4
from reasons of public interest), favors the international judicial decision, both as
regards the existence of a violation of individual rights and the need to amend the
applicable domestic legislation, the deficiencies of which have been recognized by the
State.
15.
Again, with regard to the facts of the instant case and based on them, the
issue of examining once more which is the legitimate means in conformity with the
values and principles enshrined by the American Convention which allows reacting to
wrongful conducts which are injurious to certain legally protected interests and to
their holders’ rights. I have previously stated that it is not a matter of not reproving
wrongful conducts and, therefore, failing to tackle them, but of producing said legal
reaction with strict rationality in conformity with such values and principles. Public
reaction to wrongful conducts does also have boundaries: those boundaries, which
are a safeguard for all individuals, do not amount to indifference, abandonment or
impunity, but to the legitimate and careful exercise of power. It is obvious that the
purpose sought is not consenting to the infringement of rights on the grounds that
the right to cause damage does exist. Freedom is neither a safe-conduct to
defamation or injurious words or insults, nor the automatic acquittal of the individual
who, through an illegal conduct, causes moral damage.
16.
In view of the foregoing, it is necessary to settle on a rational mechanism to
prevent and tackle the infringement of rights. Criminal proceedings are sometimes
resorted to -with an increasing frequency that should be a cause for alarm and,
which, on occasions, is a cause for complacency, which points to a deficient historical
memory and a serious lack of precaution- to punish wrongful conducts. In such
proceedings, the harshest possible measures, which might be immoderate or
excessive in general and in particular, are adopted and often turn out to be
inefficient and counterproductive. In sum: disproportionate measures are adopted, if
it is accepted that there must be proportionality, which, in essence, amounts to
rationality, between the accepted restriction and the measure adopted thereunder.
Naturally, this information is available to society and the State in order to fight the
most serious infringements of both public and private legally protected interests,
which may not be protected with less stringent instruments and reactions. But
access to such information of social control does not mean that criminal proceedings
are the only possible mechanism, nor the most relevant or appropriate in all cases.
17.
It is necessary to remember at all times and as often as temptation to
formulate criminal definitions and criminalize a high number of conducts makes its
way, that criminal proceedings must be resorted to carefully and restrictively. In its
prior rulings and decisions, the Inter-American Court has emphasized the
compatibility from the criminal perspective between the so-called principle of
minimum penal law and the values and principles of democracy. The application of a
system of offenses –through the criminalization of conducts- and penalties –through
the punishment of offenders- contributes to establishing the distance between
democracy and tyranny, which is always lurking. Lack of restraint in criminal law
intervention breaches the legal code and the political support of democratic societies.
Hence, our direct opposition to the maximum penal law.
18.
The State has acknowledged that its domestic legislation lacks accuracy as to
the criminal definitions which may be applicable to the matter under discussion: “the
lack of sufficient accuracy in the criminal legislation punishing defamation and
preventing the infringement of the right to freedom of thought and expression entails
the State’s failure to comply with its duty to adopt domestic measures as provided