5. The progress achieved in the case of Baraona Bray v. Chile reaffirms the recent
standards consolidated in the jurisprudence of the Inter-American Court, especially
when they are aimed at strengthening the protection of public interest speech.
Accordingly, the previous standards and the parameters derived from them are
added to the current ones, and should be read as part of a conventional
hermeneutic intended to give maximum scope to Article 13 of the Convention.
6. In light of these considerations, we issue this opinion in order to explain the reasons
why we concur with the judgment and also to discuss in greater detail the basis of
this significant development in the Court’s case law, especially regarding the limits
set on criminal liability as a means of protecting the honor of public officials.
7. To this end, the course of argument will be developed in the following chapters:
presentation of the relevant facts of the case (II); analysis of the possibility of
applying criminal measures as appropriate means of protecting honor (III); the
reasons that justify the inapplicability of criminal measures to protect the honor of
public officials (IV); and finally, the defects in the legality and specificity of the
criminal provisions analyzed in this case (V).
II.
Presentation of the relevant facts of the case
8. The case in question focuses on the international responsibility of the Chilean State
arising from the criminal conviction of the lawyer and environmental defender,
Carlos Felipe Baraona Bray ("Mr. Baraona Bray," “victim" or "petitioner"), due to
public statements he made through various media outlets in May 2004, where he
mentioned the then Senator SP in the context of a public debate on the illegal
logging of alerce trees in the country.
9. Senator SP filed a complaint against Mr. Baraona Bray for serious insults and
slander because the latter had allegedly accused him of “moral vice,” a conduct
further aggravated because the alleged offense was committed against a public
official, as established in Art. 12 (13) of the Criminal Code. Mr. Baraona Bray was
criminally convicted only for serious insult, pursuant to Articles 417(3), and 418,
first paragraph, of the Chilean Criminal Code, together with Article 29 of Law
Nº19.733. He was sentenced to 300 days imprisonment, a fine of 20 monthly tax
units (MTU) and the suspension of the right to hold public office for the duration of
the sentence. Although the judgment was appealed, the conviction was upheld in
second instance. 2
10. This is, therefore, another occasion in which the Inter-American Court has been
called upon to rule on the provision and application of criminal measures to
establish subsequent liability for speech that allegedly oversteps the limits of the
legitimate exercise of the right to freedom of expression, thereby affecting the
honor of third parties. This case marks an important development in the standards
established up until the case of Moya Chacón v. Costa Rica, so we will formulate
some considerations on the circumstances in which the use of criminal measures is
contrary to the Convention, in order to avoid excesses in the imposition of
restrictions on freedom of expression.
11. In this case, however, unlike what happened in the case of Moya Chacón v. Costa
Rica, beyond the mere existence of regulations that established a criminal response
to certain types of speech, the criminal law was effectively applied to the specific
Inter-American Court. Case of Baraona Bray v. Chile. Preliminary objections, merits, reparations and costs.
Judgment of November 24, 2022. Series C. No. 481. (Hereinafter, “Judgment”), §§58-63.
2