64
the denial of the freedom of expression or whether it entails a restriction beyond
permissible limits.172 Not every breach of Article 13 of the Convention entails an
outright denial of the right to freedom of expression, which occurs when government
power is used to establish means to prevent the free flow of information, ideas,
opinions or news. Examples of this type of violation are prior censorship, seizure or
banning of publications and, in general, any measures that subject expression or
dissemination of information to State control. In such case, there is a gross violation
not only of the right of each individual to express their views, but also of the right of
each person to be well informed, thus affecting one of the fundamental basis of a
democratic society.173
69. The book “Ética y Servicios de Inteligencia” (“Ethics and Intelligence Services”)
as well as the statements made by Mr. Palamara-Iribarne, which were published in
the media, involved the exercise of the right to freedom of thought and expression
through the dissemination of his thoughts and ideas regarding issues related to the
need for “intelligence personnel,” in the interest of preventing human rights
violations, to adhere to “ethical standards of conduct” and the possibility to express
his views on the proceedings and the treatment he and his family were subject to by
the authorities. In addition, they also further the social dimension of said right by
offering readers access to the information contained in the book and the opinions
and ideas advanced by Mr. Palamara-Iribarne. The concept of the individual and
social dimension of freedom of thought and expression, as well as their
interdependence, has been developed by the Court on several occasions.174
70. The Court must determine, in view of the facts proven in the instant case,
firstly, whether the State committed acts of prior censorship incompatible with the
American Convention when it prohibited Mr. Humberto Antonio Palamara-Iribarne
from publishing his book “Ética y Servicios de Inteligencia” (“Ethics and Intelligence
Services”) and seized the copies thereof, instituting proceedings against Mr.
Palamara-Iribarne for disobedience and breach of military duties. Secondly, this
Court must establish whether the contempt charge in the military criminal
proceedings brought against Mr. Palamara-Iribarne based on the statements he
made, as well as the military and criminal sanctions imposed as a result of said
proceedings and the opening of an administrative investigation, which was
subsequently closed, constitute and undue restriction on his right to freedom of
thought and expression.
172
Cf. Case of Ricardo Canese. Judgment of August 31, 2004. Series C No. 111, para. 77; and
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13
and 29 of the American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985.
Series A No. 5, paras. 53 and 54.
173
Cf. Case of Ivcher-Bronstein. Judgment of February 6, 2001. Series C No. 74, para. 152; and
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, supra note
172, para. 54.
174
Cf. Case of Ricardo Canese, supra note 172, paras. 77-80; Case of Herrera-Ulloa. Judgment of July
2, 2004. Series C No. 107, paras. 108-111; Case of Ivcher-Bronstein, supra note 173, paras. 146–149;
Case of “The Last Temptation of Christ” (Olmedo-Bustos et al.). Judgment of February 5, 2001. Series C
No. 73, paras. 64-67; and Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism. Advisory Opinion OC-5/85, supra note 172, paras. 30-33 and 43.
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