6
diligence and efficiency through legal provisions and courts. I do not object to this in
any manner whatsoever. Depriving a public official of his right to seek the protection
of his rights would be so unfair as to become untolerable. That would leave him at
the mercy of wrongful attacks and would make way for the undesirable possibility of
self-justice. Legal protection must then be afforded to everyone.
23.
Notwithstanding, as I pointed out in my opinion in the case of Herrera-Ulloa,
it is also necessary to recall that “the activities of the State through its various
organs[,] are not inconsequential to the ordinary citizen and information on the
business of government should not be beyond the reach of ordinary citizens.
Democracy is built upon a duly informed public, which steers its way of thinking and
allows making decisions on the basis of such information. Information about the
business of government should be much more readily available than strictly private
information about an individual’s personal or private life that does not cross over
those strict boundaries. Indeed, the business of government is one of the natural
domains for so-called “transparency.” (para. 23 of my opinion in the case of HerreraUlloa).
24.
In the opinion I have referred to, I stated that “in some cases, provision has
been made to punish, as criminal offenses, the repeated commission of wrongful acts
initially punishable under civil or administrative law. In such cases, the repetition of
the offense implies aggravation of the wrongdoing, to the point that it moves from
the realm of civil or administrative law to the realm of criminal law, thus becoming
punishable with measures provided for under criminal law” (para. 20 of my opinion in
the case of Herrera-Ulloa).
25.
In the Judgment rendered in the case of Kimel, the Court has sought to
confine the scope of punitive sanction, through certain considerations which
minimize, but do not suppress, the intervention of criminal proceedings: this
possibility should be carefully analyzed, pondering the extreme seriousness of the
conduct of the individual who expressed the opinion, his actual malice, the
characteristics of the unfair damage caused, and other information which shows the
absolute necessity to resort to criminal proceedings as an exception” (para. 78 of the
Judgment in the case of Kimel).
26.
This is a step towards criminal reduction, but not necessarily the last one
towards opting for prompt and efficient civil proceedings. As I recommended in my
opinion in the case of Herrera-Ulloa, which I now reiterate in the case of Kimel, it will
be necessary to advance in that direction. Naturally, when resorting to judicial
proceedings whose outcome is a sentence, which though not criminal is not
necessarily less effective, it should be taken into consideration that there are other
mechanisms, which it is convenient to keep open and active, in the democratic
debate on issues of public interest: wrongful or biased information is
counterbalanced with true and objective information, and malicious or groundless
information is counterbalanced with sufficient and well-founded information.
27.
These are the natural issues in a debate which is not likely to be closed at the
police headquarters, the courts or jail. The right to reply or to rectify one’s
statements, as provided for by Article 14 of the Convention, is rooted in
considerations of this kind. Naturally, what I am now stating presumes that the
mechanisms to reply are available and that the organization of social
communications allows a genuine dialogue among those who hold different positions,
versions or opinions, as it should happen in a democratic system. Otherwise, we