32. At this point, we stress once again the vital importance of safeguarding debate on
issues of public interest, which is only possible by ensuring a fertile and conducive
environment for discussion and maintaining the free exchange of ideas in a
democratic society. Bearing in mind that a truly pluralist debate is an essential
instrument not only for the control of public administration and resources, but also
for the transparency of State activities, it fosters accountability and responsibility
among public officials for their actions in the popular arena, as was emphasized by
the expert witness Martín Prats at the public hearing held on June 20, 2022. 23
33. However, in light of the standards and criteria in force until then in the interAmerican sphere, it was not possible to determine a priori whether or not the
subject of an individual’s statements was of public interest. This is because such a
judgment depends on factors that cannot be determined in an objective analysis,
and requires the interpretation of subjective concepts, which is usually made by a
judicial authority at a procedural moment after the filing of a complaint. Thus, in
the absence of other criteria that we will define below, it is not possible to conclude,
prior to the filing of the criminal complaint, whether or not a particular case may
give rise to the application of criminal measures to hold accountable the person
who made the statement.
34. This situation allows actors such as human rights defenders and journalists, along
with any citizen wishing to discuss public issues, to be subjected to the burden and
harm–both financial and social- of having criminal proceedings brought against
them, only to later receive a response from the State as to whether or not criminal
prosecution is appropriate in their case, or whether the speech in question would
enjoy special protection under the mantle of freedom of expression on matters of
public interest. And even if in practice there is no criminal prosecution, the mere
possibility that this could occur is often sufficient for those who venture into public
criticism to be constantly haunted–even maliciously - by the risk of having to face
the criminal justice system if they decide to engage in public debate.
35. As the Inter-American Court has acknowledged on more than one occasion, the
possibility of being subjected to a criminal proceeding can, in itself, constitute a
means of restricting freedom of expression, since it has a chilling effect on members
of society. 24 In 2012, in the case of Uzcátegui et al. v. Venezuela, the InterAmerican Court reaffirmed what it had already stated in the case of Ricardo Canese
v. Paraguay, namely, that the existence of criminal proceedings per se generates
a chilling and inhibiting effect that hinders the exercise of freedom of expression
and, therefore, is contrary to the State’s obligation to guarantee the free and full
exercise of freedom of expression in a democratic society. 25
36. This so-called chilling effect raises concerns about the guarantee of the right to
freedom of expression -essential for any truly democratic society- which is closely
linked to the existence of an authentic institutional ‘comfort zone’ for its exercise,
free from pressures derived from the exercise of the punitive power of the State.
In the instant case, in his intervention during the public hearing held on June 20,
2022, the petitioner pointed out that after his conviction in 2004 –and because of
it– he stopped acting in environmental cases that had repercussions in the media,
opting to remain anonymous in the few cases in which he participated.
Expert opinion of Martin Prats at the public hearing before the Court on June 20, 2022.
Inter-American Court. Case of Ricardo Canese v. Paraguay. Merits, reparations and costs. Judgment of August
31, 2004. Series C. No. 111, §107; Case of Kimel v. Argentina. Merits, reparations and costs. Judgment of May
2, 2008. Series C. No. 177, §85; and Case of Uzcátegui et al. v. Venezuela. Merits and reparations. Judgment of
September 3, 2012. Series C. No. 249, §189.
25
Inter-American Court. Case of Uzcátegui et al. v. Venezuela. Merits and reparations. Judgment of September
3, 2012. Series C. No. 249. §189.
23
24