67
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2)
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Restrictions on Freedom of Thought and Expression
79. The Court considers it important to restate that the right to freedom of
expression is not an absolute right and that Article 13(2) of the Convention provides
for the possibility of placing restrictions on freedom of thought and expression by
imposing subsequent liability for abuse of this right. The grounds for imposing
subsequent liability must be expressly, previously and strictly limited by law; they
should be necessary to ensure “respect for the rights or reputations of others” or
“the protection of national security, public order, or public health or morals,” and
should in no way restrict, beyond what is strictly necessary, the full exercise of
freedom of expression or become either direct or indirect means of prior
censorship.178 Furthermore, the Court has previously pointed out that Criminal Law is
the most restrictive and severe means of imposing liability for illegal conduct.179
80. The Court will examine whether the subsequent liability for contempt imposed
upon Mr. Palamara-Iribarne by the military criminal court is compatible with Article
13 of the Convention (supra paras. 63(72) to 63(93)). The offense of contempt, with
which Mr. Palamara-Iribarne was charged, was defined in Chapter VI of the Criminal
Code, which is concerned with felonies and misdemeanors against “public order and
security” committed by private individuals. These provisions were in force at the time
of the events surrounding the case and were applied to it.
81. The Court notes that Mr. Palamara-Iribarne was acquitted of the charge of
contempt by the trial court and said decision was not appealed (supra paras. 63(88)
to 63(89)). However, by means of the consultation mechanism, the Navy CourtMartial reversed the trial court’s judgment of acquittal and convicted Mr. PalamaraIribarne of c ontempt, as defined in sections 264(3), 265 and 266 of the Chilean
Criminal Code (supra paras. 63(89) to 63(91)).
82. In relation to restrictions on freedom of expression through the imposition of
subsequent liability, the Court has held, in previous cases, that it is logical and
appropriate that statements concerning public officials and other individuals who
perform public services are afforded, as set forth in Article 13(2) of the Convention,
greater protection, thus allowing some latitude for broad debate, which is essential
for the functioning of a truly democratic system.180 These criteria are applied to the
instant case with regard to the criticism or statements on matters of public interest
advanced by Mr. Palamara-Iribarne regarding the conduct of the Magallanes Naval
Prosecutor within the criminal military proceedings instituted against him for
disobedience and breach of military duties. In addition, the facts of this case and the
178
Cf. Case of Ricardo Canese, supra note 172, para. 95; Case of Herrera-Ulloa, supra note 174, para.
120; and Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism.
Advisory Opinion OC-5/85, supra note 172, para. 39.
179
180
Cf. Case of Ricardo Canese, supra note 172, para. 104.
Cf. Case of Ricardo Canese, supra note 172, para. 98; Case of Herrera-Ulloa, supra note 174, para.
128; Case of Ivcher-Bronstein, supra note 173, para. 155.
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