encouraged. The Court has pointed out that in a democratic society political and public
personalities are more exposed to scrutiny and the criticism of the public. This different
threshold of protection is due to the fact that they have voluntarily exposed themselves to
a stricter scrutiny. Their activities go beyond the private sphere to enter the realm of
public debate. This threshold is not based on the nature of the individual, but on the public
interest inherent in the actions he performs, as when a judge conducts an investigation
into a massacre committed in the context of a military dictatorship, as in the instant case.
The democratic control exercised through public opinion encourages the transparency of
State actions and promotes the responsibility of public officials in the performance of their
duties. Hence, the greater tolerance for the statements and opinions expressed by
individuals in the exercise of such democratic powers. These are the requirements of the
pluralism inherent in a democratic society, which requires the greatest possible flow of
information and opinions on issues of public interest.
In the domain of political debate on issues of great public interest, not only is the
expression of statements that are well received by public opinion and those that are
deemed to be harmless protected, but also the expression of statements that shock,
irritate or disturb public officials or any sector of society. In a democratic society, the
press must inform extensively on issues of public interest which affect social rights, and
public officials must be accountable for the performance of their duties. 9
II. Application of the general principles to the instant case
16.
It is precisely the application of the general principles established by the Court in its
case law that led, in this case, to the decision in favor of the right to honor and reputation of
the persons to whom Messrs. Mémoli referred in the statements on which the Argentine
system of justice based itself to convict them. To reach this decision, the Court took into
account, in particular, the circumstance that the Argentine judicial authorities examined the
contested statements in detail and, regarding most of them, reached the conclusion that they
did not constitute an offense. In other words, it was considered that the said statements did
not constitute an abusive exercise of freedom of expression.
17.
I emphasize, in particular, the importance of what is stated in paragraph 141 of the
Judgment (with the clarifications contained in footnotes 262 to 264):
[T]he statements of Messrs. Mémoli were examined in detail by the domestic judicial
authorities when deciding the criminal conviction against them. When reviewing the need to
establish criminal sanctions against Messrs. Mémoli, the courts of both first and second
instance examined thoroughly the characteristics of the statements made by Messrs. Mémoli
based on which the complaint had been filed against them. In this regard, the Court notes
that:
(i) the convictions for defamation were the result of a detailed analysis of each of the
interventions, exempting Messrs. Mémoli of responsibility for statements considered “opinions
that did not disparage the complainants” and holding them responsible for statements included
in the said interventions that, in the understanding of the domestic judicial authorities, had
exceeded a simple opinion or analysis of the news, with the purpose of disparaging or
defaming one or several of the complainants or, for example, constituted “a voluntary
digression to insult them,” without being “necessary or essential for the claim made”;
(ii) the domestic courts verified the existence of animus injuriandi or malice as regards the
statements for which they were convicted;
(iii) they acquitted the presumed victims for most of the interventions based on which the
complaint was filed, as well as for the offense of libel, and
9
Case of Kimel v. Argentina, supra, paras. 86 to 88.
5
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