alleged victim was convicted sought to protect the reputation and honor of Senator SP, so that the second element of the test would be satisfied.99 The Commission noted that, although the statements made by Carlos Baraona could be considered annoying, disturbing or offensive, they were not expressions of incitement to violence. All of which, according to the standards related to the analysis of necessity and proportionality, does not fall within the hypotheses that make it necessary to use criminal law and custodial sanctions.100 83. It further argued that the application of an exceptio veritatis in this case should not mean a reversal of the burden of proof that contradicts the evidentiary implications of that principle, since it is sufficient that the challenged assertions are reasonable to exclude liability for statements of current public interest, as occurred in the present case. The Commission concluded that the criminal sanction,101 as well as the other measures ordered to the detriment of Carlos Baraona Bray, constituted unnecessary and manifestly disproportionate sanctions, because they were excessive. Therefore, it concluded that the State violated freedom of expression and the requirements of strict legality in violation of Articles 13(1) and 13(2) and 9 of the American Convention, in relation to Articles 1(1) and 2 thereof. 84. The representatives pointed out that subsequent liability and restrictions cannot hinder the exercise of freedom of expression, for example by using criminal law in cases such as this one, where there is a public interest, in addition to public officials and/or public figures involved. For the same reason, the protection of the right to honor as a basis for criminal prosecution is reprehensible and becomes problematic when it translates into punishing and inhibiting legitimate political criticism and citizen oversight of the authorities. 85. The State presented several arguments to substantiate its lack of international responsibility. In the context of the preliminary objection of fourth instance, it argued that it would be pointless for this Court to review the first instance decision, since the case against Mr. Barona Bray was completely and definitively dismissed which, in the Chilean legal system, would be equivalent to a judgment of acquittal that ends the criminal proceedings and has the effect of res judicata. Regarding the merits of the case, the State argued that in order to properly understand the case, it is of the utmost importance that “in the assessment carried out by the national courts, the fact that the claims made by Mr. Baraona Bray were not supported by minimum reasonable proof and that he was unable to produce any evidence of their plausibility, even prima facie, was decisive.” It pointed out that, in the first instance decision of the Guarantee Court, the judge a) recognized that the exercise of freedom of expression in matters of public interest may serve as justification, legitimizing such conduct and thus precluding a criminal sanction and b) considered that the standard for determining whether Mr. Baraona’s conduct is justified by the right to freedom of expression is not the truthfulness of the facts, but a much lower threshold: mere “seriousness and reasonableness,” equivalent to preventing “reckless disregard” for the truthfulness of the alleged facts. Finally, in the analysis of the case, the judge concluded that “there is no proportionality between the sacrifice of honor and the benefits that could be obtained with the criticism” since “the 99 The Commission advised that this element alone does not authorize the use of criminal law in cases such as the one under analysis. 100 The Commission considered that other alternatives may be used to protect the honor and reputation of persons that are less harmful and restrictive than resorting to criminal law, such as civil proceedings and guaranteeing the right of rectification or reply. 101 Regarding the use criminal law, the Commission emphasized that if there is indeed an abuse of freedom of expression that causes harm to the rights of others, the least restrictive measures should be used to repair such harm (right of rectification or reply) and that if serious damage is caused with intent to harm or with manifest disregard for the truth, civil liability mechanisms that meet the strict conditions of Article 13(2) of the Convention may be invoked. The purpose of this would be to avoid the chilling effect generated by the existence and application of laws that criminalize freedom of expression. In the instant case, Mr. Baraona refrained from participating in public debate for two years after his conviction. In fact, after he returned to participate in the debate, he was once again prosecuted with the risk of imprisonment due to his possible recidivism. 27