CONCURRING OPINION OF JUDGE DIEGO GARCÍA-SAYÁN IN THE JUDGMENT RENDERED BY THE INTER-AMERICAN COURT OF HUMAN RIGHTS ON MAY 2, 2008 IN THE CASE OF KIMEL V. ARGENTINA I. Argentina. Freedom of thought and expression in the case of Kimel v. 1. In the judgment rendered in the case of Kimel v. Argentina, the Court reasserts the concept of freedom of thought and expression as a fundamental right in a democratic society. The conduct of Mr. Kimel, according to the record of the case, fitted into the regular exercise of such right. In the case in point, the investigative journalistic work carried out by Mr. Kimel provided important information and evidence on the actions of a judge regarding the investigation into a serious violation of human rights occurred during the military rule in Argentina. The so-called “San Patricio massacre,” in which five clergymen belonging to the Palotine Order were murdered, was a serious event Mr. Kimel investigated in such work. 2. From the record of the case it results that the information and the opinion expressed by Mr. Kimel fitted into the regular exercise of a right and that the criminal sentence imposed on him was disproportionate. In the agreement signed by the parties during the proceedings, they refer to an “unfair criminal sentence” which is, certainly, the main aspect of the international responsibility of the State in the instant case. It is a proven fact that Mr. Kimel had not used excessive language and that his criticism had no bearing on the private life of the judge who brought criminal proceedings against him, but on the judicial handling of the case he was hearing. 3. In the instant case, it is of the utmost importance that the State has acquiesced and accepted that it violated Mr. Kimel’s right to freedom of thought and expression, further acknowledging the lack of accuracy of the criminal laws which punish defamation. It is also relevant that the State has regretted “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.” As a consequence of the State’s acquiescence, the Court ordered the State to bring its domestic legislation in line with the provisions of the Convention within a reasonable time, in a manner such that the lack of accuracy admitted by the State “is amended so that the requirements of legal safety are met and, therefore, the right to freedom of thought and expression is not impaired” (para. 128). 4. The Court has determined that in the instant case there has been an abusive exercise of the State’s punitive power, taking into consideration the charges brought against Mr. Kimel, the impact they had on his legally protected interests, and the nature of the sentence imposed on the journalist –deprivation of freedom (para. 80). II. Freedom of thought and expression in the American Convention 5. In the judgment, the Court has recalled that the right to freedom of thought and expression as enshrined in Article 13 of the Convention is not an absolute one