E.1 First instance judgment of the Guarantee Court of Puerto Montt 58. On May 14, 2004, as a result of the abovementioned statements, Senator SP filed a criminal complaint against Carlos Baraona Bray for the alleged crimes of slander and serious insults with publicity, established in Articles 412 and following articles, 416 and following articles and 423 of the Criminal Code64 (supra, paras. 44 and 45). The complaint was expanded on May 24 of the same year and invoked the aggravating circumstance of Article 12 paragraph 13 of the Criminal Code, since the injurious comments “in addition to being aimed at discrediting and dishonoring [Senator SP], [were] made in disparagement and with offense to the public authority invested in the [senator].” The complaint stated that Mr. Baraona Bray’s statements were “a gratuitous and public affront” against Senator SP, because they accused him of a vice or lack of morality that could damage his reputation, credit, image and interests which, in addition, were perceived by the public to be offensive and should be characterized as serious, taking into account the dignity and circumstances of the offended party and of the offender.65 59. In a judgment delivered on June 22, 2004, the Guarantee Court of Puerto Montt (hereinafter also “Guarantee Court”) convicted Carlos Baraona Bray for the crime of serious insults through the media, to the detriment of Senator SP. In the ruling, the judge stated that “the defendant’s statements cannot be considered as having the necessary seriousness and reasonableness for his right to inform to prevail over the plaintiff’s honor, since there is no proportionality between the sacrifice of honor and the benefits that could be obtained from such criticism.” The Guarantee Court sentenced him to a minimum term of 300 days imprisonment and a fine of 20 monthly tax units,66 plus suspension from holding public office or public positions during the term of the sentence, with costs. These offenses were provided for in Articles 417 paragraph 3 and 418, first paragraph, of the Criminal Code, in relation to Article 29 of Law No. 19.733 on abuse of publicity (supra paras. 45 and 47). In the same ruling, the Guarantee Court concluded that the legal problem was the conflict between the right to honor and the right to freedom of expression. Therefore, it was necessary to “determine whether or not there was justification for the legitimate exercise of a right” and noted that the defense failed to prove that the defendant acted in legitimate exercise of a right recognized in Article 10, paragraph 10, of the Criminal Code.67 60. The Guarantee Court of Puerto Montt found it proven that, “from May 12 [2004], the defendant, Carlos Baraona Bray, while the Executive Director of CONAF was detained for the offenses of bribery, illicit association and influence peddling, made various statements that were disseminated by a number of media outlets […] in which he stated that a Senator of the Republic, [SP], acting as a landlord, had pressured the authorities of the Tenth Region, specifically the SEREMI of National Assets [NB], the Regional Director of CONAF [PB], and the Provincial Director of CONAF [LB], to allow the illegal occupation of properties and the illegal logging of alerce trees. It was pointed out that [NB and PB were] faithful servants of Senator [SP], who exerted pressure on the aforementioned officials for the irregular clearance of title Article 423 of the Criminal Code states: “The defendant accused of slander or insult, concealed or equivocal, who refuses to give satisfactory explanations about it, will be punished as a defendant accused of libel or slander”. Cf. Law 21467, Criminal Code of Chile, Article 423, supra. 65 Cf. Judgment of the Court of Guarantee of Puerto Montt, of June 22, 2004, supra. 66 According to figures of the Internal Revenue Service of Chile, at the time of the events the fine of 20 monthly tax units (MTU) was equivalent to approximately $594,720.00 Chilean pesos. Cf. Internal Revenue Service of Chile, UTM - UTA - IPC 2004, available at: https://www.sii.cl/pagina/valores/utm/utm2004.htm 67 Article 10, paragraph 10, of the Chilean Criminal Code states: "The following are exempted from criminal liability: Anyone who acts in the fulfillment of a duty or in the legitimate exercise of a right, authority, office or position.” Cf. Law 21467, Chilean Criminal Code, Article 10, supra. 64 20