60
such other measures,” in addition to legislative measures, as may be necessary
to give effect to the rights and freedoms enshrined therein. If courts refuse to
give effect to the treaty, given the need to harmonize domestic law, their
decisions give rise to international liability on the part of the State for violating
the treaty; and
i)
the State must set aside the domestic court’s judgment convicting Mr.
Palamara-Iribarne.
65.
Arguments by the representatives
a)
they agree with the argument raised by the Commission that the seizure
of the book entitled “Ética y Servicios de Inteligencia” (“Ethics and Intelligence
Services”), the diskettes and the masters as well as the act of erasing the files
of said book from the personal computer of Humberto Palamara-Iribarne
constitute acts of prior censorship, which are incompatible with Article 13 of the
Convention. These acts did not fall within any of the exceptions to the
prohibition of censorship provided for therein;
b)
in this case, it is not necessary to prove what the content of the book was.
“The issue [to be] resolved is whether there is a legal possibility of establishing
preventive measures to control freedom of expression and the categorical
answer to this question is found in Art[icle] 13(2)” of the Convention. Even “if
the argument by the State were to be accepted” regarding the determination of
subsequent liability to protect national security, the book written by Mr.
Palamara-Iribarne did not reveal any military secrets, nor did it affect national
security;
c)
the commencement of the Case No. 464 for disobedience and breach of
military duties and the subsequent conviction constituted a direct attempt to
prevent the publication of the book. The criminal complaint was intended to
have the publication of the book banned. As part of these proceedings, the
book and its masters were seized. This measure, once affirmed in the judgment
of conviction, irreversibly prevented the distribution of the book;
d)
sections 264(3) and 266 of the Criminal Code were incompatible with the
American Convention inasmuch as they violated the principle of necessity,
“insofar as it provides for the punishment of those who criticize public officials
acting in the course of their official duties.” Criminal proceedings are
particularly burdensome due to the limitations they entail, their stigmatizing
nature and their restrictive effect on freedom of expression. They may result in
the deprivation of liberty of the accused, as was the case with Mr. PalamaraIribarne. “Furthermore, the quantum of punishment imposed, due to the type
of sanctions, violates the principle of necessity of the restriction.” Criminal
proceedings should be resorted to only where all other mechanisms prove
insufficient to solve certain conflicts;
e)
in criminalizing contempt of authority and “prosecuting and convicting the
[alleged] victim in the instant case as a result of his statements” against a
government official, the State violated the freedom of expression of Mr.
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