CONCURRING OPINION OF JUDGE RODRIGO MUDROVITSCH INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF MOYA CHACÓN ET AL. V. COSTA RICA JUDGMENT OF MAY 23, 2022 (Preliminary objections, merits, reparations and costs) I. The instant case 1. This case refers to the international responsibility of the State of Costa Rica for the judicial proceedings filed against the journalists Ronald Moya Chacón and Freddy Parrales Chaves owing to the publication of an article in La Nación on December 17, 2005, in which they reported supposed irregularities in the control of liquor contraband in the territory of Costa Rica. 2. The journalists were prosecuted in both the criminal and the civil jurisdictions, together with the Minister of Public Security at the time, R.R.M., following a complaint filed by one of the men named in the article, J.C.T.R. The plaintiff sought: (i) that the petitioners should be prosecuted under the offense of libel established in article 145 of the Costa Rican Criminal Code, and defamation established in article 146 of the Criminal Code, combined with article 7 of the Printing Act, and (ii) to obtain civil pecuniary compensation from the journalists and the Minister, based on the argument that they had the obligation to verify the information that was published with greater diligence. At both first instance and on appeal they were all acquitted of the criminal charges, but convicted under civil law and sentenced to compensate the alleged injured party. 1 3. In its judgment in this case, the Inter-American Court of Human Rights (“the Court”) underlined its concern due to the existence of criminal laws addressed exclusively at the exercise of journalism, such as the aforementioned Printing Act. It also emphasized two specific characteristics of article 7 of the Act that “deserve special attention owing to their harmful effects for the exercise of freedom of expression” (§83): harsher sanctions for offenses against honor when committed by journalists through the media, and the establishment of objective criminal liability for the editors, directors and owners of the media outlet in which an article that offends someone’s honor has been published. 4. I consider it essential to address the incidental aspects of the issue of protection by criminal law, notwithstanding the acquittal ruling that considerably reduced the consequences of the criminal proceedings that had been filed. Ultimately, as the Court indicated, the validity of this type of legislation may, in certain circumstances, have a chilling effect in society – especially if special care is not taken regarding the requirement of a certain materiality in order to open proceedings (§83). This so-called chilling effect gives rise to concerns in relation to the guarantee of the free exercise of the right to freedom of expression, which is instrumental for the formation of a free marketplace of ideas in a democracy, because it is necessary not only to respect alternative opinions and versions of history and complex social events in a plural society, but also to create an authentic and welcoming institutional space for it exercise, free of pressure and reprisals due to the exercise of the nation-State’s monopoly of power. 1 The judgment was handed down by the Second Circuit Trial Court of San José, Goicoechea, on January 10, 2007, and confirmed in second instance by the Third Chamber of the Supreme Court of Justice on December 20, 2007.