1
SEPARATE CONCURRING OPINION
OF JUDGE SERGIO GARCÍA-RAMÍREZ
IN THE JUDGMENT RENDERED BY THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
ON MAY 2, 2008
IN THE CASE OF KIMEL V. ARGENTINA
1.
I have concurred with my vote in the judgment rendered by the InterAmerican Court of Human Rights in the Case of Kimel as I share the decisions it
adopted on the merits, as set forth in the operative paragraphs of the Judgment
rendered on May 2, 2008. However, I partially dissent from some considerations
raised in such document (which are not included in said paragraphs and which do not
affect the decisions which I share) regarding the possible restrictions on freedom of
thought and expression and the subsequent liabilities –as referred to in Article 13(2)
of the American Convention on Human Rights- which result from non-compliance
with said restrictions or from crossing the limits which constitute the framework for
the exercise of such freedom.
2.
The reservations I refer to, regarding which I take on the position I have held
in prior cases with regard to freedom of thought and expression and the
responsibilities derived from non-compliance with the legitimate limits thereof,
explain this concurring opinion. I issue this opinion with great respect and
consideration for those who hold a different viewpoint, as I have always done before,
without making irrelevant generalizations or objecting to the –widely recognizedevolving direction of the case law of the Court.
3.
In this opinion, I reiterate the position I adopted and the arguments I put
forward in my concurring opinion in the Judgment rendered by the Court on July 2,
2004 in the case of Herrera-Ulloa v. Costa Rica. In said judgment, the Court
analyzed the right to freedom of thought and expression of journalists who publish
news or express their opinions on the actions of public officials, which is naturally
subject to a less stringent threshold of protection than the one prevailing for
individuals whose conduct is not in the public interest. The cases of Herrera-Ulloa
and Kimel are not identical, but prompt a similar reflection on the criteria set forth by
the Court in Advisory Opinion OC-5/85, regarding Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of
the American Convention on Human Rights) of November 13, 1985.
4.
In the Judgment rendered in the case of Kimel, the Court reasserts the high
hierarchy of freedom of thought and expression as a cornerstone for establishing and
preserving democracy. In this regard, I consider –as I pointed out in my opinion in
the case of Herrera-Ulloa- that such freedom, which is enjoyed by all individuals and
is not confined to any particular professional group, takes on “distinctive features […]
when it is exercised through media which allow delivering a message to a great
number of people” (para. 2). What is said of journalistic communication, on the same
account, may be said of the reception and dissemination of messages through
informative or historical works which refer to and assess events which are relevant to
society.
5.
In the Judgment rendered in the case of Kimel, the Court examines the
possible collision between fundamental rights set forth and protected by the
American Convention: on the one hand, the right to freedom of thought and