Kimel had indicated – and this is why he was prosecuted – that the federal judge who was
heard the case:
Adopted all required steps and procedures. He collected the police reports containing the preliminary
information, requested and obtained forensic and ballistics reports, and summoned to appear many of
those who could provide information for the elucidation of the case. Notwithstanding, an examination
of the judicial record raises an initial question: Did the authorities actually intend to discover
indications that might lead to the perpetrators? Under the military dictatorship judges were normally
acquiescent, if not accomplices to the dictatorial regime. In the case of the Pallotine Fathers, the
judge […] complied with most of the formal requirements of the investigation, even though it is
evident that a number of decisive elements that could have shed light on the murder were not taken
into account. The evidence that the order to carry out the murder had originated within the military
structure in power paralyzed the investigation, bringing it to a standstill. 256
136. In that case, the Court concluded that the criminal provisions concerning defamation
and libel had been deficient, because the said “lack of precision” did not allow the prohibited
conducts in the analytical statements for which Mr. Kimel had been accused to be determined
with exactitude and, in addition, the grounds for considering Mr. Kimel’s criticisms wrongful or
illegal were not sufficiently foreseeable. 257 In order to illustrate the effect that the said “lack of
precision” had on Mr. Kimel’s freedom of expression, the Court underscored that, in that case,
the victim had been sentenced in first instance for defamation (injurias), acquitted in second
instance, and convicted in cassation for the crime of libel (calumnia). 258
137. In this case, the situation is different from that of the Kimel case, because it was
sufficiently foreseeable that certain statements and characterizations used by Messrs. Mémoli
(in which the presumed victims accused the complainants as possible authors of or
accessories to the offense of fraud, referred to them as “criminals,” “unscrupulous,” “corrupt”
and said that they had “used subterfuges (tretas) and deceit (manganetas),” among other
matters) could result in a judicial action for the alleged harm to the honor or reputation of the
complainants.
138. In addition, the Court reiterates that Article 11(3) of the Convention, in combination
with Article 11(2), establishes that “[e]veryone has the right to the protection of the law
against [arbitrary or abusive interference with his private life] or [unlawful] attacks [on his
honor or reputation].” Therefore, in compliance with this provision of the Convention, the
recourse to judicial mechanisms to obtain protection against attacks on the honor and
reputation of the individual, including the abusive exercise of freedom of expression that could
harm the said rights, is a valid and legitimate measure under the American Convention (supra
paras. 125 and 126).
139. Taking into account that the convictions imposed on Messrs. Mémoli were established
by law and responded to an objective permitted in the Convention (the protection of the
reputation of others), this Court notes that the said criminal sanctions complied with two of
the requirements established in Article 13(2) of the Convention (supra para. 130). Regarding
the third requirement (the need for the subsequently imposition of liability), the Court recalls
that it does not find that criminal measures in relation to the imparting of information or
opinions is contrary to the Convention (supra para. 126). However, as it has established in
other cases, this possibility must be analyzed with special care, weighing up in this regard the
extreme gravity of the conduct of the individuals imparting the information and opinions, the
wilful intent in the way in which they acted, the characteristics of the harm unjustly caused,
256
Case of Kimel v. Argentina, supra, para. 42.
257
Cf. Case of Kimel v. Argentina, supra, paras. 66, 67 and 128.
258
Cf. Case of Kimel v. Argentina, supra, paras. 64 and 65.
54
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