CONCURRING OPINION
OF JUDGE DIEGO GARCÍA-SAYÁN
IN THE JUDGMENT RENDERED BY THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
ON MAY 2, 2008
IN THE CASE OF KIMEL V. ARGENTINA
I.
Argentina.
Freedom of thought and expression in the case of Kimel v.
1.
In the judgment rendered in the case of Kimel v. Argentina, the Court
reasserts the concept of freedom of thought and expression as a fundamental right
in a democratic society. The conduct of Mr. Kimel, according to the record of the
case, fitted into the regular exercise of such right. In the case in point, the
investigative journalistic work carried out by Mr. Kimel provided important
information and evidence on the actions of a judge regarding the investigation into
a serious violation of human rights occurred during the military rule in Argentina.
The so-called “San Patricio massacre,” in which five clergymen belonging to the
Palotine Order were murdered, was a serious event Mr. Kimel investigated in such
work.
2.
From the record of the case it results that the information and the opinion
expressed by Mr. Kimel fitted into the regular exercise of a right and that the
criminal sentence imposed on him was disproportionate. In the agreement signed
by the parties during the proceedings, they refer to an “unfair criminal sentence”
which is, certainly, the main aspect of the international responsibility of the State in
the instant case. It is a proven fact that Mr. Kimel had not used excessive language
and that his criticism had no bearing on the private life of the judge who brought
criminal proceedings against him, but on the judicial handling of the case he was
hearing.
3.
In the instant case, it is of the utmost importance that the State has
acquiesced and accepted that it violated Mr. Kimel’s right to freedom of thought
and expression, further acknowledging the lack of accuracy of the criminal laws
which punish defamation. It is also relevant that the State has regretted “that the
only person ever convicted for the massacre of the clergymen belonging to the
Palotine Order was precisely the journalist who thoroughly investigated such
dreadful massacre and its judicial handling.” As a consequence of the State’s
acquiescence, the Court ordered the State to bring its domestic legislation in line
with the provisions of the Convention within a reasonable time, in a manner such
that the lack of accuracy admitted by the State “is amended so that the
requirements of legal safety are met and, therefore, the right to freedom of thought
and expression is not impaired” (para. 128).
4.
The Court has determined that in the instant case there has been an abusive
exercise of the State’s punitive power, taking into consideration the charges
brought against Mr. Kimel, the impact they had on his legally protected interests,
and the nature of the sentence imposed on the journalist –deprivation of freedom
(para. 80).
II.
Freedom
Convention
of
thought
and
expression
in
the
American
5.
In the judgment, the Court has recalled that the right to freedom of thought
and expression as enshrined in Article 13 of the Convention is not an absolute one
(para. 54). This is in line with the Court’s case law, as stated in the judgments