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observe his right to be heard by an impartial court. The Third Chamber had
already ruled on a writ of cassation filed in this very same case and had
nullified the May 29, 1998 verdict of acquittal on the grounds that the
sentencing court had misused the concept of malice, which was prejudicial to
an issue that went to the merits.
f.
Expert testimony of Federico Sosto López, attorney
International treaties do not outrank the Costa Rican Constitution, as the
latter provides that “treaties rank above the law, but are subordinate to the
Constitution.”
Article 13 of the Convention is very clear. The text of that article refers to
freedom of thought and expression and in that sense is slightly different from
the structure of other international instruments. As a rule, freedom of
thought, conscience and religion are all covered in the same article. The
freedom of the press of which Article 13 speaks is broader in scope than the
traditional notion of that freedom in that Article 13 protects the right to
receive, seek and impart information and ideas.
Protection of every person’s freedom of expression would be based on what
we call freedom of opinion. It is freedom of the press that enables the mass
media to impart information and ideas.
“Freedom of expression is in essence the possibility of disseminating the
thoughts and ideas of others.” In the American Convention provision is made
for receiving and seeking information.
Freedom of information is an
extension of freedom of expression, enabling the individual to affirm his
personal values.
“Every international instrument is a product of its time; the same can be said
for the language or expressions that the instrument uses.” Article 13 speaks
of freedom of thought and expression. The phrase ‘freedom of expression’
has a number of connotations that have developed with the passage of time.
While we speak of freedom of expression in general terms, we also call it
freedom of information, freedom of the press, freedom of communication.
The Nice Declaration even speaks of freedom of the media.
Any
interpretation of the Convention must take into account that it is a living
instrument for the protection of human rights. Reputation is a matter of
particular importance because the exercise of freedom of expression has
made the right to a good name much more vulnerable to attack. When rights
are exercised there is always the possibility that other rights might be
infringed. The goal is to strike the proper balance.
Article 13(2) of the Convention is a lesson in the importance of being able to
establish limits; in other words, if this right is to be lawfully exercised, certain
parameters and contextual considerations have to be observed. The text of
the American Convention makes it clear that freedom of expression can be
restricted. These restrictions are intended to protect every person’s right to
have his honor respected. The European Convention provides that the
restrictions on the exercise of freedom of expression must be prescribed by
law, have a legitimate purpose and be necessary and justified.
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