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o)
if Mr. Mauricio Herrera Ulloa’s honor was impugned in any way, it
would only have been for the period during which his name was listed in the
Judiciary’s Record of Convicted Felons;
p)
Mr. Mauricio Herrera Ulloa’s purported hesitation about reporting news
involving the activities of public officials is a “myth,” as shown by the
“countless” op-ed pieces and news articles supplied;
q)
under the doctrine of actual malice, utterances, words or deeds that
offend honor can be made punishable offenses. Indeed, other kinds of
penalties for such conduct are compatible with a democratic society, provided
their purpose is to protect honor and reputation;
r)
the “assertion that a civil award ordered in the course of a criminal
case is subordinate to the judgment in the criminal case, and follows virtually
automatically from the decision in the principal (criminal) case, as a
consequence of it and in addition thereto” is incorrect. The party filing the
criminal complaint must prove both the existence of the crime and the extent
and existence of the harm caused.
The civil action preserves its own
autonomy within the criminal case; the parties are responsible for moving the
proceedings forward, as there is no ex officio procedural impetus. The civil
action is a private action that can be waived; it is negotiable, compensable
and can be abandoned;
s)
surely the Court would never consider that the Convention’s protection
also extends to a legal person, represented by its chief legal counsel. “La
Nación” has not the slightest right to claim protection not just belatedly but
also improperly.” Legal persons do not enjoy the same rights that human
persons enjoy. Persons associated with “La Nación” are the only ones who
could demand protection, yet not one of them “acted promptly to seek
protection of his rights”;
t)
Mr. Vargas Rohrmoser cannot be counted among the victims of the
violations alleged to be the result of the case prosecuted against Mr. Mauricio
Herrera Ulloa, as Mr. Vargas Rohrmoser was not a party to that process;
u)
the proposal put forward by the representatives and the Commission
at the public hearing, which was to eliminate penalties for crimes against
honor in the case of public officials or private persons involved in public
affairs, clashes with one of the essential pillars of the rule of law, which is the
prohibition of discrimination. With that kind of scheme to eliminate such
penalties, the honor of public officials would be less protected by virtue of the
fact that they have exercised their own political rights. Article 24 of the
Convention prohibits arbitrary discrimination by proclaiming that all persons
are equal before the law; and
v)
public debate can be “heated or hurtful,” but in the end it is still
debate; in other words, it is a coming together of opinions, ideas or
perceptions. However, the use of editorial space or articles in newspapers
when no opportunity for reply or rebuttal is given, ought not to be confused
with public debate. Nor should the public official under attack have to remain
impervious to accusations or suspicions, no matter how unfounded they may
be.
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