20 where freedom of expression acts as a watchdog of democracy. The constitutional function that Spain’s Constitutional Court attributes to free speech had been suggested in earlier judgments of the United States Supreme Court. Regarding the “insult” or “defamation” laws in Costa Rica, Articles 146, 149 and 152 of the Costa Rican Criminal Code are not compatible with Article 13 of the American Convention. These provisions inhibit and restrict political discourse on matters of public interest or concern, in that they make no distinction vis-à-vis the targets of the insult, i.e., public officials versus private citizens, and do not discriminate for the type of issues being discussed. Article 149 of the Costa Rican Criminal Code is incompatible with the American Convention and unsuited to the demands of a democratic society, particularly inasmuch as it places the burden of proof on a defendant accused of defamation, and then only when the proof of truth meets certain tests. If the defendant is being required to show that he did not act with malice or that what he has said is true, the burden of proof is inverted, which is contrary to the principles governing the exercise of free speech and the principle of presumed innocence. While it is true that the provisions of articles 146 and 152 are consistent with the restrictions on free speech allowed under Article 13(2) of the American Convention, the essence of those provisions is not compatible with the Convention to the extent that they inhibit frank and open political debate, make it impossible to criticize government officials, and make no distinction for situations in which matters of public interest or concern are being discussed. As the European Court of Human Rights has ruled time and time again, and as the Inter-American Commission stated in its Report on the Compatibility of Desacato Laws with the American Convention on Human Rights, with freedom of expression, in cases involving crimes against honor, it is the plaintiff who bears the burden of proof, not the defendant. Requiring the defendant to bear the burden of proof in such cases would be a violation of Article 13 and Article 8 of the Convention, particularly the principle of presumption of innocence. The November 12, 1999 judgment against Mauricio Herrera Ulloa and “La Nación” is completely contrary to the freedom of expression guaranteed in Article 13 of the Convention, since judgments of this kind can certainly have a chilling effect on political discourse. The European Court of Human Rights has held that journalists’ freedom also covers possible recourse to “a degree of exaggeration or even provocation.” Article 13(2) of the American Convention provides for subsequent imposition of liability. But both the doctrine and the case law make it clear that in a democratic society, such liabilities must be those strictly necessary and proportionate to the harm caused; if those conditions are not present, any such liabilities are incompatible with the Convention.