64. In light of the foregoing, the restriction of criminal prosecution in cases of
statements of public interest already constitutes a notable advance as promoted in
the cases of Álvarez Ramos v. Venezuela and Palacio Urrutia v. Ecuador. The
standards established therein and reiterated by the judgment in the instant case
continue to be applicable to cases involving the offense of falsely accusing an
individual of a crime.
65. For other crimes against honor involving insults and the attribution of offensive
acts, which entail less damage to individual rights, the prohibition of criminal
prosecution should not be based on the possible characterization of the statements
that gave rise to the subsequent liability as being of “public interest”, but rather on
the status of public official of the person whose honor was allegedly affected.
66. The decision on the absolute suppression of criminal measures when their objective
is to hold persons accountable for statements involving public officials and which
do not include a false accusation of a crime, constitutes one of the most important
advances in the defense of the right to freedom of expression promoted by the
Inter-American Court. By adopting this criterion, it is no longer necessary to
determine the public interest nature of the statement that allegedly attributes
offenses or offensive acts. The new standard, by avoiding the mere suggestion of
criminal action, serves to mitigate the chilling effect from the first moment it which
the enjoyment of this right is affected and, therefore, prevents the weakening and
impoverishment of public debate.
V.
Defects in the legality and specificity of the criminal provisions
analyzed in this case
a. The criminal offense of insult in the Chilean legal system vis-à-vis
the Convention and the jurisprudence of the Inter-American Court
67. In addition to establishing the standard of absolute incompatibility of the criminal
measures of subsequent liability to protect the honor of public officials against the
attribution of offenses and offensive acts, the Inter-American Court recognized that
the criminal offenses applied in the instant case were not compatible with Article 9
of the Convention.
68. In this regard, we recall that the petitioner’s representatives argued that the
criminal offense of insult would not meet the standards of legality established in
the American Convention. On this point, a fragment of the petitioner’s statement
during the public hearing held on June 20, 2022 is noteworthy: 49
In my case, slander and insult were invoked, slander is
basically to accuse someone of a crime, currently to impugn
their position, according to our Criminal Code, and that was
dismissed because there was never any talk of influence
peddling and of unlawful association, it was the press that said
that. And slander is what we call a ‘slippery’ concept, which
can be used for anything, it is like a void and each judge gives
it the content he wants, according to the circumstances.
69. The Commission maintains that, due to its ambiguous wording, the criminal
offense is incompatible with the principle of strict legality and with the right to
49
Statement of Carlos Baraona Bray before the Inter-American Court at the public hearing on June 20, 2022.