CONCURRING OPINION OF JUDGES
RICARDO C. PÉREZ MANRIQUE, EDUARDO FERRER MAC-GREGOR POISOT
AND RODRIGO MUDROVITSCH
CASE OF BARAONA BRAY V. CHILE
JUDGMENT OF NOVEMBER 24, 2022
(PRELIMINARY OBJECTIONS, MERITS, REPARATIONS AND COSTS)
I.
Preliminary considerations
1. In recent years, the Inter-American Court has followed an important approach
aimed at gradually restricting access to the criminal justice system in order to
confer the necessary scope to the Convention’s protection of the right to freedom
of expression. This has been a successful process that began more than two
decades ago with the judgment of the case of Olmedo Bustos (The Last Temptation
of Christ) v. Chile. Within this context of enhancing the scope of protection under
Article 13 of the American Convention on Human Rights (“Convention”), the
judgment in the case of Baraona Bray v. Chile builds on the progress already
achieved in the cases of Álvarez Ramos v. Venezuela and Palacio Urrutia v. Ecuador,
in which the Inter-American Court established the standard that criminal protection
is not a conventionally appropriate mechanism for subsequent liability for affronts
to subjective honor materialized in speech on matters of public interest.
2. The judgment resulting from the cited cases is inspired by the conventional duty to
strengthen the safeguarding of public debate against undue interference by the
State and the undesirable effects of criminal prosecution, which compromise the
pluralism of ideas, the guarantee of dissent and social control over the public power.
3. The instant case is noteworthy in this trajectory because it raises the standards of
the Inter-American Court to a new level, notably in paragraphs 128 to 130 of the
judgment, as reflected in the recognition that the criminal protection of the honor
of public officials against insults and the imputation of offensive acts has no support
in the Convention. 1
4. By defining the status of the alleged offended party as a public official as a criterion
for the conventional prohibition on the prosecution of crimes against honor, and
not the public interest nature of the statements considered offensive, the Court
immediately sought to rule out the possibility of initiating criminal proceedings
against those who engage in public criticism, an activity that is essential for the
healthy functioning of democracies. The a priori exclusion of the drastic response
provided by criminal law- the most severe facet of the State’s punitive power - is
intended to ensure that dissenting voices and social control of the actions of State
agents are not discouraged by the chilling and intimidating effects of ius puniendi.
It should be noted that the standard defined by the Court in paragraphs 128 to 130 of the judgment on the
limits of criminal protection for the subjective honor of public officials, does not involve subsequent criminal
liability for offenses that include the false imputation of crimes. This situation would require a more cautious
analysis in its own jurisdiction, because the case in question refers only to the prosecution of the victim by
claiming damage to the honor of the offended party. In cases involving the false imputation of a crime, it is still
necessary to determine whether or not the supposedly criminal statements were considered to be in the public
interest, as defined in the cases of Palacio Urrutia v. Ecuador and Álvarez Ramos v. Venezuela.
1