The Inter-American Court of Human Rights, established by the American Convention on Human Rights (ACHR), is the leading regional human rights court in the Americas. The Court consists of seven judges, elected by secret ballot by member states of the Organization of American States (OAS).
Cases may be referred to the Court only by the Inter-American Commission on Human Rights or a member state and only where the state in question has voluntarily submitted itself to the Court’s jurisdiction. Cases may be contentious individual or group complaints of a violation of a right, complaints by a state that another state has violated a right, or a request by a state for an interpretation by the Court of the ACHR, outside of the context of a contentious dispute (known as advisory opinions). Most contentious individual cases are referred to the Court by the Commission, which may do so only after it has itself received and processed an individual or group complaint and the state in question has not taken the necessary steps to remedy the violation.
Where it finds a violation, the Court may order such measures as are necessary to restore respect for human rights, and may also order compensation to be paid to the victim. The decisions of the Court are legally binding and, under the ACHR, states formally undertake to comply with them, although there is little the Court can do if states refuse to comply. For the most part, however, states do respect the decisions of the Court.
The ACHR provides, among other things, a very strong guarantee for freedom of expression. The Court has issued a number of significant rulings in freedom of expression cases. Perhaps the most significant case decided by the Court, and also one of its earliest, was an advisory opinion referred to it by Costa Rica to determine whether a law requiring journalists to be licensed was compatible with the guarantee of freedom of expression. This case has been referred to frequently in the Court’s later jurisprudence.
In its 1985 decision, the Court made a number of important general observations about the ACHR guarantee of freedom of expression. It described freedom of expression as a “cornerstone” of democracy. It also held that the right has a dual nature, protecting not only the right of individuals to express themselves, signaled by the term “impart” in the guarantee, but also the right of others to receive information and ideas, signaled by the term “seek, and receive.” Specifically, the Court stated: “Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.” The Court also noted the particular importance of the mass media in making “freedom of expression a reality” and of the need for the media to be pluralistic to achieve this goal.
The Court rejected claims by the government that the licensing of journalists was necessary for the protection of public order and to maintain professional standards, holding instead that respect for freedom of expression was the best guarantor of public order. Importantly, the Court held that the practice of journalism is the “primary and principal manifestation of freedom of expression” and that, as such, it could not be treated in the same way as other professions. The licensing system represented a serious limitation on freedom of expression that could not be justified by reference to an overriding public or private interest.
In another important case, decided in 2001, the Court provided a strong interpretation of the ACHR’s rule against prior censorship, holding that the refusal of the authorities to permit the airing of a movie – The Last Temptation of Christ – on religious grounds was a form of prior censorship and hence a breach of the right to freedom of expression. Although limited prior censorship to protect children was permitted under the ACHR, the religious grounds invoked by the authorities in this case did not bring it within the scope of that permission.
In two cases decided in 2004, the Court took a strong stand against criminal defamation laws, while stopping short of ruling outright that they breach the right to freedom of expression. In both cases, the Court held that the statements on which the national criminal defamation convictions were based related to matters of public interest. These decisions make it clear that, in the case of such statements, it will be very difficult, if not impossible, to justify a criminal defamation conviction. In the first case, the Court also made it clear that a journalist should not be expected to prove the truth of statements that were originally reported in respected foreign newspapers.
Finally, in a seminal case decided late in 2006, the Court held that the right to freedom of expression as guaranteed under the ACHR includes a right of everyone to access to information held by public bodies. This decision represents a significant breakthrough in this area, going beyond what has been decided by other international courts. In its decision, the Court noted the close relationship between access to information and expression, holding that both are essential for effective participation in governance. Restrictions on access to information may be imposed, subject to the same conditions as apply to restrictions on imparting information, and the state bears the burden of showing that any such restrictions are legitimate.
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