57
interviewed the foreign minister and deputy foreign minister, who confirmed
that there were questions that needed to be answered.
102(4)
With regard to the inclusion of Mauricio Herrera Ulloa’s conviction in the
Judiciary’s Record of Convicted Felons, the alleged victims’ representatives argued
that:
a)
in Costa Rica the existence of a conviction is sufficient in law for the
convicted person’s name to be entered into the Record of Convicted Felons.
Once the judgment becomes final, registration in the Record of Convicted
Felons is automatic and need not be ordered by the judge in the judgment.
There is no effective remedy to prevent registration, except recourse to the
solutions under international human rights law;
b)
the legal effects of entering Mr. Herrera Ulloa’s name into the
Judiciary’s Record of Convicted Felons was to restrict the exercise of his
fundamental rights with regard to obtaining: 1) entry into civil service; 2) a
driver’s license; 3) an application for a degree examination and admission; 4)
a driver’s insurance policy; 5) pensions; 6) the right to adopt minors; and 7)
work in Costa Rica and abroad;
c)
an indirect effect of being registered in the Judiciary’s Record of
Convicted Felons is self-censorship, a restriction of freedom of expression in
violation of Article 13(3) of the Convention; and
d)
being registered in the Judiciary’s Record of Convicted Felons exposes
Mr. Herrera Ulloa to public censure and is thus prejudicial to his reputation; it
also stigmatizes him in a way that prevents him from practicing his profession
freely and damages his credibility.
102(5)
With regard to the civil damages that both journalist Mauricio Herrera
Ulloa and the newspaper “La Nación”, represented by Mr. Vargas Rohrmoser, were
ordered to pay, the representatives argued that:
a)
the pecuniary penalties imposed in the November 12, 1999 judgment
are a consequence of the criminal conviction; hence, had Mr. Herrera Ulloa
not been found guilty of the punishable offense, there would have been no
basis for the civil damages;
b)
Mr. Przedborski had the option of either suing Mr. Herrera Ulloa for
damages and injuries in civil court, or filing a criminal complaint. By opting
for the second course of action, Mr. Przedborski, “of his own free will, staked
the outcome of the civil damages suit” on the journalist’s conviction in the
criminal case; in so doing, he also staked the fate of the newspaper “La
Nación”, as jointly and severally liable, on the journalist’s criminal conviction;
c)
legal actions brought by public officials claiming defamation, calumny
and insult, have no place in criminal courts; they are the purview of the civil
courts, applying the principle of actual malice;
d)
the factor “determining” the civil liability of Mr. Mauricio Herrera Ulloa
and the newspaper “La Nación” is a punishable offense whose authorship was
attributed to the journalist, not an autonomous civil wrong. Civil sanctions
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