12 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.27 43. On October 28, 1991, the judge mentioned by Mr. Kimel in his book (hereinafter, “the complainant”) brought a criminal action against him for defamation.28 Subsequently, the complainant requested that if the defendant was not convicted for such crime, “he be convicted [for the crime of false imputation of a publicly actionable crime29].” On September 25, 1995, the Eighth National Court of First Instance for Criminal and Correctional Matters of Buenos Aires found that Mr. Kimel was not guilty of defamation but of false imputation of a publicly actionable crime. In examining the criminal definition of defamation, the Court established that: [T]he work described by the defense as “investigation, information, and opinion” has gone beyond this domain […] to become unnecessary and overabundant criticism of and disqualifying and discrediting opinion on the performance of a Judge, which does not contribute to the informative function, social formation, or cultural dissemination and even less to the elucidation of the facts or to social awareness […] said excesses, which are nothing but the overflowing of the limits of the freedom of the press, do not amount to the crime of [defamation], on account of the lack of actual malice and a specific and accurate imputation.30 44. Subsequently, the above Court considered the possibility of classifying the facts as false imputation of a publicly actionable crime, stating that “[u]nder our legal system, all that which injures a person’s honor and is not tantamount to defamation amounts to the crime of false imputation of a publicly actionable crime,” whereby it considered that: the doubts or suspicion raised by Mr. Kimel on the efficiency of the Judge in handling a case of international relevance, given the seriousness of the events under examination, constitute in and of themselves, an attack to the personal honor of the aggrieved party –dishonor-, aggravated by the massive scope of the publication –discredit-, which constitute the crime punished by Article 110 of the Criminal Code. […] neither could the defendant ignore that the assertions and suggestions made and doubts raised regarding, specifically, the [complainant] could tarnish the dignity of the Judge and of the ordinary man behind his official position. Undoubtedly, Mr. Kimel has committed an unjustifiable, arbitrary, and unnecessary excess, on the pretext of informing the general public on certain and specific historical events […]. Mr. Kimel not only informed the public but also issued an opinion on the facts in general and on the actions of the [complainant], in particular. And it is in this excess, which is in and of itself harmful, that the crime which I describe above lies. […N]othing will change by the fact that Mr. Kimel held that he did not intend to damage the complainant’s honor […] [t]he only element of malice required is that the perpetrator be aware of the potentially harmful or discrediting nature of the act or omission performed. 27 28 Cf. Kimel, Eduardo, La masacre de San Patricio (the San Patricio Massacre), supra note 25 (p. 125). Article 109 of the Argentine Criminal Code sets forth that: Defamation or the false imputation of a publicly actionable crime shall be punished with imprisonment from one to three years. 29 Article 110 of the Argentine Criminal Code sets forth that: 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. 30 Cf. Judgment of September 25, 1995, rendered by the Eighth National Court of First Instance for Criminal and Correctional Matters of Buenos Aires (record of appendixes to the application, Volume I, Appendix 1, folio 62).