In a decision with strong potential to set precedent, the Argentine Supreme Court decided that the Inter-American Court of Human Rights — which is part of the Organization of American States (OAS) — cannot overturn some of the rulings the highest court in Argentina issues.
This change in jurisprudence started with the Supreme Court refusing to overturn a part of its ruling in a 2001 case involving former President Carlos Menem.
Menem had filed charges against media company Perfil, its CEO Jorge Fontevecchia and journalist Héctor D´Amico because one of its publications, Noticias Magazine, published an article about his son Carlos Nair Menem, who the former President didn’t acknowledge as being related to at the time of the article’s publication.
The Supreme Court at the time — which to be fair was made up mostly of members appointed by the former President and is remembered for ruling in the Executive Branch he led’s favor in controversial cases — determined that the magazine had harmed Menem’s right to privacy and ordered it to pay US $60,000.
However, the losing party went to the IACHR, which concluded that the Supreme Court had violated the company’s right to freedom of expression and overturned the original decision. As a result of this, the international body determined that Menem had to reimburse the publication and that the Court had to cancel their ruling. Yesterday four of the five Supreme Court Justices decided to not act on the IACHR’s ruling, arguing the IACHR is not authorized to issue rulings over that part of the case.
The Supreme Court’s decision “doesn’t deny the mandatory character of the IACHR’s decisions but understands that it has to circumscribe to the matters over which it has authority,” the ruling says. These matters, according to the Court, are limited to the rights guaranteed in the OAS’s Convention of Human Rights, also known as the Pact of San José (as it was signed in San José de Costa Rica), which was given Constitutional hierarchy and incorporated into the country’s legal code in 1994.
To include the other rights, the Supreme Court argued, “would implicate depriving it from its character of supreme body of Argentina’s Judicial Branch and replace it by an international one, clearly breaking articles 27 and 198 of the Constitution.”
Some argue this is not the case, and say the decision actually means the Supreme Court can now decide when to abide by a IACHR ruling and when not to.
“It ‘breaks’ Argentina ‘apart’ from the Inter-American system. In reality, the IACHR comes to play when a state is violating human rights and the Judicial Branch is not repairing this,” Paula Litvachky, CELS Director of Justice and Security told Página 12.
This decision could also play a key role in the trial against social leader Milagro Sala, who has been in prison for more than a year despite not having been found guilty of the charges pressed against her. It’s uncertain if the Court would even get this case — although it’s currently reviewing a request about the case formulated by the CELS and other organizations — and if its decision would defer from the Argentine courts.
But it’s worth noting that the international body does defer to the Jujuy court that currently has the case over the decision to have Sala in prison while it investigates whether she indeed committed criminal actions. In fact, OAS Head Luis Almagro last year sent a letter calling for Sala’s release while the case continues to develop.