38
131. The Court has repeatedly insisted on the importance of freedom of expression
in any democratic society, particularly in connection with public-interest matters.152
However, freedom of expression is not an absolute right and its exercise can be
subject to restrictions,153 particularly where it interferes with other rights guaranteed
in the Convention.154 Accordingly, making a statement on public-interest matters is
not only legitimate but, at times, it is also a duty of the state authorities. However,
in making such statements the authorities are subject to certain restrictions such as
having to verify in a reasonable manner, although not necessarily exhaustively, the
truth of the facts on which their opinions are based,155 and this verification should be
performed subject to a higher standard than that used by private parties, given the
high level of credibility the authorities enjoy and with a view to keeping citizens from
receiving a distorted version of the facts.156 Furthermore, they should bear in mind
that, as public officials, they are in a position of guarantors of the fundamental rights
of the individual and, therefore, their statements cannot be such that they disregard
said rights. Likewise, public officials, particularly the top Government authorities,
need to be especially careful so that their public statements do not amount to a form
of interference with or pressure impairing judicial independence and do not induce or
invite other authorities to engage in activities that may abridge the independence or
affect the judge’s freedom of action.157
132. Considering that the Criminal Cassation Chamber viewed the removal of a
case file off the premises of the First Court, which did not present the elements of a
criminal offense, as a “common practice,” it is the Court’s opinion that the criminal
proceeding, the disciplinary investigation and the precautionary measure of
suspension against the judges of the First Court were excessive and create suspicion
as to the true reason behind such actions. Moreover, the circumstances surrounding
the search of the First Court, which extended for ten to eleven hours and was
conducted by about forty-six DISIP officials carrying long guns, appear as
disproportionate to the fact that was being investigated. In combination with the
statements made by the highest Government authority three days after the ruling of
the Criminal Cassation Chamber of the STJ, the above evidences an intimidating
conduct upon the judges of the First Court.158
*
*
*
152
Cf. Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107, paras. 112 and 113; Case of Ricardo Canese v. Paraguay,
Merits, Reparations and Costs. Judgment of August 31, 2004. Series C No. 111, paras. 82 and 83, and
Case of Kimel, supra note 8, para. 87.
153
Cf. Case of Kimel, supra note 8, para. 54.
154
Cf. Case of Kimel, supra note 8, para. 56.
155
Cf. Case of Kimel, supra note 8, para. 79.
156
Cf. Case of Kimel, supra note 8, para. 79.
157
On this point it is relevant to quote the affidavit of Mr. Param Cumaraswamy (supra note 59, p.
830) who stated that “[w]hile constructive public criticism of judgments or decisions in temperate
language would be permissible even from political forces, when such criticism is couched in virulent,
intemperate, threatening and intimidating language and in bad faith, it will be considered a threat or
interference with judicial independence.”
158
The number of hours during which the search extended and the number of DISIP officials
involved in that search were provided by Mr. Apitz in his testimony before the Court (supra note 139).
Likewise, Mrs. Ruggeri stated that the search lasted for “more than 6 hours” (supra note 33, p. 735). The
State did not contest these facts and, therefore, the Court considers them to be proven facts.
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