11
37.
The Commission requested the Court “to declare that the criminal proceeding, the
criminal sentence, and the effects thereof –including the additional civil sanction- imposed
on Eduardo Kimel for researching into certain events, writing a book, and publishing
information[,] necessarily restrai[n] the dissemination and reproduction of information on
issues of public interest, thus discouraging the public debate on issues which are relevant to
the Argentine society.” It further requested the Court to declare the violation of the duty to
adapt the domestic legislation “as a result of keeping in full force and effect legal provisions
which unreasonably restrict the free circulation of opinions on the officials acts of public
authorities.”
38.
The representatives agreed with the Commission and considered that the criminal
definitions used in the instant case “may be applied to bring criminal actions for political
criticism,” whereby they “are not in conformity with Article 13 of the Convention.”
39.
The State acquiesced to the parties’ claims, pointing out that “[the] criminal
conviction of Mr. […] Kimel constituted a violation of his right to freedom of thought and
expression” and that “the inaccuracy of the criminal legislation punishing defamation and
preventing freedom of thought and expression from being preserved, entails the violation
o[f Article 2 of the Convention].” At the public hearing, the State “regret[ted …] that the
only person ever convicted for the massacre of the clergymen belonging to the Palotine
Order was precisely the journalist who thoroughly investigated such dreadful massacre and
its judicial handling.”
40.
The Court notes that despite the acknowledgement of facts made by the State and
its acquiescence to various claims, it is still necessary to determine the significance and
seriousness of the violations committed, as well as the scope of the domestic criminal
legislation in force which may be used to curtail freedom of thought and expression. The
determination of the foregoing will be a contribution to the development of case law on this
matter and to the appropriate protection of human rights.
*
*
*
41.
Eduardo Kimel is a historian graduated from Buenos Aires University, Argentina. He
has worked as a journalist, a writer, and an investigative historian.24 His book “La masacre
de San Patricio” (the San Patricio Massacre) was published in November 1989.25 This book
deals with the murder of five clergymen of the Palotine Order committed in Argentina on
July 4, 1976, during the last military dictatorship.26
42.
In the above-mentioned book, Mr. Kimel examined, inter alia, the judicial
investigation into the massacre. Regarding the judicial decision adopted on October 7, 1977,
he pointed out that 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.
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by
legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as
may be necessary to give effect to those rights or freedoms.
24
Cf. Statement rendered by Eduardo Kimel at the public hearing (supra para. 9).
25
Cf. Kimel, Eduardo, La masacre de San Patricio (San Patricio Massacre), Ediciones Lohlé-Lumen, second
edition, 1995 (record of appendixes to the application, Volume I, Appendix 8, folio 217).
26
Cf. Kimel, Eduardo, La masacre de San Patricio (San Patricio Massacre), supra note 25 (p. 13).