reported on an investigation into events that took place during the most recent Argentine
military dictatorship (1976–1983), during which serious, mass and systematic human rights
violations were committed, as well as for a press release reproducing statements he made
about his investigation. Moreover, the finding of liability against the author (in a judgment
overturning the lower court ruling) was made by judges of a federal appeals court that clearly
lacked impartiality in relation to this case. The State party has noted (see para. 4.5 of the
Views) that, subsequently, two of the three judges were sentenced in criminal proceedings
and an absolute and permanent disqualification from public office for their active role in
obstructing investigations into criminal offences committed by State agents during the
dictatorship, [making it] evident that the judges […] were clearly ill-disposed towards the
unique process of transitional justice under way in Argentina and that this prejudice
prevented them from ruling impartially on the appeal brought before them.
3 CCPR/C/158.
4 See, for example, Inter-American Court of Human Rights, Durand and Ugarte v. Peru, judgment of
3 December 2001, paras. 39 and 45.4 (b), and Terrones Silva et al. v. Peru, judgment of 26 September
2018, para. 255.
5 A/HRC/54/24, para. 51, and A/74/147.
6 A/HRC/45/45, para. 22.
7 Margaret Urban Walker, “Restorative justice and reparations”, Journal of Social Philosophy, vol. 37,
No. 3 (2006), pp. 377–395.
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13
The partiality of these judges was also made manifest by their refusal to take into account the
extent to which the dissemination of the information at the origin of the lawsuit was in the
public interest.
11.
In view of the seriousness of the aforementioned violations of the rights of the author,
who expressly asked the Committee to request the State party to publicly acknowledge its
responsibility and apologize to him while doing so, we believe that the Views should have
included exactly such a request, which, as noted above, is a long-standing tradition in the
inter-American system and is not unknown to the Committee.
12.
Although most of the cases in which the Inter-American Court of Human Rights has
requested public acknowledgement of responsibility (or public apologies) have involved
serious violations of the right to life (extrajudicial executions and/or enforced disappearance),
including mass violations of this right,8 it has also ordered such measures in cases of serious
violations of other rights – for example, in relation to violations of the right to collective
property of two Indigenous Peoples and their members in a judgment of 14 October 2014.9
In another case in which this measure was ordered, the State party was found liable, in a
judgment of 24 February 2012, for serious violations of the rights to equality and
non-discrimination, to privacy, to protection of honour and dignity and to protection of the
family and other rights.10
13.
Although the Committee’s jurisprudence in this area is not as extensive as that of the
Inter-American Court of Human Rights, it has adopted Views in which the State party is
requested to publicly acknowledge its responsibility or offer a public apology.11 The Views
adopted on 7 November 2017, in which the State party was requested to “make a public
acknowledgement” of the violation of the authors’ rights, are one important precedent. As it
happened, this case involved the violation of the right to freedom of expression and the right
to an effective remedy, as a result of the forced removal by the police of works of art alluding
to the 1973 coup d’état in Chile and the defence of human rights in democracy.12
8 Case of The Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano
and Their Members v. Panama, judgment of 14 October 2014, para. 219 and operative part.
9 See judgments in this regard in Cuadernillos de Jurisprudencia de la Corte Interamericana de
Derechos Humanos, “Medidas de Reparación”, No. 32 (2012), pp. 110–114.
10 Case of Atala Riffo and Daughters v. Chile, judgment, 24 February 2012, paras. 263 and 314. The
case of Pavez Pavez v. Chile, a judgment of 4 February 2022 in which the State was found
responsible for violating the right to equality and non-discrimination in addition to other rights,
including the rights to personal freedom, to privacy and to work (paras. 172 and 209), can also be
cited.
11 The most recent precedents include Tharu and Tharuni v. Nepal (CCPR/C/134/D/3199/2018), Views
in which the State party was requested, inter alia, to provide an “official apology” to the authors (para.
9) for violations of the right to life and personal liberty of two minors.
12 Marchant Reyes et al. v. Chile (CCPR/C/121/D/2627/2015), para. 9.
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Annex III
[Original: Spanish]
Individual opinion of Committee member Rodrigo A. Carazo
(concurring)
1.
I fully adhere to the joint (concurring) opinion of Committee members Hernán
Quezada Cabrera, Hélène Tigroudja and Tania María Abdo Rocholl.
2.
I add that, for the Committee, including in its Views a public acknowledgement of
international responsibility is an opportunity to highlight the importance of such acts of
recognition of serious transgressions in the past, and I endorse the reference in footnote 6 of
the joint opinion contained in annex II to the report of the Special Rapporteur on the
promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli, who
stated: “Memorialization processes in the context of serious violations of human rights and
international humanitarian law [are] the fifth pillar of transitional justice.”
3.
In good time, this public acknowledgement of responsibility, or the celebration of the
adoption of these Views at formal, political and academic events (they are not prohibited
despite not being defined at the level of the ruling in question) will help elevate and
consolidate this significant step forward at the global level. There is much to celebrate.