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f)
Costa Rica’s criminal laws strike a fair balance between freedom of
expression and the right to have one’s honor and reputation respected, since
they only criminalize malicious conduct;
g)
Costa Rica is convinced that it has adopted the necessary safeguards
to guarantee the fundamental rights;
h)
one must not sink to simplistic reductionism and pretend that the
honor of a public servant is any less worthy of respect and protection than
the honor of an ordinary private citizen. Such a distinction is an attack upon
the principle of equality;
i)
the policy on crime has determined that the best way to protect honor
against attack is through criminal sanctions. The principles of sovereignty
and self-determination dictate that the American Convention cannot force a
given course of action upon the mechanisms of the inter-American system;
j)
if the conviction induces self-censorship, then Article 13(2) of the
American Convention would have the same effect because it allows
subsequent imposition of liability;
k)
it is evident that the representatives have a profound
misunderstanding of the principle of exceptio veritatis. This principle is an
exculpatory circumstance; by the time it comes into play, it has already been
established that the defendant’s conduct fits the crime, is unlawful and
answerable. Therefore, it does not relieve the party filing the criminal
complaint of his obligation to prove mens rea in the defendant’s conduct;
l)
if in the exercise of one’s freedom of expression and thought, one says
something that is not true, then one must be subject to subsequent
imposition of criminal or civil liability. Mr. Herrera Ulloa was not convicted
because he failed to prove the accuracy of the news reported in the European
press; instead, he was convicted for having acted with mens rea by spreading
news that defamed and offended the honor of the party filing the criminal
complaint;
m)
“[i]t was the interested party himself […who] spread the news that his
name had been entered into the Judiciary’s Record of Convicted Felons. The
public, which might have lavished Mr. Herrera with credibility, respect and
dignity, would likely have never learned of his registration had he not taken it
upon himself to announce it to the public.” “The interested party and the
newspaper for which he works drummed up the publicity themselves”;
n)
entering Mr. Herrera Ulloa’s name into the Judiciary’s Record of
Convicted Felons does not create any serious restrictions in the seven areas
singled out by the Commission. And the fact that authorized institutions have
access to and know of the Record and its entries does nothing to limit
anyone’s social, professional and personal life. Furthermore, the listing of Mr.
Herrera Ulloa’s conviction was stayed by the provisional measures ordered by
the Inter-American Court;
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