has understood that a series of rights are protected by this article.362 The two dimensions are
equally important and must be fully ensured simultaneously in order to make the right to
freedom of expression completely effective in the terms of Article 13 of the Convention.363 Thus,
in light of both dimensions, freedom of expression requires, on the one hand, that no one be
arbitrarily prevented from expressing his own opinions and therefore represents a right of each
individual, but, on the other hand, it also entails a collective right to receive any type of
information and the expression of the opinions of others.364
372. The individual dimension of freedom of expression includes the right to use any
appropriate means to disseminate opinions, ideas and information so that it reaches the
greatest number of persons. Thus, expression and diffusion are indivisible, so that a restriction
of the possibilities of dissemination represents directly, and to the same extent, a limit to the
right to express oneself freely.365
373. In the instant case, the ancillary penalties established in Article 9 of the Chilean
Constitution were imposed on Aniceto Norín Catrimán, Pascual Huentequeo Pichún Paillalao and
Víctor Manuel Ancalaf Llaupe (supra paras. 117 and 144). Thus, among other matters, “for 15
years, they were disqualified from […] exploiting a social communication medium or from being
a director or administrator of one, or from performing functions related to the emission and
diffusion of opinions and information.”
374. The Court considers that this ancillary penalty entailed an undue restriction of the
exercise of the right to freedom of thought and expression of Messrs. Norín Catrimán, Pichún
Paillalao and Ancalaf Llaupe, not only because it was imposed based on judgments that applied
a criminal law that violated the principle of legality and several procedural guarantees (supra
Chapter VII.1 and VII.2), but also because, in the circumstances of this case, it is contrary to
the principle of the proportionality of the punishment. As the Court has determined, this
principles signifies “that the State’s response to a wrongful act of the perpetrator of an offense
must be proportionate to the right affected and to the responsibility of the perpetrator, so that
it should be established based on the different nature and seriousness of the acts.”366
375. The Court has verified that, as traditional authorities of the Mapuche indigenous people,
Messrs. Norín Catrimán, Pichún Paillalao and Ancalaf Llaupe played a decisive role in
communicating the interests, and in the political, spiritual and social guidance, of their
respective communities (supra para. 78). The imposition of the above-mentioned ancillary
penalty has restricted their possibility of taking part in the diffusion of opinions, ideas and
information by performing functions in social media, and this could limit the sphere of action of
their right to freedom of thought and expression in the exercise of their functions as leaders or
representatives of their communities. This, in turn, has a negative impact on the social
dimension of the right to freedom of thought and expression, which, as the Court has
362
Cf. Case of "The Last Temptation of Christ" (Olmedo Bustos et al.) v. Chile. Merits, reparations and costs. Judgment
of February 5, 2001 Series C No. 73, para. 65, and Case of Mémoli v. Argentina, para. 119.
363
Cf. Case of Ivcher Bronstein v. Peru. Merits, reparations and costs. Judgment of February 6, 2001. Series C No. 74,
para. 149, and Case of Mémoli v. Argentina, para. 119.
364
Cf. Case of Ivcher Bronstein v. Peru. Merits, reparations and costs, para. 146, and Case of Mémoli v. Argentina,
para. 119.
365
Cf. Case of "The Last Temptation of Christ" (Olmedo Bustos et al.) v. Chile, para. 65, and Case of Vélez Restrepo and
family members v. Colombia. Preliminary objection, merits, reparations and costs. Judgment of September 3, 2012. Series
C No. 248, para. 138.
366
Cf. Case of Vargas Areco v. Paraguay. Merits, reparations and costs. Judgment of September 26, 2006. Series C No.
155, para. 108, and Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs. Judgment of May 11,
2007. Series C No. 163, para. 196.
127
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents