Inter-American Court of Human Rights
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123. Hence, the restriction must be proportionate to the legitimate interest that justifies it and must be limited to what is strictly necessary to achieve that objective. It should interfere as little as possible with effective exercise of the right to freedom of expression.124. Now that the Court has determined the content of the right to freedom of thought and expression, has highlighted the importance of freedom of expression in a democratic society and the role that the media and journalism play therein, and has established the requisites that must be met for restrictions on freedom of expression to be compatible with the American Convention, it must now turn its attention, based on the proven facts in the instant case, to the question of whether the restrictions allowed on freedom of expression through subsequent imposition of liability were compatible with the Convention. At the outset it must be said that Mr. Herrera Ulloa was a journalist stating facts or opinions of public interest. 125. The jurisprudence constante of the European Court of Human Rights with regard to the permissible limits on freedom of expression has been that a distinction must be made between the limits that apply when the restriction is to protect a private individual and those that apply when the restriction is to protect a public figure, such as a politician. That Court has written that: the limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual, as the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance. A politician is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of the open discussion of political issues.102 Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.103 126. In another judgment, the European Court ruled that: […] freedom of expression […]is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. […] The limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion.104 127. Democratic control exercised by society through public opinion encourages the transparency of State activities and promotes the accountability of public officials in public administration, for which there should be a reduced margin for any restriction on political debates or on debates on matters of public interest.105 128. In this context, it is logical and appropriate that statements concerning public officials and other individuals who exercise functions of a public nature should be accorded, in the terms of Article 13(2) of the Convention, a certain latitude in the broad debate on matters of public interest that is essential for the functioning of a truly democratic system. The foregoing considerations do not, by any means, signify that the honor of public officials or public figures should not be legally protected, but that it should be protected in accordance with the principles of democratic pluralism. 129. A different threshold of protection should be applied, which is not based on the nature of the subject, but on the characteristic of public interest inherent in the activities or acts of a specific individual. Those individuals who have an influence on matters of public interest have laid themselves open voluntarily to a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate. 130. Given the foregoing, this Court will now determine whether the criminal sanction imposed on journalist Mauricio Herrera Ulloa was a necessary restriction in a democratic society and therefore compatible with the American Convention. 131. In the instant case, the information reported in the Belgian press about diplomat Félix Przedborski, Costa Rica’s representative to the International Atomic Energy Agency in Vienna, and his alleged illicit activities, drew journalist Mauricio Herrera Ulloa’s immediate attention. He reproduced a portion of the news reported in the Belgian press. The Court notes that journalist Herrera Ulloa basically confined himself to reproducing the news reports having to do with a public official’s conduct abroad. 132. This Court must go on record as noting that as a consequence of his actions, Mr. Herrera Ulloa was subjected to criminal prosecution and convicted. Invoking articles 146, 149 and 152 of the Costa Rican Penal Code, the judge ruled that Mr. Herrera Ulloa’s justification defense (exceptio veritatis) had to be disregarded as he had failed to prove that the facts that various European newspapers attributed to Mr. Félix Przedborski were true; instead, the judge wrote, he was only able to show that “questions were raised in the European press about the party filing the criminal complaint.” Thus, the court disallowed the justification defense because the journalist had not proved the veracity of the facts reported in the European newspapers. This standard of proof is an excessive limitation on freedom of expression that does not comport with Article 13(2) of the Convention. 133. The effect of the standard of proof required in the judgment is to restrict freedom of expression in a manner incompatible with Article 13 of the American Convention, as it has a deterrent, chilling and inhibiting effect on all those who practice journalism. This, in turn, obstructs public debate on issues of interest to society. 134. The European Court has held the following in this regard: […] punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest.106 135. The Court therefore finds that the State violated the right to freedom of thought and expression protected under Article 13 of the American Convention on Human Rights, in relation to Article 1(1) thereof, to the detriment of Mr. Mauricio Herrera Ulloa, since the restriction on this journalist’s exercise of that right oversteps the boundaries set in that article. 136. The Court will not take up the allegation made by the Commission and by the alleged victims’ representatives to the effect that Article 2 of the Convention was violated, because the facts in this case do not fit the propositions upon which that article is based. XI Violation of articles 8 and 25 in combination with articles 1(1) and 2 (Right to a Fair Trial and Right to Judicial Protection) Directory: docs -> casos -> articulos docs -> Observational Assessment of Teaching Practices Teaching Assessment Initiative Proposal Submitted to The Teachers for a New Era project docs -> Traditional British values docs -> From Warfighters to Crimefighters: The Origins of Domestic Police Militarization docs -> Borzoi Club of America Register of Merit Program I. What is a Register Of Merit docs -> Protecting the rights of the child in the context of migration docs -> United Nations E/C. 12/Esp/5 docs -> 9th May 1950 the schuman declaration docs -> Getting To Outcomes® in Services for Homeless Veterans 10 Steps for Achieving Accountability articulos -> Judgment of April 3, 2009 articulos -> Inter-american court of human rights Download 0.65 Mb. Share with your friends:
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