penalties to achieve this objective. 243 The need to protect the rights that could be affected by
an abusive exercise of freedom of expression calls for due observance of the limits established
by the Convention in this regard. 244 The settlement of a dispute between both rights requires
weighing them based on a judgment of proportionality and, to this end, each case must be
examined taking into account its characteristics and circumstances, in order to assess the
existence and intensity of the elements on which this judgment is based. 245
128. The Court will now examine the compatibility with the American Convention of the
subsequent imposition of liability on Messrs. Mémoli, taking into account the above-mentioned
standards.
A.2.2) The subsequent imposition of liability in this case
129. Based on some arguments of the representatives, this Court observes that, when
examining the above-mentioned public interventions by means of newspaper articles or radio
programs, it is not required to analyze whether Messrs. Mémoli effectively committed the
offense of defamation against the members of the Management Committee of the Italian
Association. This falls within the competence of the domestic courts. What corresponds to this
Court is the examination of whether, when subsequently imposing liability on Messrs. Mémoli
for the exercise of their freedom of expression, the State respected and guaranteed the
relevant Convention-based requirements.
130. In this regard, Article 13(2) of the American Convention establishes that the
subsequent imposition of liability for the exercise of freedom of expression must comply with
all the following requirements: (i) it must be expressly established by law, in both the formal
and substantial sense; 246 (ii) it must respond to an objective permitted by the American
Convention (“respect for the rights or reputations of others” or “the protection of national
security, public order, or public health or morals”), and (iii) it must be necessary in a
democratic society (and to this end must comply with the requirements of suitability,
necessity and proportionality). 247 In this case, the Court will analyze whether the sentences
for defamation imposed on Messrs. Mémoli met these requirements.
131. The Court recalls that Carlos and 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 of which they had
been accused, as well as for the offense of libel for all the interventions for which they had
been criminally prosecuted (supra paras. 75 to 88).
132. Regarding the first requirement of Article 13(2) of the Convention (established by
law), the Court observes that, in this case, Messrs. Mémoli were convicted of the offense of
243
Cf. Case of Kimel v. Argentina, supra, para. 75, and Case of Fontevecchia and D’Amico v. Argentina, supra,
para. 50.
244
Cf. Case of Kimel v. Argentina, supra, para. 56, and Case of Fontevecchia and D’Amico v. Argentina, supra,
para. 50.
245
Cf. Case of Kimel v. Argentina, supra, para. 51.
246
Cf. The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory opinion OC-6/86 of
May 9, 1986. Series A No. 6, paras. 35 and 37.
247
Cf. Case of Tristán Donoso v. Panama, supra, para. 56.
52
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