VII MERITS RIGHT TO FREEDOM OF THOUGHT AND EXPRESSION, JUDICIAL GUARANTEES, AND THE PRINCIPLE OF LEGALITY AND NON-RETROACTIVITY, IN RELATION TO THE OBLIGATION TO RESPECT RIGHTS AND THE DUTY TO ADOPT DOMESTIC LEGAL PROVISIONS 59 49. This case relates to a series of alleged violations of the American Convention owing to the imposition of subsequent liability against the journalists Ronald Moya Chacón and Freddy Parrales Chaves as a result of a newspaper article published on December 17, 2005. The article reported on presumed irregularities that had allegedly occurred in the control of the smuggling of liquor into Costa Rica in the Panamanian border region and mentioned various police officers who were supposedly involved in the said facts. 50. Taking into account the arguments presented by the parties and the Commission in this case, the Court will examine, first, the compatibility of the sanction imposed on the alleged victims with the right to freedom of thought and expression (Article 13) and the principle of legality and non-retroactivity (Article 9), all in relation to the obligation to respect rights (Article 1(1)) and the duty to adopt domestic legal provisions (Article 2). It will then examine the alleged violation of the right to judicial guarantees (Article 8), which was also cited by the representatives. A. Arguments of the parties and of the Commission 51. The Commission underlined the relevance of the right to freedom of thought and expression based on the protection provided by Article 13 of the American Convention. It indicated that, despite its fundamental importance, freedom of expression was not an absolute right and, exceptionally, could be subject to restrictions. 52. The Commission also stressed that, when determining the conventionality of such restrictions, it was necessary to apply the tripartite test to the limitations of freedom of expression. This requires that any sanctions imposed owing to the exercise of this right must be: (1) precisely and clearly defined in a formal and pre-existing law; (2) aimed at achieving legitimate objectives authorized by the Convention (“respect for the rights or reputation of others” or “the protection of national security, public order, or public health or morals”), and (3) necessary in a democratic society (and thus comply with the requirements of suitability, necessity and proportionality. 53. Regarding the legality test, the Commission indicated that article 7 of the Printing Act, read in relation to article 145 of the Criminal Code, permitted resort to criminal mechanisms for the assignment of subsequent liability in situations in which it was considered that freedom of expression had been abused, contrary to the standards established by the Commission. It added that the said articles were incompatible with the principle of due process of criminal law and the right to freedom of expression because they did not establish clear parameters that allowed the prohibited conduct and its elements to be predicted. It also indicated that the application of article 1045 of the Civil Code, which established the obligation to redress any harm caused by “malice, omission, negligence or imprudence,” was not incompatible per se with the American 59 Articles 13, 8, 9, 1 and 2 of the American Convention on Human Rights. 16