I/A Court H.R., Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of July 2, 2004. Series C No. 107.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2005-2-e.pdf

 

Headnotes:

 

Those under the American Convention's protection have not just the right and freedom to express their own thoughts, but also the right and the freedom to seek, receive and impart information and ideas of all kinds. Hence, freedom of expression has an individual and a social dimension. It requires, on the one hand, that no one be arbitrarily limited or impeded in expressing his own thoughts. In that sense, it is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.

 

In its individual dimension, freedom of expression goes further than the theoretical recognition of the right to speak or to write. It also includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible. In this sense, the expression and dissemination of ideas and information are indivisible concepts. This means that restrictions that are imposed on dissemination represent, in equal measure, a direct limitation on the right to express oneself freely.

 

In its social dimension, freedom of expression is a means for the interchange of ideas and information among persons. It includes the right of each person to seek to communicate his own views to others, as well as the right to receive opinions and news from others.

 

Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.

 

Without effective freedom of expression, in all its forms, democracy is enervated, pluralism and tolerance begin to break down, the mechanisms for citizen oversight and complaint are unable to function properly, and the groundwork is laid for authoritarian systems to take root in society.

 

Within this context, journalism is the primary and principal manifestation of freedom of expression of thought. The practice of journalism, therefore, requires that the individual engage responsibly in activities that are indistinguishable from or inextricably intertwined with the freedom of expression guaranteed in the Convention.

 

It is essential that journalists who work in the media should enjoy the necessary protection and independence to exercise their functions to the fullest, because it is they who keep society informed, an indispensable requirement to enable society to enjoy full freedom and for public discourse to become stronger.

 

Freedom of expression is not an absolute right; instead, it may be subject to restriction. Abusive exercise of the right to freedom of expression shall be subject to subsequent imposition of liability. However, beyond what is strictly necessary, such restrictions are not to limit the full scope of freedom of expression or become direct or indirect methods of prior censorship. In order to determine subsequent liabilities, three requirements must be met:

 

1. the restrictions must be previously established by law;

2. they must be intended to ensure the rights or reputation of others or to protect national security, public order, or public health or morals; and

3. they must be necessary in a democratic society.

 

The "necessity" and, hence, the legality of restrictions imposed under Article 13.2 ACHR on freedom of expression, depend upon a showing that the restrictions are required by a compelling governmental interest. Hence if there are various options to achieve this objective, that which least restricts the right protected must be selected. Given this standard, it is not enough to demonstrate, for example, that a law performs a useful or desirable purpose; to be compatible with the Convention, the restrictions must be justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right Article 13 ACHR guarantees. Implicit in this standard, furthermore, is the notion that the restriction, even if justified by compelling governmental interests, must be so framed as not to limit the right protected by Article 13 ACHR more than is necessary. That is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it. The restriction must be proportionate to the legitimate interest that justifies it and must be limited to what is strictly necessary to achieve that objective. It should interfere as little as possible with effective exercise of the right to freedom of expression.

 

For the sake of public debate, a little more latitude should be allowed, under Article 13.2 ACHR, for statements made about public officials or other public figures when matters of public interest are involved. That kind of unfettered debate is essential for a truly democratic system to function properly. This in no way means that the honor of public officials or public figures should not be protected by the courts; what it means is that the protection accorded must be commensurate with the principles of democratic pluralism.

 

The differing standard of protection is not based on whether the subject is a public figure or private citizen; instead, it is based on whether a given person's activities are matters that fall within the domain of public interest.

 

Every State is internationally responsible for any action or omission committed by any of its branches of power or organs in violation of internationally recognised rights.

 

States have the responsibility to embody in their legislation, and ensure proper application of, effective remedies and guarantees of due process of law before the competent authorities, which protect all persons subject to their jurisdiction from acts that violate their fundamental rights or that lead to the determination of the latter's rights and obligations.

 

The right to appeal a judgment is an essential guarantee that must be respected as part of due process of law, so that a party may turn to a higher court for revision of a judgment that was unfavorable to that party's interests. The right to file an appeal against a judgment must be guaranteed before the judgment becomes res judicata. The aim is to protect the right of defense by creating a remedy to prevent a flawed ruling, containing errors unduly prejudicial to a person's interests, from becoming final.

 

The right to appeal a judgment, recognised in the Convention, is not satisfied merely because there is a higher court than the one that tried and convicted the accused and to which the latter has or may have recourse. For a true review of the judgment, in the sense required by the Convention, the higher court must have the jurisdictional authority to take up the particular case in question.

 

Any person subject to a proceeding of any nature before an organ of the State must be guaranteed that this organ is impartial and that it acts in accordance with the procedure established by law for hearing and deciding cases submitted to it. The right to be tried by an impartial judge or court is a fundamental guarantee of due process.

 

Any violation of an international obligation that has caused damage creates a new obligation, which is to adequately redress the wrong done.

 

Summary:

 

On 28 January 2003, the Inter-American Commission on Human Rights filed an application with the Court against the State of Costa Rica, for the Court to decide whether Costa Rica unduly restricted journalist Mauricio Herrera Ulloa's right to freedom of expression by his criminal prosecution and the criminal and civil penalties imposed due to the criminal conviction of Mr Herrera Ulloa on four counts of defamation. On 19, 20 and 21 May, and 13 December 1995, the newspaper La Nación had carried a number of articles by journalist Mauricio Herrera Ulloa that partially reproduced several articles from the Belgian press. The Belgian press reports had attributed certain illegal acts to Félix Przedborski, Costa Rica's honorary representative to the International Atomic Energy Agency in Austria.

 

In its Judgment of 2 July 2004, the Court held that the State violated the right to freedom of thought and expression protected under , in relation to Article 1.1 ACHR, as well as Article 8.1 ACHR, in relation to Article 1.1 ACHR, and Article 8.2.h ACHR, in relation to Article 1.1 ACHR and 2 ACHR, to the detriment of Mr Mauricio Herrera Ulloa. The Court ordered the State, inter alia, to nullify the 12 November 1999 ruling of the Criminal Court of the First Judicial Circuit of San José and all the measures it orders; within a reasonable period of time, adjust its domestic legal system to conform to the provisions of Article 8.2.h ACHR, in accordance with Article 2 ACHR; pay non-pecuniary damages to Mr Mauricio Herrera Ulloa in the amount of US$ 20,000.0, and pay Mr Mauricio Herrera Ulloa the sum of US$ 10,000.0 to defray the expenses of his legal defense in litigating his case before the inter-American system for the protection of human rights.