REPORT OF THE INTER-AMERICAN COMMISSION
f) As for the appropriateness of the IACHR referring the case to the Court for settlement, the Government states:
8. As a final point in his observations, the petitioner speaks of what he calls the procedural situation. Mentioning Case Advisory Opinion OC-5/85, the petitioner contends that it is clear that in a case where controversial legal problems arise and their domestic legal proceedings result in conflicting judicial decisions, the Commission remits the case to the Inter-American Court of Human Rights.
Government of the Argentine Republic considers that the statement is incomplete.
In fact, in the advisory opinion cited, four different kinds of factors
were differentiated in concluding that the case should be remitted to the Court.
Only tow of those were mentioned, namely:
1) a case that raises controversial legal issues and 2) conflicting court
decisions. The petitioner,
therefore, omits 3) that the case could not be amicably settled before the
Commission and 4) that the Inter-American Court has not ruled on the subject.
is precisely these two omitted factors that are of the greatest importance in
this case. In fact, this case has
not even been inadmissible by the Commission.
Therefore, there is no reason to speculate about a possible failure of a
friendly solution. In addition, regarding the fourth factor, the Inter-American
Court has ruled on the compulsory membership of journalists in OC-5/85, and
especially has devoted a paragraph to the Bar Association (OC-5/85 paragraph
the above reasons and since the communication does not present any facts that
constitute a violation of the rights protected by the Pact of San José, Costa
Rica, and the petition is clearly unfounded, the Argentine Government requests
that, pursuant to Article 47, subparagraphs b) and c) of the American Convention
on Human Rights and Article 35, subparagraph c) of the Commission’s
Regulations, the petition be declared inadmissible and that the case is
The petitioner, in a letter dated October 23, 1987, submitted additional
information on the case which, in short, sought specifically to develop further
his points of view on the opposing court decisions handed down regarding the
constitutionality of Law 23,187 and to repeat his request that the IACHR refer
the case to the Court on the basis of the existence of opposing rulings on the
same matter. In particular, the
following is mentioned:1
Added now to the opposing decisions of the Argentine courts is a ruling handed down last August 27 in the request for declaration of unconstitutionality submitted by the attorney, allowed the action and declared Law 23,187 unconstitutional in that it establishes compulsory membership in the Colegio Público de Abogados. We attach a copy of that ruling which, as you can see, differs expressly and categorically from that of the Supreme Court of Justice of Argentina in our case, which opened the way to seek remedy, as was done, from the Inter-American Commission on Human Rights.
is clarified that the tardy ruling in the case of Dr. Boffi Perez was owed to
the fact that the aforementioned person chose the ordinary procedural route
instead of the summary ruling of protection used by we professionals who contest
Law 23,187 before the Commission.
OF MR. HORACIO GARCIA BELSULCE
Mr. Horacio García Belsulce submitted in his own behalf a letter
dated October 28, 1986, containing a petition in connection with violation of
the freedom of association (articles 14 and 14 bis of the Argentine
Constitution) provided for in Article 16 of the Constitution, and ratified and
approved by Argentine law No. 23,054. The
petitioner points out, after giving his identification, profession domicile, and
basic grounds for the petition (Article 32 of the Regulations of the
Commission), that he joins “without modification or reserve” in the petition
of his colleague, Dr. Alejandro Melitón Ferrari, and agrees with his arguments,
claims and causa pretendi.1
The Commission, in a letter dated November 4, 1986, transmitted to the
government the pertinent parts of this petition (Article 34 of the Regulations).
A copy of that note was remitted to the Argentine mission to the OAS on
the same date.
Furthermore, the Commission transmitted, in a letter dated April 13,
1987, to Mr. García Belsulce a copy of the letter from the Argentine
government, dated March 26, 1987, which replied to the petition submitted by
Messrs. Bomchil and Ferrari since it dealt, in substance, with the same
question, and requested him to forward his observations and comments.
Mr. García Belsulce, on June 24, 1987, formulated his observations and
to the reply from the government in which, in short, he sets out the following:
That the Argentine government basis its arguments on two points, namely:
i) that the obligatory enrollment of attorneys in the Colegio Público de
Abogados is nothing but the exercise of police power over professions delegated
to a legal person under nonstate public law, which is what the Colegio Público
would be; ii) that the Colegio is not a association and, therefore its existence
does not infringe the freedom of association of Article 14 of the Constitution
and Article 16 of the Convention.
That to sustain the foregoing, the Argentine government also invokes the
consultative opinion of the Court (OC-5/85) in the case of Stephen Schmidt,
citing the opinion of Judge Rafael Nieto Navia, in which that judge specifically
states the opposite of what the government seeks to maintain, that is, that
association with the Colegio Público de Abogados is valid “when such bar
associations perform strictly public purposes,” which is not the case here in
that the Colegio Público de Abogados “performs purposes that are those of
private associations which it is replacing in a coercive way.”
That the freedom of association of Articles 14 of the Constitution and 16
of the Convention can be limited, under the terms of paragraph 2 of the latter
article, but not when the associations depart from their purposes and they come
to function as private agencies or carry out the purposes of private agencies.
That proof of this is the arbitrary way that this bar association has set
membership and support dues for the attorneys as well as the way in which it
issues opinions on matters of domestic policy such as the April 21, 1987,
declaration on events in Argentina on or about that date, a point that is
foreign to the purposes of the bar association and, furthermore, because it
undertakes a representation not consistent with its status as public law entity.
That the case should be submitted by the IACHR to the Court, since the
procedures of Article 51 of the Convention have been exhausted.
That the Commission, in a letter dated July 9, 1987, transmitted to the
Argentine government the text of the observations of Mr. García Belsulce, so
that it might reply to them.
The Argentine government, in a letter dated September 2, 1987 (No. 317),
replied to the observations of Mr. García Belsulce.
The principal points of this letter appear below.
In essence, these ought to be considered an expansion of the
aforementioned government’s opinion already set out in a letter dated March
26, 1986, in which it replied to the (principal) petition of Messrs. Bomchil and
Alejandro M. Ferrari.
With respect to the nature and functions of the Colegio Público de
Abogados de la Capital Federal, the government says the following:
2. Of all the functions that national Law 23,187 confers to the Colegio Público, it is necessary to differentiate between those that unquestionably qualify it as a public law person and those having features similar to those performed by other associations that are not of this same type.
It is obvious that the governing of the enrollment–which the petitioner
does not question–the exercise of disciplinary power and supervision, and the
application of rules of profession ethics are powers delegated by the National
State which no civil or professional association under common law could
is with respect to these powers that the attorney is subject ope legis to
the bar association and cannot ignore legitimate and valid acts carried out in
this context. Nevertheless, the
member is legally entitled to challenge such acts–if such are
necessary–through the mechanisms, procedures, and appeals provided for under
positive law, one of which is judicial review. This is true with respect to acts of the administrative power
and in this sense the law ensures adequate protection of the petitioner.
b) Regarding other functions of the bar association, the government states:
2.3 Other functions that the bar association exercises actually have features like those of civil or professional associations but these neither affect nor disqualify it in terms of its status as a person under public law.
this context are several of the functions that the petitioner mentions, for
example, those pertaining to social benefits, social security, culture, sports,
recreation, and others. Fully consistent with the framework that surrounds them, they
do not bind the attorney but require his consent, that is, he has the choice of
participating, a position that can be gained only in other associations.
the functions in question which the bar association is empowered by law to
exercise do not displace similar functions of other associations but coexist
c) Regarding certain conducts of the bar association, the government expresses the following:
5. With respect to the statement made by the bar association on April 21, 1987,–the inspiration of which is in question, according to the petitioner, but which he terms as truly beyond the boundaries of the purposes of the bar association–it is important to clarify several points.
it is useful to recreate its context: After
almost eight years of distressing subjection to a de facto military regime which
undertook atrocious and aberrant acts which to our sadness made us well known
throughout the world, Argentina is regaining democracy, and restoring the state
of law. During Holy Week, the postures taken by certain members of
the armed forces profoundly upset the public–sensitive in the extreme to
traumatic situations–and the Argentine government.
For the first time in many years, the public exercised an involvement
prohibited to it in recent years and gave unqualified support to the government
and its democratic institutions. This
action, forsaking partisan interests, took the shape of a document signed by
representatives of political parties and all social forces.
this context, it should be brought out that the bar association did not sign
either acts or documents of political parties or groups having a specific
the contrary, the bar association made a public statement calling for
maintenance of the state of law in an absolutely individual declaration.
informing petitioner states in paragraph 3 that the publication of the Colegio Público
de Abogados de la Capital Federal on April 21, 1987, repudiating what it termed
a military uprising, “has truly meant a stretching of the limits of the
purposes of the Colegio Público de Abogados, as they have been limited by the
Supreme Court of Justice of the Nation.”
paragraph entails three gross errors of focus:
In its letter dated April 21, the association stated, in exercise of an
undeniable moral obligation, that, “the Colegio Público de Abogados de la
Capital Federal, made up of the people of the Argentine nation, stands ready to
defend national constitution and the order created by it, which all–the
governors and the governed–have the duty to observe faithfully.”
other words, it came out publicly in support of one of the basic assumptions of
respect for human rights which is “effective exercise of representative
democracy” (OAS Charter, Article 3.d).
its part, the preamble itself of the constitution reaffirms the intention “to
consolidate in this hemisphere, within the framework of democratic
institutions, a system of personal liberty and social justice based on
respect for the essential rights of man” (paragraph 1)
In a letter dated September 9, 1987, the Commission transmitted to Mr.
Garcia Belsulce the reply from the Argentine government of September 2, 1987,
and gave him 45 days to formulate his observations or comments.
Mr. Garcia Belsulce, in a letter received at the Secretariat of the
Commission on December 9, 1987, provided additional information on the case
which, in general, repeated the points made in his initial observation and
emphasized the fact that the bar association–by requiring dues from members to
meet the expenses of other promotional activities–is assuming functions
normally performed by private bodies. On
this point he stated that he is opposed to the way in which the bar association
is used to impose mandatorily, by the state, the obligation to finance tasks not
directly linked to the purposes of the association which ought to be only tasks
of public order that justify its existence.1
IV. PETITION OF MR. ALBERTO ALBARRACIN AND OTHERS
Mr. Alberto Robredo Albarracin, in his own behalf and for other
attorneys, submitted a petition in a letter received at the Secretariat of the
Commission on April 13, 1987, alleging violation of the Convention by “the
Argentine Republic through Law 23,187 (hereinafter called the law) passed by the
Congress on June 5, 1985, and promulgated by the executive branch of the nation
on the 25th day of the same month and same year.
The foregoing petition, signed in a lengthy letter that had 17
attachments (for the judicial actions taken by the petitioner in his request for
unconstitutionality of Law 23,187), meets the requirements of form of Article 32
of the IACHR regulations and expressly joins with the petition submitted by
Messrs. Bomchil, Ferrari, and García Belsulce.2
That the petitioner challenged Law 23,187 in a protection suit (case
186/85) in the National First Instance Court System, in Federal
Contentious-Administrative Court No. 3 of the Federal Capital, on November 1,
1985, and that court handed down a sentence that led to the complaint;
That the state appealed the sentence to Court I of the National Appeals
Chamber of the Federal contentious-Administrative Court which upheld the first
instance ruling on December 20, 1985, with reservations;
That this ruling led to an appeal of inapplicability filed by the state
and similar appeals by the parties before the Supreme Court of Justice which
issued its ruling on September 16, 1986, overturning the ruling of the Chamber.
That was notified to the claimant part on October 3, 1986;
That all the foregoing makes it possible to find that the claimant has
exhausted internal remedies and submitted in due time and form his case to the
IACHR (Articles 46.a and b of the Convention).
In summary, the petition further states the following:
That through Law 23,187 the Argentine Republic has violated Article 1 of
the Convention and corresponding provisions of the American Declaration;
That the law also violates Article XII of the aforementioned Declaration
and Article 20.2 of the Universal Declaration which holds that no person may be
obligated to join an association;
That it likewise violates Article 16 of the Convention “by conditioning
the exercise of law practice in the federal capital city … to registration on
the roll kept by the Colegio Público de Abogados,” which inscription produces
effects that go beyond the simple entry;
That the enrollment person may not practice law (Article 3.2.b of the
law) if he is sanctioned by a provincial bar association, meaning that a single
act would give rise to two sanctions;
That the enrollment confers to the bar association, under the terms of
Article 5.2 of the law, the right to intervene in the judicial activities of the
That as a consequence of enrollment, an attorney is obligated to accept
and exercise pro bono appointments made by drawing of lots conducted by
authorities of the association to advise, defend, and provide other services to
those lacking financial means (Article 6.b of the law), which situation
constitutes an obligation to perform forced labor, thereby violating Article
12.1 of the Convention;
That the funds collected by the association are used to carry out
purposes that are properly those of private agencies, a fact which violates
freedom of association in that it makes it obligatory to belong to a public
agency and make pecuniary contributions to maintain those activities, in
accordance with Article 20 of Law 23,187;
That since law practice is an eminently private exercise, the limitation
of Article 16.2 of the Convention is not applicable to the case;
That the aforementioned statements show that the law effectively violates
rights recognized by Articles 6, 11, 12 and 16 of the Convention.
This conclusion would be reached by a mere contrasting and comparison of
the rules of the law against those of the aforementioned articles of the
Convention and, even more so, if one takes into account the rules of
interpretation set out in Article 29 of the Convention, especially the rule on
the scope of restrictions established in Article 30;
That it does not share the opinion set out in the Supreme Court ruling to
the effect that “it is sufficient that the law-maker attributes to an
organization the character of public law agency to remove it automatically from
the area of freedom of association,” since the essential point is freedom of
association and the accessory matter is the nature of the agency;
That regarding the matter of being subject ope legis to the public
authority that the bar association exercises, this is what is questioned as the
determining fact of the violation of the freedom of association since it has
been seen that the association truly performs the same functions as free
associations. It is noted that the
attorneys are required to join the association and obligated to vote in its
meetings, to provide free services, to make pecuniary contributions, to abide by
the provisions cited by the organs of the association, to submit to a discipline
tribunal and to accept the protection of the association;
That the nature of the matter submitted to the Commission does not give
rise to a “friendly settlement” of the matter since the problem rests on the
fact that a law has been issued by the Argentine Congress and the executive
branch of government does not have the power to amend it. Consequently, the IACHR should omit this procedure.
In a letter dated April 13, 1987, the Commission acknowledged receipt and
reported to the petitioners that it was already processing a case on the same
matter and transmitted them the text of the note from the Argentine government
dated March 26, 1986, and requested their observations.
The petitioner, in a letter dated July 30, 1987, formulated observations
which, in substance, reiterated the points made in the original presentation
with the exception of the request that the Commission process separately his
letter to the Argentine Government.1
The Commission, in a letter dated August 5, 1987, transmitted the
pertinent parts to the government so that it could submit a reply to them.
The Argentine government, in a letter dated January 8, 1988, transmitted
the reply to the observations of Mr. Albarracin and others.2
The following is a transcription of the most important points of that
Regarding the substance of the matter, the government states the
The basic argument set out by the petitioners consists of their belief that the mandatory registration of attorneys listed with the Office of the Assistant Secretary of Enrollment of the Supreme Court of Justice of the Nation on the registry kept by the bar association amounts to a violation of Article 16.1 of the Convention because it entails an illegitimate restriction. In effect, they sustain that since this is a “eminently private profession,” this private character bars the valid motive set out in Article 16.2 of the Convention to restrict freedom of association.
other words, in their opinion, “the restrictions provided by the law are
necessary in a democratic society, in the interest of the national security,
security or public order of to protect public health or morals or the rights and
freedoms of others” (page 2) are not pertinent to this matter.
b) As relates to the exercise of legal sponsorship, the government states the following:
It is obvious that there is a substantial misunderstanding of the role of the professional attorney, as this government perceives it, and how the petitioners see it.
effect, it is beyond all question that the practice of law falls within the
framework of “free exercise of professions.”
However, this does not rule out any relevant restrictions in the interest
of public order and the common democratic good.
Thus, in opinion OC-5/85, the Inter-American Court of Human Rights has held “that the allegation … (transcribe 3.5, reply Ferrari case to … “may not be invoked in the case of journalism …,”) meaning that the mandatory registration is structurally the way of organizing the exercise of professions in general … [which] implies that such association is based on public order.” In this connection, it has considered that “one possible acceptance of public order within the framework of the harmonious and normal operation of the institutions on the foundation of a coherent system of values and principles. In this sense, restrictions on the exercise of certain rights and freedoms could be justified to ensure public order” (C.f. OC-5/85, paragraph 64).
the same context, the Court states, “It is valid to sustain in general that
the exercise of the rights guaranteed by the Convention ought to be in harmony
with the common good,” understanding as such “a concept referring to the
conditions of social life that enable the members of society to achieve a higher
degree of personal fulfillment and maximum effectiveness of democratic
values,” and for this reason, “the allegations that place mandatory
association as a means of ensuring professional RESPONSIBILITY and ethics …
ought to be considered as founded on the idea that such association represents a
requirement of the common good (Cf. OC-5/85), paragraph 65, 66).
the notions of “public order” and “common good” are not sufficient by
themselves to legitimize the restrictions on the rights protected except to the
extent that such restrictions “are necessary in a democratic society.”
This is a matter, then, of the democratic public order and the democratic
common good that are implied in a restriction imposed by democratic law.
Colegio Público de Abogados, in its short life, has been collaborating with the
Argentine state in this sense. Thus,
as relates to registration of corporations, thanks to a participation agreement
signed by the Colegio de Escribanos de la Capital Federal, the Consejo de
Profesionales de Ciencias Economicas de la Capital Federal, and our bar
association, with the Office of the Inspector General of Justice, a system of
professional prequalification has been established by which the process of
registration of a corporation that used to take 10 (ten) months now takes 5
(five) days. Thus, our association has also implemented a collaborative
system with the National Registry of Repeat Offenders which has put into
operation a data processing system capable of preparing reports on the court
records of persons in a much shorter time, thereby making it easier for the
professional and the accused person to exercise the right of defense in court.
short, Law 23,187 meets a vital need of the Argentine “common good” and
particularly that of those who practice law.
wee, then, that Law 23,187 which established the Colegio Público de Abogados
meets the opinion expressed by Judge Rafael Nieto Navia who states:
“The imperative rule of public law which obligates individuals to join
professional bodies is valid and cannot be considered, per se, a violation of
the freedom of association when such bodies work for strictly public purposes.
In other words, when these bodies receive from the state a delegation of
authority that the state could perform directly but which it delegates because
it believes that that is the most suitable way to carry out the proposed
is not said, as the litigants here contend, that such delegation is not possible
“since the freedom of association is a much higher value than elimination of
bureaucracy implicit in this delegation of authority.”
This is not merely a matter of “eliminating bureaucracy.”
Freedom of association is a right that eventually, as has been said, can
give way, in particular its pre-eminent status, when attempting to serve the
general common good, to improve auxiliary parts of the justice system and
attend, in short, to the needs of the registered persons since, among the
objectives of the bar association is attending to the social welfare needs of
the great “professional proletariat,” who today have meager resources for
retirement and nonexistent social services.
This aspect, for instance, is fully covered by certain bar associations
in interior parts of the country, one being the Province of Buenos Aires Bar.
this order of ideas, the Court has recognized that the organization of
professions in general into professional associations is not per se contrary to
the Convention and it can be concluded that such organization is implied in the
(democratic) public order (C.F. OC-5/85 paragraph 68).
the case mentioned in the consultative opinion, the mandatory association of
journalists involved another right protected by the Convention, freedom of
expression (Article 13, American Convention), long considered the keystone of
all democratic systems. It I, then, the difference between an association of
journalists and associations of other professionals which leads the
Inter-American Court to express the following:
This does not apply, for example, to the practice of law or medicine;
unlike journalism, the practice of law or medicine–that is, that which lawyers
and doctors do–is not an activity specifically guaranteed by the Convention.
It is true that the imposition of certain restrictions to the practice of
law could be incompatible with the enjoyment of various rights guaranteed by the
Convention. For example, a law that
prevented attorneys from acting as defenders in cases considered a violation of
the rights of defense of the accused, pursuant to Article 8 of the Convention,
and, therefore, could be incompatible with it.
But there is no one right guaranteed by the Convention that encompasses
exhaustively or defines by itself the practice of law, as does Article 13 when
it refers to the exercise of a freedom that coincides with journalistic
activity. The same is applicable to medicine.
The Court concludes, as a consequence, that the reasons of public order
that are valid to justify mandatory association of other professions cannot be
invoked in the case of journalism …
About the characteristics of the Colegio Público de Abogados that do not
make it an association, the government says:
4.1 It should be
kept especially in mind that Law 23,187 creates the Colegio Público de Abogados
de la Capital Federal as “a public law juridical person,” to which it
confers the handling of professional registration and disciplinary records
and sanctions of attorneys, in clear delegation of the state police power.
4.2 But, the
fundamental point to appreciate whether or not “freedom of association” is
being violated here is that delegation of the exercise of police power and
the status as a “public law person,” that the law confers to the bar
association and gives it its institutional essence:
this is not a matter of an “association,” in the sense regulated
by Article 14 of the National Constitution which attorneys may freely decide to
form or not. It is a public law person to which the attorney is bound by
the fact of registration: No
associational bond is created with the other registered persons.
the fact of registration and by the requirements of law, attorneys are subject
to the disciplinary power of the bar association which is public in nature and
to the obligations with respect to the body, among them, those of contributing
to its maintenance–dues and a set fee–which the law imposes without there
being any associational tie, having the features of spontaneous freedom of the
d) Concerning the point that Law 23,187 violates freedom of association, the government states:
EVEN MORE SO ASSUMING THAT THE COLEGIO IS AN ASSOCIATION, LAW 23,187
DOES NOT VIOLATE THE FREEDOM TO NOT ASSOCIATE.
Even if one agreed with the argument that the Colegio Público de
Abogados de la Capital Federal crated by Law 23,187 is an “association,” it
would still constitute a reasonable regulation of the freedom to associate or
not associate for useful purposes, as set out in Article 14 of the National
Constitution of Argentina. This
rule provides that the rights that it confers are granted in accordance “with
the laws regulating their exercise,” provided that such regulation does not
“alter”–Article 28, National Constitution of Argentina–or vitiate that
The Argentine National Constitution does not have individual absolute rights: their regulation must involve a delicate balance between the right of the individual and the social interest with which their absolute exercise may clash.
Then, assuming that our Colegio was an association, does Law 23,187 meet the requirements of Article 28 of the National Constitution that its regulation does not vitiate the freedom to associate or not for useful purposes of Article 14 of the National Constitution?
Perhaps the best authorized answer to this question is the conclusion reached by the members and the Supreme Court of Justice of the Nation, Drs. Sagarna and Casares, whose words Dr. Augusto Cesar Belluscio transcribes in his vote in re: Ferrari cited above: “The attorney is not simply a professional certified by his university degree to expound on law, teach it, and make it felt in carrying forward matters of justice, that is, as a jurisperitus and jurisconsultus, in accordance with the expression and the Roman concept. He is also an assistant in the justice system, a collaborator in that system, and a potential member of its courts in cases of impediment, challenge or exception of its members …; and as a logical consequence, the laws that organize the judicial system–in the country as a whole and in the provinces, according to the words of the preamble and Article 5 of the National Constitution–can require of attorneys that the have a certain organization and discipline as part of the regulatory power provided for in Article 14 of that fundamental law.
e) With respect to the right to associate or not associate, the government observes the following:
right to associate or not associate for useful purposes refers to “corporate
bodies whose existence is not required for the good order and well being of the
greater collective body–nation, province, municipality–within which they are
constituted.” The attorney “has the duty to enter into social structures
whose legal establishment is required for reasons of order and common good for
as long as they exist without infringement of the rights that pertain
essentially to the individual for whose good the community that is to be
improved by means of such structures exists.
The system of association that is being considered does not infringe the
right of association and the related freedom to do so because it deals precisely
with the legal statute of the social structure preconstituted by the nature of
f) With respect to providing free legal services (Article 6 of Law 23,187), the government states:
4.9. They believe that providing free legal service is forced labor under the terms of Article 6.1 of the Convention; this is to take a rather optimistic view of forced labor. The existence and provision of free legal service puts into practical form the principle of equality, one of the most basic principles of all normative systems of human rights, and makes it possible to put justice within the reach of all and to ensure adequate defense in court.
in the Argentine Republic it is possible, and in fact it occurs, for an
individual to enter into a profession absolutely free of cost, that is, the
state finances his education. This being the case, it does not appear an exaggeration that
the law would provide for such an eventuality since it will not always be the
case that the professional will render a service free of charge, depending on a
drawing of lots, since this is nothing but a small transfer of a minimal payment
for no fewer than five years of studies.
this were not the case, that is, if the professional had paid out of his own
pocket for his studies at a private university, this would be a minimal request
of social solidarity in order to bring about the universal right of justice.
this specific aspect the European Court of Human Rights has had the occasion to
rule in re: “Van der Mussele C. – Belgian.”
The petitioner, a Belgian attorney, took offense at her designation by
the Antwerp Bar Association as court-appointed defender of an accused person
lacking resources because her refusal exposed her to disciplinary sanctions and
her acceptance did not confer to her the right to receive fees.
The argument of Van der Mussele described the situation legally as a
“forced or obligatory work” under the terms of Article 4.2 of the Rome
Convention and as treatment contrary to Article 1 of Additional Protocol No. 1
(right of respect for her assets).
its ruling of November 23, 1983, the Court of Strasbourg decided that there was
no violation of Article 4 and that Article 1 of Additional Protocol No. 1 did
not apply to the case. In its
findings, the court ignored the treatment of Article 4.3.d of the Rome
Convention which, like Article 6.3.d of the Pact of San José, did not consider
forced or obligatory work “every work or service that is part of normal civic
The services to be provided are not outside the framework of the normal
activities of an attorney; they are not different from the usual tasks of a
professional occupation either on the basis of their nature or because they
presuppose a restriction on the liberty of conduct of the case.
they have their counterpart in the inherent advantages of the profession, among
which are the professional monopoly of representation and information before the
courts, as enjoyed in Belgium as in other countries…” (paragraph 39).
in connection with Article 1 of the Additional Protocol No 1, it stated:
argument by Van der Mussele does not stand up to a serious examination to the
extent that it refers to lack of remuneration.
The aforementioned text of Article 1 of Protocol 1 confines itself to
protecting the right of each person to have “their” assets respected and
consequently does not refer to assets other than those present… (paragraph 48)
f) Concerning the registration, the government points out the following:
Throughout the statement by the petitioners, a statement is reiterated
which should be changed because it is inaccurate:
from the provisions of Article 14, 16, and 53 of Law 23,187 they conclude
that the governing of the enrollment is still being done by the Supreme Court of
Justice of the Nation as under the system of the facto Law 22,192.
14, 16, and 53 of Law 23,187 establish a communication system to the court
regarding the status of the registration but the “governing” of the
registration is performed by the bar association.
What does the “governing” of the registration consist of?
It is simply to determine on an ongoing basis who are the attorneys who
will act not only because they are registered but because they meet the
conditions of law and are not under any disciplinary sanction that would
disqualify them as of the date for professional practice.
point is that governing the registration and exercising professional
disciplinary power are intimately linked: both
are exercised by the association.
should be asked, however, why does Law 23,187 maintain the information system to
the court regarding the status of the registration?
This is precisely because the Colegio Público de Abogados de la Capital
Federal is a “public law person” which performs–among other public
functions–that of governing the registration and the law keeps the Supreme
Court of Justice informed as the highest body in the system of justice that
could intervene in the case of a manifest irregularity in the functioning of the
g) Finally, the government expresses the following:
CLAIM, THE FACTS AND THE LAW
GOVERNMENT WISHES TO MAKE CLEAR THAT NONE OF THE ASPECTS OF LAW 23,187 raised
here by the petitioners has been verified in actual facts.
That is to say, the petitioners seek to attribute responsibility to the
ARGENTINE STATE without showing the damage done to them by the effective
violation of a binding legal obligation to the country.
Even in the most advanced arguments in the area of international
responsibility of the state–the responsibility for damaging consequences of an
activity exercised in accordance with law–the subject who puts the mechanism
into march ought to take credit for the damage.
This is not the case here.
in general, and in particular under international human rights law, it is
presumed that a claim is described by allegations of facts and not by mere
reasons or arguments of law invoked (Cf. European Court of Human Rights, in
re Schiesser vs. Switzerland, December 4, 1979, par. 41; LE-COMPTE, VAN
LEUVEN AND DE MEYERE vs. BELGIUM, February 25, 1982, par. 40).
In the case that concerns us here, the criterion appears to be that of
stating legal rules and not facts.
Judging by all the foregoing, the GOVERNMENT OF THE ARGENTINE REPUBLIC
requests the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS to declare INADMISSIBLE
this petition in accordance with Article 47 of the AMERICAN CONVENTION ON HUMAN
RIGHTS and Article 41 of its REGULATIONS.
a review of the material subject of this respect, the Commission has reached prima
facie, the following conclusions:
1. The petitions under which cases 9777 and 9718 are brought meet the formal requirements of admissibility as set out in Article 46.1, clauses b, c, and d, of the Convention. The charges have been presented within the term of six months as from the date on which the plaintiffs were notified of the final domestic decision; the subject of the petitions is not pending proceedings in any other international forum and they contain the names, nationality, professions, domiciles and signatures of the petitioners, the requirements set out in Article 32 of the petitioners, the requirements set out in Article 32 of the Regulations of the Commission.
The petitioners have filed and exhausted all resources of domestic
jurisdiction, in accordance with the principles of generally recognized
international law, a prerequisite set out in Article 46.1.a of the
Convention and Article 37.1 of the Regulations of the Commission.
In this respect, and as is noted in the body of this report, the
following judicial proceedings occurred under the exercise of each of the
Protection proceedings, requesting declaration of unconstitutionality of
Law 23,187 of June 25, 1985, which creates the Colegio Público de Abogados de
la Capital Federal of the Argentine Republic and issues rules on exercising the
practice of law in that jurisdiction. These
appeals to the National First Instance Court for Federal
Contentious–Administrative Matters No. 3 of the Federal capital were
substantiated, giving rise to the claims of the petitioners.
The national state appealed that ruling to the National Chamber of
Appeals for Federal Contentious–Administrative Matters which handed down its
ruling overturning the first instance ruling and rejecting, therefore, the
requested ruling of unconstitutionality of Law 23,187 of 1985.
Once the special appeal had been filed with the Supreme Court of Justice
of the Nation, the latter upheld the denial ruling of the second instance (by
the Federal Chamber) and left valid, therefore, the constitutionality of the law
Consequently, in the opinion of the Commission, the aforementioned
proceedings have exhausted all remedies that the petitioners could exercise in
the domestic area.
The Inter-American Commission on Human Rights is competent to review the
material petitions of the combined cases and to adopt the decision it deems
pertinent in conformity with the Convention (Article 44) and its Regulations
The petition action is not admissible in the sense of limiting its claim
to determined provisions of Law 23,187, that is, to title III of that law
pertaining to association of attorneys.
The Commission believes that for reasons of generally recognized legal
hermeneutics, a law may not be examined in separate parts to establish its
nature and scope. Laws have to be considered in their entirety and as they were
promulgated, as this relates to their interpretation or application.
The Commission finds acceptable the point of view of the claimants that
the case cannot be resolved by friendly settlement, bearing in mind that the
alleged violation would come about as a result of the effectiveness of “a law
issued b the Argentine Congress and the Executive Branch of Government has not
authority to amend its provisions, and thus any compromise agreement is a
material impossibility.” Therefore,
the Commission believes that Article 45.7 of its Regulations is applicable here.
Not acceptable is the argument of the petitioners to interpret as
incorporated into the Convention “all rights embodied in the American
Declaration of Rights and Duties of Man by way of Article 1.2 of the Statute of
the Inter-American Commission on Human Rights, whether or not they are a part of
it,” since this is not in agreement with the rules on interpretation of
treaties set out in Article 31.2 of the Vienna Convention on Treaty Law (1969),
of which the Argentine Republic is a state party, because there is no formulated
or concerted agreement or instrument between the states parties in the American
Convention for purposes of making the American Declaration of Rights and Duties
of Man (1948) an integral part of the Convention or a supplement to it for the
It can also be noted that the above interpretation is not consistent with
the provisions of the IACHR statute itself which, in Articles 19 and 20,
distributes the competence of this organ among the member states of the OAS,
depending on whether or not they are parties to the Convention, without which to
this time the practice of the Commission in application of the aforementioned
provisions of its statute could be the point of reference for the opinion of the
petitioners. It is generally
recognized as a rule of interpretation of treaties that, “when the normal
meaning of the words is clear and logical in the context in question, there is
no reason to resort to other means of interpretation” and that, furthermore,
it is a rule of interpretation to establish that “it must be presumed that the
text of the treaty is an authentic expression of the intention of the
parties,” as the International
Rights Commission pointed out in its review of the draft convention on this
The fact is that the text of the Convention is clear on what rights it
protects and, therefore, it is more than enough reason to not accept the
aforementioned interpretation by the petitioners.
In consequence, it is concluded that as it relates to the states parties
of the Convention and to the case that concerns us here, Argentina, the IACHR
can only, in accordance with its own Regulations (Article 31), take into
consideration the petitions on presumed violations of human rights defined in
the American convention on Human Rights. The
right to work is still not incorporated into the Convention which does not
include economic, social, and cultural rights.
From neither the background information nor the allegations submitted to
the Commission, or the context itself of Law 23,187 of June 25, 1985, which
created the Colegio Público de Abogados de la Capital Federal of the Argentine
Republic, can it be drawn that the law per se violates Article 16 of the
Convention and, therefore, the freedom of association.
The purpose of the law is eminently public in nature, that is,
“protection of freedom and dignity of the profession of attorney,” and it is
pointed out that “none of its provisions could be understood in a sense that
undermines or restricts them” (Article 1).
achieve that purpose, the law proceeded to create (Article 17) the Colegio Públice
de Abogados de la Capital Federal which meets the prerequisites and
characteristics of a typical public law body which by its legal nature and the
powers conferred to it by the law performs functions delegated to it by the
public authority to control the legality of law practice in the capital of the
Argentine Republic. In other words,
organization of the state and of public order, compatible with the state of law
and the organization of a democratic society.
The central point of the cases under review (which challenge Law 23,187
and in particular, Article 17 and following), consists of the petitioners’
charge that the obligatory registration with this bar association would be
violating the principle that no one may be obligated to join an association, a
point they believe is implicit in Article 16 of the Convention, and, that,
therefore, according to the petitioners, those registered with this bar
association would be forcibly entering into an “associational bond” or affectio
societatis, a situation contrary to the Convention.
Commission believes that registration with the bar association is a public
function and that, because of its condition, the function ought to e and has to
be obligatory in nature since otherwise the state would be–by way of the
association–establishing a requirement for some professions that it is not
requiring for others and, therefore, it would thus violate the right of equality
before law and it could also not exert any control over the professional
practice of law. This is a matter,
then, of the proper activity of a public body with the character, rights and
obligations of legal persons under public law which is acting in the name and on
behalf of the state.
mandatory registration had been exercised by the Office of the Assistant
Secretary for Registration of the Supreme Court of Justice of Argentina, and
thus no appreciable difference can be seen between the enrollment exercised by
the court and that which Law 23,187 now calls for through the bar association
which, furthermore, performs this public function on an exclusive basis, in
accordance with the final paragraph of Article 16 of the law in question.
The public nature of the registration and, therefore, its obligatory
nature are drawn also from the text and the scope of other provisions of Law
Article 20.a confers to the bar association “the governing of the
registration of attorneys to exercise their profession in the Federal Capital”
Article 20.b confers to the bar association the exercise of disciplinary
power over those registered.
Article 20.d confers to the bar association the promotion and
organization of legal assistance and defense of destitute persons.
Article 21.b confers to the bar association supervision and control of
legal practice to prevent it from being exercised by persons lacking degrees or
those who are not registered.
Article 21.c determines that the bar association shall enforce rules of
professional ethics and others.
Article 21.j reaffirms the public nature of the activities of the bar
association by indicating that it will see that the professional exercise is not
violated in any area, “being invested for this purpose with procedural
legitimacy to exercise public action,” which would also appear to give that
agency an inspection role in the framework of its competence before the National
Courts, a status that certainly does not pertain to most associations or
professional groups that can exist under the guarantee of Articles 14 and 14 bis
of the Argentine constitution.
Finally, it can be deduced that it is not properly grounded to sustain
that the mandatory registration requirement (Article 18 of Law 23,187)
establishes or forms a corporate type working bond among those registered. Actually, it should be deduced that the relationship is
circumscribed, pursuant to the terms of article 19 of Law 23,187, to the
“disciplinary power over the registered person and this person’s respect for
compliance with the duties and obligations set by the law.”
The Commission shares the opinion that the position of the registered
person, in the light of the aforementioned Article 19 and other related
articles, is ope legis to the public authority without connection to the
other persons registered as with an association, strictly speaking.
It must be recalled that the fundamental characteristic of associations
and trade unions in a democratic society is that they are born out of the
initiative of private persons to defend common interests which do not have a
public nature or function.
The commission recognizes that Law 23,187 contains rules having traits
similar to those that can be found in other constitutional instruments of
private associations or groups professionals or trade unions or of other types
such as those pertaining to social security, sports, culture and so forth, but
in this respect it should be observed that these do not vitiate the eminently
public function of the bar association but actually, to the contrary, supplement
or add to it since the participation of registered persons in such activities is
optional and the rules do not constrain the basic purpose of the bar association
which is regulating the practice of law in the national capital.
Judging by the characteristics of Law 23,187 it can be concluded that the
purposes of the Colegio Público de Abogados de la Capital Federal cannot be
carried out by private lawyer’s groups or associations, in particular, as
regards the governmental power to license (Article 17), the disciplinary power
(Article 23.e) and the control of professional practice.
The matter of compulsory membership in a professional association was
examined by the Commission in Case No. 9178 (Costa Rica), in relation to Mr.
Stephen Schmith, in whose case, as a result of and as a subsidiary association
of professionals was considered. In
that regard the Commission reaffirms that in light of Article 16 of the
Convention, not all instances of compulsory professional membership are per
se violations of the right of full association, and consistently following
that view in the case in question, it expressed the following:1
is nothing against having the exercise of professions monitored and controlled
either directly by official agencies or indirectly through authorization or
association under the state’s supervision and control, because it must always
be subject to the law in carrying out its mission.
the same sense and scope the Inter-American Court of Human Rights, in its
Advisory Opinion on Case No. 9178, clearly established, on the basis of sound
arguments that not every membership law is necessarily violative of the
Convention. In that instance the
Court observes that the organization of professions in general, by means of
professional “colegios”, is not per se contrary to the Convention, but that
it is a method for regulation and control to ensure that they act in good faith
in accordance with the ethical demands of the profession.
If the notion of public order, therefore, is thought of in that sense,
that is to say, as the conditions that assure the normal and harmonious
functioning of the institutions on the basis of a coherent system of values and
principles, it is possible to conclude that the organization of the practice of
professions is included in that order.
addition, it is worth underlining that Court Opinion very clearly set out the
difference between the compulsory memberships of journalist. The exercise of their profession and its relation to the
right of free expression and free thought (Art. 13 of the Convention).
The Court said:1
this context, journalism is the primary and principal manifestation of freedom
of expression of thought. For that reason, because it is inherent right of each
individual, journalism cannot be adequated to a profession that is merely
granting a service to the public through the application of some knowledge or
training acquired in a university or through those who are enrolled in a certain
argument that a law on the compulsory licensing of journalists does not differ
from similar legislation applicable to other professions does not take into
account the basic problem that is presented with respect to the compatibility
between such a law and the Convention. The problem results from the fact that Article 13 expressly
protects freedom “to seek, receive, and impart information and ideas of all
kinds … either orally, in writing, in print …”
The profession of journalism–the thing journalists do–involves,
precisely, the seeking, receiving, and imparting of information.
The practice of journalism consequently requires a person to engage in
activities that define or embrace the freedom of expression the Convention
immediately thereafter the Court went on to establish its judgment on the
compulsory membership of certain professions, which, in cases such as law or
medicine, require norms of a public character to regulate such fields within the
constitutional order and the letter of Article 32.2 of the Convention.
With that in mind the court noted:2
is not true of the practice of law or medicine, for example.
Unlike journalism, the practice of law and medicine–that is to say, the
things that lawyers or physicians do–is not an activity specifically
guaranteed by the Convention. It is true that the imposition of certain restrictions on the
practice of law would be incompatible with the enjoyment of various rights that
the Convention guarantees. For
example, a law that prohibited all lawyers from acting as defense counsel in
cases involving anti-state activities might be deemed to violate the accused
‘s rights to counsel under Article 8 of the Convention and, hence, be
incompatible with it. But no one
right guaranteed in the Convention exhaustively embraces or defines the practice
of law as does Article 13 when it refers to the exercise of a freedom that
encompasses the activity of journalism. The
same if true for medicine.
the above it can be concluded that the Commission as well as the Court share the
same view with respect to article 16 of the Convention insofar as the issue of
compulsory membership of professionals is concerned, a view that is compatible
with the notion of the common good in a democratic society.
In the Argentine Republic, bar associations operate in 19 provinces under
terms analogous to those of Law 23,187 and neither the constitutionality of
those laws nor their condition are presumed violations of Article 16 of the
Convention has been challenged. The
province of Buenos Aires has in effect Law 5177 of November 15, 1947, which also
makes membership in the bar association obligatory.
Although the foregoing cannot be considered as a fully probatory factor
of the soundness of the legislation that protects the association and its
compatibility with the Convention, especially its Article 16, the existence of
such laws helps establish on abundantly solid bases that the laws themselves are
not violations of human rights or contradict the opinion that certain rights
protected in the Convention can be limited by the demands of the common good in
a democratic society. In there
terms expressed by the Commission in its resolution on the Schmidt case:1
… “professional associations perform a social function, have
disciplinary powers over improper ethics and seek to improve the profession in
question as well as the social security of the members.”
The Commission believes that the right to join or found trade unions is
not at stake since, as the Supreme Court of Justice states in the case of
Ferrari, Meliton vs. Nation State, mentioned above, “the Colegio Público is
obviously not a trade organization” and, therefore, Article 14 (bis) of the
Constitution is fully in effect.
As concerns Article 18 of Law 23,187 which would be imposing
“compulsory representation of all attorneys and forcibly these are compelled
to have a common opinion by means of that association,” the Commission
believes that this presumption is founded on the individual interpretation of
the law by the claimants and that compulsory representation is not provided for
either expressly or tacitly in the aforementioned article or in other provisions
of the law.
As for the argument by the petitioners that Law 23,187 would be violating
the right to private property in that it would affect the degrees 9certifying)
awarded by Argentine universities to practice law, by way of the obligatory
registration, the Commission does not see the scope of a violation of the
Convention here. It would be good
at this time to recall that in almost all countries of the western world,
obligatory membership in bar associations has not been considered a violation of
the right of property. However, the
Commission abstains from going further into this point in that the claimants
have not charged that they have suffered any loss or concrete damage as a
consequence of application of Law 23,187 with respect to private property of the
In light of the foregoing conclusions and, in particular, in light of the
fact that the case cannot be settled amicably and, furthermore, in application
of the provisions of Articles 50.3 and 51.2 of the convention and 45.7, 46, and
47.1 of its Regulations, the Commission resolves to declare that on the basis of
the information submitted to it, Law 23,187 of June 5, 1985, creating the Public
Bar Association of Attorneys of the Federal Capital of the Argentine Republic
does not violate Article 16 of the Convention.
To transmit this report to the Government concerned and to the
See Annex V.
In the files of the Commission
In the files of the Commission.
Treaty Law – CDI report, 1966, OEA/Ser.Q/II (a) CJI–18A, p. 56.
Resolution 17/84, October 2, 1984, – OEA/Ser.L/V/II.63.15, p. 9.
See also Annual Report of the IACHR 1984-85 (p. 60).
Advisory Opinion OC-5/85 (Series A:
Judgments and Opinions No. 5).
November 9, 1985, p. 122.
Oc-5 cit. pp. 123-24.
OC-5 cit. p. 42.
Doc. OEA/Ser.L/V/II.63, 15, cited, p.10.