Case Summary and Outcome

Journalist and historian, Eduardo Kimel, was given a criminal sentence for criticizing, in one of his books, the manner in which a judge conducted the investigation of a massacre perpetrated during the military dictatorship in Argentina. The Inter-American Court heard the case and ruled the Argentinian State abused its punitive power when it sentenced Mr. Kimel to a one-year prison term and payment of a sizable monetary fine for the crime of calumnia or false imputation of a publicly actionable crime. The Court held the measure was unnecessary and disproportionate and, therefore, violated the journalist’s freedom of expression. As a consequence, the Court ordered the Argentinian State to, among others things, compensate the writer and undertake a legislative reform of the criminal laws protecting honor and reputation, because they violated the principle of strict legality.

---

Facts

Journalist and historian, Eduardo Kimel, published the book “La Masacre de San Patricio” (The San Patricio Massacre) about the murder of five clergymen during the Argentinian military dictatorship. In the book, Kimel questioned the judicial conduct of the investigation into the murders. Specifically, he referred to the ”condescending” attitude of the federal judge –by then retired– that were responsible for investigating the massacre towards the military.

The relevant book excerpt is:

“[the federal judge hearing the case] adopted all applicable steps and procedures. He collected the police reports containing the preliminary information, requested and had forensic and ballistics reports made, and summoned to appear a number of people who might be able to provide information for the elucidation of the case. Notwithstanding, an examination of the judicial record poses an initial question: Did the authorities actually intend to find out clues, which might lead to the murderers? Under the military dictatorship judges were normally acquiescent, if not accomplices to the dictatorial regime. In the case of the Palotine clergymen, the [J]udge […] complied with most of the formal requirements regarding the investigation, though it is evident that a number of decisive elements that could have shed light on the murder were not taken into consideration. The evidence that the order to carry out the murder had come from within the core of the military structure in power checked the development of the investigation, bringing it to a standstill [par. 42].

The judge mentioned in the book brought a criminal action against Kimel for the false imputation of a publicly actionable crime (calumnia). At a later date, the judge requested that Kimel be convicted of defamation (injuria)

At the time of the investigation, the crime of false imputation of a publicly actionable crime (calumnia) in the Argentinian Criminal Code stipulated: “the false imputation of a publicly actionable crime shall be punished with imprisonment from one to three years”. The crime of defamation (injuria) read: “Anyone who damages another person’s honor or reputation shall be punished with a fine from 1,500.00 to 90,000.00 pesos or imprisonment from one month to one year”.

The Supreme Court Justice convicted Mr. Kimel to a one-year suspended prison sentence for the crime of false imputation of a publicly actionable crime (calumnia) and payment of 20.000 Argentinian pesos to the judge mentioned in the book.

The Inter-American Court of Human Rights heard the case and found that the Argentinian State violated Eduardo Kimel’s right to free expression when it used the State’s punitive power in an unnecessary and disproportionate way. The Court ordered the Argentinian State to, among others, reform the criminal legislation that protected honor and reputation, because, in its view, it violated the principle of strict legality.

---

Decision Overview

The Inter-American Court of Human Rights had to resolve whether the law establishing the crime of false imputation of a publicly actionable crime (calumnia) and the decision, based on that law, to criminally convict Mr. Eduardo Kimel for publishing his negative opinion on the way the judge handled the massacre investigation, violated his right to freedom of expression.

The Court established that Mr. Kimel’s criticism had an evident public interest and that his book involved the actions of a judge in exercise of his duties. In this sense, it reiterated that speech concerning the State, public interest matters, public officials in exercise of their duties, enjoyed a greater level of protection. It specified, the conditions to limit specially protected speech are very demanding and must be evaluated by means of a strict proportionality test. After applying this test, the Court found the law that served as basis for the penalty was not consistent with the legality principle and that, in any event, the penalty was disproportionate.

The Court further explained the American Convention on Human Rights (ACHR) protects both freedom of expression and the right to honor and that those are rights of great importance. In relation to the content of freedom of expression, it indicated that article 13 of the ACHR protects the right to seek and disseminate all types of ideas and information and the right to receive the ideas and opinions from others. In this regard, it argued that freedom of expression has both a collective and an individual dimension: “on the one hand, [this right] requires that no one may be arbitrarily harmed or impeded from expressing his own thought and, therefore, it represents a right of every individual; on the other hand, it implies a collective right to receive any information and to know the expression of the thought of others” [par. 53].

The Court indicated that freedom of expression is not an absolute right and that the Convention establishes the possibility of imposing subsequent liability to those who abuse this right and violate the rights of third parties, e.g., the right to honor protected by article 11 of the ACHR. Notwithstanding, the Court indicated that any restriction to freedom of expression must be exceptional and cannot limit the exercise of this right in a manner that amounts to “a direct or indirect mechanism of prior censorship” [par. 54].  The Court added any limitation must be subjected to a proportionality test that will be applied in a more or less stringent manner depending on the specific circumstances of the case.

As a consequence and based on article 13.2 of the ACHR, the Court stated that the admissibility of a limitation on freedom of expression depends on whether it meets certain basic conditions: i) the limitation or restriction must be established by law; ii) the restriction must seek to achieve a legitimate purpose and be suitable for attaining this end; iii) the restriction must be necessary for achieving such purpose; iv) and, finally the measure must be proportional to the sought after purpose.

In reference to the first requirement, the Court argued that any limitation must be materially and formally provided for by law. With regards to restrictions originating in criminal law, the Court specified that they should “strictly meet the requirements of the criminal definition in order to adhere to the nullum crimen nulla poena sine lege praevia principle. Thus, they must be formulated previously, in an express, accurate, and restrictive manner”. [par. 63]. It further added, based on its jurisprudence, that criminal definitions use strict terms that are unequivocal and clearly define prohibited conduct. In the Court’s view, this implies “an accurate definition of the criminalized conduct, which sets its elements and allows it to be delimited and distinguishable from non-punishable acts or illegal acts punishable with sanctions other than criminal. Ambiguity in the formulation of criminal definitions generates doubts and opens the door to the discretion of the authorities, particularly undesirable where the criminal liability of a person is to be determined and punished with sanctions which severely affect fundamental rights, such as life or freedom” [par. 63].

Regarding the suitability and purpose requirement of the measure, the Court indicated it must seek to achieve legitimate purposes, i.e., purposes established in the Convention, and the measure must contribute towards the attainment of the same.

With respect to the necessity of the measure, the Court considered the alternatives for achieving the restriction’s legitimate purpose should be weighed, in order to establish if there is a less restrictive way to achieve the purpose. Thus, the Court considered the State played a fundamental role in the process of harmonizing fundamental rights with the protection of other rights.

Concerning the use of criminal law, the Court indicated, “Criminal Law is the most restrictive and harshest means to establish liability for an illegal conduct. The broad definition of the crime[s of  false imputation of a publicly actionable crime (calumnia) and defamation (injuria)] might be contrary to the principle of minimum, necessary, appropriate, and last resort or ultima ratio intervention of criminal law. In a democratic society punitive power is exercised only to the extent that is strictly necessary in order to protect fundamental legal rights from serious attacks which may impair or endanger them. The opposite would result in the abusive exercise of the punitive power of the State” [par. 76].  The Court further clarified, the use of criminal law to restrict freedom of expression is not contrary to the Convention. However, “this possibility should be carefully analyzed, pondering the extreme seriousness of the conduct of the individual who expressed the opinion, his actual malice, the characteristics of the unfair damage caused, and other information which shows the absolute necessity to resort to criminal proceedings as an exception” [par.78].

Regarding the last step of the analysis, the Court considered it is necessary to examine whether the measure is strictly proportional to the legitimate purpose it seeks.

In the case under analysis, the Court had to determine: i) if the crimes of defamation (injuria) and false imputation of a publicly actionable crime (calumnia) established in the Argentinian Criminal Code fulfilled the principle of strict legality that is required for limiting freedom of expression; ii) if protecting a judge’s reputation is a legitimate purpose in accordance with the ACHR; iii)  if a criminal sanction is a suitable measure to achieve the purpose that is being sought; iv) in the criminal penalty is necessary and strictly proportional.

On the first point, the Court highlighted that the Argentinian State itself recognized the crimes of defamation (injuria) and false imputation of a publicly actionable crime (calumnia) were not defined clearly enough in the Argentinian Criminal Code. Thus, the Court concluded the provisions violated articles 9 (legality principle) and 13.1 of the Convention. Furthermore, although the measure will not be legitimate if fails any part of the three-part proportionality test,  in this case, the Court decided to continue applying the test for instructive purposes.

On the second point, the Court indicated that protecting honor and reputation is a legitimate purpose consistent with the Convention. In effect, article 11 of the ACHR establishes all people, including judges, have a right to the protection of their honor. Likewise, article 13.2 of the Convention declares “the reputation of others” is one of the purposes that legitimate restrictions to freedom of expression. In addition, the Court found that criminal law is a suitable means to safeguard the right to honor and reputation.

Notwithstanding, the Court found the criminal and civil penalties imposed on Mr. Kimel, were unnecessary and disproportionate. Regarding the necessity requirement, the Court stated that in the instant case, the abusive exercise of  the State’s punitive power  was evident, due to the “the crimes charged to Mr. Kimel, the impact they had on his legally protected interests, and the nature of the sentence imposed on the journalist –deprivation of freedom” [par. 80]. It further added, that, in order to determine the strict proportionality of the measure, it is necessary to analyze: “i) the degree of impairment of one of the rights at stake, establishing whether the extent of such impairment was serious, limited, or moderate; ii) the relevance of the satisfaction of the opposing right, and iii) whether the satisfaction of the latter justifies the restriction of the former” [par. 84].

Regarding the degree of restriction of freedom of expression in the case being examined, the Court indicated it was severe. It declared this severity valuation was founded on the “effects of the criminal proceedings in themselves, the application of a sanction, Mr. Kimel’s addition to the criminal offenders registry, the latent risk for him to be deprived of his liberty, and the stigmatizing effect of the criminal sentence imposed” [par. 85]. Additionally, the significant financial penalty constituted in itself a serious injury to freedom of expression.

On the right to honor, the Court reiterated that expressions concerning the suitability of an individual for occupying public office or the acts carried out by public officials in the exercise of their duties, enjoy a greater degree of protection. This protection, in the Court’s view, is justified because officials have voluntarily exposed themselves to higher level of scrutiny by society. The Court recalled that this level finds its origin in the public interest nature of the activities they conduct.  Also, in the democratic debate involving public interest matters, protection is extended not only to harmless expressions but also to expressions that shock, irritate or disturb public officials.

In this case, the Court established the existence of an obvious public interest in knowing how a judge discharged his duties and investigated a massacre perpetrated during the military dictatorship. It stressed that Eduardo Kimel’s opinions did not refer to the judge’s personal life but were part of a critical value judgment of the judiciary.

Ultimately, the Court considered the violation to Mr. Kimel’s freedom of expression was evidently disproportionate in relation to the alleged violation of the judge’s right to honor.

In conclusion, the Inter-American Court held the State of Argentina violated Mr. Eduardo Kimel’s right to freedom of expression when it exercised the State’s punitive powers in an unnecessary and disproportionate manner. The Court ordered the Argentinian State, among other things, to reform its criminal legislation protecting honor and reputation because it violated the principle of strict legality.

Judge Sergio García Ramírez put forth, in his concurring opinion, that in his view, criminal law was not an appropriate or admissible mechanism to penalize the abusive exercise the freedom of expression. In effect, he considered there were less harmful means that permitted achieving the legitimate purpose sought. The judge stated, “if criminal proceedings are not such appropriate mechanism, their use will infringe the requirement of “necessity” set forth in Article 13(2) [ACHR], the requirement of “general interest” set forth in Article 30 [ACHR], and the reasons related to the “security of all and the just demands of the general welfare”, as set forth in Article 32 [ACHR]. Accordingly, these proceedings will not be in conformity with the American Convention and shall then be reconsidered” [par. 19].

---