reveal the presence of such justification. Considering the existence of a general
criminal offense to repress these crimes, the aggravation of the criminal sanction for
the exercise of a fundamental right seems, in this context, to depart from the principle
of strict necessity established by this Court’s case law. It would also assume an
unacceptable anti-isonomic character, since the fact that an individual serves as a
source for journalistic investigations and thus makes viable, at the collective level,
the informative aspect of freedom of expression, would in fact be a reason to
increase its levels of protection, and not to subject it to stricter controls of criminal
protection. 67
87. It is also worth noting that an eventual repeal of the aggravating criminal factor
would not exclude, by itself, the possibility that the Judiciary might decide to impose
a more severe penalty due to certain characteristics of the individual or of his
conduct, observing, of course the principle of legality. It is imperative that the
domestic courts, which also have the duty to adapt their interpretative power,
refrain from adopting any decision that imposes harsher penalties for crimes
against honor merely because these offenses are committed in the exercise of
freedom of the press, regardless of whether or not the laws of that State expressly
provide for such aggravation. 68
88. Thus, identifying the potentially offensive aspects for human rights in the wording of
that provision is only one of the steps needed to address the issue. A further step
is the need to adjust the possible interpretations to be established by the domestic
courts.
c. The inapplicability of aggravated penalties established for crimes
against honor derived from the offended party’s status as a public
official
89. In sentencing the petitioner, the Chilean court did not expressly invoke the
aggravating factor provided for in Article 12(13) of the national Criminal Code in
order to increase the penalty established therein. However, during the public
hearing held on June 20, 2022, the petitioner pointed out that the sentence
imposed on him was far more severe than that usually applied by the Chilean courts
in similar cases. 69 In its judgment, the Inter-American Court, in turn, reiterated its
concern about the possible increase in the chilling effect produced by norms such
as this. 70
90. There is a consensus in international jurisprudence -not only in the Inter-American
Court, but also in other regional human rights courts - that the exercise of freedom
of expression should be covered by an additional layer of protection when it relates
to discussions on matters of general or political interest. In this context, judicial
responses should be handled with the utmost caution when dealing with crimes
Inter-American Court. Case of Moya Chacón et al. v. Costa Rica. Preliminary objections, merits reparations
and costs. Judgment of May 23, 2022. Series C. No. 451. Concurring opinion of Judge Rodrigo Mudrovitsch, §68.
68
Inter-American Court. Case of Moya Chacón et al. v. Costa Rica. Preliminary objections, merits reparations
and costs. Judgment of May 23, 2022. Series C. No. 451. Concurring opinion of Judge Rodrigo Mudrovitsch, §74.
69
Statement of Carlos Baraona Bray before the Court at the public hearing of June 20, 2022: “I don’t want to go
into greater details because they are of a technical-legal nature, but the judge can say ‘for me, honor means
this, for me honor means that, or that we must protect the honor of this person more because he has a high
public position.’ So that is what happened to me. The crime that I was accused of is a crime that in Chile normally
carries 40 days of imprisonment- that is the rule. Any person convicted of slander is sentenced to 40 days in
prison, [but] I was given 300 days, because the message is: never again, do not speak out again, because the
message was not for me, it was for everyone who could have cooperated and given background information.
That is silencing, that is what happened to me, 300 days.”
70
Judgment, §122.
67