61
Palamara-Iribarne. Moreover, all of it was an indirect attempt to restrict his
freedom of expression, which is prohibited under the American Convention
insofar as it is unnecessary and disproportionate. The protection of the affected
interests could have been achieved through measures less restrictive of Mr.
Palamara-Iribarne’s freedom;
f)
when restricting the right to freedom of thought and expression, it should
be taken into account that public officials are subject to closer scrutiny by
citizens. Contempt of authority, as defined by Chilean law, does not comply
with the standards set in the Convention and in the Declaration of Principles on
Freedom of Expression because it is an offense and, as a result, it warrants
resort the criminal justice system to punish the accused for his statements.
This way, the principle of ultima ratio is violated;
g)
“they have no objections to the legislative reform notified by the State”
by means of Law No. 20,048, published on August 20, 2005. Said “statutory
amendment […] only provides for the partial reparation of one of the violations
of the Convention;” and
h)
the State failed to comply with its obligation to respect and ensure
respect for the right to freedom of expression and with the duty to adopt
domestic laws, thus violating Articles 1(1) and 2 of the Convention.
66.
Arguments by the State
a)
the State did not prevent the publication of the book “Ética y Servicios de
Inteligencia” (“Ethics and Intelligence Services”), which was published by
“Ateli” publishing company before being banned. The promotion of the book
began in early February 1993 through the distribution of posters. Around
February 18 of that same year, the edition and printing of 1,007 copies of the
book was completed. Approximately on February 19, 1993, the owner of the
printing company gave Mr. Palamara-Iribarne 985 copies, and some of them
were made available for sale. Therefore, the book “was effectively published,
promoted and sold without prior censorship by the State;”
b)
before being banned, 102 copies of the book were distributed and at least
13 copies were sold. Once published, distribution of the book was banned by
the Navy, as punishment for failing to comply with the military duty imposed
on the author of the work to request authorization to publish the book. “[T]he
alleged victim was not subject to prior censorship, but to subsequent liability,
which is explicitly provided by law” and “grounded on the urgent need to
ensure protection of national security;”
c)
the examination of the content of the work carried out after the
publication was fully justified by the fact that the author served as an
intelligence officer for the most part of his career, between 1983 and 1991, and
the work in question was the result of 8 years of experience and analysis of
navy information;
d)
Mr. Palamara-Iribarne, in his civilian capacity, was sworn to “maintain
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos