57
165. The “need” and, therefore, the legality of the restrictions to the freedom of
expression based on Article 13(2) of the American Convention, will depend on if they
are oriented to satisfying an imperative public interest, which clearly predominates
over the social need of the complete enjoyment of the right guaranteed in Article 13.
Among several options to reach this objective, the one that least restricts the right
protected is the one that must be chosen.115 The above applies to laws, as well as
administrative decisions, and acts, and acts or decisions of any other nature, that is, to
all demonstration of state power.
166. In the present case, in the year 2000 the Director of the Criminal Center of Tela
prohibited the Garifuna population of said criminal center, among which Mr. Alfredo
López Álvarez was included, from speaking their mother tongue (supra para. 54(49)).
Said measure denied the alleged victim from expressing himself in the language of his
choice. This measure was not justified by the State. Said prohibition infringes the
detainee’s individuality and does not obey to security conditions or treatment needs.
167. The penitentiary authorities exercise a strong control over the people subject to
their custody. Therefore, the State must guarantee the existence of adequate
conditions so that the person deprived of his liberty may develop a decent life,
ensuring him the exercise of the rights whose restriction is not a necessary
consequence of the deprivation of liberty, pursuant to the rules that are characteristic
of a democratic society.116
168. The Court considers that the observance of rules in the collective treatment of
the detainees within a criminal center, does not give the State, in the exercise of its
power to punish, the legal authority to limit, in an unjustified manner, the freedom of
the people to express themselves through any means and in the language chosen by
them.
169. According to the facts of this case, the prohibition was issued regarding the
native language of Mr. Alfredo López Álvarez, which is the form of expression of the
minority to which the alleged victim belongs. Therefore the prohibition acquires a
special seriousness, since the mother tongue represents an element of identity of Mr.
Alfredo López Álvarez as a Garifuna. In this way, the prohibition affected his personal
dignity as a member of that community.
170. This Tribunal has reiterated that the peremptory legal principle of the equal and
effective protection of the law and non-discrimination determines that the States must
abstain from producing regulations that are discriminatory or have discriminatory
effects on certain groups of the population when exercising their rights. Moreover,
States must combat discriminatory practices and must adopt the measures needed to
ensure the effective right to equal protection for all individuals before the law.117
115
Cf. Case of Palamara-Iribarne, supra note 15, para. 85; Case of Ricardo Canese, supra note 112,
para. 96, and Case of Herrera Ulloa, supra note 112, paras. 121 and 123.
116
Cf. Case of García-Asto and Ramírez-Rojas, supra note 7, para. 221; Case of Raxcacó-Reyes, supra
note 93, para. 95, and Case of Fermín Ramírez, supra note 93, para. 118.
117
Cf. Case of the Girls Yean and Bosico, supra note 15, para. 141; Case of Yatama, supra note 109,
para. 185, and Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 of
September 17, 2003, Series A No. 18, para. 88.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents