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[…] only provide[d] for the partial reparation of one of the violations of the
Convention.” In turn, the Commission stated that “it ha[d] no specific comments to
raise and […] that the abrogation of contempt was effected only for the purposes of
the Criminal Code and not of the Code of Military Justice.” In addition, the
Commission pointed out that “it share[d] the comments made by the representatives
of the [alleged] victim” in the sense that Mr. Palamara-Iribarne should be fully
compensated for the damage sustained.
91. The Court appreciates the enactment of Law No. 20,048 by the State in order
to harmonize domestic legislation with the American Convention, and considers that
it is of significant importance in this case given that it abrogated or amended, inter
alia, sections 264(3), 265 and 266 of the Chilean Criminal Code, which served as the
basis for the Navy Court-Martial’s judgment against Mr. Palamara-Iribarne.
92. The Court notes with concern that, despite the valuable contribution of the
legislative reform, section 264 of the Criminal Code, as amended, still includes the
offense of “threat” to the same authorities that constituted, before the amendment
to said Code, the passive subject of the offense of contempt. This way, the Criminal
Code includes an ambiguous description and does not clearly specify the scope of the
criminal conduct, thus leaving room for broad interpretation and, as a result, the
conduct previously regarded as contempt may be unduly punished through the use
of the criminal offense of threats. Therefore, if the State decides to maintain said
provision, it should specify the kind of threats concerned in order to prevent
suppression of freedom of thought and expression of valid and legitimate opinions or
whatever disagreement and protests against government bodies and their members.
93. In addition, the Court notes that the legislative reform implemented by means
of Law No. 20,048 did not encompass all provisions dealing with contempt insofar as
it is still an offense under the Code of Military Justice. Therefore, disproportionate
sanctions are still being imposed for criticism leveled at government institutions and
their members, and military institutions and their members are afforded greater
protection than that afforded to civilian institutions in a democratic society, which is
incompatible with Article 13 of the American Convention.
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94. Furthermore, the Court considers that, in the instant case, the summary
administrative investigation (supra paras. 63(94) to 63(101)), the decision to
suspend the authorization that Mr. Palamara-Iribarne had to write for a newspaper
(supra para. 63(104)) and the decision to “terminate” Mr. Palamara-Iribarne’s
“contract early” (supra para. 63(106)) constituted indirect means to restrict Mr.
Palamara-Iribarne’s freedom of thought and expression.
*
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*
95. Based on the foregoing, the Court finds that the State has violated the right to
freedom of thought and expression enshrined in Article 13 of the American
Convention to the detriment of Mr. Palamara-Iribarne in light of the acts of prior
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