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might hope to get through the criminal court, without the risks and disadvantages
that the latter poses. In fact, a conviction in civil court is in itself a statement that
the conduct in question was unlawful, a statement no less emphatic and effective
than a conviction in criminal court. Although the forum may be different in name, it
can arrive at the same finding that a criminal law court would: i.e., that the
respondent’s behavior constituted wrongful conduct detrimental to the plaintiff, who
has the law and reason on his side. Thus, the civil verdict itself becomes a form of
reparation that serves to redeem the honor and good name of the person seeking
the court’s protection. In a number of its judgments, including the judgment in the
Case of Herrera Ulloa vs. Costa Rica, the Inter-American Court underscored the
importance of the judgment itself as a means of reparation or moral satisfaction.
Furthermore, a civil judgment can order payment of moral damages and, where
appropriate, pecuniary damages to redress the harm caused to the person who was
defamed. So a civil judgment provides two types of reparation that are of greater
interest to an aggrieved party and social satisfaction in the form of the court’s
censure of the unlawful conduct.
19.
And so, this solution should be –and in fact has been- given serious
consideration, de lege ferenda, as a substitute for the options under criminal law
when a journalist is on trial for offenses against honor in the practice of his
profession. Naturally, bases of justification, under civil and criminal law, resulting
from the exercise of a right or the performance of a duty in accordance with the
standards of journalism would remain intact. When such justification is present,
there can be no liability. Obviously, the civil solution does not pose the same
problems that the criminal law solution poses vis-à-vis domestic and international
human rights standards, nor does the civil law solution have the intimidating effect
that the criminal law solution has. As the Court has pointed out, the criminal law
solution can ultimately inhibit the exercise of freedom of expression.
20.
In seeking alternative solutions, which should ideally yield “the” reasonable
solution to this matter, it is worth recalling that in some cases, provision has been
made to punish, as criminal offenses, the repeated commission of illicit acts initially
punishable under civil or administrative law. In such cases, the repetition of the
offense implies aggravation of the wrongdoing, to the point that it moves from the
realm of civil or administrative law into the realm of criminal law and is punishable
with measures provided for under criminal law. There may have been other less
drastic options to find a solution, which many of us would consider preferable: to
resolve in the civil courts the excesses committed through the mass media, by
professionals in the information business. This proposal does not necessarily mean
either the exclusion or the inclusion of all possible offenses against honor. Several
legal systems have opted to remove this from the realm of criminal law, to allow it to
be solved by civil and administrative means.
21.
When the Court heard this case, it learned about a bill in Costa Rica on the
subject of freedom of expression and freedom of the press, which would introduce
changes into the Penal Code and the Code of Criminal Procedure and in the Press
Act. This bill points up the existence of a school of thought that believes that certain
provisions closely related to the subject of freedom of expression need to be
amended. Under the bill, which the Court is not called upon to address in the case
sub judice, certain grounds for preclusion of the crime related to behaviors of the
kind that the present case involves would be added to Article 151 of the Penal Code.
These include situations such as “publication or reproduction of information or value
judgments on matters of public interest that offend honor or public reputation, that
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