December 23, 2013

PRESENTS AMICUS CURIAE

José Miguel Vivanco presents this amicus brief to the National Criminal Economic Court No. 6 in the case No. 1509/2011 (Juzgado Nacional en lo Penal Económico Nº 6 en el expediente N.º 1509/2011) onbehalf of Human Rights Watch, located at 350 Fifth Avenue, 34th Floor, New York, NY 10118-3299. For that purpose, we inform the Court that our address for notifications is XXX, and respectfully state:

I. PURPOSE OF THE AMICUS CURIAE SUBMISSION

We request that the National Criminal Economic Court No. 6 accept us as Friends of the Court to submit for its consideration international human rights legal arguments that are relevant to the disposition of the case “Bevacqua, Graciela re fraud to commerce and industry.”

II. SUMMARY

We submit this legal brief as Friends of the Court to the National Criminal Economic Court No. 6, with the purpose of offering an analysis of international human rights law applicable to the present case.

First, we will establish Human Rights Watch’s competence on the issue being decided in the controversy, describe our interest to participate in the matter, and inform the court of our relation with Graciela Bevacqua, who is a party in the case. All of the above is in compliance with the Regulation on the Intervention of Friends of the Court, approved by the Regulation (Acordada) 7/2013 of the Honorable Supreme Court of Argentina (Honorable Corte Suprema de Justicia de la Nación).

We will then briefly summarize the facts of the case. Specifically, we will describe the civilian and criminal cases against Ms. Graciela Bevacqua for publishing unofficial inflation rate statistics after the accuracy of official ones was widely questioned, including the procedural history of the cases.

Finally, we will present legal arguments that support the assertion that the imposition of high fines and the criminalization of individuals who publish information of public interest violates international human rights law.     

III. BACKGROUND ON HUMAN RIGHTS WATCH AND OUR INTEREST IN THIS CASE

Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). The organization is independent and impartial with respect to any political, religious, or economic organizations or movements. By mandate, the organization can receive no money, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities in different continents. Human Rights Watch enjoys consultative status with the United Nations Economic and Social Council, the Council of Europe and the Organization of American States, and maintains a working relationship with the Organization of African Unity. 

As part of its mandate, Human Rights Watch is committed to using judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.

IV. RELATIONSHIP BETWEEN HUMAN RIGHTS WATCH AND MS. GRACIELA BEVACQUA

Human Rights Watch frequently collaborates with, and supports the work of, non- governmental organizations and lawyers that protect and promote human rights in the countries we work on. In this case, Human Rights Watch is collaborating with Marta Nercellas, Ms. Bevacqua's attorney. In accordance with Regulation 7/2013, we inform the court that we have not received any economic support from Ms. Bevacqua, Ms. Nercellas, or anyone associated with them or with this case, and the resolution of this case will not result in any economic benefit for Human Rights Watch.

V. DEADLINE

This brief is submitted in accordance with Regulation 7/2013.

VI. BACKGROUND

The National Institute of Statistics and Censuses (Instituto Nacional de Estadística y Censos, INDEC) is charged with publishing official statistics in Argentina, including statistics on inflation rates.[1] Between December 2001 and January 2007, Ms. Graciela Bevacqua was the Director of the Consumer Price Index (Índice de Precios al Consumidor, CPI) at INDEC, an office in charge of measuring price changes of consumers’ goods and services, as well as inflation. Ms. Bevacqua says that after she refused requests to manipulate inflation statistics, she was removed from her position and transferred to work in the library of the Ministry of Economy and Public Finance (Ministerio de Economía y Finanzas Públicas), with a drastic reduction of her salary. Ms. Bevacqua resigned in January 2009.

Subsequently, Ms. Bevacqua began collaborating with a group of economists and professors in a research center called “Buenos Aires City,” based at the University of Buenos Aires. In April 2009, they presented an “alternative CPI,” which was published on a monthly basis. In mid-2010, Bevacqua left Buenos Aires City and continued to publish an unofficial inflation index, with the support of university students, until mid-2011.

VII. BRIEF PROCEDURAL HISTORY

A. CIVIL PROCEDURE

On March 15, 2011,[2] the National Director of Internal Commerce (Director Nacional de Comercio Interior) adopted a resolution imposing a fine of $500,000 (Argentine pesos) on Ms. Bevacqua, on the grounds that she had failed to respond to an information request by the Ministry of Economy and Public Finance challenging the methodology of Ms. Bevacqua's academic research on inflation rates.[3] The Commercial Loyalty Law 22.802 states that those who fail to comply with these information requests are subject to fines.[4]The director argued that Ms. Bevacqua’s behavior—which consisted of publishing unofficial information on inflation and costs of living in media outlets with wide distribution—violated article 9 of the law.[5] Under article 9, “[i]t is forbidden to make any kind of presentation, publicity or propaganda that by means of inaccuracy or concealment may induce to error, deceit or confusion regarding characteristics, attributes, nature, origin, quality, purity, mix, quantity, use, price, commercialization conditions or techniques of production of goods or services.”[6]

On July 6, 2011, the National Director of Internal Commerce adopted a second resolution imposing another $500.000 (Argentine pesos) fine on Ms. Bevacqua on similar grounds, arguing that she had failed to answer another information request.[7]

Ms. Bevacqua appealed both resolutions before a Court of Appeals (Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal) on the grounds that Law 22.802 should not apply to her behavior because she is not a business person (comerciante),[8] and that she could not respond to the information request because she was out of the country at the time. Furthermore, she stated that the resolutions imposing the fines violated her right to free speech, protected by the Argentine Constitution and international law.

On May 2, 2013, the Court of Appeals annulled the second fine, arguing that the information Ms. Bevacqua published neither had the goal nor the effect of leading consumers to acquire or not to acquire certain products, and it was therefore incapable of inducing to error, deception or confusion regarding price and commercialization conditions of goods and services.[9] In conclusion, according to the court, Bevacqua’s activity did not constitute “presentation,” “commercial publicity” or “advertising” in the terms of article 9 of Law 22.802.[10]

On August 16, the Ministry of Economy and Public Finance appealed this decision before the Honorable Supreme Court of Argentina, arguing that the ruling that annulled the fine interfered with the powers of the National Director of Internal Commerce to apply Law 22.802.[11] According to the government, since Ms. Bevacqua's statistics are not based on accurate measurements and estimates, they are inevitably susceptible to mislead the public, whether or not they actually do it. The infraction does not require any damage to actually occur, the government asserts.[12]

Ms. Bevacqua requested that the Supreme Court declare the government's petition inadmissible. In October, the Court rejected the government's appeal.[13]

On October 8, 2013, the Court of Appeals annulled the other fine.[14] The legal challenges against this fine remain pending at this writing.

B. CRIMINAL PROCEDURE

                In August 2011, the former Secretary of Internal Commerce, Guillermo Moreno, filed a criminal complaint and requested to be considered a party (querellante) in the criminal case against Ms. Bevacqua and Nicolás Salvatore – members of the above-mentioned research group based at the University of Buenos Aires.[15] Moreno argued that Ms. Bevacqua was responsible for the crime of speculation (agiotaje) for having published unofficial inflation indices challenging the validity of official ones. Mr. Moreno claimed the defendants had links with banks and financial institutions, which benefited from the impact that Ms. Bevacqua's inflation index had on the financial market. Furthermore, he argued that Ms. Bevacqua's "false" inflation indices generated increased prices, costs for public securities (títulos públicos) and interest rates for bank credits, which in turn benefited bond owners and banks.[16] The crime, defined in article 300 of the Criminal Code, is sanctioned with a penalty of up to two years in prison.[17]

On September 4, 2012, a prosecutor (fiscal titular de la Fiscalía n° 7) determined that the activity carried out by Ms. Bevacqua did not constitute an illegal activity in the terms of article 300.[18] Instead, she stated that it was part of the defendant’s right to exercise her profession as an economist, as provided for in articles 14 and 14 bis of the Argentine Constitution, and recommended that the complaint be dismissed by the court (Juzgado Nacional en lo Penal Económico N° 6). On September 7, 2012, the court dismissed the complaint.[19]

The Secretary of Commerce appealed the resolution and, on April 17, the Court of Appeals (Cámara Nacional de Apelaciones en lo Penal Económico, Sala ‘B’) held that the State has the power to be a party (querellante) in any case that involves public order or public interest, even without the support of prosecutors.[20] The Court of Appeals asked the first instance court to rule accordingly,[21] which it did on April 30, 2013.[22]

Ms. Bevacqua appealed the decision that allowed Mr. Moreno to continue with a criminal case without support of a prosecutor. At this writing, the criminal case against Ms. Bevacqua remains pending before this National Criminal Economic Court No. 6.

VIII. INTERNATIONAL HUMAN RIGHTS LAW APPLICABLE TO THIS CASE

Argentina is obligated by norms of international law, incorporated into Argentine law by its Constitution, to protect human rights within its jurisdiction.[23] The rights protected include freedom of expression and academic freedom, which are also protected in numerous international conventions ratified by Argentina.[24]

The purpose of this amicus curiae brief is to provide information to this Honorable Court on the obligations that are imposed on Argentina under such international conventions, which, as binding legal commitments made by Argentina as a sovereign state, are applicable to this case. On this occasion, this Honorable Court has the opportunity to uphold Argentina's international obligations by protecting Ms. Bevacqua’s human rights. 

Section VIII(A) below identifies the specific international legal instruments that protect the rights at issue in this case. It also describes the interaction between international law and Argentine law—in particular, the status of human rights treaties in the Argentine constitutional system—and the Argentine Supreme Court’s interpretation of the state’s obligations under international law, in particular with respect to the treatment of fundamental human rights. Section VIII(B) outlines the international law principles and interpretations related to the rights of free speech and academic freedom applicable to this case.

A. FREEDOM OF EXPRESSION AND ACADEMIC FREEDOM ARE FUNDAMENTAL RIGHTS UNDER INTERNATIONAL LAW AND THE ARGENTINE CONSTITUTION

Freedom of expression and opinion, freedom of thought, and academic freedom are all fundamental human rights protected by international law, as articulated in the international conventions and other legal instruments identified below. The legal obligations imposed by the relevant treaties to which Argentina is a party are binding due to Argentina’s status as a Member State, and are also recognized by the Argentine Constitution as norms of constitutional rank. 

            1.  Relevant Norms of International Law

  • The American Convention on Human Rights states that “[e]veryone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”[25]
  • The International Covenant on Civil and Political Rightsalso guarantees freedom of expression in the following terms: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”[26]
  • The International Covenant on Economic, Social, and Cultural Rights guarantees the right to education and to enjoy the benefits of scientific progress and its applications to everyone. Specifically, under article 13, States "recognize the right of everyone to education" and "agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms," and that education “enable[s] all persons to participate effectively in a free society.” Article 15 says: “The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.”[27]

By becoming a party to each of these treaties, Argentina granted its express consent to be bound by their provisions, and to abide by the obligations imposed by each of their precepts. 

In addition to the preceding treaties, several other instruments of international law are also relevant to the protection of freedom of expression and academic freedom. Such instruments include the following:

  • The Declaration of Principles on Freedom of Expression, adopted by the Inter-American Commission of Human Rights in 2000, specifically mandates that “[f]reedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals,”[28] and that therefore “[e]very person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights.”[29]These provisions, and other relevant clauses of this Declaration, are discussed in more detail later in this brief.
  • The American Declaration of the Rights and Duties of Man, which reaffirmed this principle and demanded that it be protected by the States by establishing that:  “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.”[30]  
  • The Universal Declaration of Human Rightsguarantees freedom of expression in the following terms: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[31]

Different regional courts and tribunals that have interpreted the abovementioned treaties and declarations have explicitly recognized the obligation of States to protect the rights of freedom of expression and academic freedom. For example, the Inter-American Court of Human Rights, whose authority Argentina has legally and judicially recognized,[32]has ruled that “those who are protected by the Convention have not only the right and freedom to express their thoughts, but also the right and freedom to seek, receive and disseminate information and ideas of all kinds.”[33] Similarly, in Handyside vs. United Kingdom, the European Court of Human Rights emphasized when considering “the principles characterizing a democratic society,” that “[f]reedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.”[34]

In addition, under international human rights law, states have the obligation to establish and implement effective measures in their domestic law to protect and respect human rights provided in these treaties.[35]

2.  The Special Status of International Human Rights Instruments under Argentine Law

The abovementioned international human rights norms are part of Argentine law by virtue of the Constitution of the Republic. Article 75(22) of the Constitution grants international human rights treaties precedence over national laws by stating: “Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights and its empowering Protocol ... ; in the full force of their provisions, have constitutional hierarchy, do not repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein.”[36] Moreover, by express constitutional mandate, the rules derived from international treaties "are the Nation’s supreme law, and the authorities of each province, are bound to abide by them."[37]

The Argentine Supreme Court has expressly recognized the binding nature of these international instruments within the Argentine legal system. Specifically, for example in Simón, Julio Héctor et al, the Court stated that "… in the matter of human rights, the 1994 Constitution has followed an internationalist orientation in order to achieve greater uniformity in the decisions."[38]The court has further found that "the ACHR [American Convention], (Art. 1.1) imposes a duty on member states to take all necessary measures to remove any obstacles that may exist for individuals to enjoy the rights the Convention guarantees."[39]

Similarly, when interpreting the scope of international human rights in Argentina, the Supreme Court has followed precedents of the Inter-American Court of Human Rights and the European Court of Human Rights. Indeed, judgments of these two regional human rights courts have had a direct impact on the interpretation of fundamental human rights by the Supreme Court. For example, in Ekmekdjian, Miguel Angel v. Sofovich, Gerardo et al, the Court noted "[t]hat the interpretation of the [American Convention of Human Rights] must also be guided by the jurisprudence of the Inter-American Court of Human Rights, among whose objectives is the interpretation of the Pact of San José (Statute, Article 1)."[40]And in Simón, Julio Héctor et al, the court referred to the Streletz, Krentez and Krentez v. Germany (2001) case, heard before the European Court of Human Rights, to explain the correlation between international law and national law.[41]

The binding nature of international human rights law has been recognized not only in Argentine legislative texts and jurisprudence, but has also been defended by the executive in several international procedures. For example, the Argentine government, through the Procuración del Tesoro de la Nación, has stated before the World Bank-affiliated arbitration institution, called the International Centre for Settlement of Investment Disputes (ICSID), that universal human rights, as set out in international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights, "are tantamount to jus cogens;" in other words, peremptory norms of international law.[42]

In short, since Argentina has long recognized the prominent role of international human rights law in the Argentine legal system, it is not only relevant, but also imperative, to take into consideration international law principles to address the questions of whether the criminal prosecution of Ms. Bevacqua and the imposition of high fines against her through an administrative procedure violates her rights to freedom of expression and academic freedom. 

B. The Rights to Freedom of Expression and Academic Freedom Encompass the Right to Research, Disseminate, and Publish Information of Public Interest

Under international law, States must ensure that their citizens can freely exercise their human rights,[43]and must also protect their citizens against any violation of such rights.[44]The scope of the rights to freedom of expression and academic freedom, which is relevant to analyze this case, entails the right to research, disseminate, and publish information of public interest.

1. The Right to Freedom of Expression

Under international treaties ratified by Argentina, the right to freedom of expression is a fundamental right whose exercise must be guaranteed by the State.[45]

The Inter-American Court of Human Rights has been instrumental in the development of the jurisprudence on the right to freedom of expression, in particular by identifying the two dimensions of this fundamental right: (i) its individual dimension; and (ii) its social dimension.

With respect to the former, the Court has held that “freedom of expression is not exhausted in the theoretical recognition of the right to speak or write, but also includes, inseparably, the right to use any appropriate method to disseminate thought and allow it to reach the greatest number of persons.”[46]The expression and dissemination of thought and information are thus indivisible.

The social dimension, meanwhile, as explained by the Inter-American Court, “is a medium for the exchange of ideas and information between persons; it includes the right to try and communicate one’s points of view to others, but it also implies everyone’s right to know opinions, reports and news.”[47]The court has also stated that prior censorship "violates the right of each individual to express himself, but also … impairs the right of each person to be well informed, and thus affects one of the fundamental prerequisites of a democratic society."[48]

In this regard, the Inter-American Court has held that "[i]t is also in the interest of the democratic public order inherent in the American Convention that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.”[49]Similarly, according to the OAS Special Rapporteurship on Freedom of Expression, “[a]ny obstacle to the free discussion of ideas and opinions limits freedom of expression and the effective development of the democratic process.”[50]

Both dimensions are evident in Ms. Bevacqua’s case. A country’s statistics on inflation constitute information of public interest, and Ms. Bevacqua had the right to put forth her own calculations and analysis on inflation. The Argentine citizenry, in turn, had the right to receive information on such calculations and analysis, and to weigh them objectively in the light of other available information, both official and unofficial.

The Declaration of Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights also includes several principles that have a direct bearing on this case, namely:[51]

Principle 1.-  Freedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society.

Principle 2.-  Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. (...)

Principle 4.-  Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. (...)

Principle 5.-  Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.

Principle 6.-  Every person has the right to communicate his/her views by any means and in any form. (...)

Principle 7.-  Prior conditioning of expressions, such as truthfulness, timeliness or impartiality is incompatible with the right to freedom of expression recognized in international instruments.

Principle 8.-  Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.           

In the background and interpretation of the principles, the Special Rapporteur has stated that, “the right to information encompasses all information, including that which we might term “erroneous,” “untimely,” or “incomplete,” and that “[t]he prospect of penalties for reporting on a subject that free debate later shows to be incorrect creates the potential that informants will engage in self-censorship to avoid penalties, with the attendant harm to citizens who are unable to benefit from the exchange of ideas.”[52]Thus, even if considered "offensive" or "shocking," the information enjoys the protections conferred by the right to freedom of expression.[53]

Under international law, the right to free expression is not absolute. But it may only be justifiably restricted by the State in very narrow circumstances. Under article 13(2) of the ACHR, this right may be subject to "subsequent imposition of liability, which shall be established by law to the extent necessary to ensure: (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals."[54]

The Inter-American Legal Framework regarding the Right to Freedom of Expression, adopted by the Inter-American Commission of Human Rights, explains that "the Convention requires that the following three conditions be met in order for a limitation to freedom of expression to be admissible: (1) the limitation must have been defined in a precise and clear manner by a law, in the formal and material sense; (2) the limitation must serve compelling objectives authorized by the Convention; and (3) the limitation must be necessary in a democratic society to serve the compelling objectives pursued, strictly proportionate to the objective pursued, and appropriate to serve said compelling objective."[55] The framework states explicitly, citing jurisprudence from the Inter-American Court, that information regarding matters of public interest entails a heightened degree of protection.[56]

None of the above-mentioned requirements are met in the present case to justify the limitation by the state of Ms. Bevacqua's right to free speech through the imposition of high administrative fines, and even less so, the criminal investigation against her for disseminating information in the public interest.

2. The Right to Academic Freedom

When interpreting article 13 of the International Covenant on Economic, Social, and Cultural Rights, which provides for the right to education, the UN Committee on Economic, Social, and Cultural Rights held that such a right “can only be enjoyed if accompanied by the academic freedom of staff and students.”[57]

According to the Committee, “members of the academic community, individually or collectively, are free to pursue, develop, and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing.” Moreover, the Committee has stated that “[a]cademic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfill their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction.” It specifically noted that academic freedom encompasses “the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to treat all without discrimination on any of the prohibited grounds.”[58]

Academic freedom as a component of the right to education is, in addition, intrinsically related to other fundamental freedoms. For example, the Universal Declaration of Human Rights, using language that inspired article 13 of the International Covenant on Economic, Social, and Cultural Rights, states that, “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedom.”[59]Further, the American Declaration of the Rights and Duties of Man states that “[e]very person has the right to work, under proper conditions, and to follow his vocation freely, insofar as existing conditions of employment permit.”[60]The Declaration of Principles on Freedom of Expression also contributes to defining academic freedom, by noting that, “the right to freedom of expression is essential for the development of knowledge and understanding among peoples.”[61]

The United Nations Educational, Scientific and Cultural Organization (UNESCO), for its part, has interpreted this principle as follows: “[i]nstitutions of higher education, and more particularly universities, are communities of scholars preserving, disseminating and expressing freely their opinions on traditional knowledge and culture, and pursuing new knowledge without constriction by prescribed doctrines. The pursuit of new knowledge and its application lie at the heart of the mandate of such institutions of higher education.”[62]

Of particular relevance to Ms. Bevacqua’s case is the following further observation by UNESCO: “[Academics] should not be hindered or impeded in exercising their civil rights as citizens, including the right to contribute to social change through freely expressing their opinion of state policies and of policies affecting higher education. They should not suffer any penalties simply because of the exercise of such rights.”[63]UNESCO’s recommendation specifically suggests that academic work should be carried out without any impediments that could undermine the professional and ethical responsibility of academics, who also have the right to publish and disseminate the findings of their research.[64]

Similarly, the Lima Declaration on Academic Freedom and Autonomy of Higher Education Institutions of 1988, adopted by the World University Service after consultation with over fifty specialist organizations, defines academic freedom in its article 3 as “an essential precondition for those education, research, administrative, and service functions with which universities and other institutions of higher education are entrusted. All members of the academic community have the right to fulfill their functions without discrimination of any kind and without fear of interference or repression from the State or any other source.”[65]They also have the right “to communicate the conclusions of their research freely to others and to publish them without censorship.”[66]The International Association of Universities’ definition of academic freedom requires that members of the academic community be able to disseminate the results of their research through teaching and publication "without outside pressure."[67]

The standards outlined in these international instruments unquestionably apply in Ms. Bevacqua’s case. Ms. Bevacqua conducted an investigation on the issue of inflation statistics in Argentina through a research center based at the University of Buenos Aires, and was therefore entitled to the guarantees afforded to academics to conduct research freely.

*****

X. PETITION

For the abovementioned reasons, hoping that our input can contribute to the just resolution of this case, we ask this Honorable Court to:

                1)            Accept Human Rights Watch as a Friend of the Court in this case, and               

                2)            Take into account the legal arguments and international standards presented in this brief.

 

 

José Miguel Vivanco

Executive Director / Americas Division

Human Rights Watch

 

 



[1] "Summary of the Situation”, National Institute of Statistics and Census of the Argentine Republic, http://www.indec.mecon.ar/ (accessed November 12, 2013).

[2]Secretary of Commerce, File No. EXP-S01:0050716/2011, March 15, 2011.

[3] The Ministry of Economy and Public Finances sent Graciela Cristina Bevacqua a cease and desist letter (nota de intimación) on February 14, 2011, based on the Commercial Loyalty Law, Supply Law and Consumer Defense Law, demanding that she respond to the director within 48 hours with an explanation regarding certain aspects of her research to elaborate the alternative CPI index.

[4] Commercial Loyalty Law, No. 22.802, 1983, http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/19946/texact.htm (accessed November 13, 2013), article 18: “The individual who violates he norms in this law, its implementating regulations, and the resolutions adopted based on them, will be sanctioned with a fine of one hundred pesos ($100) up to five hundred thousand pesos ($500.000)”.

[5]He specifically stated that: “Claramente, la actividad de la encartada se ve subsumida en las previsiones de la ley, en atención a que efectúa presentaciones en medios masivos de comunicación (en el caso referidas a incrementos en el índice de inflación, costo de vida e inflación interanual) cuya regulación prevé el Artículo 9º de la referida Ley Nº 22.802.

[6] Commercial Loyalty Law, art. 9: “Queda prohibida la realización de cualquier clase de presentación, de publicidad o propaganda que mediante inexactitudes u ocultamientos pueda inducir a error, engaño o confusión respecto de las características o propiedades, naturaleza, origen, calidad, pureza, mezcla, cantidad, uso, precio, condiciones de comercialización o técnicas de producción de bienes muebles, inmuebles o servicios.”.

[7]Secretary of Commerce, File no.EXP-S01:0134968/2011, July 6, 2011.

[8]She cites case law that states that the Commercial Loyalty Law is meant to ensure loyalty in commercial relations, therefore she argues it could not be applied to her and it would be unconstitutional to do so by grounds of analogy. Bevacqua cites jurisprudence from, for example, Federal Administrative Court of Appeals, Fifth Chamber, Case “Administradora EMPCO S.A. c/DNCI - DISP 193/10, File Number S01:274981/07),”September 9, 2010. Appeal filed by Bevacqua before a federal appeals court, n.d.

[9] Court of Appeals (Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal, Sala III), Case No. 134968/11, “Bevacqua, Graciela Cristina c/ DNCI-Disp. 267/11,” May 2, 2013: “… si bien podría calificarse a la aquí recurrente como “proveedor” en los términos de la ley nº 24.240 en la medida que desarrolle de manera profesional actividades de producción de servicios (art. 2, primer párrafo, de la ley nº 24.240) y que ofrezca tales servicios a título de “mercaderías” (bajo la regulación de la ley nº 22.802), sin embargo dicha actividad no integra la “cadena de comercialización” de los bienes de consumo, en los términos, con los alcances y proyecciones –sobre todo el espectro de bienes y servicios comprendidos en la norma citada-, que se le atribuyen en el acto administrativo impugnado en autos, ya que tales productos o mercancías (los datos estadísticos) no poseen la finalidad, ni el efecto de inducir o mover al consumidor, a la adquisición o no de determinados productos, y son por ello insusceptibles de inducir a error, engaño o confusión, respecto del precio y condiciones de comercialización de bienes muebles, inmuebles y servicios.”

[10] Ibid.: “…se concluye que la divulgación de las estimaciones que elabora la aquí actora no constituye ‘presentaciones’, ‘publicidad comercial’ o ‘propaganda’ –en el sentido asignado al art. 9 de la ley nº 22.802…”.

[11] Supreme Court of Justice, Notice to Ms. Bevacqua on File No. 46818/2011, May 27, 2013. Copy on file at Human Rights Watch. “En los hechos, el Tribunal ha interpretado incorrectamente normas federales de manera tal que colisionan con la competencia del Poder Ejecutivo Nacional (Secretaría de Comercio Interior – Dirección Nacional de Comercio Interior) que se encuentra habilitado para aplicar la Ley 22.802 de conformidad con lo establecido en el art. 42 de la Constitución Nacional.”  

[12]Ibid. “De esta forma, es que este tipo de infracción es de las llamadas formales, por ende no requieren de la producción del daño material o resultado alguno. Es decir, que basta para su configuración la sola constancia del hecho, prescindiendo de la intencionalidad del infractor…”

[13] Human Rights Watch interview with Marta Nercellas, Buenos Aires, December 10, 2013.

[14] Court of Appeals, File No. 46819/2011, October 8, 2013. Copy on file at Human Rights Watch.

[15] Human Rights Watch interview with Marta Nercellas, Buenos Aires, December 10, 2013.

[16] According to an official transcript: “…la tarea fundamental de los denunciados es ‘vender’ o ‘tergiversar’ presuntos datos estadísticos, tendientes a mejorar la tasa de ganancias de manera espuria de sus clientes, ya que su tenencia de bonos es ajustada por el Coeficiente de Estabilización de Referencia – CER, (que se calcula por la evolución mensual del Índice de Precios al Consumidor (IPC), publicado por el INDEC). De tal manera, que a su vencimiento el deudor (en este caso el Estado Nacional) pague más por el título entregado que lo que efectivamente correspondería …Existe sin duda, un fuerte interés en el falseamiento de la información que se publica sobre la inflación, destinada a obtener ganancias extraordinarias en detrimento de los consumidores y los intereses del Estado Nacional.”

[17]Argentine Criminal Code, http://www.infoleg.gov.ar/infolegInternet/anexos/15000-19999/16546/texact.htm (accessed November 13, 2013), art. 300: “Serán reprimidos con prisión de seis (6) meses a dos (2) años:1º. El que hiciere alzar o bajar el precio de las mercaderías por medio de noticias falsas, negociaciones fingidas o por reunión o coalición entre los principales tenedores de una mercancía o género, con el fin de no venderla o de no venderla sino a un precio determinado. 2º. El fundador, director, administrador, liquidador o síndico de una sociedad anónima o cooperativa o de otra persona colectiva, que a sabiendas publicare, certificare o autorizare un inventario, un balance, una cuenta de ganancias y pérdidas o los correspondientes informes, actas o memorias, falsos o incompletos o informare a la asamblea o reunión de socios, con falsedad, sobre hechos importantes para apreciar la situación económica de la empresa, cualquiera que hubiere sido el propósito perseguido al verificarlo.”.

[18] Prosecutor's Office, Case C. 1509/2011 “Buenos Aires, City – Bevacqua Graciela Cristina – Salvatore Nicolás s/ fraudes al comercio e industria (art. 300) dte. Moreno Mario Guillermo” J. 6 – S. 11 FIPE 7, September 4th, 2012. Copy of document in Human Rights Watch's files.

[19] National Criminal Economic Court No. 6, Case No. 1509/2011, September, 7, 2012. Copy of document in Human Rights Watch's files.

[20] Court of Appeals, Case N° 63.588, April 17th, 2013, para. 12: “…en la medida en que el Secretario de Comercio Interior del Ministerio de Economía y Finanzas Públicas de la Nación se encuentra facultado a autorizar la presentación del Estado Nacional como parte querellnte en los supuestos contemplados por el art. 4 de la ley 17.616 … tampoco cabría cuestionar la pretensión de aquél de representar, por sí mismo, al Estado Nacional en el proceso penal respectivo, máxime en un supuesto como el de autos, en el cual el funcionario aludido actúa con el patrocinio de un letrado que pertenece al servicio jurídico del Ministerio de Economía y Finanzas Públicas de la Nación, el cual, por lo demás, fue facultado oportunamente a representar y/o a patrocinar al Estado Nacional “…en las causas judiciales en que corresponda la intervención del MINISTERIO DE ECONOMÍA Y PRODUCCIÓN…”

[21] Idem, para. 25: “Que, por lo establecido por los considerandos que anteceden, corresponde revocar la resolución recurrida a los efectos de que el juzgado “a quo” se pronuncie con respecto a la pretención del Secretario de Comercio Interior d la Nación de constituirse en parte querellante, como también –si correspondiera así, de acuerdo con la solución a la cual se arribe con relación a aquella primera cuestión- respecto de los hechos denunciados a fs. 1/35 vta de los autos principales, en cuanto a la viabilidad de la pretensión de aquel funcionario de promover la apertura de la etapa instructoria del proceso penal.”

[22] National Criminal Economic Court No. 6, Notice on File 1509/2011, April 30, 2013. Copy on file at Human Rights Watch.

[23]Article 22 of the Argentine Constitution of 1994 grants constitutional status (jerarquía constitucional) to a number of international human rights treaties.  A complete list is available at:  http://www.bcnbib.gov.ar/ti_tijc.php (accessed November 13, 2013).

[24] Human rights declarations and treaties with constitutional hierarchy that contain provisions regarding freedom of expression include:  the Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), the American Convention on Human Rights (ACHR), adopted November 22, 1969, OAS Treaty Series No. 36, vol. 1144 (1969), ratified by Argentina on August 14,1984; the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted

December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49,

U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3,ratified by Argentina on August 8, 1986

International Covenant on Civil and Political Rights (ICCPR), adopted December

16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.

A/6316 (1966), 999 U.N.T.S. 171, ratified by Argentina on August 9, 1986.

[25] ACHR, art. 13.  The European analogue to the American Convention, which is the European Convention on Human Rights, also reaffirms the right to freedom of expression, in the following terms: “Everyone has the right to freedom of expression. This right  shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” European Convention on Human Rights, adopted April 11, 1950, European Treaty Series vol. 5, entered into force March 9, 1953, art. 10.

[26] ICCPR, art. 19 (2).

[27] ICESCR, arts. 13 and 15.

[28] Organization of American States, Declaration of Principles on Freedom of Expression, October 19, 2000, http://www.cidh.oas.org/declaration.htm (accessed November 13, 2013), art. 1. 

[29] Ibid., art. 2.

[30] American Declaration of the Rights and Duties of Man, adopted April 1948, O.A.S. Res. XXX, OAS/Ser.L/V/I.4 Rev. 9 (2003), art. 4.

[31] UDHR, art. 19.

[32] Argentine Constitution, http://infoleg.mecon.gov.ar/infolegInternet/anexos/0-4999/804/norma.htm (accessed November 13, 2013), art. 22; Argentine Supreme Court of Justice, Giroldi, Horacio David et al., April 7, 1995; Argentine Supreme Court of Justice, Videla, Jorge Rafael and Massera, Emilio Eduardo, August 31, 2010; Argentine Supreme Court of Justice, Simón, Julio Héctor et al., June 14, 2005.

[33] Inter-American Court of Human Rights, Herrera Ulloa v. Costa Rica Case, Judgment of September 7, 2001, Inter-Am.Ct.H.R., (Ser. C) No. 107, para. 108.

[34] European Court of Human Rights, Handyside v. United Kingdom, Judgment of December 7, 1976, Series A no. 24, para. 49.

[35] For example, ACHR, art. 1; ICCPR, art. 2.

[36] Argentine Constitution, art. 75(22).

[37] Ibid., art. 31.

[38] Argentine Supreme Court of Justice, Simón, Julio Héctor et al., June 14, 2005, para.15.

[39] Ibid., para. 16.

[40] Argentine Supreme Court of Justice, Ekemekdijan, Miguel A. v. Sofovich, Gerardo et al., July 7, 1992, para. 21.

[41] Argentine Supreme Court of Justice, Simón, Julio Héctor et al., June 14, 2005, para. 16..

[42] International Centre for Settlement of Investment Disputes (ICSID), EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v. Argentine Republic Case, Award of June 11, 2012, ICSID Case No. ARB/03/23, para. 193.

[43] United Nations Human Rights Committee, General Comment 31, March 2004; European Court of Human Rights, “Research Report: Positive Obligations of States Under Article 10 to Protect Journalists and Prevent Impunity”, December 2011, page 11.

[44] United Nations’ Special Rapporteur on freedom of opinion and expression, Freedom of the Media Representative for the Organization for Security and Cooperation in Europe, Special Rapporteur of the Organization of American States on freedom of expression, Special Rapporteur on freedom of expression and access to information of the African Commission on Human and Peoples' Rights, “Joint Declaration on Crimes against Freedom of Expression”, June 25, 2012, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=905&lID=1 (accessed November 14, 2013), para. 1(c).

[45] UDHR, art. 19; ICCPR, art. 19(2).

[46]Inter-American Court of Human Rights, Ivcher Bronstein Case, Judgment of February 6, 2001, Inter-Am.Ct.H.R., (Ser. C) No. 74 (2001), para. 147.

[47]Ibid., para. 148.

[48] Inter-American Court of Human Rights, Advisory Opinion OC-5/85, November 13, 1985, Inter-Am.Ct.H.R., (Ser. A) No. 5, para. 54.

[49] Ibid., para. 69.

[50] Special Rapporteur for Freedom of Expression, “Background and Interpretation of the Declaration of Principles”, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=132&lID=1 (accessed November 14, 2013), para. 4.

[51] Inter-American Commission on Human Rights,  “Declaration of Principles”, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26&lID=1  (accessed November 14, 2013).

[52] Special Rapporteur for Freedom of Expression, “Background and Interpretation of the Declaration of Principles”, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=132&lID=1 (accessed November 14, 2013), paras. 31 and 33.; Inter-American Court of Human Rights, Advisory Opinion OC-5/85, November 13, 1985, Inter-Am.Ct.H.R. (Ser. A) No. 5, para. 33.

[53] Ibid., para. 26, citing a decision by the European Court of Human Rights, Castells v. Spain, judgment of April 23, 1992, Series A no 236, para. 20. The European Convention on Human Rights also refers to this principle in its article 10, which has been interpreted by the European Court of Human Rights in the following terms: "Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.  Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ’information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population." See Handyside v. United Kingdom, Judgment of December 7, 1976, Series A no. 24, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57499#{"itemid":["001-57499"]}(accessed November 14, 2013), para. 49.

[54] The ACHR echoes the language of the ICCPR, article 19 (3).

[55] Office of the Special Rapporteur for Freedom of Expression of the Inter American Commission of Human Rights, “The Inter-American Legal Framework regarding the Right to Freedom of Expression”,OEA Ser.L/V/II, December 30, 2009, http://www.oas.org/en/iachr/expression/docs/publications/INTER-AMERICAN%20LEGAL%20FRAMEWORK%20OF%20THE%20RIGHT%20TO%20FREEDOM%20OF%20EXPRESSION%20FINAL%20PORTADA.pdf (accessed November 14, 2013), para. 67.

[56] Ibid., paras. 99-100.

[57] Committee on Economic, Social, and Cultural Rights, General Comment 13, The right to education 12/08/199, E/C.12/1999/10  December 8, 1999, http://www.unhchr.ch/tbs/doc.nsf/0/ae1a0b126d068e868025683c003c8b3b?Opendocument (accessed November 15, 2013), para. 38.

[58] Ibid., para. 39.

[59]UDHR, art. 26.

[60] American Declaration of the Rights and Duties of Man, art. 14.

[61]Inter-American Commission on Human Rights, “Declaration of Principles”, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26&lID=1  (accessed November 14, 2013, preamble.

[62] United Nations Educational, Scientific and Cultural Organization (UNESCO), Recommendation concerning the Status of Higher Education Teaching Personnel, November 11, 1997, section III.4.

[63] Ibid., section VI.A.26.

[64] Id., section VI.A.29.

[65] World University Service, Declaration on Academic Freedom and Autonomy of Institutions of Higher Education, Lima, September 1988, http://www.wusgermany.de/fileadmin/user_upload/Daten/International/PDF/WUS-Lima-englisch.pdf  (accessed November 13, 2013), art. 3.

[66] Ibid., art.6.

[67] International Association of Universities, Statement on Academic Freedom, University Autonomy and Social Responsibility, April 1998, http://www.iau-aiu.net/sites/all/files/Academic%20Freedom_2.pdf (accessed November 13, 2013).

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