19.
First, because, in general, the Court does not find that “punishment for the expression
of information or opinions is not considered contrary to the Convention” (para. 133). Second,
because the meaning of the Court’s judgment in the Kimel case, was specifically and
exclusively, that the State rectify “the lack of sufficient precision in the criminal laws that
penalize libel and defamation” (para. 133). It was based on the rectification of this lack of
precision, and not on the elimination of these offenses (which subsist), that the InterAmerican Court established subsequently that the State had complied fully with its obligation
to adapt its domestic law.
20.
The facts of the Mémoli case differ from those of previous cases mentioned here,
because the persons whose honor has supposedly been harmed were not public officials and
did not perform public functions. The complainants, Antonio Guarracino, Humberto
Romanello and Juan Bernardo Piriz, members of the Management Committee of a private
entity, the Asociación Italiana de Socorros Mutuos, Cultural y Creativa “Porvenir de Italia,”
filed a complaint for libel and defamation against Pablo Mémoli and Carlos Mémoli based on
“their statements in around twenty documents or interventions, in newspaper articles, ‘letters
documents’ and communique’s (solicitadas), as well as interventions in radio programs, where
the presumed victims had referred to the administration of the Italian Association and the
case of the burial vaults” (para. 74). Regarding the supposed “public interest” of the facts, in
this case, the Court has determined that the facts “occurred in the context of a dispute
between private individuals concerning matters that, possibly, would only affect the members
of a private mutual association, without any indication that the content of this information
would have any relevance or impact that would go beyond the Association and be of
significant interest to the rest of the population of San Andrés de Giles” (para. 146).
21.
In the instant case, the Court has not found any grounds to consider that having
recourse to a judicial action to process the alleged harm to honor attributed to Messrs.
Mémoli constitutes or constituted a violation of the Convention. Nor has it considered that
there was any evidence to characterize as disproportionate the decisions adopted by the
Argentine judicial authorities. As stated in this Judgment (para. 137), in this case, the facts
are very different from those of the Kimel case, because it was foreseeable that expressions
such as “criminals” “unscrupulous,” “corrupt” or acting “using subterfuges (tretas) and deceit
(manganetas),” could result in a judicial action for the alleged harm to the complainants’
honor or reputation.
22.
The Argentine judicial authorities in the criminal proceeding considered that there
was sufficient evidence for a trial and a punishment. The Inter-American Court determined
that it had been able to verify, in light of the available information and evidence, that “the
statements of Messrs. Mémoli were examined in detail by the domestic judicial authorities
when deciding the criminal conviction against them” (para. 141).
23.
In this regard, the Court noted that Carlos y Pablo Mémoli “were convicted in the
criminal jurisdiction to a suspended sentence of one and five months’ imprisonment,
respectively, for the offense of defamation owing to statements made in seven interventions
that both the first instance court and the chamber of second instance considered to have
denigrated or discredited the honor or the reputation of the complainants. At the same time,
Messrs. Mémoli were acquitted of the offense of defamation for the other interventions they
had been accused of, as well as for the offense of libel for all the interventions for which they
had been criminally prosecuted” (para. 131). This reflects, among other elements, that in this
examination, the domestic judicial authorities had weighed the different factual elements
submitted to their consideration throughout the domestic proceeding. Thus, there is sufficient
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