I/A Court H.R., Case of Kimel v. Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008 Series C No. 177.

Non official brief

 

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2008-2-e.pdf

 

Headnotes:

 

Freedom of thought and expression encompasses not only the right to seek, receive, and disseminate ideas and information of any kind, but also to receive information and be informed about the ideas and information disseminated by others. However, it is not an absolute right, and States may restrict it by imposing subsequent liability for its abuse. These restrictions should in no way limit, beyond what is strictly necessary, the full exercise of freedom of thought and expression or become either a direct or indirect mechanism of prior censorship.

 

The protection of the right to have one's honor respected and one's dignity recognised, as well as other rights which might be affected by the abusive exercise of freedom of thought and expression, justifies limitations to this latter right in accordance with strict proportionality criteria.

 

Protecting a person's honor and reputation may be grounds for establishing subsequent liability in the exercise of the freedom of thought and expression. Criminal proceedings are suitable when, by threatening to impose sanctions, they serve the purpose of preserving the legal right whose protection is sought. Restrictions or limitations on freedom of thought and expression of a criminal nature should take into account the seriousness of the conduct of the individual who expressed the opinion, his actual malice, the characteristics of the unfair damage caused, and other information which shows the absolute necessity to resort to criminal proceedings as an exception. At all stages the burden of proof must fall on the party who brings the criminal proceedings.

 

Any limitation or restriction on freedom of information must be both formally and materially provided for by law. Restrictions or limitations of a criminal nature must strictly meet the requirements of the criminal definition in order to adhere to the nullum crimen nulla poena sine lege praevia principle. Thus, they must be formulated previously, in an express, accurate, and restrictive manner.

 

Summary:

 

 I.  On 28 October 1991, a judge who had been criticized for his handling of a murder case in journalist Eduardo Kimel's book, La Masacre de San Patricio (The San Patricio Massacre), started criminal proceedings against him for defamation. The court of first instance acquitted Kimel of that charge, but found him guilty of "false imputation of a publicly actionable crime" and sentenced him to one-year suspended imprisonment and the payment of $ 20,000.0 (twenty thousand Argentine pesos) in damages, plus costs. This sentence was reversed by an appellate court, but the Supreme Court later overturned that judgment and sent the case to the Appeals Chamber for Criminal and Correctional Matters so that a new decision could be delivered. The Appeals Chamber reinstated the penalties imposed in the first instance, but convicted Kimel for defamation, instead of the charge of "false imputation of a publicly actionable crime." Subsequent motions for review were denied on 14 September 2000, rendering that judgment final.

 

On 19 April 2007, the Inter-American Commission on Human Rights (hereinafter, the Commission) filed an application against the State of Argentina to determine the international responsibility of the State for the violation of Article 8 ACHR (right to a fair trial) and Article 13 ACHR (Freedom of thought and expression), in relation to Article 1.1 ACHR (obligation to respect rights) and Article 2 ACHR (domestic legal effects) of the same instrument, to the detriment of Eduardo Kimel.

 

II. In its judgment of 2 May 2008, the Court first accepted the State's acknowledgment of international responsibility for the violation of Kimel's right to freedom of thought and expression recognized in Articles 13.1 and 13.2 ACHR, in relation to the general obligations set forth in Articles 1.1 and 2 ACHR, and found, in addition, a violation of the right to be free from ex post facto laws established in Article 9 ACHR. The Court held that though the protection of a person's honor and reputation is a legitimate end, and that criminal proceedings are suitable means to protect that honor, the State's criminal legislation punishing defamation was insufficiently precise. Such a broad definition was contrary to the principle of ultimate ratio intervention of criminal law. Additionally, the penalties imposed by this legislation on Kimel were disproportionate to the advantages obtained by the adoption of that legislation, given their limiting effect on the dissemination of ideas related to issues of public concern.

 

Second, the Court accepted the State's acknowledgment of international responsibility for the violation of Kimel's right to a hearing within a reasonable time, established in Article 8.1 ACHR, in relation to Article 1.1 ACHR, since his criminal proceedings lasted nine years, beyond what is reasonable considering the complexity of the case, and the State did not provide justification for such a delay.

 

Last, the Court accepted the waiver of rights made by the representatives regarding the right to a hearing by an impartial and independent court, as established in Article 8.1 ACHR, the right to appeal the judgment to a higher court, as established in Article 8.2.h ACHR, and the right to judicial protection, as established in Article 25 ACHR.

 

Consequently, the Court ordered the State to annul the criminal judgment and sentence imposed on Kimel, acknowledge its international responsibility by organizing a public act, publish the judgment in the State's Official Gazette and another newspaper of national circulation, and bring its domestic laws in line with the Convention in order to prevent criminal prosecution for criticism of the actions of public officials in the performance of their duties. Finally, the Court ordered, inter alia, that the State pay pecuniary and non-pecuniary damages and the reimbursement of costs and expenses.

 

Judges García-Sayán and García-Ramírez wrote separate opinions.