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a Naval Court searched the premises of “Ateli Limitada” publishing company
and Mr. Palamara’s home to seize the copies of the book, the originals, a
diskette containing the full text, the electrostatic masters of the publication and
to erase the complete text of the book from the hard disk of his personal
computer, and Chilean courts ordered the banning of the publication and
distribution of the book entitled “Ética y Servicios de Inteligencia” (“Ethics and
Intelligence Services”). The aforesaid article only provides for prior censorship
on the basis of moral protection of children and adolescents in relation to public
entertainments or upon a declaration of a state of emergency, which is not the
case here. In addition “the expert reports required by the State concluded that
the information contained in the book could be readily accessible via other
means;”
b)
the prohibition of prior censorship encompasses “the prohibition of any
act that prevents the distribution of an existing book;”
c)
the offense of contempt of authority is incompatible with Article 13 of the
Convention. The conviction of Mr. Palamara-Iribarne for this offense, “grounded
on his criticism of public officials’ conduct,” “constitutes an imposition of
subsequent liability on the exercise of the freedom of expression that is
unnecessary” in a democratic society;
d)
contempt laws provide more protection to public officials than to private
citizens, in direct violation of the fundamental principle of any democratic
system, which provides for public scrutiny as a means to prevent and control
any abuse of their coercive power. Said laws are a means to silence unpopular
ideas and opinions and discourage criticism for fear of legal action or monetary
penalties;
e)
the mere threat of criminal prosecution for making negative remarks
about matters of public interest may lead to self-censorship. Defending against
criminal charges involves significant costs for the defendant and may entail the
imposition of restrictions on rights. The potential imposition of a criminal
sanction for criticizing a public official has or may have an intimidating effect.
In Chile, said offense carries the threat of imprisonment or fines for those
convicted;
f)
in 2001, Chile abolished the offense of contempt defined in section 6 of
the Ley de Seguridad del Estado (State Security Law). In August 2005, Chile
enacted Law No. 20,048 which eliminated the offense of contempt “only for the
purposes of the Criminal Code and not of the Code of Military Justice.” Mr.
Palamara-Iribarne must be fully compensated for the damage sustained. In this
regard, the Commission stated that “it ha[d] no specific comments to raise”
and that “it shared the comments made by the representatives of the [alleged]
victim;”
g)
in convicting Mr. Palamara of contempt, the State applied provisions of
the Chilean Criminal Code, in violation of the standards and parameters set by
the Convention as well as by the case law of the Inter-American system.
h)
Article 2 of the Convention also sets forth that States undertake to “adopt
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