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i.
The honor of the individual should be protected without prejudicing the
exercise of freedom of expression and the right to receive information. Also,
Article 14 of the Convention establishes that any person injured by inaccurate
or offensive statements has the right to reply or make a correction using the
same communications outlet;
j.
There is no dispute with regard to the violation of this rule, because
Chile stated that the judgment of the Court of Appeal of Santiago, ratified by
the Supreme Court of Justice, is a violation of freedom of expression;
k.
The experts’ statements to the Court demonstrated the existence of a
repeated conduct whereby, in cases of conflict between freedom of expression
and the right to honor of certain individuals, the Chilean courts prefer to
restrict freedom of expression, which violates the principle of the indivisibility
of human rights;
l.
The State is responsible for the acts of the Judiciary, even in cases in
which the actions of the latter exceed its authority, whatsoever the position of
its other organs. Although, internally, the Executive, the Legislature and the
Judiciary are distinct and independent, they comprise an indivisible unity and,
therefore, the State must assume international responsibility for the acts of
the organs of public authority that violate international commitments;
m.
The legal system in force in Chile has incorporated the rights and
freedoms embodied in the Convention, de jure, in article 5(2) of the
Constitution. That is to say, there is an obligation to respect human rights,
without any need to amend the Constitution or the laws. Also, the Chilean
courts have applied the Convention, in relation to the rights embodied in it,
without the need for any legal or constitutional amendment; for example,
preference has been given to personal freedom over domestic legislation that
regulates pre-trial detention for the crime of fraudulent emission of cheques;
and
n.
An eventual reform of the Constitution concerning freedom of
expression will not make the violations of the alleged victims’ human rights in
which the State has incurred in this case disappear with retroactive effect.
The State’s arguments
62.
The State alleged that:
a.
It has no substantive discrepancies with the Commission; it does not
dispute the facts, although this does not mean that it accepts responsibility
with regard to the facts;
b.
In a message to the Congress, President Eduardo Frei Ruiz-Tagle has
indicated the Chilean Government’s position against prior censorship and
recognized that the free expression of ideas and artistic creation is part of the
essence of a society of free individuals, ready to seek the truth through
dialogue and discussion and not by imposing censorship. Prior censorship
cannot exist in a democracy, because a democratic system supposes an open
society with free exchange of opinions, arguments and information;