74
139(3) With regard to the right to a presumption of innocence (Article 8(2) of the
American Convention) the State asserted that:
a)
the crime of which Mr. Herrera Ulloa was convicted is one of criminal
intent, and meant that the person filing the criminal complaint had to prove
intent on the part of the person being so accused;
b)
a profound misunderstanding of the principle of exceptio veritatis is
apparent. This principle is an exculpatory circumstance; by the time it comes
into play, it has already been established that the defendant’s conduct fits the
crime, is unlawful and answerable. Therefore, it does not relieve the party
filing the criminal complaint of his obligation to prove mens rea in the
defendant’s conduct;
c)
the question of the veracity of the attribution is not a defining element
in the case of criminal defamation or criminal insult (whereas veracity is a
defining element in criminal slander). Therefore, truth does not have to be
proved to find that the conduct fits the crime. The exceptio veritatis assumes
the existence of a public interest, which justifies the preclusion of
punishment, since the author’s conduct was not motivated solely by a desire
to offend;
d)
when a justifying or exculpatory circumstance is claimed, the
defendant must prove that the justifying or exculpatory circumstance
described by the law is present. This does not violate the principle of
presumption of innocence because the accusing body or party filing the
criminal complaint bears the burden of proving that the defendant committed
the crime and is guilty; and
e)
the inversion of the burden of proof that Article 149 of the Penal Code
establishes is the same standard that would apply to any other justifying or
exculpatory circumstance provided for under the Costa Rican Penal Code.
Considerations of the Court
140. The Court will not examine the allegation made belatedly by the alleged
victims’ representatives in their final oral arguments and final written briefs, to the
effect that Article 25 of the American Convention was violated, as this allegation
does not fit the facts of the instant case.
141.
The pertinent part of Article 8 of the American Convention provides that:
1.
Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature made
against him or for the determination of his rights and obligations of a civil, labor, fiscal,
or any other nature.
2.
Every person accused of a criminal offense has the right to be presumed
innocent so long as his guilt has not been proven according to law. During the
proceedings, every person is entitled, with full equality, to the following minimum
guarantees:
[…]
h)
the right to appeal the judgment to a higher court.
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