Court of Justice of the State considered the review and resulting annulment of the sentence
imposed on Mr. Kimel admissible, in compliance with the measure of reparation ordered by
this Court in that case.
E. Continuation of the consequences of the criminal proceeding
The foregoing is particularly relevant when it is observed that, as a result of the criminal
conviction imposed on them, in order to guarantee the eventual result of the abovementioned civil action for damage, Messrs. Mémoli have been subject to a general injunction
against the sale or encumbrance of property for more than 17 years, 410 which, moreover,
was considered to have violated Articles 8(1) and 21 of the Convention, in relation to Article
1(1) of this instrument, in the fourth operative paragraph of the Judgment.
Obviously, and contrary to the position adopted in the Judgment, which expressly refused to
consider that the duration of the civil action constituted a violation of freedom of
expression, 411 since the said general injunction is founded on what happened in the criminal
proceeding, it can be understood as a measure with the evident result, among others, of
inhibiting Messrs. Mémoli from expressing themselves in the press on the matter considered
in the criminal proceeding; in other words, as censorship, or at least indirect censorship, of
the right to freedom of thought and expression of these individuals.
In this regard, it should be recalled that the Court has stated that “[t]he effect of [a]
requirement resulting from a judgment may result in a restriction incompatible with Article
13 of the American Convention, if it produces a dissuasive, intimidating and inhibiting effect
on all those who exercise the profession of journalism, which, in turn, obstructs the public
debate on issues of interest to society.” 412
The Court has also indicated that “freedom of expression may be restricted unlawfully owing
to conditions de facto that, directly or indirectly, endanger or increase the vulnerability of
those who exercise it” and, thus, “the State must abstain from acting in a way that
encourages, stimulates, favors or increases that vulnerability and must adopt, when
pertinent, necessary and reasonable measures to prevent violations and to protect the
rights of those who find themselves in that situation.” 413
Taking into account the preceding considerations, the State should have applied to Messrs.
Mémoli, as a result of the action they filed on unconstitutionality, converted in appeal for
review, 414 the new definition of the offense of defamation. The retroactive application of a
more favorable criminal law is a right that the State must guarantee, even when the
substantive effects of the criminal conviction have concluded. This is not due merely to the
stigmatizing effect of criminal sanctions, but also because the civil consequences of the said
sanctions are still being processed.
In brief, the failure to apply the most favorable law in this case and, consequently, to annul
the said sanctions and, thus, acquit Messrs. Mémoli entails a violation of Article 9 of the
Convention and means that the State incurred international responsibility.
410
Paras. 109 and ff. of the Judgment.
411
Para. 185 of the Judgment.
412
Case of Herrera Ulloa v. Costa Rica, supra, para. 133.
413
Case of Manuel Cepeda Vargas v. Colombia. Preliminary objections, merits, reparations and costs. Judgment
of May 26, 2010. Series C No. 213, para. 172.
414
Paras. 92 to 94 of the Judgment.
12
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos