37
control by citizens regarding the way they discharge their duties (supra para. 115).
This different honor protection standard is justified by the fact that public officials
voluntarily expose themselves to control by society, which results in a greater risk of
having their honor affected and also the possibility – given their status – of having
greater social influence and easy access to the media to provide explanations or to
account for any events in which they take part. The instant case involves a person
that held one of the highest public offices in his country, the Procurador General de
la Nación [National Attorney General].
123. Likewise, as it already has been held by the Court the Judiciary must take into
account the context in which the statements involving matters of public interest are
made; the judge shall “assess the respect of the rights and reputations of others in
relation to the value in a democratic society of open debate regarding matters of
public interest or concern.”110
124. The Court observes that the expression by Mr. Tristán Donoso did not amount
to an opinion but to a statement of facts. While opinions cannot be declared true or
false, statements of facts can. In principle, a true statement regarding a fact in a
case involving a public official in relation to a matter of public interest is an
expression protected under the American Convention. However, the situation is
different when factual inaccuracy is present in the statement that allegedly causes
damage to honor. In the instant case, during the press conference, Mr. Tristán
Donoso referred to two legally relevant facts; a) the former Attorney General had
disclosed to third parties a private telephone conversation a true fact that was even
admitted by such public official and which, as mentioned above, amounts to a
violation of privacy (supra para. 83); and b) the unauthorized recording of a
telephone conversation that led Mr. Tristán Donoso to initiate criminal proceedings
which were later unsuccessful in proving that the former Attorney General had taken
part in the crime alleged (supra paras. 49 and 61).
125. In the instant case, the Court realizes that, at the time Mr. Tristán Donoso
called the press conference, there were various and important information and
assessment elements allowing to consider that his statement was not groundless
regarding the responsibility of the former Attorney General for the recording of the
conversation, to wit: a) at the time of the events, such officer was the only person
legally empowered to order telephone wiretappings, which were carried out without
any control, neither by a Court nor otherwise, a situation which had prompted a
warning by the President of the Supreme Court (supra para. 100); b) the former
Attorney General had in his possession the tape on which the private telephone
conversation was recorded; c) a copy of the tape and a transcription of its content
was forwarded to the authorities of the Catholic Church from his offices; d) the
recording of the private conversation was played at his office to the authorities of the
Colegio Nacional de Abogados [National Bar Association of Attorneys]; e) Mr. Tristán
Donoso sent a letter and tried to meet with the former Attorney General to give and
receive explanations regarding the recording of the conversation; however, the latter
did not answer the letter and refused to meet with the alleged victim; f) the person
with whom Mr. Tristán Donoso was holding the conversation denied having made the
recording as alleged -even upon rendering a deposition under oath in the course of
the proceedings against the former Attorney General; and g) Mr. Tristán Donoso had
no part in the inquiry into the extortion of the Zayed family, wherein signs revealing
the private origin of the recording appeared. Prosecutor Prado, in charge of the
110
Case of Ricardo Canese, supra note 100, para. 105.