19
burden imposed by the legal proceedings themselves should not be disproportionate to that which should
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be accepted as a consequence of pertaining to a society governmed by the rule of law.
73.
In the case at hand, the Commission notes that the civil suit against Carlos and Pablo
Memoli for the sum of 90,000 Argentine pesos, together with the general injunction of assets that has
been in effect for more than 15 years, has not only generated fear of possible civil sanction, but also
effectively compromised the personal lives and life projects of the petitioners. In fact, Carlos and Pablo
Memoli have been precluded from fully realizing themselves as citizens during a very protracted period of
time as a consequence of the particular circumstances, including the freezing of their assets for more
than 15 years, of a civil suit that was brought in response to the alleged damage caused by their
statements.
74.
In the case of Ricardo Canese vs. Paraguay, the Inter-American Court found that there
was a disproportionate infringement of the right to freedom of expression of the victim stemming from a
criminal proceeding for defamation and slander, even though the sentences imposed at the trial and
appeals levels were never executed and the victim was acquitted in the end at the highest level of
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appeal. In order to arrive at this conclusion, the Court took into account, inter alia, that for eight years
the criminal suit gave rise to a precautionary measure that restricted Mr. Canese from leaving the
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country.
In other words, no punishment imposed as a result of a court order was ever applied to the
victim, but the criminal proceeding itself had effects which, in the view of the Court, were tantamount to an
“unnecessary and excessive punishment because of the statements that [he] made,” which
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disproportionately restricted his freedom of expression. Following the same logic, the Commission finds
that in the case sub examine, the application of a general injunction on assets in the context of a civil suit
that has not been adjudicated within a reasonable period of time has lost its precautionary nature and
taken on the nature of a sanction.
75.
Because of the foregoing reasons, the Commission finds that the violation of the principle
of reasonable time in the civil suit that is ongoing in domestic courts in the instant case has given rise to
an additional violation of the right to freedom of expression of the petitioners. The circumstances of said
civil suit—including the threat of a civil sanction pending over a long period of time and, especially, the
general injunction against sale of the assets of the defendants in effect for 15 years—have most certainly
had the effect of punishing the exercise of freedom of expression by Carlos and Pablo Memoli. Far from
being grounded in a careful balancing of the legal interests at stake, this sanction is the direct
consequence of the unreasonable delay in resolving the suit, as a result of which the civil suit in and of
itself, and the general injunction of assets that accompanies it, have had a serious impact on the life
projects of the petitioners. For the preceding reasons, the Commission finds that the infringement of the
principle of reasonable time in the instant case has violated Article 13 as well as Article 8.1 of the
American Convention.
76.
Finally, the IACHR must decide on the arguments of the petitioners regarding the
violation of Article 8 of the Convention in relation to several alleged irregularities in the criminal
proceeding and in the civil suit against them. As to the criminal suit, the arguments of the petitioners
revolve around the convening and holding of a second hearing by the appellate court judge, allegedly
without their presence, and in violation of the provisions of the Code of Criminal Procedure of the
Province of Buenos Aires. The Commission notes in this regard that the fair trial rights provided for by
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Cfr. IACHR. Application to the Inter-American Court of Human Rights in the case of Jorge Fernando Grande (11.498)
against Argentina, May 4, 2010, para. 91, disponible en: http://www.cidh.oas.org/demandas/11.498SP.pdf.
96
IA Ct. of HR, Case of Ricardo Canese Vs. Paraguay. Merits, Repartions and Costs. Judgment August 31, 2004. Series
C No. 111, pars. 69.49, 106, available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_111_esp.pdf.
97
IA Ct. of HR, Case of Ricardo Canese Vs. Paraguay. Merits, Repartions and Costs. Judgment August 31, 2004. Series
C No. 111, par 106.
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IA Ct. of HR, Case of Ricardo Canese Vs. Paraguay. Merits, Repartions and Costs. Judgment August 31, 2004. Series
C No. 111, par 106.