2
be admissible. Subsequently, on October 26, 2006 the Commission approved Report on the
Merits No. 111/06, under the terms of Article 50 of the Convention, which contained
recommendations for the State. Said report was served on the State on November 10,
2006. After considering the information furnished by the parties following the adoption of
the report on the merits, and in view of the “lack of substantial progress in the effective
compliance with [its recommendations],” the Commission decided to submit the instant case
to the jurisdiction of the Court.1
2.
In its application, the Commission stated that Eduardo Kimel is a “well-known
journalist, writer, and investigative historian,” who has published several books on the
political history of Argentina, among them “La Masacre de San Patricio” (the San Patricio
Massacre), wherein he described the findings of his research into the murder of five
clergymen. In the book the author criticized the handling of the case by the authorities
responsible for carrying out the investigation into the massacre, among them a judge.
According to the facts described by the Commission, on October 28, 1991, the judge
mentioned by Mr. Kimel started criminal proceedings against him for libel, pointing out that
“though the defamation of a judge with regard to his actions in the performance of his
public duties would amount to contempt of public authority under the terms of Art[icle] 244
of the Criminal Code -which has been repealed-, the specific imputation of a crime that is
publicly actionable always constitutes defamation.” Upon the conclusion of the criminal
proceedings, Mr. Kimel was sentenced by the Fourth Court of the National Appeals Chamber
for Criminal Matters for the crime of libel to one-year imprisonment and payment of $
20,000.00 (twenty thousand Argentine pesos) as damages.
3.
The Commission requested the Court to determine that the State has failed to fulfill
its international obligations as a result of the violation of Articles 8 (Right to a Fair Trial) and
13 (Freedom of Thought and Expression) of the American Convention in relation to the
general duty to respect and ensure human rights and the obligation to bring domestic law
into conformity as set forth in Articles 1(1) and 2 of the American Convention. It further
requested that the State be required to adopt reparation measures.
4.
On June 23, 2007, Gastón Chillier, Andrea Pochak, Santiago Felgueras, and Alberto
Bovino from the CELS, and Liliana Tojo from CEJIL, as representatives of the alleged victim
(hereinafter, “the representatives”), filed their brief containing requests, arguments, and
evidence (hereinafter, “brief of requests and arguments”), under the terms of Article 23 of
the Rules of Procedure. The representatives alleged that the State “has violated the right of
individuals to express their ideas through the press and to debate public issues,” as a result
of the use of certain criminal descriptions as a means to punish such acts. They added that
the judicial guarantees of due process of law and judicial effective protection were not
respected. Therefore, they requested that the State be declared responsible for the violation
of the rights enshrined in Articles 13, 8(1), 8(2)(h), and 25 of the Convention, all of them in
relation to Articles 1(1) and 2 thereof.
5.
On August 24, 2007, the State filed its brief containing the answer to the application
and its observations on the brief of requests and arguments (hereinafter, the “answer to the
application”),2 wherein it “acknowl[edged its] international responsibility” for the violation of
Articles 8(1) and 13 of the Convention and made some observations regarding the violation
of Article 8(2)(h) of said treaty and the violation of the right to a hearing by an independent
and impartial court.
1
The Commission appointed Florentín Meléndez, Commissioner, Santiago A. Canton, Executive Secretary,
and Ignacio J. Álvarez, Special Rapporteur on Freedom of Expression, as delegates, and attorneys Elizabeth AbiMershed, Juan Pablo Albán-Alencastro, and Alejandra Gonza as legal counsels.
2
On May 28, 2007, the State appointed Jorge Cardozo as Agent and Javier Salgado as Deputy Agent.