21
false, nor can they justify in and of themselves a restriction on freedom of thought and
expression, inasmuch as it is everyone’s right to give his free opinion on issues of public
interest and on the performance of the duties of a judge regarding a matter of great public
concern.”
83.
In this last step of the examination, it is discussed whether the restriction is strictly
proportionate, in a manner such that the sacrifice inherent therein is not exaggerated or
disproportionate in relation to the advantages obtained from the adoption of such
limitation.58 The Court has adopted this method in pointing out that:
in order for restrictions to be in conformity with the provisions of the Convention, they must be
justified in terms of collective purposes which, owing to their relevance, clearly outweigh the social
need for the full enjoyment of the rights enshrined by Article 13 of the Convention and do not limit
the right established in said article more than is strictly necessary. In other words, the restriction
must be proportionate to the interest that justifies it and closely tailored to the accomplishment of
that legitimate purpose, interfering as little as possible with the effective exercise of the right to
freedom of thought and expression.59
84.
In the case in point, the restriction should serve the purpose of ensuring the full
exercise of the right to have one’s reputation respected without rendering nugatory the
right to criticize the actions of public officials in the performance of their duties. In order to
examine this, 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. In some cases the balance will
be tilted to the prevalence of freedom of thought and expression, while in others it will be
tilted to safeguarding the right to have one’s honor respected.
85.
Regarding the degree of impairment of the right to freedom of thought and
expression, the Court deems that that 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 thereon show that the subsequent liability imposed on Mr. Kimel was serious. Even
the fine constitutes in and of itself a serious impairment of the right to freedom of thought
and expression, given the considerable amount set in relation to the beneficiary’s income.60
86.
Regarding the right to have one’s honor respected, the opinions regarding a person’s
qualification to hold office or the actions of public officials in the performance of their duties
are afforded greater protection, so that debate in a democratic system is encouraged.61 The
Court has pointed out that in a democratic society political and public personalities are more
exposed to scrutiny and the criticism of the public.62 This different threshold of protection is
due to the fact that they have voluntarily exposed themselves to a stricter scrutiny. Their
58
Cf. Case of Chaparro Álvarez y Lapo Iñiguez, supra note 17, para. 93.
59
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, supra note
44, para. 46; ; Case of Herrera-Ulloa, supra note 12, paras. 121 and 123; Case of Palamara-Iribarne, supra note
12, para. 85, and Case of Claude-Reyes et al., supra note 44, para. 91.
60
The pecuniary sanction Mr. Kimel was sentenced to pay amounted to $ 20,000.00 (twenty thousand
Argentine pesos). Cf. Judgment of March 17, 1999, supra note 36, folio 138. According to the exchange rate
prevailing at the time, said amount was equivalent to the same amount in US dollars. According to the
representatives’ statements, which were not challenged by the State, the execution of this sanction “would imply
the economic bankruptcy of Mr. Kimel, who would lose all his property and would go into debt for a very lon[g]
time.”
61
Cf. Case of Herrera-Ulloa, supra note 12, para. 128, and Case of Ricardo Canese, supra note 44, para 98.
62
Cf. Case of Herrera-Ulloa, supra note 12, para. 129, and Case of Ricardo Canese, supra note 44, para.
103.