REPORT N║ 22/94
September 20, 1994
On May 5, 1992, the Commission received a petition from Mr.
Horacio Verbitsky against the Republic of Argentina.
Mr. Verbitsky, a journalist, was convicted of the crime of "desacato"
for allegedly defaming Mr. Augusto Cesar Belluscio, Minister of the
Supreme Court. The
Argentine authorities considered that the publication of an article in
which the journalist referred to Mr. Belluscio as "asqueroso"
(which can mean either disgusting or disgusted) was a crime under
Article 244 of the Criminal Code, which establishes the offense of
desacato. The petitioner alleged violation of Articles 8 (independent
and impartial tribunal); 13 (freedom of thought and expression); and 24
(equal protection before the law).
March 6, 1988 the petitioner published an article in the P
gina 12 newspaper, titled
"Scars from Two Wars," in which he used the word
"disgusting" to describe the Argentine Supreme Court Minister
Augusto Belluscio in reference to an interview given by Mr. Belluscio in
which the Minister said, among other things, that a proposed reform to
expand the Supreme Court with two additional members "disgusted
him." The petitioner alleges that he used the word "asqueroso"
in the sense of one who is disgusted, just as the Minister had used it
in his interview.
2. As a
result of this article, Minister Belluscio filed a private libel suit
against the petitioner in Federal Criminal Court No. 4 in Buenos Aires.
The federal judge ruled that the term used by the journalist Verbitsky
went beyond the bounds of honorable treatment of the official and
represented an injury to him in the exercise of his function. On the
basis of the principle curia
novit lex the judge decided to change the initial private lawsuit
into a public case of "desacato" (desacato laws criminalize
expression which offends, insults, or threatens a public functionary in
the performance of his or her official duties). The judge convicted Mr.
Verbitsky of the intent to defame the minister.
3. On July
13, 1991 the Federal Criminal Appeals Court of Buenos Aires upheld the
sentence. Subsequently, the petitioner appealed to the Supreme Court via
the Extraordinary Appeal alleging that the ruling threatened the
constitutional guarantee of freedom of the press. The Supreme Court
rejected the Extraordinary Appeal on February 25, 1992.
BEFORE THE COMMISSION
4. In a
note dated May 27, 1992, the Commission transmitted the relevant parts
of the petition to the Argentine government, requesting its observations
within a period of 30 days.
5. In a
note dated May 5, 1992, the petitioner's representatives, CEJIL and
Americas Watch, expressed their interest in having a hearing before the
Commission during its 82nd session.
The Commission granted the hearing on September 17, 1992 and
invited the Government of Argentina to send a representative to it.
6. In a
note on July 10, 1992, the petitioner sent the Commission reports
submitted by Argentine organizations and jurists, in which they
explained why the desacato law violates the Convention.
The reports were presented by Dr. Jorge Reinaldo Vanossi, Dr.
German Bidart Campos, Dr. Eugenio Zaffaroni, the Bar Association of the
Federal Capital, the Association of Argentine Press Groups (ADEPA), the
Argentine Federation of Press Workers (FATPREN), and the International
Federation of Journalists.
7. In a
note on August 31, 1992, the Government of Argentina requested an
extension until August 31, 1992 to reply to the request for information
on the petition.
8. In a
note dated August 31, 1992 the Commission received the response of the
Argentine government, arguing that the petition is inadmissible for the
government stated that on July 15, 1992 legislation was introduced in
Congress by the Executive branch to repeal Article 244 of the Criminal
Code. Therefore, congressional action could repeal the desacato law that
is the principal element in the petitioner's case.
in the event the law were not repealed, the government denies the
allegation that the petitioner's rights were violated by reason of
partiality of judges, infringement on freedom of expression, and denial
of equal protection under law. With regard to the alleged violation of
Article 13 of the Convention (freedom of expression), it reasons that
since the desacato law predates the Convention's entry into force, the
determination of the petitioner's conduct is simply an application of
domestic law and has no persecutory intent as implied in the petition.
The principle of equal protection under law is not violated
because the petitioner has received the same treatment that any other
9. In a
note on September 15, 1992, the government sent a copy of the draft law
to repeal the desacato law, together with a note that the bill had been
approved by the House of Representatives on September 3, 1992.
10. During its 82nd
session, in September 1992, the Commission held a hearing with
representatives of the petitioner, CEJIL and Americas Watch, and the
Government. At that time,
the petitioner's representative suggested that it would be appropriate
to begin the process of friendly settlement envisioned in Article
11. In a note of
September 21, 1992, the representatives of the petitioner reported to
the Commission on the steps that had been taken in the negotiations with
the Government and offered the initial guidelines for a settlement.
The representatives asked the Commission to formally initiate the
process of friendly settlement and designate one of its members to act
as mediator in the process. In
a note of September 23, the Argentine government also sent the
Commission initial guidelines for a settlement.
12. In a note to the
government on September 29, 1992, the Chairman of the Commission
formally recognized the process of friendly settlement in the case, and
stated that "as requested by the parties in item 4 of the initial
guidelines, the Commission will decide on the compatibility or
incompatibility of the Pact of San Jose, Costa Rica with the current
Argentine Criminal Code by issuing the report stipulated in Article 49
of the Convention." By
note of October 2, 1992, the same note was sent to the petitioner's
13. On October 14,
1992 the permanent representative of Argentina to the OAS sent a note to
the Commission in which he stated that the Commission's note of October
2 gives narrower scope to point 4 of the guidelines than the parties had
agreed. The parties want the Commission's analysis of the compatibility
or incompatibility of the desacato law with the Convention to include an
opinion on whether States Parties to the Convention must harmonize their
domestic legislation in accordance with Article 2 of the Convention.
14. On June 4, 1993,
the Commission received a note from the Government transmitting the
relevant part of a presidential speech on the repeal of the desacato
law, as well as a copy of the law repealing Article 244 of the Criminal
Code with an explanation and background information.
15. In a note on
January 5, 1994 the petitioner's representatives, CEJIL and Americas
Watch reported to the Commission on the developments in the case.
16. During its 85th
session, the Commission heard the representatives of the petitioner and
the Government. They
reported on progress in the case and what remained to be settled.
17. After several
meetings the parties agreed upon a text with the guidelines for a
possible friendly settlement. On September 21, 1991 they signed a joint
proposal for friendly settlement. The initial guidelines of the
agreement between the parties were:
petitioner requests the Argentine state to commit itself to repeal of
Article 244 of the Criminal Code, which established the criminal offense
petitioner requests that once the new law repealing the desacato law is
approved, it be applied in his case with a view to reversing his
sentence and cancelling all its effects in accordance with Article 2 of
the Criminal Code. The representatives said this would be applied in the
present case, as is done in all cases.
petitioner requests fair compensation for the damages and injury
suffered because of the judicial action. The petitioner expressly waives
any indemnization for moral damages.
The lawyers involved expressly waive any claim for honoraria in
parties request that when the Commission prepares the report referred to
in Article 49 of the Convention, it comment on the compatibility or
incompatibility of the desacato law in the Argentine Criminal Code with
the provisions of the Pact of San JosÚ, Costa Rica, including an
opinion on whether States Parties to that instrument must harmonize
domestic legislation in accordance with the Convention's Article 2.
parties agree to request the Commission to supervise and monitor the
with the Agreement
18. On June 8, 1993,
Mr. Verbitsky presented an appeal to Court I of the Federal Tribunal in
Buenos Aires concerning its sentence convicting him of desacato.
On July 1, 1993 the Court's prosecutor proposed that the appeal
be granted and Mr. Verbitsky be exonerated, including revocation of the
damages he had been ordered to pay. On July 26, Mr. Verbitsky accepted
the prosecutor's proposal.
On August 4, 1993, Minister Belluscio notified the Federal Court
in writing that he had asked the National Criminal Appeals Court to
assume jurisdiction, removing the case from the Federal Court, because
under the new Criminal Code (Law 23,984) the National Court is charged
with hearing the appeals. As
to the substantive issues, he asks that the appeal be denied because the
sentence has been complied with, and that the compensation not be
revoked because he had already received it and it is part of his assets
as an acquired right.
19. In a decision
issued on February 24, 1994, the National Criminal Appeals Court
accept the appeal lodged by Mr. Verbitsky and cancel the suspended
sentence of one month in prison for desacato.
state that it need not rule on the restitution of the compensation for
moral damages and costs, since Mr. Verbitsky has expressly renounced it.
20. In view of the
foregoing, the Commission considers that the points of the agreement for
friendly settlement have been fulfilled.
Commission placed itself at the disposal of the parties as provided in
Article 48.1.f of the Convention.
law of desacato was repealed by Law 24,198.
conviction of Mr. Verbitsky was reversed and all its effects cancelled.
of Mr. Verbitsky's express renouncement, the restoration of costs that
he initially sought is no longer required.
21. The Commission, in
accord with Article 49 of the Convention, has reviewed the content of
the friendly settlement for its consistency with the Convention. The
abrogation of the statutory basis for the action of desacato, in the
present case, brings Argentine law into conformity with the Convention,
for it removes a theretofore potential legal basis for the governmental
restriction of the freedom of expression guaranteed in the Convention.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
22. To express its
appreciation to the Government of Argentina for repealing the desacato
law, thereby complying with Article 2 of the American Convention on
Human Rights, to which Argentina has been a party since September 5,
1984; and its appreciation to Mr. Verbitsky for having facilitated the
friendly settlement by accepting the decision of the National Criminal
The Commission notes that in the event a law is found to be
incompatible with the Convention, the State Party is obligated, under
Article 2, to adopt such legislative or other measures as may be
necessary to give effect to the rights and freedoms guaranteed in the
23. To express its
profound satisfaction with the successful completion of the friendly
settlement, and note that it was carried out to the full satisfaction of
the parties and the Commission, in accordance with Articles 48.b and 49
of the American Convention and Article 48 of the Commission's
24. To publish this report in the Annual Report to the General Assembly.