21
80.
In this case, the restriction would have to achieve an important satisfaction of the
right to honor or reputation which the domestic right recognizes belongs to the Armed
Forces without making the right to free criticism non-existent against their performance as
representative instances of the State. The following shall be analyzed: i) the degree of
impact to one of the goods at stake, determining whether the intensity of such impact was
serious, intermediate, or moderate; ii) the importance of the satisfaction of the opposite
good, and iii) whether its satisfaction justifies the restriction of the other one. In some
cases, the balance shall tip in favor of the freedom of expression and in other cases to
safeguard the right to honor and reputation.63
81.
As regards the affectation of the freedom of expression, the Court considers that
the consequences of being subjected to trial in a military court (infra paras. 107 to 116);
the criminal trial itself; the preventive deprivation of freedom imposed on him; the sanction
depriving him of liberty for five years and six months to which he was judgmentd; including
him in the criminal record; the loss of revenues during the time he was in prison; the
affectation of the exercise of the rights that are restricted due to the sanction imposed;
being far away from his family and loved ones; the latent risk of losing his personal liberty,
and the stigmatizing effect of the criminal sanction imposed on Mr. Usón Ramírez show that
the further liabilities established in this case were truly very serious.64
82.
As regards the importance of the right to honor or reputation that the domestic law
recognizes to the Armed Forces, the Tribunal indicated in this Judgment that determining
whether the Armed Forces have a right to honor or reputation (supra para. 45) is not within
its scope. However, in an analogous manner, the Tribunal has pointed out before that it is
extremely important to satisfy the honor or reputation of whoever has been offended,
particularly in the case of a serious crime regarding an individual. Nevertheless, the
satisfaction of such good does not necessarily justify the restriction of the right to freedom
of expression in any case.
83.
To that end, it shall be reiterated that in the test of proportionality it should be
taken into account that the expressions about the exercise of the functions of the State
Institutions have a greater protection, in the sense that they can promote a democratic
debate in society.65 That is the case because it is supposed that in a democratic society the
state institutions or entities66 as such are exposed to public scrutiny and criticism, and their
activities are inserted in the domain of public debate67. This threshold is not based on the
quality of the subject but on the public interest of the activities carried out68. Hence larger
tolerance should face the affirmations and considerations made by citizens when exercising
their democratic right.69 Such are the demands for pluralism of a truly democratic society,70
63
Cf. Case of Kimel, supra note 41, para. 84.
64
Cf. Case of Kimel, supra note 41, para. 85.
65
Cf. Case of Herrera Ulloa, supra note 40, para. 128; Case of Kimel, supra note 41, para. 86, and Case of
Ricardo Canese, supra note 38, para. 98.
66
Cf. ECHR, Case Castells, supra note 59, § 42 and 46.
67
Cf. Case of Herrera Ulloa, supra note 40, para. 129; Case of Kimel, supra note 41, para. 86, and Case of
Ricardo Canese, supra note 38, para. 103..
68
Cf. Case of Herrera Ulloa, supra note 40, para. 129; Case of Kimel, supra note 41, para. 86, and Case of
Palamara Iribarne, supra note 47, para. 84.
69
Cf. Case of Claude Reyes et al., supra note 44, para. 87; Case of Kimel, supra note 41, para. 86, and Case
of Palamara Iribarne, supra note 47, para. 83.