66
63(19) and 63(20)); the proceedings conducted for the purpose of securing the
copies of the book that were in the possession of several people (supra paras.
63(58) and 63(61)); and the order prohibiting Mr. Palamara-Iribarne to “make
negative comments” on the proceedings instituted against him or regarding “the
image” of the Navy (supra para. 63(38)). Although the book had been edited and Mr.
Palamara-Iribarne had almost 1000 copies and promotional leaflets, it was not
possible to actually distribute the book through Chilean bookstores and shops and,
consequently, the public did not have the opportunity to buy a copy and have access
to its content, as intended by Mr. Palamara-Iribarne.
75. The Court finds it somewhat surprising that, although in the expert reports
requested by the Naval Prosecutor (supra para. 63(23)) the experts concluded that
the book written by Mr. Palamara-Iribarne “[did] not breach the secrecy and security
of the Chilean Navy,” the return of the copies and the material related to the book
was never ordered. On the contrary, the prosecutor requested further expert
examination of the book in order to verify whether it “contain[ed] relevant
information from the point of view of the naval institution and/or information
obtainable only from privileged sources and whether it affected institutional
interests.” After said examination, the experts stated, inter alia, that the information
contained in the book “may be obtained from open sources and that it was implied
that [the] training [of Mr. Palamara-Iribarne] as an intelligence specialist […]
enable[d] him to write about this topic.”
76. The Court considers that it is logical that Mr. Palamara-Iribarne’s training and
professional and military experience helped him write the book and that it does not
entail per se an abuse of his right to freedom of thought and expression. Any
interpretation to the contrary would prevent individuals from using their education or
professional training to enrich the expression of their ideas and opinions.
77. The Court understands that the employees or officers of an institution have the
duty to maintain the confidentiality of certain information to which they have access
in the course of their duties, when the content of said information is involved in such
duty. The duty of confidentiality is not applicable to information related to the
institution or the duties performed by it that is already in the public domain.
However, under certain circumstances, a breach of the duty of confidentiality may
result in administrative, tort or disciplinary liability. In the instant case, the content
of the duty of confidentiality will not be examined insofar as it has been established
that Mr. Palamara-Iribarne used information from “open sources” (supra para.
63(23)) to write the book “Ética y Servicios de Inteligencia” (“Ethics and Intelligence
Services”).
78. The Court considers that, under the circumstances of the instant case, the
control measures adopted by the State to prevent the distribution of the book “Ética
y Servicios de Inteligencia” (“Ethics and Intelligence Services”) by Mr. PalamaraIribarne constituted acts of prior censorship that are incompatible with the
parameters set by the Convention inasmuch as there was no element that, pursuant
to said treaty, would call for the restriction of the right to freely publish his work,
which is protected by Article 13 of the Convention.
*
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