against public officials, a concern that is reflected in the innovative approach
advocated by the Inter-American Court.
91. Rules that establish a heavier penalty because of the public duties performed by
the complainant are diametrically opposed to international jurisprudence, which
provides for greater tolerance of criticism against public authorities, even if it is
considered offensive. Such is the case of the precedents of Lingens v. Austria, and
Lopes Gomes da Silva v. Portugal, cited at the beginning of this opinion.
92. Although the purpose of the Inter-American Court’s decision on reparations was to
reform Articles 416, 417, 418 and 420 of the Chilean Criminal Code, as well as
Article 29 of Law 19733, the elimination of criminal proceedings as a mechanism
for protecting the honor of public officials in the terms proposed in the judgment
has major implications for the analysis of Article 12(13) of the Criminal Code. In
other words, if criminal liability for insulting or accusing State agents of offensive
acts is clearly incompatible with the Convention, as a logical consequence, the
increased penalty imposed when their honor is harmed is equally incompatible with
the Convention. Rules such as those contained in Art. 12(13), therefore, directly
contravene the guidelines established in Baraona Bray v. Chile.
93. We believe that further clarification is necessary on this point, in line with recent
standards issued by the Court. In analyzing aggravated criminal liability for use of
the media in light of the American Convention, we are not referring solely and
exclusively to the specific wording of Article 12(13) of the Chilean Criminal Code:
in terms of conventionality control, we should take into account any interpretation
promoted by the courts that results in similar effects or that adopts the same
rationale cited above. Please refer to the considerations of the Inter-American Court
in the judgment on reparation measures, which reiterates the standard established
in the case of Palacio Urrutia v. Ecuador: 71
173.
The Court reiterates that it is not only the suppression or
issuance of norms in domestic law that guarantee the rights enshrined
in the American Convention, in conformity with the obligation
contained in Article 2 of said instrument. It also requires the
establishment of State practices conducive to the effective
observance of the rights and liberties enshrined therein.
Consequently, the existence of a standard does not in itself guarantee
its correct application. It is necessary that the application of the norms
or their interpretation, as jurisdictional practices and manifestations
of the State’s public order, be consistent with the purpose pursued by
Article 2 of the Convention. 72
94. It should be noted that, even if this provision were to be modified, repealed or
interpreted as invalid by the domestic courts, this would not be equivalent per se
to eliminating the possibility of increasing the penalty for specific reasons to protect
the honor of public officials or authorities with greater severity than if they did not
hold such a position. To this end, it is necessary that the interpretation made by
the State’s jurisdictional organs be adjusted to the conventional guidelines
developed by the Inter-American Court in its case law.
VI.
Final considerations
95. As we have tried to demonstrate throughout this opinion, the judgment handed
down in the case of Baraona Bray v. Chile introduced one of the most important
Inter-American Court. Case of Palacio Urrutia et al. v. Ecuador. Merits, reparations and costs. Judgment of
November 24, 2021. Series C. No. 446. §179.
72
Judgment, §173.
71