11. After including important considerations on the right to freedom of expression in its first contentious cases related to Article 13 of the Convention, particularly in “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile (2001) and Ivcher Bronstein v. Peru (2001), the Court was able to able to enter the debate on the impact of criminal law on the conducts protected a priori by the right to freedom of expression in Herrera Ulloa v. Costa Rica (2004). On that occasion, the Court assessed, among other matters, the alleged violation of the right to freedom of expression owing to the criminal sanction imposed on a journalist who, in several articles, had reproduced information previously published by the Belgian press relating to supposed unlawful acts attributed to a diplomat. 12. On that occasion, the Court understood that the requirement of proof in relation to information published by the foreign press constituted an excessive limitation of freedom of expression, which resulted in a discouraging, intimidating and chilling effect on all those who exercised the profession of journalism. In keeping with this reasoning, a requirement of that type would be contrary to the facilitation of public debate on matters of general interest. 2 In addition, the Court reinforced its understanding – established in the case of Ivcher Bronstein v. Peru 3 – that public figures are exposed to greater public scrutiny of their conduct, although this does not mean that the honor of public figures and public officials should not be protected in another way. It merely indicates that the measures should be aligned with the basic principles of democratic pluralism, the content of which requires that the State and its agents be open to criticism by the citizenry and accountable in the exercise of their public functions. 13. In his concurring opinion, Judge García Ramírez included a useful reflection on the possible use of criminal law for penalizing conducts in the exercise of journalism. The then President of the Court indicated that, before discussing the best way to criminalize excesses in the exercise of freedom of expression, it was essential to decide whether it was necessary and desirable to resort to a criminal response instead of to civil or other measures. Hence, it was important to adopt, as the preferred interpretative standard, the minimalist approach to criminal law, reserving it for those cases in which less extreme solutions were inappropriate or evidently inadequate. 4 14. That same year, in Ricardo Canese v. Paraguay (2004), the Court was called on to assess the criminal conviction of a candidate to the presidency of the Republic due to statements made concerning another candidate during the electoral process. 5 When examining the legitimacy of the restriction in light of the requirements of necessity (or enforceability) in a democratic society – in other words, that the restriction of the right must be proportionate to the interest that justifies it and interfere, as little as possible, with the right affected – the Court understood that “criminal laws are the most severe and restrictive means of establishing liability for an unlawful conduct,” 6 to conclude that the Stated had acted in a way that was incompatible with the Convention. It is worth pointing out that the Court indicated that, of itself, the criminal prosecution (and not only the applicant’s conviction) was an indirect means of restricting his freedom of expression. 7 2 IACtHR. Case of Herrera Ulloa v. Costa Rica. Judgment of July 2, 2004, §§132-133. 3 IACtHR. Case of Ivcher Bronstein v. Chile. Judgment of February 6, 2001, §155. IACtHR. Case of Herrera Ulloa v. Costa Rica. Judgment of July 2, 2004. Opinion of Judge Sergio García Ramírez. §15. 4 5 IACtHR. Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004. §§106-107. Subsequently reiterated, inter alia, in Palamara Iribarne v. Chile, §79 when discussing the offense of disrespect for public authorities (desacato). 6 7 IACtHR. Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004, §107. Reiterated in Kimel v. Argentina (§85) and Uzcategui v. Venezuela (§189).