27
17
Human Rights] is valid not only for the information or ideas that are
favorably received or considered inoffensive or indifferent, but also for
those that shock, concern or offend the State or any sector of the
population. Such are the requirements of pluralism, tolerance and the
spirit of openness, without which no ‘democratic society’ can exist.
This means that any formality, condition, restriction or sanction
imposed in that respect, should be proportionate to the legitimate end
sought.
Also, those who exercise their freedom of expression assume
‘obligations and responsibilities’, the scope of which depends on the
18
context and the technical procedure used.
70.
It is important to mention that Article 13(4) of the Convention establishes an
exception to prior censorship, since it allows it in the case of public entertainment,
but only in order to regulate access for the moral protection of children and
adolescents. In all other cases, any preventive measure implies the impairment of
freedom of thought and expression.
71.
In the instant case, it has been proved that, in Chile, there is a system of
prior censorship for the exhibition and publicity of cinematographic films and that, in
principle, the Cinematographic Classification Council prohibited exhibition of the film
“The Last Temptation of Christ” and, reclassifying it, permitted it to be exhibited to
persons over 18 years of age (supra para. 60 a, c and d). Subsequently, the Court
of Appeal of Santiago decided to annul the November 1996 decision of the
Cinematographic Classification Council, owing to a remedy for protection filed by
Sergio García Valdés, Vicente Torres Irarrázabal, Francisco Javier Donoso Barriga,
Matías Pérez Cruz, Jorge Reyes Zapata, Cristian Heerwagen Guzmán and Joel
González Castillo, “for and in the name of [°] Jesus Christ, the Catholic Church and
themselves”; a decision that was confirmed by the Supreme Court of Justice of Chile.
Therefore, this Court considers that the prohibition of the exhibition of the film “The
Last Temptation of Christ” constitutes prior censorship in violation of Article 13 of the
Convention.
72.
This Court understands that the international responsibility of the State may
be engaged by acts or omissions of any power or organ of the State, whatsoever its
rank, that violate the American Convention. That is, any act or omission that may
be attributed to the State, in violation of the norms of international human rights law
engages the international responsibility of the State. In this case, it was engaged
because article 19(12) of the Constitution establishes prior censorship of
17
This article establishes that: 2. The exercise of these freedoms, which entail rights and
responsibilities, may be subject to certain formalities, conditions, restrictions or sanctions, established by
law, which constitute necessary measures, in a democratic society, for national security, territorial
integrity or public security, defense of order and prevention of crime, protection of health or morals,
protection of the reputation or the rights of third parties, in order to prevent the dissemination of
confidential information or to guarantee the authority and impartiality of the Judiciary.
18
cf. Eur. Court H.R., Handyside case, judgment of 7 December 1976, Series A No. 24, para. 49;
Eur. Court H.R., The Sunday Times case, judgment of 26 April 1979, Series A no. 30, paras. 59 and 65;
Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, para. 55; Eur. Court H.R., Lingens
judgment of 8 July 1986, Series A no. 103, para. 41; Eur. Court H.R Müller and Others judgment of 24
May 1988, Series A no. 133, para. 33; and Eur. Court HR, Otto-Preminger-Institut v. Austria judgment of
20 September 1994, Series A no. 295-A, para. 49.