The case of Kimmel vs. Argentina was decided by the Inter-American Court of Human Rights

on May 2nd, 2008.

Why is the case important?

The case is important because it is related to the nuanced relationship between freedom

of thought and expression and the right to have one's honor respected, which are both

fundamental rights under the American Convention and that they have to be analyzed on a case-by-case

criteria using the principle of proportionality as a guideline.

Principle facts.

Eduardo Kimo has worked as a journalist, a writer, and an investigative historian.

In 1989, a book of him was published dealing with the murder of five clergymen of the

Palontive Order committed in Argentina in 1976 during the last military dictatorship.

Regarding the judicial decision adopted on October 7, 1977, he suggested that the federal

judge hearing the case, I quote, compiled with most of the formal requirements regarding

the investigation, thought, and though it is evident that a number of decisive elements

that could have shed light on the murder were not taken into consideration.

On October 28, 1991, the judge mentioned brought a criminal action against Mr. Kimo for defamation.

The domestic courts found that Mr. Kimo was not guilty of defamation but a false imputation

of a publicly actionable crime, Article 110 of the Criminal Code.

The judgment sentenced Mr. Kimo to one year suspended imprisonment as well as to the payment

of compensation.

Before the Inter-American Court, the applicant alleged that a criminal and a civil conviction

charged against him for false imputation of a publicly actionable crime after the publication

of a book constituted a violation of his right to freedom of expression.

The Court's Finding

The Court established that Mr. Kimo's criticism was of 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, or public

officials in exercise of their duties, enjoyed a greater level of protection and any restriction

must withstand a strict proportionality test.

The Court therefore found the law that served as basis for the penalty was not consistent

with the legality principle and that the penalty was disproportionate.

The Court further explained the American Convention on Human Rights protects both freedom of expression

and the right to honor.

In relation to the content of freedom of expression, it indicated that it protects the right to

seek, disseminate, and receive all types of ideas and information, having both a collective

and an individual dimension.

The Court indicated that freedom of expression not being an absolute right and a restriction

to freedom of expression must be exceptional and must not amount to a direct or indirect

mechanism of prior censorship.

The applicant had issued an opinion that had no relation to the personal life of the complainant

judge or accused him of unlawful conduct but related to the legal case under his position.

Therefore, the Court considered that opinions cannot be considered as true or false and

as such an opinion cannot be sanctioned.

The Court found that the State's response overly disproportionate to the alleged impairment

of the affected judge's honor and reputation and therefore in violation of the applicant's

Article 13 right to freedom of expression.

This important decision of the Inter-American Court reiterates and illustrates with more

precision than any previous ruling the rule establishing that speech involving the public

interests and public officials acting in the course of the duties enjoys a greater degree

of protection.