Inter-American Court of Human Rights
Case of Herrera-Ulloa v. Costa Rica
Judgment of July 2, 2004
(Preliminary Objections, Merits, Reparations and Costs)

In the Case of Herrera-Ulloa,
the Inter-American Court of Human Rights (hereinafter “the Court” or “the InterAmerican Court”), composed of the following judges*:
Sergio García Ramírez, President;
Alirio Abreu Burelli, Vice President;
Oliver Jackman, Judge;
Antônio A. Cançado Trindade. Judge;
Cecilia Medina Quiroga, Judge;
Diego García-Sayán, Judge, andMarco Antonio Mata Coto, Judge Ad Hoc;also present,
Pablo Saavedra Alessandri, Secretary; andEmilia Segares Rodríguez, Deputy Secretary,
pursuant to articles 29, 37, 56, 57 and 58 of the Rules of Procedure of the Court(hereinafter “the Rules of Court”) ** and Article 63(1) of the American Convention on
Human Rights (hereinafter “the Convention” or “the American Convention”), deliver
the following judgment.
I
INTRODUCTION OF THE CASE
1.
On January 28, 2003, the Inter-American Commission on Human Rights(hereinafter “the Commission” or “the Inter-American Commission”) filed an
application with the Court against the State of Costa Rica (hereinafter “the State” or“Costa Rica”) based on petition No. 12,367, received at the Commission’s Secretariat
on March 1, 2001.
2.
The Commission filed the application pursuant to Article 51 of the American
Convention, for the Court to decide whether the State had violated Article 13*

Judge Manuel E. Ventura Robles, a Costa Rican national, was not a member of the bench for
purposes of this case; by the time he was sworn in as a member of the Court, Costa Rica had alreadydesignated a judge ad hoc, pursuant to Article 10 of the Statute of the Inter-American Court of Human
Rights.

**The present judgment is delivered in accordance with the Rules of Procedure that the Court
approved at its XLIX regular session, by order dated November 24, 2000, which entered into force on June
1, 2001, and in accordance with the partial amendment that the Court approved at its LXI regular session,in a November 25, 2003 order that entered into force on January 1, 2004.

2(Freedom of Thought and Expression), in combination with the obligations set forthin articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) of theConvention, to the detriment of Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser
by its criminal conviction of Mr. Herrera Ulloa on four counts of publishing insults
constituting defamation of a public official. His conviction carried with it all theattendant consequences under Costa Rican law, including civil liabilities.
3.
The facts submitted by the Commission concern violations alleged to havebeen committed by the State by virtue of the November 12, 1999 conviction. That
conviction was a consequence of the fact that on May 19, 20 and 21, and December
13, 1995, the newspaper “La Nación” had carried a number of articles by journalist
Mauricio Herrera Ulloa that partially reproduced several articles from the Belgianpress. 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. The November 12, 1999 judgment, delivered by the Criminal
Court of the First Judicial Circuit of San José, found Mr. Mauricio Herrera Ulloa guilty
on four counts of publishing insults constituting defamation and ordered him to pay afine; La Nación was ordered to publish the “Now Therefore” portion of the court’s
judgment. The court also upheld the claim for civil damages. It found Mr. Mauricio
Herrera Ulloa and La Nación jointly and severally liable and ordered them to pay acompensation for the moral damage caused by the articles carried in La Nación, andto pay court costs and personal damages as well. The judgment also ordered La
Nación to remove the link at the “La Nación Digital” website between the surname
Przedborski and the impugned articles, and to create a link between those articles
and the operative part of the court’s judgment. Finally, the Commission pointed outthat under Costa Rican law, Mr. Herrera Ulloa’s conviction met that his name wasentered into the Judiciary’s Record of Convicted Felons. In addition to the foregoing,
the Commission reported that on April 3, 2001, the Criminal Court of the First
Judicial Circuit of San José issued an order demanding that Mr. Fernán Vargas
Rohrmoser, legal representative of the “La Nación” newspaper, pay the penalty the
court imposed on that newspaper in the November 12, 1999 judgment, warning that
failure to do so might constitute the crime of contempt of authority.
4.
The Commission also asked the Court to order the State to award
compensation for the damages caused to the alleged victims; to nullify and eliminate
all the consequences that followed from Mr. Mauricio Herrera Ulloa’s conviction, andthe effects the court’s judgment had vis-à-vis Mr. Fernán Vargas Rohrmoser; tovacate the order to remove the link at the “La Nación” Digital website between thesurname Przedborski and the impugned articles; to eliminate the link between thosearticles and the operative part of the court’s decision to convict; to remove Mr.
Herrera Ulloa’s name from the Judiciary’s Record of Convicted Felons; and to vacate
the order to establish a link at the “La Nación” Digital website between the articles
and the operative part of the judgment. The Commission also asked the Court toorder the State to amend its criminal laws to comport with the provisions of theAmerican Convention. Finally the Commission asked the Court to order the State to
pay the legal costs and expenses incurred by the alleged victims.

II
COMPETENCE

3

5.
Costa Rica has been a State Party to the American Convention since April 8,
1970, and accepted the contentious jurisdiction of the Court on July 2, 1980.
Therefore, the Court is competent to hear the instant case, pursuant to Articles 62
and 63(1) of the Convention.
III
PROCEEDING BEFORE THE COMMISSION
6.
On March 1, 2001, Mssrs. Fernando Lincoln Guier Esquivel and Fernán Vargas
Rohrmoser, assisted by Mr. Carlos Ayala Corao, filed a petition with the InterAmerican Commission and a request seeking precautionary measures. The
Commission opened the case that same day, under No. 12,367.
7.
On March 1, 2001, the Commission adopted precautionary measures andrequested the State to stay execution of the November 12, 1999 conviction until
such time as the Commission had examined the case. On March 28, 2001, theCommission submitted a request to the Court seeking provisional measures onbehalf of Mssrs. Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser (see Chapter
IV below).
8.
On March 30, 2001, the petitioners filed a brief elaborating upon the original
petition.
9.
On December 3, 2001, the Commission approved Admissibility Report No.
128/01, whereby it declared the case admissible.
10.
On December 21, 2001, the Commission placed itself at the disposal of theparties with a view to arriving at a friendly settlement, pursuant to Article 48(f) of
the American Convention.
11.
On October 10, 2002, the Commission, pursuant to Article 50 of theConvention, approved Report No. 64/02 wherein it recommended to the State thatit:
1.
Nullify the conviction delivered against Mr. Mauricio Herrera Ulloa and the “La
Nación” Newspaper, represented by Mr. Fernán Vargas Rohrmoser:
1.a.
Remove Mr. Mauricio Herrera Ulloa’s name from the Judiciary’s Recordof Convicted Felons;
1.b.
Vacate the order to remove the link at the “La Nación” Digital website
on the Internet that directs the reader from the surname Przedborski to theimpugned articles and the operative part of the judgment;
1.c.
Make reparation for the harm caused to Mr. Mauricio Herrera Ulloa bypaying the corresponding compensation.
1.d.
Take the measures necessary to prevent a recurrence of these eventsin the future.

The Commission transmitted that report to the State and gave Costa Rica twomonths to comply with the recommendations contained therein.
12.
On October 28, 2002, the Commission forwarded the above-mentioned reportto the State and gave it two months in which to comply with the recommendations.
13.
On January 28, 2003, the Commission submitted the case to the jurisdictionof the Court.

4

IV
PROVISIONAL MEASURES
14.
In accordance with Article 63(2) of the American Convention, Article 76 of theCommission’s Rules of Procedure at that time, and Article 25 of the Rules of Court,
on March 28, 2001 the Inter-American Commission submitted a request seeking
provisional measures on behalf of Mssrs. Mauricio Herrera Ulloa and Fernán Vargas
Rohrmoser. The Commission based its request on the “imminence of the impending
enforcement of the civil damages ordered [...] and [the] fact that the State
disregarded the Commission’s own request for precautionary measures seeking astay of execution of the judgment” which would have irreparably violated the right tofreedom of expression of Mr. Herrera Ulloa and Mr. Vargas Rohrmoser and would
have rendered moot any decisions that the Commission and the Court might adopt
on the matter.
15.
On April 6, 2001, the President of the Court (hereinafter “the President” or“the President of the Court”) requested the State, “as an urgent measure, to abstain
from executing any action that would alter the status quo of the matter until [the]public hearing has been held and the Court is able to deliberate and decide on theadmissibility of the provisional measures requested by the Commission.”1
16.
On May 23, 2001, the Court confirmed the President’s April 6, 2001 order andrequested the State to refrain from taking any action that might alter the status quoof the matter until such time as a report was presented and the Court was able todeliberate on the matter and arrive at a decision.
17.
On September 7, 2001, the Court called upon the State to adopt forthwith
those measures necessary to suspend the entry of Mauricio Herrera Ulloa’s name in
the Judiciary’s Record of Convicted Felons until such time as the bodies of the interAmerican system had arrived at a final decision on his case. The Court also asked
the State to stay the court order for La Nación to publish the “Now Therefore” portionof the November 12, 1999 conviction handed down by the Criminal Court of the First
Judicial Circuit of San José, and to stay the order to create a link at the La Nación
Digital website between the impugned articles and the operative part of that court
judgment.2
18.
On December 6, 2001, the Court asked the State to continue to apply theprovisional measures called for in the Court’s September 7, 2001 order and tocontinue to withhold Mauricio Herrera Ulloa’s name from the Judiciary’s Record ofConvicted Felons.3
19.
On July 30, 2002, the Ministry of Foreign Affairs of Costa Rica sent the InterAmerican Court a letter rogatory from the Criminal Court of the First Judicial District
1
Cf. Case of “La Nación”. Provisional Measures. Order of the Inter-American Court of Human
Rights of April 6, 2001, operative paragraph 3.
2

Cf. Case of “La Nación”. Provisional Measures. Order of the Inter-American Court of Human
Rights of September 7, 2001, operative paragraphs one and two.
3
Cf. Case of “La Nación”. Provisional Measures. Order of the Inter-American Court of Human
Rights of December 6, 2001, operative paragraph two.

5of San José, dated June 27, 2002, in which the San José Criminal Court requests that
the State ask the Inter-American Court whether the provisional measures called forin its September 7, 2001 order (supra paragraph 17) apply to the entire judgment.
20.
On August 26, 2002, the Court issued an order on the provisional measures,
wherein it resolved:
1.

To stipulate that the provisional measures ordered refer specifically to:a)taking, without delay, whatever steps are required to annul
the entry of Mauricio Herrera Ulloa’s name in the Judiciary’s Record ofConvicted Felons until a final decision is reached on this case by thebodies of the inter-American human rights system;b)suspending the order to publish in the daily “La Nación” the“Now Therefore” section of the conviction decided by the Criminal Trial
Court of the First Circuit of San José on November 12, 1999; andc)suspending the order to establish a “link”, in La Nación
Digital, between the disputed articles and the operative paragraphs ofthat judgment.

2.
To stipulate that the aforementioned provisional measures were decreed toattain the effects stated in the ninth Whereas of that Order, independently of the civil,
criminal, or other projections of points 1), 4), and 6) of the aforementioned judgment by
the Criminal Trial Court of the First Circuit in San José.4

21.
On November 18 and 20, 2002, the Commission and the petitioners, throughtheir intermediary, petitioned the Court in connection with the brief filed by the Stateon July 30, 2002 (supra para. 19) and the August 26, 2002 order (supra para. 20),
to have this order rescinded so that the Commission might have an opportunity topresent the observations it deemed pertinent with regard to the Costa Rican
initiative.
22.
On November 22, 2002, the Court decided to dismiss the Commission’srequest (supra para. 21) to rescind the Court’s August 26, 2002 order (supra para.
20) and to keep intact the decisions made by the Inter-American Court in its earlier
orders since, under Article 25(1) of its Rules of Procedure, “it has inherent authority[as part of its jurisdictional attributes] to issue, at the request of a party or on its
own motion, instructions for enforcement of the precautionary measures it orders.”523.
On December 3, 2002, the Ministry of Foreign Affairs of Costa Rica sent theInter-American Court a letter rogatory from the Criminal Court of the First Judicial
Circuit of San José, dated November 28, 2002, wherein it reported that it had denied
the remedy filed by Mr. Fernando Guier Esquivel to have the October 24, 2002 orderfor enforcement of judgment issued by that San José court vacated. The remedy wasdenied on the grounds that “the court [did] not have legal authority to suspend
enforcement of those parts of a final judgment that the Inter-American Court did notorder stayed.”24.
On January 13, 2003, the Commission stated that it had no observations on
the State’s letter rogatory (supra para. 23) and forwarded the observations made in
4

Cf. The “La Nación” Case. Provisional Measures. Order of the Inter-American Court of Human
Rights of August 26, 2002, operative paragraphs one and two.
5
Cf. The “La Nación” Case. Provisional Measures. Order of the Inter-American Court of Human
Rights of November 22, 2002, considering six and single operative paragraph.

6
this regard by the representatives of the alleged victims. Those representatives hadreported that “the State had complied with operative paragraphs [one, two andthree] of the Inter-American Court’s September 7 [2001] order.” The representatives
went on to say, however, that on August 27, 2002, Mr. Przedborski’s attorneys had
asked the Costa Rican court to enforce the November 12, 1999 judgment. Given
that fact, the attorneys representing Mr. Mauricio Herrera Ulloa and “La Nación” filed
a “motion of improper procedure” so that the court hearing the case would comply
with the Inter-American Commission’s recommendation. The court never ruled on
the motion.
25.
On March 10, 2003, the Ministry of Foreign Affairs of Costa Rica forwarded to
the Court a letter rogatory from the Criminal Trial Court of the First Judicial Circuit of
San José, dated March 6, 2003, in which it reported that it had denied the improper
procedure motion filed by Mr. Fernando Guier Esquivel to have that San José court’s
October 24, 2002 order for enforcement of judgment vacated. The motion was
denied on the grounds that it was not a procedural means to challenge decisions
such as the one being appealed.
26.
The application that the Inter-American Commission filed with the Court in
the present case concerns the facts that prompted this Court to order provisional
measures on behalf of Mr. Mauricio Herrera Ulloa. Given the nature of this matter,
the Court finds that the corresponding analysis should be set aside until the decisionon the merits of the case presented.
V
PROCEEDING BEFORE THE COURT
27.
The Commission filed the application with the Court on January 28, 2003
(supra para. 1).
28.
In keeping with articles 22 and 33 of the Rules of Court, the Commission
designated Mr. Robert Goldman and Mr. Santiago A. Canton as delegates in thiscase, and Ariel Dulitzky, Martha Braga, Débora Benchoam and Norma Colledani asadvisors. As prescribed by Article 33 of the Rules of Court, the Commission reported
the names of the original petitioners and gave a single address for them.
29.
Once the President of the Court had made a preliminary review of theapplication, on February 14, 2003 the Secretariat of the Court (hereinafter “theSecretariat”) notified the respondent State of the application and its annexes,
advised it of the deadlines for answering the application, and that it was to appoint
its agents in the case. That same day, by instruction of the President and in keepingwith Article 18 of the Rules of Court and Article 10(3) of the Statute of the Court, theSecretariat advised the State of its right to appoint a Judge ad hoc to participate in
the deliberations on the present case. That same day, February 14, 2003, in
accordance with Article 35(1)e) of the Rules of Court, the alleged victims –Mssrs.
Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser- were also notified of theapplication. On February 17, 2003, pursuant to Article 35(1)(d) and e) and then
Article 35(4) of the Rules of Court,6 the representatives of the alleged victims, Mssrs.
Carlos Ayala Corao, Pedro Nikken and Fernando Guier, were notified of the6
Rules of Procedure approved by the Inter-American Court of Human Rights at its XLIX regularsession, by a November 24, 2000 order. These Rules took effect on June 1, 2001. This article, among
others, was amended by the Court at its LXI regular session, through a November 25, 2003 order. The
amendment entered into force on January 1, 2004.

7
application, so that within 30 days’ time, they might submit to the Court theirpleadings, motions and evidence.
30.
After having been granted an extension, on March 24, 2003 Costa Rica
designated Mr. Marco Antonio Mata Coto as Judge ad hoc and provided a copy of his
curriculum.
31.
On March 24, 2003, the State presented a note wherein it advised the Court
that it had designated Mr. Farid Beirute Brenes, Attorney General of the Republic, as
agent in the case, and Criminal Prosecutor José Enrique Castro Marín as alternate
agent.
32.
On March 31, 2003, after having been granted a two-week extension, therepresentatives of the alleged victims filed the brief containing their pleadings,
motions and evidence. In that brief, they requested that the Court take urgent action
to exercise its precautionary authority.
33.
After having been granted an extension, Costa Rica filed a brief and annexes
on May 20, 2003. In its brief, it raised preliminary objections, answered theapplication and sent its observations to the brief of pleadings, motions and evidence
filed by the alleged victims’ representatives.
34.
On May 27 and 28, 2003, the Secretariat sent a copy of the brief to therepresentatives and to the Commission, respectively, so that pursuant to Article
36(4) of the then Rules of Court they might, within thirty days, present their written
briefs responding to the preliminary objections raised by the State.
35.
Having been given one extension, on July 23, 2003 the Commission filed its
written pleadings on the preliminary objections raised by the State, but the brief
received was not complete. On July 24, 2003, the Commission presented the fullbrief.
36.
Having been given an extension, the alleged victims’ representatives filed
their written brief on the preliminary objections on July 23, 2003.
37.
On February 18, 2004 the President of the Court summoned the Commission,
the State and the alleged victims’ representatives to a public hearing at the seat ofthe Inter-American Court, starting April 30, 2004, at 9:00 a.m. The hearing was held
to hear the witnesses, expert witnesses, and final oral arguments on the preliminary
objections and on possible merits, reparations and costs. In that summons, thePresident set May 31, 2004, as the deadline for the parties to present their final
written pleadings on the preliminary objections and possible merits, reparations andcosts. The President also requested that Mrs. Laura Mariela González Picado’s
testimony and Mr. Julio Maier’s expert testimony be given through affidavits sworn inthe presence of a public civil servant. Those affidavits were to be sent to the Court
by no later than March 11, 2004.
38.
On February 19, 2004, the Committee to Protect Journalists, the Hearst
Corporation, the Miami Herald Publishing Company, El Nuevo Día, La Prensa, theReform Group, Reuters Ltd., El Tiempo and the Tribune Company filed an amicus
curiae brief.

839.
On February 23, 2004, the Asociación para la Defensa del Periodismo
Independiente (PERIODISTAS) filed an amicus curiae brief.
40.
The Inter-American Press Association presented an amicus curiae brief on
March 10, 2004.
41.
The Colegio de Periodistas de Costa Rica submitted an amicus curiae brief on
March 11, 2004.
42.
On March 11, 2004, the Inter-American Commission sent the testimony ofMrs. Laura Mariela González Picado, given in an affidavit sworn in the presence of apublic civil servant (supra para. 37).
43.
On March 16, 2004, the Secretariat sent the State and the alleged victims’
representatives the statement that Mrs. Laura Mariela González Picado made in thepresence of a public civil servant, so that they might present whatever observations
they deemed pertinent.
44.
On March 30, 2004, the alleged victims’ representatives advised the Court
that they were withdrawing their offer of Mr. Julio Maier as an expert witness, as he
was unable to provide an expert report in the form of an affidavit.
45.
On March 30, 2004, Article 19, Global Campaign For Free Expression, filed anamicus curiae brief.
46.
Because Mr. Julio Maier was unable to give his expert report in the form of anaffidavit given before a public civil servant, on April 7, 2004 the alleged victims’
representatives petitioned the Court to permit Mr. Carlos Tiffer Sotomayor, whomthe Inter-American Commission on Human Rights had offered as an expert witness,to expand his report to address as well the subject matter about which the expert
originally proposed by the alleged victims’ representatives, Mr. Julio Maier, was tohave testified.
47.
On April 19, 2004, the Center for Justice and International Law (CEJIL)
presented an amicus curiae brief.
48.
On April 22, 2004, the President of the Court issued an order wherein hebroadened the content of the opinion to be given by Mr. Carlos Tiffer Sotomayor, theexpert offered jointly by the Inter-American Commission and the alleged victims’
representatives to appear in a public hearing before the Court.
49.
On April 26, 2004, the World Press Freedom Committee filed an amicus curiae
brief.
50.
On April 30 and May 1, 2004, the Court held a public hearing where it
received the testimony of the witnesses and expert witnesses offered by the InterAmerican Commission, by the alleged victims’ representatives and by the State on
the preliminary objections and possible merits, reparations and costs. It also heard
the parties’ final oral arguments.

9
There appeared:
for the Inter-American Commission on Human Rights:
Evelio Fernández, delegate;
Santiago A. Canton, delegate;
Lilly Ching, advisor;
Marisol Blanchard, advisor,
Martha Braga, advisor, andfor the alleged victims:
Pedro Nikken, representative;
Carlos Ayala Corao, representative;
Fernando Guier, representative, andfor the Costa Rican State:
Farid Beirute Brenes, agent;
José Enrique Castro Marín, alternate agent, andTatiana Gutiérrez Delgado, advisor;
witnesses offered by the Inter-American Commission:
Mauricio Herrera Ulloa, andFernán Vargas Rohrmoser;
expert witness offered by the Inter-American Commission:
Rubén Hernández Valle;
expert witness offered jointly by the Inter-American Commission and the alleged
victims’ representatives:
Carlos Tiffer Sotomayor;
expert witness offered by the alleged victims’ representatives:
Héctor Faúndez Ledesma;
expert witnesses offered by the Costa Rican State:Federico Sosto López, andLuis Alberto Sáenz Zumbado.
51.
Expert witness Rubén Hernández Valle and witnesses Mauricio Herrera Ulloa
and Fernán Vargas Rohrmoser introduced a number of documents on the occasion of
the public hearing on preliminary objections and possible merits, reparations andcosts, held on April 30 and May 1, 2004.
52.
On May 7, 2004, the Open Society Justice Initiative filed an amicus curiae
brief.

10
53.
On May 27 and 31 and June 2, 2004, the State, the alleged victims’
representatives and the Inter-American Commission, respectively, submitted their
final written pleadings. The alleged victims’ representatives attached a number ofannexes to their brief.
VI
THE EVIDENCE
54.
Before embarking upon its examination of the evidence received, the Court
will analyze, in light of the provisions of articles 44 and 45 of the Rules of Court,
certain considerations that are applicable to the specific case, most of which havebeen addressed in the Court’s own case law.
55.
To begin with, the principle of the presence of both parties to an action, which
establishes respect for the parties’ right to defense, is applicable in evidentiary
matters. This principle is one of the underpinnings of Article 44 of the Rules ofProcedure, which provides that the evidence must be received in a proceeding withboth parties present, to ensure equality between them.756.
In keeping with the Court’s customary practice, at the start of eachprocedural stage the parties must state, at the first opportunity granted them to do
so in writing, what evidence they will offer. The Court, exercising its discretionary
authority under Article 45 of its Rules of Procedure, may ask the parties to supply
additional probatory elements, as evidence to facilitate adjudication of the case,without this constituting a new opportunity for the parties to expand upon or makeadditions to their pleadings or to offer new evidence, unless the Court so allows.8
57.
On the matter of receiving and assessing evidence, the Court has previously
held that proceedings before this Court are not subject to the same formalities
required in domestic judicial proceedings and that admission of items into evidence
must be done paying special heed to the circumstances of the specific case andbearing in mind the limits set by respect for legal certainty and procedural balance
between the parties.9 The Court has also taken account of the fact that internationalcase law holds that international courts have the authority to appraise and assess
evidence based on the rules of competent analysis, and has thus always avoided
rigidly determining the quantum of evidence necessary as the basis for a ruling.10
This criterion is especially valid with respect to international human rights courts,
which –to establish the international responsibility of a State for violation of anindividual’s rights- have ample flexibility for assessment of the evidence submitted tothem regarding the pertinent facts, in accordance with the rules of logic and basedon experience.11
7

Cf. Case of Maritza Urrutia. Judgment of November 27, 2003. Series C No. 103, para. 46; Case of
Myrna Mack-Chang. Judgment of November 25, 2003. Series C No. 101, para. 118; and Case of Bulacio.
Judgment of September 18, 2003. Series C No. 100, para. 40.

8Cf. Case of Maritza Urrutia, supra note 7, para. 47; Myrna Mack Chang Case, supra note 7, para.
119; and Bulacio Case, supra note 7, para. 41.
9Cf. Case of Maritza Urrutia, supra note 7, para. 48; Myrna Mack Chang Case, supra note 7, para.
120; and Bulacio Case, supra note 7, para. 42.

10

Cf. Case of Maritza Urrutia, supra note 7, para. 48; Myrna Mack Chang Case, supra note 7, para.
120; and Bulacio Case, supra note 7, para. 42.
11
Cf. Case of Maritza Urrutia, supra note 7, para. 48; Myrna Mack Chang Case, supra note 7, para.
120; and Bulacio Case, supra note 7, para. 42.

11

58.
Based on the above, the Court will now examine and assess the set of items
that constitute the body of evidence in the instant case, following the rules governing
reasoned judgment arrived at freely and on the basis of admissible evidence, within
the relevant legal framework.
A) DOCUMENTARY EVIDENCE
59.
As the provisional measures were being processed, the Inter-American
Commission, the alleged victims’ representatives and the State submitted various
documents.12
60.
The parties supplied documentary evidence in the form of the application, thebriefs containing their pleadings, motions and evidence, the brief of preliminary
objections, the answer to the application and the observations on the brief ofpleadings, motions and evidence (supra paragraphs 27, 32 and 33).1361.
On March 11, 2004, the Inter-American Commission forwarded the sworn
affidavit that Mrs. Laura Mariela González Picado (supra para. 42) gave in thepresence of a public civil servant.14 The Court summarizes the pertinent parts of that
affidavit below.
Testimony of Laura Mariela González Picado, wife of alleged victim
Mauricio Herrera Ulloa.
Laura Mariela González Picado has been married to Mauricio Herrera Ulloa
since 1995. “From the time [they] were engaged and newlyweds, [her]husband was very tense and depressed [,…] as he had been threatened withcriminal indictment for articles he published about scandals involving a Costa
Rican diplomat accredited to a number of countries and an international
agency headquartered in Europe.” Her husband was a journalist at the time,covering the Ministry of Foreign Affairs of Costa Rica and the country’s
diplomatic service. In January 1996, the diplomat in question brought twocomplaints, “which made [her] husband even more tense.”
The first trial on the two complaints came three years later. Her husband was“acquitted of any blame. However, the diplomat filed a writ of cassation […]12
Cf. Volume of annexes accompanying the Inter-American Commission’s request for provisional
measures; volume of documents supplied by the Inter-American Commission on Human Rights and theState during the public hearing held on May 22, 2001, in connection with the request for provisional
measures; and folios 94 to 126 and 207 to 351 of Volume I of the file on provisional measures in the Caseof “La Nación” newspaper; and folios 377 to 404, 4421 to 423, 469, 477 and 626 to 632 of volume II of
the file on provisional measures in the “La Nación” Case.
13
Cf. File of annexes to the application filed by the Inter-American Commission on Human Rights,
volumes I, II and III, annexes 1 to 22, folios 537 to 1682; annexes F) to M) of the March 31, 2003 brief ofpleadings, motions and evidence from the alleged victims’ representatives (record on preliminary
objections and possible merits, reparations and costs, volume I, folios 340 to 405); annex to the brief
submitted by the alleged victims’ representatives on May 20, 2003 (file on preliminary objections andpossible merits, reparations and costs, volume II, folios 746 to 759); annexes 1 to 2 of the brief filed by
the State in answer to the application of May 20, 2003, (file on preliminary objections and possible merits,
reparations and costs, Volume II, folios 599 to 741).
14
Cf. folios 1107 to 1109 of Volume III of the file on preliminary objections and possible merits,
reparations and costs.

12with the Third Chamber of the Supreme Court of Justice, which reversed theacquittal one year later, in May 1999. The case went back to trial in
November of that year.” Her husband “spent more than a month going tocourt every day, from morning till late afternoon.” This drove him to takemedications to calm his nerves and even to seek psychological help. He
asked that she and the children move in with her mother, while he stayed
alone in the family home. Her husband was unable to see anyone and unable
to live a normal, tranquil life. In November 1999, Mauricio Herrera Ulloa wasconvicted of criminal defamation, and the writs of cassation that his attorneys
filed were denied by the very same Third Chamber of the Supreme Court inJanuary 2001. It was then that her husband turned to the Inter-American
Commission to begin proceedings.
When her husband was ultimately convicted of criminal defamation, “he wasmiserable and said over and over again, almost obsessively, that he wasfinished as a journalist because he [had] been convicted of criminal
defamation and [was] registered as a convicted felon in the Judiciary’s Recordof Convicted Felons. No reader would ever believe his stories, thinking insteadthat he was nothing but a liar casting aspersions on other people’s good nameor reputation; so his career in journalism was over.” However, following theconviction the newspaper gave her husband a number of assignments andinvestigations. He completed them, but then “was afraid to publish hisarticles, fearing another trial; while writing his pieces, he was always
wondering what the criminal court judges would think [about the content of
the articles]. He was paralyzed by fear during this period.”
As a consequence of all these legal proceedings, Mrs. González Picado and herhusband Mauricio Herrera Ulloa had to sell the family home and moveelsewhere, where he was not thought of as “the one who lost the trial andwas convicted of criminal defamation.”
62.
The expert Rubén Hernández Valle presented his expert report in writing,during the expert testimony given in the hearing on preliminary objections andpossible merits, reparations and costs (supra para. 50).15
63.
Mr. Mauricio Herrera Ulloa presented documents during his testimony at the
public hearing on preliminary objections and possible merits, reparations and costs(supra para. 50).1664.
Mr. Fernán Vargas Rohrmoser also introduced documentation during his
testimony at the public hearing on preliminary objections and possible merits,
reparations and costs (supra para. 50).17
65.
When they submitted their final written pleadings on May 31, 2004 (suprapara. 53), the alleged victims’ representatives attached a number of documents asevidence.18
15
Cf. folios 3450 to 3461 of the single volume of evidence presented during the public hearing heldon April 30 and May 1, 2004.
16

Cf. folios 3468 to 3671 of the single volume of evidence presented during the public hearing heldon April 30 and May 1, 2004.
17
Cf. folios 3449 and 3466 to 3467 of the single volume of evidence presented during the public
hearing held on April 30 and May 1, 2004.

13B) TESTIMONIAL AND EXPERT EVIDENCE
66.
At the public hearing held on April 30 and May 1, 2004, the Court heard thetestimony of the witnesses and the opinions of the expert witnesses offered by theInter-American Commission on Human Rights, the alleged victims’ representatives
and the State, respectively. The Court will now summarize the relevant parts of
their testimony.
a.

Testimony of Mauricio Herrera Ulloa, alleged victim in the case

Mauricio Herrera Ulloa has worked as a journalist at the newspaper “La
Nación” for twelve years. There he has been an editor of supplements, ajournalist in the political affairs department, and currently works in the
Research Unit.
On May 19, 20 and 21 and December 13, 14, 15 and 16, 1995, he publishedseven articles in “La Nación, which made reference to reports published infour first-rate, prestigious newspapers in Belgium. The reports in concerned
Mr. Félix Przedborski, who at the time was Costa Rica’s Ambassador to theInternational Atomic Energy Agency. Mr. Herrera Ulloa was at the timeworking in the political section of the “La Nación” newspaper and was
assigned to cover the Ministry of Foreign Affairs and the presidential
residence. The news reported in the Belgian press implicated Mr. Przedborskiin the “biggest financial, political and military scandal in the history” of thatcountry. The Belgian newspapers linked Mr. Przedborski with “shady, underthe-table deals” in which he allegedly received commissions from the sale ofcombat helicopters, a sale that set in motion a chain of events that eventually
led to the assassination of Belgium’s Vice Prime Minister, André Cools. Mr.
Przedborski’s name came up in the midst of the investigation into the matter
in Belgium which allegedly implicated him in a “multi-million dollar fiscal messin Germany and Belgium” and various kinds of “illegal trafficking.”
The newspaper “La Nación” and Mr. Herrera Ulloa thought it was entirely
legitimate to inform the Costa Rican public of the reports about Mr.
Przedborski in the European press, since “freedom of information is a twoway street”: on the one hand, every citizen has the right to seek, investigate
and impart information on matters of public interest; on the other hand,
every citizen also has a right to receive that information. Mr. Herrera Ulloa
exercised that two-way right in the articles he published in “La Nación.”
Mr. Mauricio Herrera Ulloa and the newspaper “La Nación” regarded thecontents of the articles published in a number of foreign newspapers as
meeting a public interest; before publishing the articles, they checked thereliability of the sources and reviewed their facts. This process, which isroutine for any case being reported by “La Nación”, initially consisted of “themost thorough verification possible” of the sources available to them. They
checked documents and, to confirm the facts and turn up new information,
consulted a number of people who may have had some contact with the18

Cf. annexes 1 to 6 of the brief of final written pleadings presented by the alleged victims’
representatives and dated May 31, 2004 (file on preliminary objections and possible merits, reparations
and costs, volume V, folios 1614 to 1645).

14story. The newspaper had a system whereby the progress on a story was
discussed with immediate superiors. Mauricio Herrera Ulloa prepared notes
for those immediate superiors; once they were clear about where the notes
were leading them, a further review process kicked in, first by the immediate
superior, then by the editor, and finally by an attorney.
Throughout this process, Mr. Mauricio Herrera Ulloa and the newspaper “La
Nación” made “exhaustive attempts” to locate Mr. Przedborski. He could not
be found, however.
When the first story appeared in the newspaper, a person identifying himself
as Mr. Felix Przedborski’s attorney appeared. Mr. Herrera Ulloa availed
himself of the opportunity to try to get Mr. Przedborski’s side of the story on
the matter, but was unable. The witness even communicated with Mr. Ricardo
Castro, Mr. Przedborski’s attorney, and sent him a list of questions in writing.
Mr. Castro answered by letter, stating his refusal to respond to the articles inquestion.
Unable to speak with Mr. Félix Przedborski directly, Mr. Herrera Ulloa turned
to sources at the Ministry of Foreign Affairs. He spoke with the then Foreign
Minister and Deputy Foreign Minister of Costa Rica, whose versions wereconsistent with the accusations being made against Mr. Przedborski. However,the Foreign Minister and Deputy Foreign Minister stated that thus far, no one
had come up with reliable evidence of the charges. He also interviewed Costa
Rican diplomats and former diplomats. They all “rigorously” confirmed theexistence of the publications and of the charges against Mr. Przedborski. The
Ambassador of Costa Rica in Belgium sent the Foreign Office an official report,
containing a translation of the articles in the Belgium press. That document
made it very clear that Costa Rican diplomatic circles were very troubled by
the repeated appearances of Mr. Przedborski’s name in the Belgian press.
Although he had never had any contact with Mr. Przedborski, Mr. Herrera
Ulloa did include in his stories the favorable comments that former Costa
Rican presidents Luis Alberto Monge and Rafael Ángel Calderón had madeabout the Costa Rican diplomat, and also added “verbatim” the information
supplied by Mr. Ricardo Castro, Mr. Przedborski’s, to counter the charges. Mr.
Herrera Ulloa also “contextualized” the reports with background information
on Mr. Przedborski that was in the public domain, inasmuch as the charges
being made in the Belgian press were not isolated. Mr. Herrera Ulloa even
toned down the information reported in Europe about Mr. Przedborski. But henever came across any information that would disprove the information
reported in the Belgian newspapers; quite the contrary, the information hehad in his possession confirmed the truthfulness of those arties. Had hebelieved that the articles he published were untrue, then he would haveissued a retraction. He did not because he was convinced that “the facts hereported were true.”
As a consequence of the second series of articles that appeared in “La Nación”
on December 13, 14, 15 and 16, 1995, he learned that Mr. Félix Przedborski
had filed suit against the smallest of the four Belgian newspapers. In the end,
the Belgian journalist, the author of the impugned article in that country,“was forced to issue a retraction” to avoid criminal punishment. The common
feature of the four articles being challenged in the Costa Rican courts –three15
from the first series and one from the second series- was that they all madereference to the Belgian newspapers, whereas the articles not challenged incourt did not. These articles were “completely separate investigative reportingin Costa Rica,” and hence reproduced nothing of what was being reported in
Belgium.
Mr. Herrera Ulloa’s articles appeared in the midst of a national dialogue on
Costa Rica’s foreign service, brought on by a number of scandals involving
other Costa Rican honorary diplomats. The situation was so disturbing thateven the Ministry of Foreign Affairs organized a special fact-finding group tolook into what was happening in the foreign service. As a result of thatinvestigation, a number of honorary diplomats had their appointments
revoked.
As a consequence of the articles he published, Mr. Herrera Ulloa was namedin two criminal complaints and had to “suffer” eight years of proceedings in
the Costa Rican courts. He had to endure an inquisitorial proceeding in which
the judges acquitted him on the grounds that his reporting was truthful andhe had acted responsibly and diligently. But Mr. Przedborski appealed thisjudgment with the Third Chamber of the Supreme Court of Costa Rica, which
vacated the acquittal and ordered that the case be retried by a new bench.
In that second trial, which lasted a month and a half, Mr. Herrera Ulloa was
subjected to “16 hours of questioning” by the judges and was found guilty on
the grounds that he had acted with malicious intent. Mr. Herrera Ulloa
appealed his conviction, but the appeal was denied by the Third Chamber of
the Costa Rican Supreme Court. The justices who reviewed the appeal of theconviction were the very same justices who had nullified the verdict ofacquittal, and had thus already formed an opinion on the case. They upheld
the conviction and Mr. Herrera Ulloa’s name was entered into the Judiciary’s
Record of Convicted Felons, available to local governments, the police, rural
constabularies and gendarmerie, the General Bureau of Migration, etc. Whilethe listing of his name in the Judiciary’s Record of Convicted Felons was
widely reported and publicized, not so his “delisting.”
The criminal proceedings and the listing of his name in the Judiciary’s Recordof Convicted Felons caused the witness grievous harm professionally and left
him with an unrelenting sense of insecurity and dread about theconsequences and results that the process as a whole would have for himself
personally, his career and his family. All this took a “tremendous, terrible,
devastating” toll on his practice of journalism, not just the conviction but theentire process itself that depicted and treated him as a criminal. For ajournalist “the trial itself is a punishment; it is a public discrediting of one’s
adherence” to professional standards. Since his conviction, he has been
profoundly disgraced, so much so that every time he does an interview with apublic figure who is associated with any kind of controversy, he always hears
the refrain, “Oh, you’re the convicted journalist.” He often hears warnings like
“Careful, you could wind up in court again.” For Mauricio Herrera Ulloa, allthis is like walking around with a brand on his forehead reading ‘convicted orlibelous journalist’.” Career-wise, the criminal proceedings have forced Mr.
Herrera Ulloa to turn down job offers outside Costa Rica and to interrupt his
studies. He has also been forced to temporarily stop working at “La Nación”.

16
The self-censorship has been one of the most pernicious and immediate
effects of the conviction. The alleged victim has held back from publishingarticles whose facts he had confirmed to be true; that hesitation is caused bya fear of having to face another criminal action.
Mr. Herrera Ulloa hopes that the Court “will nullify the judgment thatconvicted him” in the criminal and civil actions. He hopes “nothing like thisever happens again” and that neither he nor any colleague ever has to endure
this kind of “constant self-censorship.” The alleged victim believes no Costa
Rican citizen should ever be treated “like a criminal” for airing matters of
public interest, as happened in this case. He also hopes that Costa Rica will
“decriminalize the so-called crimes against honor” so that no one else journalist or otherwise- who, for the sake of a legitimate interest, denouncesa public official and is branded a criminal for it. Anyone who is prosecuted
must also be able to expect a reliable second instance, not what happened in
his case where he was never given the opportunity to file an appeal with acourt of second instance, to refute “the lies in the judment [,] in a cassation
proceeding.” The magistrates who review a case must “not have preconceived
ideas, biases, [or] opinions on that case.”
No restrictions should be imposed on the information that newspapers publish
on the internet in connection with reports that appear in the print version of
the paper.
Furthermore, the alleged victim would have no way of paying the sixty-million
colones in civil damages; the three million eight hundred ten thousandcolones in personal damages and costs that he and the newspaper “La
Nación,” having been found jointly and severally liable, were ordered to pay;or the fine of three hundred thousand colones that he was personally ordered
to pay.
From a personal standpoint, although the harm he has suffered is irreparable,
he believes that the Costa Rican State owes him and his family, who havesuffered through this process with him, fair compensation. Finally, journalist
Herrera Ulloa requested that the “Costa Rican State acknowledge the injusticedone to him and the error it has made.” All he is seeking is “justice […],
simply that.”b.

Testimony of Fernán Vargas Rohrmoser, alleged victim in the caseFernán Vargas Rohrmoser is an attorney and notary public. At the time of theevents in this case, he was Chairman of the Board of Directors of thenewspaper “La Nación” and was responsible for overseeing its corporate
interests. He is currently Vice Chairman of the Board of Directors.
In the present case, the judgment that sentenced the newspaper “La Nación”
and Mr. Mauricio Herrera Ulloa to pay moral damages has adverse
consequences for the paper as a business. A court ruling of that nature“naturally affects the newspaper’s credibility, forces the Board of Directors[…] to stress the established procedures […] the editing of the newspaper toavoid […] a guilty verdict.” All this lessens the independence of thenewspaper’s director, who has to constantly remind himself of “the danger
that threatens a newspaper when legal charges are filed against it.” All this17
affects the ability of the editor of the newspaper to impart information; it also
hurts the reputation of the business.
As legal representative of “La Nación,” the alleged victim believes that the
court judgment against the newspaper was prejudicial to its ability to impart
information.
As a member of the Board of Directors, the decision as to whether or not topublish a given article is not Mr. Rohrmoser’s immediate responsibility. Board
members do not have a role in that process. All the same, they consider
themselves answerable to the owners of the business for the “exaggerated
amounts […] that they have been ordered to pay as a result of court
judgments” that find the newspaper at fault. All this affects the business’
finances. The newspaper has “sixty million colones” on deposit with the Court
seized of the matter.
In the instant case, the established procedures for editing articles published in“La Nación” were “scrupulously” followed. Those procedures basically strive to“strike a careful balance so that every article airs the views of the person or
persons affected or [of] the actors in the matter being reported in thenewspaper; standards of journalistic style are followed, [featuring] fullverification of the facts and use of proper language in telling the story.”
These procedures begin with the journalist himself or the person writing thearticle, the head of his section or editor. Then, as the facts begin to gel, thestory moves up the chain of command until it reaches the legal advisor,
whose job is to make certain that “all matters that might touch upon the law
are being carefully observed.” Other players in this process include the news
chiefs, the editorial chief and the director of the newspaper.
The judgment in question required the witness to make payment in the nameof the newspaper “La Nación” or face charges and “serve time in prison if theordered damages are not paid.” All this has left him fearful that he might beprosecuted at any time and “afraid of the negative effects all this could haveon his career.” That anxiety and fear still persist, as the court ruling thatordered him to comply or to “be prosecuted for contempt” has not been set
aside.
The witness is turning to the Court both as an individual and as therepresentative of “La Nación” newspaper, and hopes that “the judgment willbe nullified, as otherwise it will have a profound impact on democracy in
Costa Rica.”c.

Expert testimony of Rubén Hernández Valle, attorney

Legally speaking, the law cannot require that everything that is published betrue. As Spain’s Constitutional Court has held, “were truth to be prerequisite
for the right [to free speech], then silence would be the only guarantee oflegal certainty.” Spain’s Constitutional Court has developed the theory ofneutral reporting, which applies “in those cases in which a communications
medium is simply reporting statements made by third parties that violate thelaw […] honor, personal and family privacy and one’s good name.” For Spain’s
Constitutional Court, the consequence of the theory of neutral reporting isthat the duty of diligent reporting is served when the existence of the fact or

18
the statement is corroborated. In principle, however, diligence in reporting
does not extend to confirming the truthfulness of the statement, as
truthfulness could only be required of the person who made the statement.
Thus, the veracity required in the information reported refers to a subjective
rather than objective truth; in other words, it refers to fulfillment of the“minimum required to check the information” by demonstrating that ajournalist’s conduct was driven mainly be a desire to report a matter of public
interest and that he has been reasonably diligent about getting to the truth.
A distinction must be made between erroneous information and false
information. The latter carries with it criminal and civil liability. Erroneous
information “only generates civil liability when it can be shown that theperson or thing imparting the information has not practiced diligence, care or
caution to avoid inflicting harm, and has not acted in good faith.” This iswhere the principle of “actual malice” developed by the United States
Supreme Court comes into play.
Article 152 of Costa Rica’s Criminal Code is incompatible with the firstparagraph of Article 13 of the American Convention, inasmuch as it restricts
freedom of information by imposing a criminal punishment upon a journalist
for reporting defamatory speech originally made by a third party, even though
the journalist has acted diligently, with strict adherence to the truth, and has
made the necessary inquiries as to the reliability of the source. This violation
is an illegitimate restriction of the freedom to seek, receive and impart
information and ideas of all kinds” that is every journalist’s right in a
democratic society.
Article 149 of the Criminal Code also violates the first subparagraph of Article
13 of the Convention, because it forces a kind of self-censorship uponjournalists fearful of criminal prosecution. It also violates the right that every
society has to be duly informed of everything when the information has to dowith matters of public interest or involves a public official.
The criminal punishment established in Article 152 of the Costa Rican Criminal
Code for cases where the exceptions to proof of truth apply as provided in
Article 149 of that Code, is an unlawful restriction on journalists’ freedom of
expression, is incompatible with the needs of a democratic society, and does
not respond to a pressing social need. The Costa Rican provisions on“defamation, insults, and calumny […] stifle criticism of public officials andhave the effect of censoring the publication of articles about alleged illegal
activities” by public officials. The Costa Rican criminal law is therefore
incompatible with Article 13 of the American Convention.
In Costa Rica, a journalist who reports news whose source can be traced toother foreign media outlets and that contains alleged defamatory statements
against a Costa Rican public official must prove that the statements or facts
reported by the foreign press are true; also, there can be no evidence ofmalice on that journalist’s part.
The possibility of establishing modern laws on freedom of the press is underdiscussion in Costa Rica; recently, the committee studying various bills on thissubject submitted its opinion, which would substantially overhaul the laws
currently on the books.

19
To challenge the compatibility of articles 146, 149 and 152 of the Costa Rican
Criminal Code with Article 13 of the American Convention, an independent
constitutional-law proceeding exists called acción de inconstitucionalidad. But
in the case of a definitive ruling delivered by the Third Chamber of the Costa
Rican
SupremeCourt
upholdingaconviction,theaccióndeinconstitucionalidad cannot be used to challenge the law applied in the
judgment delivered in the instant case, because in Costa Rica such actions
are not permissible against specific court rulings. In Costa Rica, one can only
challenge jurisprudence, which must consist of at least three similar cases.
The right to privacy trumps freedom of information. However, the only
circumstance when the right to privacy cannot be invoked to restrict freedomof information is when a public figure is involved and the public deeds of thatpublic figure are at issue. Public officials are subject to public scrutiny andmust show a greater degree of tolerance to criticism. In practice this meansthat the protection that public officials enjoy as regards privacy andreputation is not the same as the protection that a private citizen enjoys, as
the citizenry must have complete and effective control over the manner inwhich public affairs are being conducted.
There are two remedies to exact satisfaction for or put an end to defamation:
the right to demand correction and the right of response provided for in theConvention; the other is civil suits to demand compensation for any offense.
These means are sufficient to protect a public official’s honor.
Under Article 48 of Costa Rica’s Constitution, human rights treaties have thesame rank in law as the Constitution. Further, the Constitutional Chamber
has held that if a provision of an international human rights convention better
protects some fundamental right, that convention shall be applied in
preference to the Constitution. The judgments that the Inter-American Court
delivers are to be executed immediately within Costa Rica’s juridical system,
through the Constitutional Chamber; its decisions trump any decision by adomestic court.
d.

Expert testimony of Héctor Faúndez Ledesma, attorney

The European Court has held that freedom of expression protects not only thesubstance of the ideas and information expressed, but also the form in which
they are conveyed, and that there is little scope under Article 10 of theEuropean Convention for restrictions on political speech or on debate on
matters of public interest.
Article 4 of the Inter-American Democratic Charter provides that freedom of
expression and of the press are essential components of the exercise of
democracy. This same principle is reflected in some of the earliest judgmentsof the United States Supreme Court. Lest there be any doubt or discrepancy
as to the limits, content and scope of freedom of expression, those rulings
hold that it is clear that it was conceived and designed to protect politicalexpression, messages having a political content and those having to do withthe free flow of ideas on matters of public interest or concern.
Spain’s Constitutional Court has held that freedom of expression serves aconstitutional purpose in a system of checks, balances and counterbalances,

20
where freedom of expression acts as a watchdog of democracy. The
constitutional function that Spain’s Constitutional Court attributes to freespeech had been suggested in earlier judgments of the United States
Supreme Court.
Regarding the “insult” or “defamation” laws in Costa Rica, Articles 146, 149
and 152 of the Costa Rican Criminal Code are not compatible with Article 13of the American Convention. These provisions inhibit and restrict political
discourse on matters of public interest or concern, in that they make no
distinction vis-à-vis the targets of the insult, i.e., public officials versus
private citizens, and do not discriminate for the type of issues being
discussed.
Article 149 of the Costa Rican Criminal Code is incompatible with theAmerican Convention and unsuited to the demands of a democratic society,particularly inasmuch as it places the burden of proof on a defendant accusedof defamation, and then only when the proof of truth meets certain tests. If
the defendant is being required to show that he did not act with malice orthat what he has said is true, the burden of proof is inverted, which iscontrary to the principles governing the exercise of free speech and theprinciple of presumed innocence.
While it is true that the provisions of articles 146 and 152 are consistent withthe restrictions on free speech allowed under Article 13(2) of the American
Convention, the essence of those provisions is not compatible with theConvention to the extent that they inhibit frank and open political debate,
make it impossible to criticize government officials, and make no distinction
for situations in which matters of public interest or concern are being
discussed.
As the European Court of Human Rights has ruled time and time again, andas the Inter-American Commission stated in its Report on the Compatibility of
Desacato Laws with the American Convention on Human Rights, with freedomof expression, in cases involving crimes against honor, it is the plaintiff whobears the burden of proof, not the defendant. Requiring the defendant tobear the burden of proof in such cases would be a violation of Article 13 andArticle 8 of the Convention, particularly the principle of presumption of
innocence.

The November 12, 1999 judgment against Mauricio Herrera Ulloa and “La
Nación” is completely contrary to the freedom of expression guaranteed in
Article 13 of the Convention, since judgments of this kind can certainly have achilling effect on political discourse. The European Court of Human Rights has
held that journalists’ freedom also covers possible recourse to “a degree ofexaggeration or even provocation.”

21

Article 13(2) of the American Convention provides for subsequent impositionof liability. But both the doctrine and the case law make it clear that in a
democratic society, such liabilities must be those strictly necessary andproportionate to the harm caused; if those conditions are not present, anysuch liabilities are incompatible with the Convention.
The right to appeal a ruling before a new higher court under international
human rights law implies various elements. First, in its general comment
Number 13, the United Nations Human Rights Committee observed that inappeals before review tribunals, care must be taken to watch the way inwhich the procedures before review tribunals take account of the fair andpublic hearing requirements of paragraph 1 of Article 14 of the International
Covenant on Civil and Political Rights. Second, the right provided for in Article
8(2)(h) of the American Convention also implies a determination as to what
the court of second instance will review or examine, as there must be a full
review of the law and of the facts.
The writ of cassation is not an appeal to a higher court in the sense of Article
8 of the Convention. This was also the finding of the Court in the Castillo
Petruzzi et al. Case as regards the conditions and requirements that a court ofsecond instance must meet to be deemed a fair, impartial and independenttribunal previously established by law.
e.

Expert opinion of Carlos Tiffer Sotomayor, attorney

Articles 146, 149 and 152 of the Costa Rican Criminal Code are notcompatible with the American Convention inasmuch as they do not conform to
the principles of a democratic and pluralistic society. Those articles seriously
restrict and dampen freedom of expression. Criminal penalties such as thoseestablished in the aforementioned articles for the sake of redressing harm to
reputation, are not necessary as they do not satisfy any pressing social need.
Modern criminal law is governed by two basic principles: the principle ofsubsidiarity, which holds that criminal law must be used only when no otherprocedural and legal alternative can serve the same purpose; the second is
the principle of ultima ratio, which means that criminal law must be perceived
as a last resort.
Article 146 of the Costa Rican Criminal Code, which is the article thatconcerns defamation, is not a description of a separate offense; instead, it
describes an exacerbated form of two other offenses: insult and calumny.
This article is not up to the standards of a democratic society, as it does nothave the most central element of criminal classification: its language isvague and imprecise. Expressions such as “spreads rumours or news of akind that will affect another’s reputation” place the judge in the position oflawmaker, as it is the judge who decides what constitutes “news of a kindthat will affect […] reputation.”
Article 149 of the Costa Rican Criminal Code distributes the burden of proof“very poorly.” Under this article, the defendant must prove the truth of thestatements. It posits the defense of justification (exceptio veritatis)
incorrectly because it applies it as an exculpatory circumstance that applies
only after the violation of the law and guilt of the defendant have been

22
decided, when in theory it is a defense that implies a justifying circumstance
whereby once the truth of the assertions has been shown, there would be no
crime or guilt, and the question of criminal or civil liability would be renderedmoot. Article 149 of the Costa Rican Criminal Code reverses the burden of
proof, violates such fundamental principles of procedure as presumption of
innocence, and seriously restricts criticism of public officials. The article also
makes no distinction for the type of passive subject: i.e., public officials
versus private subjects. Worst of all, it has been interpreted to mean that adefendant must prove the accuracy of the charge being made in the reported
statements. This kind of law induces self-censorship in reporters.
In a democratic society, the burden of proof must be distributed in such a
way that a distinction is made for the passive subjects who are the targets of
the allegations. A public official must prove at least two different aspects inmaking the case that the statements are inaccurate, and even to prove thatthey are defamatory: first, the public official must prove that the person who
made the statements had full knowledge that they were false; and second,that the statements were made with reckless disregard for the truth.
Article 152 of the Criminal Code, which concerns the publication of offenses
against honor, is a violation of the right to seek, receive and impart
information through whatever medium, because it makes it a crime to publish
or reproduce such offenses and does not distinguish between matters ofprivate interest and those of public interest. In a democratic society, underno circumstances should it be a punishable offense to impart information onmatters of public interest. The Press Act bill adopts this reasoning, as itprovides that dissemination of information is not a punishable offense when
the information concerns matters of public interest. Article 152 of the
Criminal Code has a terrible chilling effect on the exercise of the freedoms
established in Article 13 of the American Convention.
The U.S. legal concept of “actual malice” has had an enormous impact notjust in Latin America but worldwide. The Spanish Penal Code makes provision
for this concept in its articles 204 and 207. The Costa Rican bill on freedom of
expression and freedom of the press has also used the concept of “actual
malice.” While this bill does not incorporate the full doctrine, it does introduce
important elements having to do with the subjective element of the offenses.
The theory of actual malice involves other factors, such as: full knowledge
that the statement is false or reckless disregard for whether it was false ornot; a distinction made for the targets of the offending comments –i.e., public
figures versus private persons; the principle that recourse to criminal
proceedings is unnecessary; and the burden of proof on the public official.
In Costa Rica, prosecution of crimes against honor is by private parties.
Proceedings are instituted by private parties, not by public prosecutors orother public authorities. Private interests are at stake and the aggrieved party
may withdraw the case, reach a negotiated settlement or retract the charges.
Prosecution of public action crimes involves a preliminary phase, anintermediate phase and a final phase or trial. Prosecution of crimes by private
action, on the other hand, does not involve any preliminary or intermediatephase, which means that no authority has an opportunity to review thecomplaint or at least conduct an investigation to make a value judgment as towhether criminal prosecution is warranted. Therefore, almost all complaints

23
alleging crimes prosecuted by private action end up going to trial andeventual judgment. In Costa Rica, such proceedings may last anywhere fromone and a half to two years, even though the proceeding is a simple one. The
complaint is filed directly with the court, which first convenes a hearing to
explore the possibility of a negotiated settlement or retraction; absent that, it
goes on to convene hearings on the criminal complaint itself, sets the trial
date, and conducts the trial.
The effects of a criminal conviction in Costa Rica are of three kinds: the firstis legal; the second professional and the third personal. The legal effect of aconviction is the judgment. However, in Costa Rica a conviction also meansthat one’s name will be listed in the Judiciary’s Record of Convicted Felons
and one loses any chance of being granted such benefits as a stay of
execution of sentence. The civil effects would be payment of any fines andfees ordered, and possible attachments or garnishments or property losses.
Conviction of a crime has serious personal and professional consequences as
well, which has a deterrent and intimidating effect on someone in the media
business.
The right to appeal the conviction to a higher court, recognized in Article 8 of
the American Convention, means that the accused has the right to have theruling, in all its parts, reviewed on the facts, on the law and, most especially,on the sentence. Due process is an integral part of this right. In the Costa
Rican system, however, a convicted person has only one remedy to challenge
a conviction, which is the extraordinary remedy of cassation.
A writ of cassation is not a full appeal and is not an appeal in the meaning of
Article 8 of the American Convention. A writ filed with a court of cassation will
not set the stage for a complete review of a judgment, both on the facts andthe law. The review done by the Court of Criminal Cassation is very narrow in
scope and confined exclusively to matters of law. The court of cassation will
not deal with three fundamental aspects: it will not re-assess the evidence; itwill not review the facts; and it will not venture beyond the claims of theparties exercising this remedy. Although some progress has been made in
Costa Rica toward ridding the cassation procedure of some of its formalities, it
continues to be a very formalistic remedy that is very narrow in scope. Costa
Rica has to broaden the scope of this remedy, rid it of some of the formalities
that accompany it, enable it to serve more purposes so that it becomes a
remedy by means of which justice can be served in a particular case, without
sacrificing oral arguments. In 1990, with Order 528 of the Constitutional
Chamber of the Costa Rican Supreme Court, initial steps were taken toeliminate some of the procedural formalities associated with the writ ofcassation, in response to recommendations made by the Inter-American
Commission on Human Rights, which asked Costa Rica to amend its laws.
The Constitutional Court ordered that the remedy be “de-formalized”. But
more progress is needed.
In the instant case, the review done by the Third Chamber of the Costa Rican
Supreme Court was the kind of narrow review typical of cassation. That
Chamber could not examine the facts and had to accept them as establishedby the sentencing court.

24
The right to a hearing by an impartial court or judge, recognized in Article
8(1) of the American Convention, presupposes that the court that reviewed averdict of acquittal and nullified it cannot then review a verdict of convictionin the same case. In cases it has already reviewed and decided the Costa
Rican Court of Cassation has been careful to avoid violating the principle ofimpartiality and to that end keeps a list of alternate justices to hear casesthat come up for review a second time. In the case of Mr. Mauricio Herrera
Ulloa, however, the Third Chamber of the Costa Rican Supreme Court did notobserve 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 hadnullified the May 29, 1998 verdict of acquittal on the grounds that thesentencing court had misused the concept of malice, which was prejudicial toan issue that went to the merits.
f.

Expert testimony of Federico Sosto López, attorney

International treaties do not outrank the Costa Rican Constitution, as thelatter provides that “treaties rank above the law, but are subordinate to theConstitution.”
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 fromthe structure of other international instruments. As a rule, freedom ofthought, 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 toreceive, 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 thethoughts and ideas of others.” In the American Convention provision is madefor receiving and seeking information.
Freedom of information is anextension 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 speaksof 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.
Anyinterpretation of the Convention must take into account that it is a living
instrument for the protection of human rights. Reputation is a matter ofparticular 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 beinfringed. The goal is to strike the proper balance.

25
Article 13(2) of the Convention is a lesson in the importance of being able toestablish 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 tohave his honor respected. The European Convention provides that the
restrictions on the exercise of freedom of expression must be prescribed bylaw, have a legitimate purpose and be necessary and justified.
The American Convention attributes fundamental importance to the right tohave one’s honor respected, precisely because it can be more vulnerable ormore grievously affected.
The American Convention is neutral on the question of penalization of
offenses against honor. It is an option that the Convention leaves to thedomestic laws of each country. In Costa Rica’s case, it is constitutionallypermissible.
Costa Rica needs to take a fresh look at penalties for offenses against honor,
since such offenses are not per se violations of the American Convention. Up
until now, criminalization and punishment of offenses against honor has
proven to be an effective means to protect it.
As for the question of whether violations of the right to have one’s honor
respected should be penalized in a democratic society, the expert believes
that while freedom of expression is essential for a democratic society, it iseven more essential for the individual. Freedom of thought, freedom of
expression, and the possibility of expression in all its dimensions: these are
the individual’s mainstay.
g.

Expert testimony of Luis Alberto Saénz Zumbado, attorney andjournalist

The press is an institution of enormous importance in today’s society, an
institution in which journalists are the central players, with businesses being
the neuralgic points in the infusion of capital and technology. The press as
institution enables the exercise of a number of freedoms and a right on a
massive scale. Without the press, modern society would be unable to engage
in the free flow of opinions and information.
The right of the societies of this hemisphere to be informed was fully
confirmed when the American Convention entered into force. Article 13 of theConvention upholds freedom of information as a separate right. In themodern world, it is the press that makes the exercise of that right possible,
inasmuch as it affords societies access to information.
In democratic societies, the free flow of information is essential to enabling
the formation of opinion, which is the basis of the sharing of ideas. The
press, therefore, has a unique responsibility in seeking, gathering,
investigating and imparting information. Because information is essential toenabling the formation of opinions, the press has an obligation to provide
society with information that reflects the fact or event being reported as
accurately as possible.

26

In reality, information is a collection of versions of a particular event or fact.
News, a term used by the press to refer to information, are versions of facts
or events recounted directly by the journalist himself or taken from othersources that portray themselves as original sources because they witnessed
the facts or events, were the protagonists of those facts or events, or had
knowledge of them. Pluralism in reporting is assured when the news is drawn
from a number of versions, thus enabling the public to be better informed anddevelop a more-informed opinion of facts and events.
In those cases where the information must come from third parties because
the journalist himself was unable to witness the event or fact, the journalist
must make certain that the versions used in his reporting reflect the event orfact in question as accurately as possible. A comparison of versions isessential, as it helps the journalist discharge his obligation of informing the
public and satisfies the public’s right to be informed.
Article 32(2) of the Convention provides that the rights of each person arelimited by the rights of others. The Convention does not make some rights
more important than others, or make rights subordinate to other rights.
Exercise of a right cannot mean the violation of another right. Even Article 13of the Convention provides that the exercise of freedom of expression, thearticulation of one’s opinions and ideas and the possible ways that one can
express oneself are not without their limits.
In the business where the expert witness worked, it is “the obligation ofjournalists and correspondents to draw their information […] from at least twosources; two sources […] mean[s] that any version of a fact or event obtained
from one source would have to be compared and contrasted with at least one
other news source.” This makes sense in a democratic society, where
information helps build public opinion; a plurality of sources will better
guarantee the quality of the information.
Privacy must be distinguished from private life. “What a public official does in
his private life [...] is indeed reportable information, because it would
generate a public interest. Acts of privacy are not reportable.”C) EVIDENCE ASSESSMENT
Documentary Evidence Assessment
67.
In this case, as in others,19 the Court accepts the probatory value of those
documents that were submitted by the parties at the appropriate procedural moment
or as evidence to facilitate adjudication of the case, which was not disputed nor
challenged and the authenticity of which was not questioned.
68.
The evidence submitted during all stages of the proceeding has been included
in a single body of evidence, for it to be considered as a whole,20 which means that19

Cf. Case of Maritza Urrutia, supra note 7, para. 52; Case of Myrna Mack-Chang, supra note 7,
para. 128; and Case of Bulacio, supra note 7, para. 57.
20
Cf. Case of Myrna Mack-Chang, supra note 7, para. 129; Case of Bulacio, supra note 7, para. 68;
and Case of Juan Humberto Sánchez. Judgment of 7 June 2003. Series C No. 99, para. 60.

27
the documents supplied by the parties with regard to the preliminary objections andthe provisional measures are also part of the body of evidence in the instant case(supra paragraphs 59 and 60).
69.
The Court is admitting into evidence the affidavit that Laura Mariela González
Picado gave in the presence of a public civil servant, pursuant to the President’s
February 18, 2004 order (supra para. 37), inasmuch as it fits the intended purpose
as defined by the Court. It will assess that affidavit in the body of evidence, applying
the rules of logic.
70.
The documents provided by witnesses Mauricio Herrera Ulloa and Fernán
Vargas Rohrmoser and by expert witness Rubén Hernández Valle (supra paragraphs
51, 62, 63 and 64) at the public hearing on preliminary objections and possible
merits, reparations and costs held on April 30 and May 1, 2004, and those presented
by the alleged victims’ representatives in their final written pleadings (supra para.
65) will be useful to the Court when deciding the present case, especially inasmuch
as they were neither challenged nor contested, and their authenticity or veracity wasnever called into question. The Court is therefore adding them to the body ofevidence, in application of Article 44(1) of the Rules of Court.
71.
With respect to the press articles presented by the parties, this Court has
considered that, even though they are not documentary evidence stricto sensu, they
can be assessed when they refer to well-known public and notorious facts, orstatements by State officials, or corroborate aspects of the instant case.21
Testimonial and Expert Evidence Assessment
72.
The Court admits into evidence the statements made by the alleged victims in
the instant case (supra, paragraphs 66.a and 66.b) insofar as those statements
serve the purpose of the examination proposed by the Commission. As this Court
has held, both for the merits and for reparations the testimony of the alleged victims
and their next of kin is useful insofar as they can provide additional information on
the consequences of the violations that may have occurred.22
73.
As for the expert opinions offered as evidence (supra paragraphs 66.c, 66.d,
66.e, 66.f and 66.g), which were neither challenged nor contested, the Court admits
them and regards them as evidence.
74.
The Court will therefore assess the probatory value of the documents,
testimony, and expert opinions submitted in writing or rendered before the Court.
Evidence submitted at all stages of the proceedings has been combined into a single
body of evidence, which is taken as a whole.23
VII
PRELIMINARY OBJECTIONS
21
Cf. Case of Myrna Mack-Chang, supra note 7, para. 131; Case of Bulacio, supra note 7, para. 63;
and Case of Juan Humberto Sánchez, supra note 20, para. 56.
22

Cf. Case of Maritza Urrutia, supra note 7, para. 53; Case of Myrna Mack-Chang, supra note 7,
para. 132; and Case of Bulacio, supra note 7, para. 66.
23
Cf. Case of Maritza Urrutia, supra note 7, para. 57; Case of Bulacio, supra note 7, para. 68; andCase of Juan Humberto Sánchez, supra note 20, para. 60.

28

75.

The State filed the following preliminary objections:1)
failure to exhaust the following domestic remedies: a) legal action
challenging constitutionality, in the case of Mr. Mauricio Herrera Ulloa; b)
petition for review, in the case of Mr. Mauricio Herrera Ulloa; and c) petition
seeking habeas corpus relief in the case of Mr. Fernán Vargas Rohrmoser; and2)alleged “belated introduction” (and even material nonexistence) of thecourt order alleged to have caused Mr. Vargas Rohrmoser harm.
***

FIRST PRELIMINARY OBJECTION
Failure to exhaust domestic remedies
The State’s allegations
76.
The State pointed out that under articles 10 and 48 of the Constitution of
Costa Rica, there are four judicial mechanisms that ensure the exercise of humanrights to all persons subject to its jurisdiction: 1) a legal action filed to challenge
constitutionality; 2) judicial consultation on constitutionality; 3) the remedy ofhabeas corpus, and 4) the remedy of amparo. These remedies were not exhausted.
It alleged that:a)
Law No. 7135, the Constitutional Jurisdiction Act of October 11, 1989,
states that the purpose of a legal action challenging constitutionality is tocombat laws and other general provisions that violate, either by action oromission, some constitutional precept or principle;b)under the Costa Rican system, any private party may file an action
challenging constitutionality either through a “judicial motion or through legal
action.” The “motion” applies when a court decision is pending, even in thecase of petitions of habeas corpus or amparo, or in the proceeding to exhaust
the administrative avenue. Challenging a provision or act as unconstitutional
is a reasonable means to protect a subjective right or a legitimate interest
believed to have been wronged. The “legal action” avenue is broader in thesense that anyone has active legal standing to bring the action, regardless ofwhether that person is claiming direct or indirect injury. No court decisionneed be pending and the action can be brought to defend diffuse interests or
the interests of the group as a whole;c)the efficacy of an action challenging constitutionality stems from theeffects that follow from a finding of unconstitutionality when an action is filed
alleging that a provision does not apply because it is contrary to theConstitution or a violation of some fundamental right contained ininternational human rights instruments. Those effects, which are retroactive
for the accused or convicted, are: nullification of the provision or act being
challenged; res judicata; elimination of the provision or act from the juridical

29
system; grounds for suspension of the statute of limitations, and grounds forprejudiciality;d)an action challenging constitutionality is an effective and adequate
domestic remedy that would have enabled Costa Rica’s Constitutional Court toexamine the criminal law that criminals and punishes offenses against honor
and that was used to convict Mr. Herrera Ulloa, to determine whether it wascontrary to Article 13 of the Convention;e)Mr. Herrera Ulloa had legal standing to use the action challenging
constitutionality as a remedy by which to combat the alleged violation of his
basic rights;f)the alleged victims and their attorney filed a writ of cassation with theThird Chamber of the Costa Rican Supreme Court, although they “at least
foresaw” that a conviction might have been a violation of articles of theConstitution and of the American Convention and that the procedure required
to challenge constitutionality in a case not yet decided would have been a“motion”, not a legal action filed with the Supreme Court;g)under Article 408.g of Costa Rica’s Penal Code, the remedy of review
may be used to review convictions that have become final but were notdelivered in accordance with the rules of due process;h)
if a judgment has become final and there has been, as therepresentatives of the alleged victims claim, a violation of due process, thenthe basic conditions for filing an appeal for review have been met; yet thisdomestic remedy was not exhausted;i)although an appeal seeking review of a final verdict has traditionallybeen regarded as an extraordinary remedy, in the Costa Rican legal system itis permissible when violations of due process are being claimed. It thus
becomes an effective and adequate means to resolve violations of this type,which the alleged victims should have exhausted before turning to the Court.
Its efficacy can be attributed to its informality, to the procedure throughwhich the appeal is processed, to its legal effects and to the fact that“evidence can be offered orally, in a hearing held for that very purpose;”j)under Costa Rican law, a court taking cognizance of an appeal forreview of a criminal case must, before deciding the appeal, consult theConstitutional Chamber as to the content, preconditions and scope of theprinciples or rights alleged to have been violated. This is a “true guarantee”
for anyone who files an appeal for review, because any ruling delivered by
Costa Rica’s highest and only constitutional court “as regards the rights andprinciples alleged to have been violated, is binding;”k)
if the appeals court decides to vacate a lower court judgment, the casemust be sent back for retrial if the appellate court does not have sufficientmaterial to decide the case; if it does have that information, the appellate
court can decide the case once and for all;30l)
the April 3, 2001 decision ordering enforcement of the conviction in all
its parts could potentially have endangered Mr. Vargas Rohrmoser’s freedomof movement or personal liberty, in which case the petition of habeas corpus
would have been the proper procedural remedy to protect that freedom of
movement. As Mr. Vargas Rohrmoser did not avail himself of this procedural
remedy that the Costa Rican judicial system affords, he did not exhaust
domestic remedies;m)
Mr. Fernán Vargas Rohrmoser has not been denied his freedom of
expression and thought, and no definitive verdict against him has beendelivered. The April 3, 2001 court order being contested here is a simple
procedural decision. Indeed, procedurally speaking, he never had need of acourt of second instance and cannot claim violation of the principle ofpresumption of innocence or violation of his right to a hearing by a competentand impartial judge; andn)based on these considerations, the State argued that Article 46(1)(a)of the American Convention was applicable and, accordingly, asked the Court
to admit the preliminary objection asserting failure to exhaust local remedies.
Pleadings of the Commission
77.
Concerning the State’s preliminary objection claiming failure to exhaust
domestic remedies, the Inter-American Commission asked the Court to reject eachand every one of Costa Rica’s arguments on the grounds that:a)
The only remedies that need be exhausted are those appropriate forcorrecting the violations allegedly committed. In cases such as the present
case, in which a conviction was challenged through the ordinary remedies
available within Costa Rica’s criminal law system, the avenue that Mr. Herrera
Ulloa opted for was the proper one;b)
the State failed to show that the remedy challenging constitutionality
is, or could have been, an effective and adequate remedy for resolving thepresent case;c)the State alleged that the action challenging constitutionality “is theprincipal means to have a provision that violates fundamental rights declared
inapplicable;” yet the main ground for the petition is not the existence of thelaw applied, but rather the penalty imposed upon the alleged victims in theNovember 12, 1999 court ruling and the February 21, 2000 order for
enforcement of judgment;d)the State is confusing the object of the petition filed with theCommission with the object of the case brought to the Court. The object ofthe present case is the criminal sanction imposed on Mr. Herrera Ulloa andthe court’s demand of Mr. Vargas Rohrmoser, in violation of Article 13 of theConvention. “Therefore, with the final ruling delivered by the Supreme Court[...] the suitable and effective remedies have been exhausted;”e)
Review can only be requested when the right of due process or theright of defense during trial has been violated; this case, however, is“against” the criminal conviction, because the criminal penalty it establishes is31
incompatible with articles 2 and 13 of the Convention. No violation of due
process is being claimed; in other words, no violation of articles 8 and 25 of
the Convention is being alleged. The remedy of review could not have beenused to challenge the conviction on the grounds that it was contrary to Article
13 of the Convention; this argument alone is sufficient to dismiss thepreliminary objection;f)
the State never invoked the exception for failure to exhaust theremedy of review, which means that it tacitly waived this exception.
Therefore, by virtue of the principle of estoppel, it is now too late for Costa
Rica to invoke the exception for failure to exhaust domestic remedies withregard to the remedy of review;g)the State has tacitly waived the exception alleging Mr. Fernán Vargas
Rohrmoser’s failure to exhaust domestic remedies with regard to the petitionof habeas corpus, since that objection was not raised during the proceeding
before the Commission;h)
the State did not expressly state how the petition of habeas corpus
would have served as an effective and suitable remedy that Mr. Vargas
Rohrmoser should have exercised;i)assuming, arguendo, that the petition of habeas corpus could havebeen filed, it would have been ineffective based on the jurisprudence of theConstitutional Chamber of Costa Rica’s own Supreme Court, which declaredthat the petition of habeas corpus was not the proper remedy to appeal
convictions in criminal cases or to appeal court orders for enforcement of
those criminal convictions; andj)the petition of habeas corpus was neither suitable nor effective forpurposes of remedying the consequences of noncompliance with the April 3,2001 order for enforcement of the sentence delivered against Mr. Vargas
Rohrmoser.
Pleadings of the representatives of the alleged victims
78.
For their part, the alleged victims’ representatives petitioned the Court toreject in limine the preliminary objection claiming failure to exhaust the remedies ofdomestic law. The representatives argued that:a)in its brief of August 10, 2001, presented to the Commission withregard to the admissibility of the petition that gave rise to the present case,the State did not invoke Article 46(1)(a) of the American Convention, which
requires prior exhaustion of the remedies under domestic law;b)
in a later brief, dated November 30, 2001, the State alleged that Mr.
Mauricio Herrera Ulloa had not attempted to bring an action challenging
constitutionality. This, according to the State, was the only remedy that,
under Costa Rica’s Constitutional Jurisdiction Act, Mr. Herrera Ulloa would
have been entitled to invoke. The State cited his failure to exhaust that
remedy as grounds for eventual application of Article 46(1)(a) of theConvention. In its briefs answering the petition filed with the Commission,

32
the State tacitly waived the exception for failure to exhaust domestic
remedies that it now invokes, except in the case of the action challenging
constitutionality;c)even though Costa Rica’s objection claiming failure to exhaust
domestic remedies could have been regarded as “belated” and “vague” in its
construction and could have been have been dismissed in limine, theCommission examined it all the same and then dismissed it;d)the argument asserting failure to exhaust domestic remedies, which
the State claimed in its brief answering the application filed with the Court, isa belated one, as the Commission was the body that should have decided thisquestion; therefore the State is understood as having tacitly waived thisdefense;e)while the action challenging constitutionality provided for in theConstitution and elaborated upon in Article 75 of the Constitutional
Jurisdiction Act is a legal action whose effects are to nullify erga omnes aprovision or law on the grounds that it is unconstitutional, it is mainly an
incidental proceeding;f)the action challenging constitutionality is an extraordinary remedy
regulated by a special law. In theory, at least, such an action can be used tochallenge the public authorities’ interpretation or application of a legal norm.
In Mr. Herrera Ulloa’s case, however, until the conviction came down he had
no way of knowing how the law alleged to be in violation of the Convention
would be interpreted and, by extension, how the court would apply it to his
specific case;g)in the case filed with the Court, the alleged victims were acquitted by
the court of first instance and therefore did not have legal standing to bringan action challenging constitutionality. When the Supreme Court upheld thelater conviction, which made it final, the action challenging constitutionality
could no longer be filed as there was no longer any criminal proceedingunderway, which is a precondition under Costa Rican law. The alleged
victims could not then –and cannot now- bring the action challenging
constitutionality to which the State alludes to support its claim that the caseis inadmissible;h)
Article 8(1) of the Constitutional Jurisdiction Act requires the organs of
the administration of justice to desist from applying any provision found to becontrary to the Constitution, either ex officio or at the request of a party; incase of doubt, an organ for the administration of justice must refer the matterto the Constitutional Court. In the instant case, it was the judge hearing thecase who, “as the presiding and sentencing judge,” should have taken steps
to determine whether the criminal law he was going to invoke was compatible
with the Convention;i)the alleged victims made the case to the Third Chamber of the Costa
Rican Supreme Court that the Criminal Court of the First Judicial Circuit of
San José did not have jurisdiction to amend the juridical determination of thefacts denounced by the party filing the criminal complaint. But the Third
Chamber of the Costa Rican Supreme Court ruled that “the court […] does

33
have the authority to determine [the substantive object of the proceeding]
based on the corresponding legal description of the crime [and …] has an
obligation to alter the crime charged to the one it deems best fits the facts;”
j)Mr. Mauricio Herrera Ulloa did not know what crime he was charged
with until the guilty verdict was delivered. In practice, an action filed tochallenge constitutionality during a criminal proceeding is “an entirely
unpredictable exercise,” since the “crimes charged by the accuser are
irrelevant,” as confirmed by the experts who testified in the public hearing
held by the Court;k)an action challenging constitutionality is not an ordinary remedy, but avery specific action different from all other domestic remedies; the proceeding
involved is costly, difficult and lengthy;l)applying the State’s interpretation, the argument that an action
challenging constitutionality must be filed in order for domestic remedies tobe considered pursued and exhausted would mean that cases where thesentencing court orders damages that are irreparable for the alleged victims
could not be brought to the Commission or to the Court if those court rulings
are enforced. In effect, to file an action challenging constitutionality in Costa
Rica, a case must still be pending with the courts;m)the alleged victims could not have required to file an action challenging
the constitutionality of their conviction to exhaust domestic remedies before
turning to the inter-American system since, under Article 10 of Costa Rica’s
Constitution, actions challenging the constitutionality of convictions areimpermissible;n)an action challenging constitutionality is not a remedy that must be
pursued and exhausted in accordance with Article 46(1) of the Convention,
because it is not an ordinary remedy under generally accepted principles ofinternational law and is not an effective remedy for purposes of protecting theviolated rights;o)under Costa Rican criminal procedural law, a petition seeking review isonly permitted when, in case ending in a conviction, some right of defense
per se is said to have been violated. Therefore, under Costa Rican procedurallaw, a violation of any other aspect covered under the guarantee of due
process cannot be protected by filing for habeas corpus relief, pursuant to
Article 408.g of the Costa Rican Code of Criminal Procedure;p)in Mr. Herrera Ulloa’s case, the violations of due process alleged in thebrief of pleadings, motions and evidence that the alleged victims’
representatives filed with the Inter-American Court are threefold, namely: a)
the right to appeal a judgment to a higher court; b) the right to a hearing by
an impartial court or judge; and c) the right to be presumed innocent.
Violation of Mr. Herrera Ulloa’s right of defense has not been claimed. His
circumstances were such that he did not have standing to file an appeal
seeking review of the guilty verdict;34
q)in the instant case, the one remedy allowed against the guilty verdict
delivered by the Criminal Court of the First Judicial Circuit of San José,
namely the remedy of cassation, was pursued and exhausted;r)none of the remedies that the State mentioned in its brief answering
the application and its observations on the brief of pleadings, motions andevidence rises to the standards of adequacy and effectiveness that theConvention and general international law require in order for the exception
claiming failure to pursue and exhaust the remedies under domestic law toprosper;s)a petition of habeas corpus would not protect Mr. Fernán Vargas
Rohrmoser’s right to personal liberty in the face of the April 3, 2001 court
order; his failure to comply with that court order within the time period that
the Criminal Court specified could have resulted in indictment on charges ofcontempt of authority, as provided in Article 307 of the Penal Code. The
court could have sentenced him to prison; andt)the petition seeking habeas corpus relief was not an adequate andeffective procedural remedy that Mr. Vargas Rohrmoser was required toexhaust before turning to the inter-American system, since under Costa Rica’s
constitutional procedural system, petitions of habeas corpus are not permitted
against judgments delivered by criminal courts or against criminal court
orders or acts.
Considerations of the Court
79.
The broad terms of the wording of the Convention indicate that the Court
exercises full jurisdiction over matters pertaining to a case, which includes
competence to rule on the procedural prerequisites that are the basis for its
authority to hear a case.24

80.
Article 46(1)(a) of the Convention provides that for the Commission to admit
a petition or communication lodged in accordance with Articles 44 or 45, theremedies under domestic law must have been pursued and exhausted in accordancewith generally recognized principles of international law.

81.
The Court has established criteria that have to be taken into account in the
instant case. Firstly, the respondent State may expressly or tacitly waive invocationof the rule requiring exhaustion of domestic remedies.25 Secondly, in order to be
24

Cf. Case of Juan Humberto Sánchez, supra note 20, para. 65; Case of 19 Merchants. Preliminary
Objection. Judgment of June 12, 2002. Series C No. 93, para. 27; and Case of Constantine et al.
Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, para. 71.

25

Case of Mayagna (Sumo) Awas Tingni Community. Preliminary Objections. Judgment of February
1, 2000. Series C No. 66, para. 53; Case of Loayza-Tamayo. Preliminary Objections. Judgment of January
31, 1996. Series C No. 25, para. 40; and Case of Castillo-Páez. Preliminary Objections. Judgment ofJanuary 30, 1996. Series C No. 24, para. 40.

35timely, the objection that domestic remedies have not been exhausted should beraised during the first stages of the proceeding or, to the contrary, it will be
presumed that the interested State has waived its use tacitly.26 Thirdly, in previous
cases the Court has held that non-exhaustion of domestic remedies is purely an
admissibility issue and that the State that alleges non-exhaustion must indicate
which domestic remedies should be exhausted and provide evidence of theireffectiveness.27
82.
In its submission of November 30, 2001, the State raised the issue of nonexhaustion of domestic remedies with the Commission,28, but the only remedy not
exhausted that the State cited was the “action challenging constitutionality.”
83.
Based on the criteria cited above (supra para. 81), the Court finds thatinasmuch as the State did not allege a failure to exhaust the remedies of review andhabeas corpus during the proceedings before the Inter-American Commission, it
implicitly waived one means of defense that the American Convention creates in its
favor, and tacitly admitted that such remedies either do not exist or were exhausted
in a timely manner.29 Therefore, the principle of estoppel prevents the State fromraising this argument, for the first time, in its brief answering the application and its
observations on the written brief of pleadings, motions and evidence (supra para.
33).
84.
A different situation presents itself in the case of the “action challenging
constitutionality,” since in its November 30, 2001 brief, during the admissibility
proceeding conducted by the Inter-American Commission on Human Rights, theState argued the failure to substantiate this remedy.
85.
The Court is compelled to point out that the action challenging
constitutionality is an extraordinary recourse whose purpose is to question theconstitutionality of a law, not to have a court ruling reviewed. Hence, the action
challenging constitutionality cannot be counted among the domestic remedies that apetitioner is necessarily required to pursue and exhaust.
86.
In its Admissibility Report No. 128/01 of December 3, 2001, the Commission
wrote that the “central object of the petition” filed with the Commission was the
sanction that the November 12, 1999 judgment the Criminal Court of the First

26
Case of Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 25, para.
53; Case of Castillo Petruzzi et al. Preliminary Objections. Judgment of September 4, 1998. Series C No.
41, para. 56; and Case of Loayza-Tamayo. Preliminary Objections, supra note 25, para. 40.
27
Case of Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 25, para.
53; Case of Durand and Ugarte, Preliminary Objections. Judgment of 28 May 1999. Series C. No. 50, para.
33; and Case of Cantoral Benavides. Preliminary Objections. Judgment of September 3, 1998. Series C
No. 40, para. 31.
28
Cf. Brief answering the questions posed by the Inter-American Commission on Human Rights at
the November 16, 2001 hearing (file of proceedings with the Inter-American Commission on Human
Rights, volume II, folios 273 to 277).
29

Cf. Case of Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 25,para. 56; Case of Castillo-Petruzzi et al. Preliminary Objections, supra note 26, para. 56; and Case of
Loayza-Tamayo. Preliminary Objections, supra note 25, para. 43.

36
Judicial Circuit of San José imposed, and that by filing a writ of cassation, the alleged
victims had exhausted the domestic remedies.30
87.
The Court has no grounds to re-examine the Commission’s reasoning, whichis completely consistent with the relevant provisions of the Convention. The Court,
therefore, dismisses the first preliminary objection.
***
SECOND PRELIMINARY OBJECTION
Alleged “belated introduction” (and even material nonexistence) of the court orderalleged to have caused Mr. Vargas Rohrmoser harm

The State’s allegations
88.

The State’s arguments for the second preliminary objection were as follows:a)the court order issued in the case of Mr. Vargas Rohrmoser was dated
April 3, 2001, which meant that it was delivered subsequent to the date on
which the petition with the Commission was filed;b)subsequent to April 3, 2001, no brief was ever filed with theCommission asking that it expand upon the alleged victims’ petition so as toinclude that court order. For that reason, the April 3, 2001 order “ought not
to be litigated, inasmuch as there is no express statement to the effect” that
it is included;c)
if that court order is ruled out, then “Mr. Vargas Rohrmoser’s cause forcomplaint would disappear and he would have no standing to request thisCourt’s protection”;
d)in the evidence the Commission supplied as annexes to theapplication, one “does not find either the order itself or a citation from theApril 3, 2001 judgment it.” In the brief of pleadings, motions and evidence,
the representatives of the alleged victims “state that the order for
enforcement of judgment, dated April 3, 2001, appears in Annex 9; such is
not the case;” ande)
the April 3, 2001 court order, the only court ruling that went against
Mr. Vargas Rohrmoser, was not introduced by the alleged victims’
representatives; instead, it was done by the Commission ex officio, which is
why its exclusion is being requested.

Pleadings of the Commission
89.
The Inter-American Commission asked the Court to dismiss the second
preliminary objection, in each and every one of the arguments presented by Costa
Rica. It asserted that:
30
Cf. Admissibility Report of the Inter-American Commission on Human Rights No. 128/01 (file ofthe proceeding before the Inter-American Commission on Human Rights, Volume II, folio 296).

37a)the development of a case filed with the inter-American system does
not stop when a petition is filed with the Commission. When new facts occurthat materially affect the case, the Commission can and indeed must takethem into account. The inclusion of supervening evidence must be considered
provided the right of defense and the principle of juridical certainty arepreserved;b)
the State’s request that the information or supervening evidence beprecluded must be rejected since the April 3, 2001 court order is a directconsequence of the February 21, 2001 order for enforcement of judgment
delivered by the Criminal Court of the First Circuit of San José, which ordered
Mr. Vargas Rohrmoser to make good on the penalty imposed on thenewspaper “La Nación” in the November 12, 1999 judgment;c)the State had full knowledge of the April 3, 2001 decision from thetime it was delivered by one of its own courts; andd)Costa Rica cannot request that the April 3, 2001 decision be precluded
as that decision does not alter the facts; instead, it confirms them.
Pleadings of the alleged victims’ representatives
90.
Concerning the preliminary objection raised by the State alleging that a court
order involving Mr. Vargas Rohrmoser was introduced belatedly and indeed nottangibly presented at all, the alleged victims’ representatives petitioned the Court toreject each and every argument, based on the following reasoning:a)the April 3, 2001 court decision ordered enforcement of the judgmentthat found Mr. Herrera Ulloa and the “La Nación” newspaper jointly andseverally liable, and dismissed the “petition seeking reversal and concomitantnullification” filed by the alleged victims against the court order for executionof judgment issued on February 21 of that year. The important thing is tohave presented the February order being challenged, which became final withthe order of April 3, 2001;b)
the threat to Mr. Vargas Rohrmoser’s freedom “does not originate”
with the April 3, 2001 decision; it stems from that provision of the Penal Codethat describes the crime of contempt;c)there is no arguing the existence of the April 3, 2001 ruling,irrespective of what was forwarded to the Court as an annex to theCommission’s application. The State attempted to deny the very existence
and relevance of a court decision that it expressly included in its brief ofNovember 30, 2001; andd)
all domestic remedies were pursued and exhausted in the case of Mr.
Vargas Rohrmoser, which is why the State’s objection has no valid foundationin the law.
Considerations of the Court

38
91.
As for the alleged belated introduction of the April 3, 2001 order, the Court
finds that while it was indeed a court action that occurred after the petitioners had
filed their petition with the Commission on March 1, 2001 ((supra para. 6), it is stillpart of the body of evidence in the present case (supra para. 68) and was introducedin the course of the proceedings with the inter-American system for the protection ofhuman rights. On May 10, 2001, when provisional measures on Mr. Mauricio Herrera
Ulloa’s behalf were requested, a copy of that court order was presented. It should
be recalled that the body of evidence in a case is unique and indivisible and iscomposed of the evidence submitted during all stages of the proceeding,31 so the
documents contributed by the parties with respect to the preliminary objections arealso part of the evidence in the instant case (supra para. 68).
92.
The order in question is a juridical consequence of the conviction that thealleged victims challenge and is part of a proceeding before the inter-Americansystem for the protection of human rights and cannot be analyzed in isolation.
93.
As for the “material non-existence” of the order in question, the latter was
delivered by one of the State’s own courts; the State cannot be ignorant of it.
94.
Given the foregoing, the Court dismisses the preliminary objection claiming
the “belated introduction” and “material non-existence” of the April 3, 2001 order as
being unfounded and inadmissible.
VIII
PROVEN FACTS
95.
Having examined the documents, the statements of the witnesses, theopinions of the experts and the pleadings of the Commission, of the alleged victims’
representatives and of the State during the course of the present proceeding, thisCourt deems the following facts proven:With respect to Mr. Mauricio Herrera Ulloa
95(a)Mr. Mauricio Herrera Ulloa has worked at the “La Nación” newspaper for
twelve years. At the time of the events in the instant case, he was working as ajournalist in the newspaper’s political affairs section.32
With respect to Mr. Fernán Vargas Rohrmoser
95(b)Mr. Fernán Vargas Rohrmoser is currently vice chairman of the Board of
Directors and general agent for the newspaper “La Nación”. At the time of the eventsin the instant case, Mr. Vargas Rohrmoser was chairman of the Board of Directors
and legal representative of “La Nación.”33
31
Cf. Case of Myrna Mack-Chang, supra note 7, para. 129; Case of Bulacio, supra note 7, para. 68;
and Case of Juan Humberto Sánchez, supra note 20, para. 60.
32

Cf. testimony of Mr. Mauricio Herrera Ulloa given before the Inter-American Court of Human
Rights during the public hearing held on April 30, 2004; and articles published in the newspaper “La
Nación” (file of annexes to the application, volume I, annex 6, folios 694-698).

33
Cf. testimony of Mr. Fernán Vargas Rohrmoser given before the Inter-American Court of Human
Rights during the public hearing on April 30, 2004; and chapter IX on the civil damages suit in Judgment
Number 1320-99, November 12, 1999 of the Criminal Court of the First Judicial Circuit of San José, Group
Three, San José (file of annexes to the application, volume II, annex 8, folio 1213).

39

With respect to the first series of articles that “La Nación” published95(c)Before publishing various articles, Mr. Herrera Ulloa followed the routine
procedure at “La Nación” for checking a story.34
95(d)On May 19, 1995, the newspaper “La Nación” carried an article titled“Diplomático nacional cuestionado en Bélgica” [“Questions about a Costa Rican
diplomat in Belgium”]. In that article, journalist Mauricio Herrera Ulloa, a writer forthat paper, reported a portion of a news story that “Le Soir Illustré” reported basedon an investigation conducted by the newspaper Financieel-Ekonomische Tijd (FET)that linked Mr. Félix Przedborski, Costa Rica’s delegate to the International Atomic
Energy Agency (IAEA)- to a number of illicit activities.35
95(e)On May 20, 1995, “La Nación” published an article titled “Diplomático ticocontroversial. Autoridades de Bélgica exonerarían a Przedborski” [“Costa Rican
diplomat caught up in controversy. Belgian authorities expected to clear
Przedborski”]. That article was authored by Mr. Mauricio Herrera Ulloa as a writer forthat newspaper and reproduced, inter alia, a portion of the contents of amemorandum from the Office of the King’s Counsel in Liege, Belgium, favorable to
Mr. Przedborski.36
95(f)On May 21, 1995, “La Nación” carried an article titled “Multimillonario
negocio en Europa. Nexo tico en escándalo Belga” [“Multimillion dollar deal in
Europe. Costa Rican link in Belgian scandal”], also authored by Mr. Mauricio Herrera
Ulloa as a staff writer with that newspaper. This May 21 article reported information
taken from articles published in Le Soir Illustré”, “Financieel-Ekonomische Tijd (FET)”and “La Libre Belgique”, concerning, inter alia, Mr. Félix Przedborski’s involvementwith Mr. Leon Deferm, one of the names most strongly linked to the “supposed
payment of secret commissions in the sale of Italian military helicopters to theBelgian State.” 37

34

Cf. testimony of Mr. Mauricio Herrera Ulloa given before the Inter-American Court of Human
Rights during the public hearing held on April 30, 2004; testimony of Mr. Fernán Vargas Rohrmoser given
before the Inter-American Court of Human Rights during the public hearing held on April 30, 2004.

35

Cf. article published in the newspaper “La Nación” of May 19, 1995 (file of annexes to theapplication, volume I, folio 694 ); translation of the article titled “L étrange monsieur” published in thenewspaper “Le Soir lllustré,” April 5, 1995 edition (file of annexes to the application, volume I, annex 6,
folios 721 to 730).
36

Cf. article published in the newspaper “La Nación,” 20 May 1995 edition (file of annexes to theapplication, volume I, annex 6, folio 695).

37

Cf. article published in the newspaper “La Nación,” 21 May 1995 edition (file of annexes to theapplication, volume I, annex 6, folio 696).

40
95(g)
In the May 25, 1995 edition of “La Nación” Mr. Félix Przedborski publishedan article titled “Nací en el dolor y respeto a Costa Rica,” where the diplomat gave
his version of the facts.38

With respect to the second series of articles published in “La Nación”
95(h)In following the procedure that “La Nación” uses to check stories, on
November 30, 1995 Mr. Mauricio Herrera Ulloa sent Mr. Ricardo Castro Calvo,
attorney for Mr. Félix Przedborski, a questionnaire concerning the facts reported in
the foreign press in connection with his client. He did this prior to publishing thesecond set of articles, which ran on December 13, 14, 15 and 16, 1995.39
95(i)On December 13, 1995, “La Nación” carried an article titled “Embajador
honorario. Polémico diplomático en la mira” [“Honorary Ambassador. Diplomatic
controversy in the crosshairs”], authored by journalist Mauricio Herrera Ulloa as awriter for that newspaper. The article reported, inter alia, on the formation of ahigh-level commission within Costa Rica’s Ministry of Foreign Affairs and Foreign
Service, which in its second week of meetings proposed the elimination of all
honorary diplomatic posts. The article also reproduced news that had originallyappeared in the Belgian newspaper De Morgen, in an article titled “Felix Przedborski:
van gangster tot diplomaat”, which stated that “ [Mr. Przedborski’s] diplomatic status
put him beyond the reach of the law.”40
95(j)Three other articles carried by “La Nación” and written by Mr. Mauricio
Herrera Ulloa made reference to Mr. Félix Przedborski, but were not targeted in thecriminal complaint.41 On December 14, 1995, an article titled “El espinoso expediente
Przedborski” [“The thorny Przedborski file”];42 on December 15, 1995, it publishedanother article titled “Oleo de pasaportes a Przedborski”43; and on December 16,
38
Cf. article published in the “La Nación” newspaper on 25 May 1995 (file of evidence presented
during the public hearing held on April 30 and May 1, 2004, single volume, folio 3550).
39
Cf. Questionnaire that journalist Mauricio Herrera Ulloa sent to Mr. Félix Przedborski, by way of
attorney Ricardo Castro Calvo (file on preliminary objections and possible merits, reparations and costs,
volume I, annex f of the brief of pleadings, motions and evidence of the alleged victims’ representatives,
folios 342-348); testimony of Mr. Ricardo Castro Calvo before the Criminal Court of the First Judicial
Circuit of San José (file of annexes to the application, volume I, annex 7, folio 853); testimony of Mr.
Mauricio Herrera Ulloa before the Inter-American Court of Human Rights during the public hearing held on
April 30, 2004; and testimony of Mr. Fernán Vargas Rohrmoser before the Inter-American Court of Human
Rights at the public hearing held on April 30, 2004.
40

Cf. article published in the newspaper “La Nación” dated 13 December 1995 (file of annexes tothe application, volume I, annex 6, folios 697 and 698); and translation of the article titled “Felix
Przedborski: van gangster tot diplomaat” published in the newspaper “De Morgen,” July 5, 1995 edition(file of annexes to the application, volume I, annex 6, folios 760 to 766).
Cf. Testimony given by Mr. Mauricio Herrera Ulloa before the Inter-American Court of Human
Rights during the public hearing held on April 30, 2004; and Judgment Number 61-98 of May 29, 1998, of
the Criminal Court of the First Judicial Circuit of San José, Group Three, San José (file of annexes to theapplication, volume I, annex 7, folios 810 to 818).
41

42

Cf. article published in “La Nación” on December 14, 1995 (file of evidence presented during the
public hearing held on April 30 and May 1, 2004, single volume, folio 3547).
43
Cf. article published in “La Nación” on December 15, 1995 (file of evidence presented during the
public hearing held on April 30 and May 1, 2004, single volume, folio 3549).

41
1995, it published “Przedborski: tico tras dos intentos” [“Przedborski: Costa Rican
behind two attempts”].44

With respect to Mr. Félix Przedborski’s status as a public official at the time thearticles were published95(k)On August 20, 1976, the Ministry of Foreign Affairs, by agreement 358-SE,
designated Mr. Félix Przedborski as Permanent Delegate to the International Atomic
Energy Agency headquartered in Vienna.45
95(l)On September 7, 1979, the Ministry of Foreign Affairs, by agreement 832SE, designated Mr. Félix Przedborski as Chargé of Tourism Affairs ad-honorem of
Costa Rica’s Embassy in France.46
95(m) On April 15, 1983, the Ministry of Foreign Affairs, through agreement 173
DVM, appointed Mr. Félix Przedborski as Costa Rica’s Permanent Representative to
the International Atomic Energy Agency, headquartered in Vienna, with the rank of
Ambassador.47
95(n)The State of Costa Rica appointed a commission to study the restructuringof the Ministry of Foreign Affairs and of the honorary diplomatic service,48 which
decided to revoke the appointments of the honorary diplomats, one of whom was Mr.
Félix Przedborski.49

44

Cf. article published in “La Nación” on December 16, 1995 (file of evidence presented during the
public hearing held on April 30 and May 1, 2004, single volume, folio 3548).
45
Judgment Number 61-98 of May 29, 1998 of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, folio 826 ); testimony
given by Mr. Félix Przedborski before the Criminal Court of the First Judicial Circuit of San José (file ofannexes to the application, volume I, annex 7, folio 838); and Judgment Number 1320-99 of November
12, 1999, of the Criminal Court of the First Judicial Circuit of San José, Group Three, San José (file ofannexes to the application, volume II, annex 8, folio 913).
46
Judgment Number 61-98 of May 29, 1998, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, folio 826); andJudgment Number 1320-99 of November 12, 1999, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume II, annex 8, folio 913).
47
Judgment Number 61-98 of May 29, 1998, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, folio 826 ); andJudgment Number 1320-99 of November 12, 1999, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume II, annex 8, folio 913).
48
Cf. A fact acknowledged by the State in its brief answering the application and in its commentson the written brief containing pleadings, motions and evidence (file on preliminary objections andpossible merits, reparations and costs, volume II, folio 466); testimony given by Mr. Mauricio Herrera
Ulloa before the Inter-American Court of Human Rights during the public hearing held on April 30, 2004;
and testimony given by Mr. Félix Przedborski before the Criminal Court of the First Judicial Circuit of San
José (file of annexes to the application, volume I, annex 7, folio 838).
49

Cf. Testimony of Mr. Félix Przedborski before the Criminal Court of the First Judicial Circuit of San
José (file of annexes to the application, volume I, annex 7, folio 838); and testimony given by Mr.
Mauricio Herrera Ulloa before the Inter-American Court of Human Rights during the public hearing held on
April 30, 2004.

42
95(o)
On June 28, 1996, the Ministry of Foreign Affairs, by agreement 186-SE,“severed [Mr. Félix Przedborski] from his post as Permanent Representative of Costa
Rica to the International Atomic Energy Agency;” he remained in his post until June30, 1996.50
With respect to the criminal complaints and the civil suit for damages filed against
Mr. Mauricio Herrera Ulloa as criminal and civil defendant, and against thenewspaper “La Nación” as civil defendant95(p)Mr. Félix Przedborski filed two criminal complaints against journalist
Mauricio Herrera Ulloa in the Costa Rican courts for the crimes of defamation,
calumny and publication of offenses, based on the publication of the afore-mentioned
articles (supra paragraphs 95(d), 95(e), 95(f), and 95(i)). One of the criminal
complaints was filed in connection with the first set of articles, which appeared on
May 19, 20 and 21, 1995; the other was filed in connection with one of the articles
from the second series, specifically the one published on December 13, 1995. In
addition to the criminal complaints, Mr. Félix Przedborski also filed a civil suit seeking
damages from Mauricio Herrera Ulloa and the newspaper “La Nación”51.
95(q)On May 29, 1998, the Criminal Court of the First Judicial Circuit of San Josédelivered a verdict acquitting Mr. Mauricio Herrera Ulloa on the grounds that he had
not acted with the malice that must be present for the actions to constitute thecrimes of defamation, calumny and propagating or publishing offenses. The
judgment stated that Mr. Herrera Ulloa’s actions were not carried out in the “spirit ofmalice or […] purely out of a desire to give offense; instead, he acted out of his duty
to report questions being raised abroad concerning a Costa Rican public official.”52
The judgment also dismissed the civil suit brought against the journalist and thenewspaper “La Nación.”5395(r)The attorney for Mr. Przedborski filed a writ of cassation with the Third
Chamber of the Costa Rican Supreme Court challenging the May 29, 1998 judgment(supra para. 95(q)) on the grounds of “procedural error,” “failure to establish arational bases,” and “judicial error.”5495(s)On May 7, 1999, the Third Chamber of the Costa Rican Supreme Court,
composed of Daniel González Álvarez (President), Mario Alberto Houed Vega, Alfonso50
Judgment Number 61-98 of May 29, 1998, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, folio 826 ); testimony
given by Mr. Félix Przedborski before the Criminal Court of the First Judicial Circuit of San José (file ofannexes to the application, volume I, annex 7, folio 838); and Judgment Number 1320-99 of November
12, 1999, of the Criminal Court of the First Judicial Circuit of San José, Group Three, San José (file ofannexes to the application, volume II, annex 8, folio 913).
51
Judgment Number 61-98 of May 29, 1998, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, folio 810).
52

Judgment Number 61-98 of May 29, 1998, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, final observations on
the facts and the law, point seven, folio 892).
53
Judgment Number 61-98 of May 29, 1998, of the Criminal Court of the First Judicial Circuit of San
José, Group Three, San José (file of annexes to the application, volume I, annex 7, Chapter XI on the civil
suit for damages and costs, folio 894).
54
Judgment No. 000540-99 of May 7, 1999, of the Third Chamber of the Costa Rican Supreme
Court (file on preliminary objections and possible merits, reparations and costs, volume I, annex g to thewritten brief of pleadings, motions and evidence of the alleged victims’ representatives, folios 349 and
350 to 352).

43
Chaves Ramírez, Rodrigo Castro Monge and Carlos Luis Redondo Gutiérrez (alternate
justice), delivered a judgment wherein it decided the writ of cassation filed by theattorney for Mr. Félix Przedborski challenging the May 29, 1998 judgment. The Third
Chamber of the Costa Rican Supreme Court nullified the verdict being challenged
because “the court from which the case was removed […] took the analysis […] in a
direction other than the one required for a proper inquiry into the existence or nonexistence of the facts of the criminal complaint, particularly regarding such afundamental question as what did defendant Mauricio Herrera Ulloa know and what
was his intent [.] […T]he bases of the judgment are not sufficient to reasonably
discard the presence of actual or possible malice (with regard to the crimes
charged).”55
95(t)On November 12, 1999, the Criminal Court of the First Judicial Circuit of
San José delivered a verdict convicting Mr. Mauricio Herrera Ulloa and declared thatthe articles of May 19, 20 and 21, and of December 13, 1995 “were written andpublished fully mindful of the offensive nature of their content and for the sole
purpose of dishonoring and besmirching the reputation of Mr. Félix Przedborski.” His
was convicted on four counts of the crime of publishing offenses constituting
defamation under Article 152 in relation to Article 146 of the Costa Rican Penal Code;the court further held that the defense of justification (exceptio veritatis) was
dismissed. The court sentenced Mr. Mauricio Herrera Ulloa to a forty-day fine foreach crime, at ¢2,500.00 (two thousand five hundred colones) per day, for a total of
160 days in fines. In application of the rule of concurso material (where a number ofrelated crimes are combined to reduce the penalty that would have been required
had each separate crime carried its own weight), “the fine [wa]s reduced to be threetimes the maximum per count”; in other words, the fine was reduced from 160 to
120 days, for a total of ¢300,000.00 (three hundred thousand colones). The
Criminal Court of the First Judicial Circuit of San José also ordered Mr. Mauricio
Herrera Ulloa to publish the “Now Therefore” portion of the conviction in thenewspaper “La Nación”, in the section called “El País”, in the very same print face
used in the impugned articles.”5695(u)The November 12, 1999 conviction (supra para. 95 (t)) upheld the suit fordamages, sentencing Mr. Mauricio Herrera Ulloa as a writer for the newspaper “La
Nación” and the newspaper itself “for publishing defamatory articles.” The court held
them to be jointly and severally liable and ordered them to pay ¢60,000,000.00(sixty million colones) for the moral damage caused by the articles that appeared in“La Nación” on May 19, 20, 21, and December 13, 1995. In the case of “La Nación,”the court ordered that it take down the “link” at the La Nación Digital website on theinternet between the surname Przedborski and the impugned articles; it ordered thenewspaper to establish a “link” at La Nación Digital between the articles in question
and the operative part of the judgment. Finally, the Costa Rican court ordered
Mauricio Herrera Ulloa and “La Nación” to pay court costs in the amount of

55

Judgment No. 000540-99 of May 7, 1999, of the Third Chamber of the Supreme Court of Justiceof Costa Rica (file on preliminary objections and possible merits, reparations and costs, volume I, annexg) to the written brief of pleadings, motions and evidence of the alleged victims’ representatives, folio
354).

56
Judgment Number 1320-99 of November 12, 1999, of the Criminal Court of the First Judicial
Circuit of San José, Group Three, San José (file of annexes to the application, volume II, annex 8, “Now,
Therefore” of the Judgment, folios 920 and 1216 to 1218).

44¢1,000.00 (one thousand colones) and personal damages in the amount of¢3,810,000.00 (three million eight hundred ten thousand colones).57
95(v)
In the wake of the criminal and civil judgment that the Criminal Court of theFirst Judicial Circuit of San José handed down against him on November 12, 1999,
Mr. Mauricio Herrera Ulloa abstained from publishing any further information
regarding Mr. Félix Przedborski.58
95(w) On December 3, 1999, the defense attorney representing Mauricio Herrera
Ulloa and the special legal counsel representing Herrera Ulloa and the newspaper “La
Nación” filed a writ of cassation with the Criminal Trial Court of the First Judicial
Circuit of San José seeking nullification of the November 12, 1999 conviction (suprapara. 95(t)) on the grounds of, inter alia, defects in the reasoning of the judgment
due to violation of the rules governing reasoned judgment arrived at freely and on
the basis of admissible evidence. In that writ, the court was asked to nullify the
judgment and to acquit the accused.59 Mr. Mauricio Herrera Ulloa, “together with Mr.
Fernán Vargas Rohrmoser, as agent for La Nación”, also filed a writ of cassation
separate from the one filed by Mr. Herrera Ulloa’s defense attorney and claiming,
inter alia, “nonobservance of the rules of logical inference” and “lack ofcorrespondence between charge and judgment.”60
95(x)On January 24, 2001, the Third Chamber of the Costa Rican Supreme Court,
composed of Daniel González Alvarez (President), Mario Alberto Houed Vega, Alfonso
Chaves Ramírez, Rodrigo Castro Monge and Carlos Luis Redondo Gutiérrez (alternate
justice), dismissed the writs of cassation filed by the defense attorney for the
personal charged in the criminal complaint and the special legal counsel for thenewspaper “La Nación”, and by Mr. Mauricio Herrera Ulloa and Mr. Fernán Vargas
Rohrmoser, respectively (supra para. 95(w)) With the dismissal of those writs, theNovember 12, 1999 conviction became final (supra para. 95(t)).61
95(y)The Third Chamber of the Costa Rican Supreme Court that dismissed thetwo writs (supra para. 95(x)) was composed of the same justices who decided thewrit of cassation filed by the attorney for Mr. Félix Przedborski in a decision dated

57
Judgment Number 1320-99 of November 12, 1999, of the Criminal Court of the First Judicial
Circuit of San José, Group Three, San José (file of annexes to the application, volume II, annex 8, “Now,
Therefore” of the Judgment, folios 1214 and 1217).
58
Cf. testimony of Mauricio Herrera Ulloa given before the Inter-American Court of Human Rights at
the public hearing held on April 30, 2004; official translation of the German book titled “Jürgen Roth” (The
Eminence Gris) by Hoffmann and Campe (file of evidence presented during the public hearing held on April
30 and May 1, 2004, single volume, folios 3468- 3510).
59
Cf. writ of cassation filed by Mr. Fernando Lincoln Guier Esquivel (file of annexes to theapplication presented by the Inter-American Commission on Human Rights, volumes II-III, annex 12,
folios 1248-1393); and January 24, 2001 ruling on the writs of cassation. Third Chamber of the Costa
Rican Supreme Court, San José (file of annexes to the application, volume III, annex 12, folio 1397).
60
January 24, 2001 ruling on the writs of cassation. Third Chamber of the Costa Rican Supreme
Court, San José (file of annexes to the application, volume III, annex 12, folios 1396-1399).
61

January 24, 2001 ruling on the writs of cassation. Third Chamber of the Costa Rican Supreme
Court, San José (file of annexes to the application, volume III, annex 12, folios 1395-1424).

45
May 7, 1999 (supra para. 95(s)) and ordered nullification of the May 29, 1998
verdict of acquittal62 (supra para. 95(q)).

95(z)
On February 21, 2001, the Criminal Trial Court of the First Judicial Circuit of
San José ordered enforcement of the November 12, 1999 conviction, which had
become final (supra para. 95.t).63
95(aa) On April 3, 2001, the Criminal Court of the First Judicial Circuit of San José
issued an order wherein it dismissed the appeal that the defense attorney for Mr.
Mauricio Herrera Ulloa and the special counsel for the newspaper “La Nación” had
filed seeking simultaneous revocation and nullification; the court ruled for dismissal“inasmuch as the verdict being challenged [...] was properly substantiated.” In thatsame decision, Mr. Mauricio Herrera Ulloa was ordered to issue the “publication
contained and ordered in the final judgment;” the newspaper “La Nación”,
represented by Mr. Fernán Vargas Rohrmoser, was ordered to “remove information
relating to the case from the La Nación Digital website on the internet.” The Court
also warned Mssrs. Herrera Ulloa and Vargas Rohrmoser that if they failed to comply
they could be committing the crime of contempt of authority, provided for in Article
307 of the Penal Code,64 the penalty for which is imprisonment for fifteen days to
one year.65
95(bb)On April 24, 2001, the Criminal Trial Court of the First Judicial Circuit of
San José delivered an order in which it ordered a “stay of enforcement of thejudgment [of November 12, 1999] and of the decisions that followed from it.”66
95(cc)To date, Mr. Mauricio Herrera Ulloa has not made any payment related to
enforcement of the judgment delivered against him.67 “La Nación”, through its legal
representative Mr. Fernán Vargas Rohrmoser, made a court-ordered deposit in theamount of ¢60,000,000.00 (sixty million colones).68
62
Judgment No. 000540-99 of May 7, 1999 of the Third Chamber of the Costa Rican Supreme Court(file on preliminary objections and possible merits, reparations and costs, volume I, annex g to the written
brief of pleadings, motions and evidence of the alleged victims’ representatives, folio 349); and January
24, 2001 ruling on the writs of cassation. Third Chamber of the Costa Rican Supreme Court, San José (fileof annexes to the application, volume III, annex 12, folio 1395).
63
Cf. February 1, 2001 order for enforcement of judgment, delivered by the Criminal Trial Court of
the First Judicial Circuit of San José (file of annexes to the application, volume III, annex 12, folio 1425).
64

Cf. April 3, 2001 decision of the Criminal Trial Court of the First Judicial Circuit of San José (fileon provisional measures in the “La Nación” case, volume I, folio 96).

65

Costa Rican Penal Code (file on preliminary objections and possible merits, reparations and costs,
annex A) to the written brief of pleadings, motions and evidence of the alleged victims’ representatives).
66

Cf. April 24, 2001 order to stay enforcement of the November 12, 1999 judgment of convictiondelivered by the Criminal Trial Court of the First Judicial Circuit of San José (file on provisional measures inthe “La Nación” case, volume I, folio 99).

67

Cf. testimony of Mr. Mauricio Herrera Ulloa before the Inter-American Court of Human Rights at
the public hearing on April 30, 2004.
68
Cf. testimony of Mr. Fernán Vargas Rohrmoser before the Inter-American Court of Human Rights
at the public hearing on April 30, 2004.

46

With regard to Mr. Herrera Ulloa’s listing in the Judiciary’s Record of Convicted Felons
95(dd)As a result of the conviction, Mr. Mauricio Herrera Ulloa’s name wasentered into the Judiciary’s Record of Convicted Felons on March 1, 200169 (suprapara. 95(t)), pursuant to the Law on the Judiciary’s Record and Archives No. 6723 ofMarch 10, 1982. Article 7 of that law provides that “Regardless of whether the trial
court has stayed enforcement of the judgment, once the verdict is final it shall senda summary of the verdict to be entered into the Judiciary’s Record.”70 Article 5 ofthat law states a summary of any crime committed with mens rea or intent shall beentered into the Judiciary’s Record.71
95(ee)
Article 12 of the Law on the Judiciary’s Record and Archives No. 6723,
provides that “entries in the record” may only be nullified or amended by order ofthe sentencing court, or when a judgment delivered on an appeal for review soorders.72
95(ff)On April 26, 2001, the State entered a “notation [...] in the margin by theentry for the conviction, noting that enforcement of the judgment had been
stayed.”73
95(gg)On August 13, 2001, the Office of the Executive Director of the Judiciary’s
Record of Convicted Felons issued a certificate to the effect that no notations had
been entered in the name of Mr. Mauricio Herrera Ulloa74 and then the following day
issued another in which he mentioned the notations on the November 12, 1999
criminal conviction.75
95(hh)On October 3, 2001, the Criminal Trial Court of the First Judicial Circuit of
San José issued an order whereby it ordered that the “stay of enforcement of the69

Cf. communication from the Head of the Department of the Judiciary’s Records and Archives,
dated August 29, 2001 (file on provisional measures in the “La Nación” case, volume II, annex 1 to theState’s Report of August 31, 2001, folio 422).
70
Cf. Law on the Judiciary’s Record and Archives No. 6723 (file on provisional measures in the “La
Nación” case, volume I, annex 1 to the State’s report of August 16, 2001, folio 237).
71

Cf. Law on the Judiciary’s Record and Archives Nº 6723 (file on provisional measures in the “La
Nación” case, volume I, annex 1 to the State’s report of August 16, 2001, folio 236).
72
Cf. Law on the Judiciary’s Record and Archives Nº 6723 (file on provisional measures in the “La
Nación” case, volume I, annex 1 to the State’s Report of August 16, 2001, folio 236).
73

Cf. The State’s Report of August 31, 2001 (file on provisional measures in the “La Nación” case,
volume II, folio 417); communication from the Head of the Department of the Judiciary’s Record andArchives, August 29, 2001 (file on provisional measures in the “La Nación” case, volume II, annex 1 to theState’s Report of August 31, 2001, folio 422).

74
Cf. Certification from the Judiciary’s Record of Convicted Felons, August 13, 2001 (file onprovisional measures in the “La Nación” case, volume II, annex to the Commission’s comments on theState’s Report of August 16, 2001, folio 404).
75
Cf. Certification from the Judiciary’s Record of Convicted Felons, August 14, 2001 (file onprovisional measures in the “La Nación” case volume II, annex 6 to the State’s Report of August 16, 2001,
folio 351).

47
judgment delivered against Mr. Mauricio Herrera Ulloa shall stand until such time as
the Inter-American Court of Human Rights decides” the case once and for all.76
95(ii)On December 4, 2001, the Department of the Judiciary’s Record andArchives acknowledged that the uncertainty to which Mr. Mauricio Herrera Ulloa had
been exposed would not happen again under any circumstances,77 and issued acertification to the effect that Mr. Herrera Ulloa’s name was not listed in the
Judiciary’s Record.78
95(jj)
Article 13 of the Law on the Judiciary’s Record and Archives states thatthe information contained in the Record shall be accessible. Article 20 of that law
provides that the files and documents in the record may be reviewed by, inter alia,
law students and other persons for research purposes, when those purposes are duly
authorized.”79
With regard to crimes against honor under the Costa Rican Penal Code95(kk)On November 30, 1998, the Executive Branch of the Costa Rican
government introduced a bill in Costa Rica’s Legislative Assembly for Protection of
Freedom of the Press.80 On April 22, 2004, the Legislative Assembly’s Committee on
the Press issued a report on the Bill on Freedom of Expression and the Press, whichsuggested amendment of, inter alia, articles 147 (crime of calumny), 151 (exclusionof the crime) and 155 (publication as a gesture of satisfaction) of the Costa Rican
Penal Code, repeal of Article 149 (proof of truth) of the Code, amendment of articles
204 (duty to testify) and 380 (criminal complaint and transfer) of the Code of
Criminal Procedure, repeal of Article 7 of Print Law No. 32 of July 12, 1902, andinclusion of the “conscience clause.”81
With regard to provisional measures
76
Cf. October 5, 2001 communication from the Criminal Trial Court of the First Judicial Circuit of
San José (file on provisional measures in the “La Nación” case, volume II, annex to the State’s Report ofOctober 5, 2001, folio 458).
77

Cf. the State’s December 4, 2001 observations on the November 30, 2001 brief filed by theInter-American Commission on Human Rights (file on provisional measures in the “La Nación” case,
volume II, folio 475).
78
Cf. Certification from the Office of the Judiciary’s Record of Convicted Felons, dated December 4,2001 (file on provisional measures in the “La Nación” case, volume II, annex to the State’s December 4,2001 observations on the November 30, 2001 brief filed by the Inter-American Commission on Human
Rights, folio 477).
79

Cf. Law on the Judiciary’s Record and Archives Nº 6723 (file on provisional measures in the “La
Nación” case, volume I, annex 1 to the State’s Report of August 16, 2001, folios 237-239).
80
Cf. recitals of the bill for the Protection of Freedom of the Press (file of documents supplied by theInter-American Commission on Human Rights and the State at the public hearing on May 22, 2001 on therequest for provisional measures in the “La Nación” case, annex 4). In this document, the State observedthat “the actual legal regulation […] constitutes a sword of Damocles hanging dangerously over journalists
and posing a threat to their autonomy and integrity in the unfettered practice of their profession, and is inreality a mechanism of prior censorship.”81

Cf. Draft bill of the Law on Freedom of Express and of the Press of the Legislative Assembly’s
Press Committee, April 22, 2004 (file of evidence presented during the public hearing held on April 30 and
May 1, 2004, single volume, folios 3462-3465); and document titled “The Costa Rican Government’s
Position at the hearing of the Inter-American Commission on Human Rights on case 12,367, Mauricio
Herrera and La Nación,” May 4, 2001 (file of annexes to the application, volume II, annex 10, folio 12201225).

48

95(ll)The State complied with the provisional measures ordered by the InterAmerican Court of Human Rights on September 7, 2001.82

Consequence of Mr. Mauricio Herrera Ulloa’s actions
95(mm) The events in the instant case altered Mr. Mauricio Herrera Ulloa’s
professional, personal and family circumstances and had an inhibiting effect on his
exercise of the right to free speech in the practice of his profession.83
With regard to the representations of Mr. Mauricio Herrera Ulloa and Mr. Fernán
Vargas Rohrmoser before the domestic courts and before the inter-American system
for the protection of human rights and their representation expenses
95(nn)Mr. Mauricio Herrera Ulloa and Mr. Fernán Vargas Rohrmoser wererepresented by Mssrs. Fernando Guier Esquivel, Pedro Nikken and Carlos Ayala
Corao, who declined to claim any costs in the form of professional fees in the instantcase, for the professional assistance they provided in the proceedings in this casebefore the domestic courts and before the inter-American system for the protectionof human rights. They submitted a number of documents pertaining to expenses fortravel, lodging, telephone and meals that they incurred as a consequence of the trips
they made to Washington and to San José.84
IX
PRELIMINARY CONSIDERATIONS
96.
Before entering into its examination of the merits of the instant case, theCourt believes some reference should be made to the victim status being claimed for
Mr. Fernán Vargas Rohrmoser.
97.
In its application and in its final written pleadings, the Inter-American
Commission alleged that Mr. Fernán Vargas Rohrmoser was himself a victim
inasmuch as the State had violated the Convention by demanding, in its April 3,
82
Cf. Comments from the representatives of Mr. Mauricio Herrera Ulloa, the beneficiary of theprovisional measures, on the letter rogatory from the Criminal Court of the First Judicial Circuit of San
José of November 20, 2002 (file on provisional measures in the “La Nación” case, volume II, annex to theobservations of the Inter-American Commission on Human Rights to the State’s brief of December 4,
2002, folio 603).
83
Cf. testimony of Mr. Mauricio Herrera Ulloa given before the Inter-American Court of Human
Rights during the public hearing held on April 30, 2004; sworn testimony of Mrs. Laura Mariela González
Picado given in the presence of a public civil servant on March 11, 2004 (file on preliminary objections
and possible merits, reparations and costs, volume III, folios 1107-1108); and official translation of theGerman book titled “Jürgen Roth” (The Eminence Gris) by Hoffmann and Campe (file of evidence
presented during the public hearing held on April 30 and May 1, 2004, single volume, folios 3468-3510).
84
Cf. brief of pleadings, motions and evidence filed by the alleged victims’ representatives (file on
preliminary objections and possible merits, reparations and costs, volume I, folio 323); receipts Nos.
132832 and 132983 from Viajes y Turismo Halcón (file on preliminary objections and possible merits,
reparations and costs, volume V, annexes 5 and 6 to the final written pleadings of the alleged victims’
representatives, folio 1643 and 1645); and receipts for lodging, food, telephone calls and airline tickets(file on preliminary objections and possible merits, reparations and costs, volume I, annex M) to thewritten brief of pleadings, motions and evidence filed by the alleged victims’ representatives, folios 383 to
405).

49
2001 court order, that he comply with the criminal conviction judgment that went
against Mr. Mauricio Herrera Ulloa (supra para. 95(aa)). The representatives of thealleged victims made the same point in their brief of pleadings, motions andevidence and in their final written pleadings.
98.
In its brief on preliminary objections, its brief answering the application, andits comments on the written brief containing pleadings, motions and evidence,(supra para. 33) the State claimed that Mr. Vargas Rohrmoser ought not to be partof the litigation, as he was not a victim.
*
*

*

99.
The Court must point out that it is a proven fact (supra para. 95(t)) that in a
judgment the Criminal Trial Court of the First Judicial Circuit of San José delivered on
November 12, 1999, Mr. Mauricio Herrera Ulloa was convicted of having committed
the crime of publishing offenses constituting defamation. As a consequence of thisjudgment, under the civil suit for damages Mr. Mauricio Herrera Ulloa and thenewspaper “La Nación” S.A., represented by Mr. Fernán Vargas Rohrmoser, were
declared jointly and severally liable in that suit.
100. The civil consequences of the criminal conviction that fell directly upon Mr.
Fernán Vargas Rohrmoser were in his capacity as “La Nación’s” legal representative,
as it was through this vehicle of the mass media that journalist Mauricio Herrera
Ulloa exercised his right to freedom of expression. Hence, the subsidiary civil
penalties established in the criminal judgment are directed against the newspaper“La Nación” S.A., whose legal representative vis-à-vis third parties is Mr. Vargas
Rohrmoser. Those penalties were not targeted at Mr. Vargas Rohrmoser as a private
subject or individual.
X
VIOLATION OF ARTICLE 13
IN RELATION TO ARTICLES 1(1) AND 2(FREDOM OF THOUGHT AND EXPRESSION)
Pleadings of the Commission
101. With regard to Article 13 of the Convention, the Commission argued thefollowing:
101(1) With regard to the scope of the right to freedom of thought and expression
and its role within a democratic society:a)Article 13 has two dimensions: the individual, which is realized
through the right to express thoughts and ideas and the right to receive
them; and the social dimension, a means to share ideas and information formass communication among human beings. Both dimensions must be
guaranteed simultaneously. The articles written by journalist Mauricio Herrera
Ulloa involved both dimensions of freedom of expression;b)
any restrictions on freedom of expression must be intended to serve
some pressing social need. When faced with a number of alternatives, the one

50chosen must be the one least restrictive of the protected right; furthermore,
the restriction must be proportionate to the interest that justifies it; andc)
it is not enough for a restriction of a Convention-protected right to be
useful to obtaining some legitimate end; rather, “it must be necessary, whichmeans that it must be shown that it cannot reasonably be achieved through ameans less restrictive.”101(2) With regard to the alleged violation of Article 13 represented by theconviction under criminal law and by the fact that Mr. Mauricio Herrera Ulloa wasfound guilty on four counts of the crime of publishing offenses constituting
defamation, the Commission wrote that:a)
When it imposed criminal penalties on Mr. Mauricio Herrera Ulloa inorder to protect the honor and reputation of Mr. Przedborski, Costa Rica’s
honorary consul, the State caused a chilling effect on freedom of expression,
silencing the publication of news on matters of public interest that involve
public officials. This is not the protection of reputation and honor of which
Article 11 of the Convention speaks;b)
the criminal laws on defamation, calumny and insult in Costa Rica
serve a legitimate purpose; however, Article 13 of the Convention is violated
when conduct involving public issues is penalized, as there is no pressing
social need that justifies the criminal penalty. Enforcement of domestic
privacy laws must conform to international standards, which require a properbalance between protection of privacy and honor and protection of freedom of
expression;c)
the State must abstain from censoring information regarding actions
carried out by public officials or by private individuals voluntarily involved inpublic affairs when those actions are a matter of public interest. Such figures
are expected to show greater tolerance for criticism, which implies that thedegree of protection of privacy and reputation that public figures enjoy is not
the same as the private citizen’s;d)Mr. Mauricio Herrera Ulloa provoked public debate about Mr.
Przedborski, but the liabilities that the State subsequently imposed on him go
well beyond the limits of Article 13(2) of the Convention;e)the criminal laws on defamation, offense and calumny were used tosilence criticism of a public official and to censor the publication of articles
related to his alleged illicit activities while in office, which is a violation of theConvention;f)the articles published in the European press concerning the alleged
illicit activities of Costa Rica’s honorary consul, Mr. Przedborski, are of great
public interest both in Costa Rica and in the international community;g)the standard the State applied in Mr. Herrera Ulloa’s conviction under
Article 152 of the Penal Code, which criminalizes defamation, was based on
objective rather than subjective honor; applying that standard, it criminally

51
penalized someone who did “not take proper care to refrain [from publishing]when one is unsure whether the facts are correct.” This standard is an
impediment to the free flow of ideas and opinions and flies in the face ofinternational jurisprudence;h)“[f]reedom of expression is one of the most effective ways ofdenouncing and corroborating, through debate and a broad exchange of
information and ideas, alleged acts of corruption attributable to State entities
and State officials;”i)
the State failed to prove the presence of a pressing social need thatwould justify the restriction on freedom of expression that the criminal caseand conviction implied;j)the criminal prosecution and punishment applied to Mr. Mauricio
Herrera Ulloa as supposedly subsequent liability, were in no sense
proportionate to any legitimate State interest; the use of the State’s ultimate
restraint mechanism, i.e., criminal prosecution and punishment, was notjustified, particularly when there were other alternatives to achieve the aimsought;k)criminal punishments for making certain statements could, in somecases, even be regarded as indirect methods of curtailing freedom of
expression;l)
Costa Rica’s criminal defamation law violates Article 13 of theConvention because it allows the defense of justification (exceptio veritatis)
only in certain circumstances and requires that the respondent prove thetruth of his statements;
m)by violating Article 13 of the Convention to the detriment of Mr.
Mauricio Herrera Ulloa and Mr. Fernán Vargas Rohrmoser, the State has failed
to comply with the general duty to respect the rights and freedoms
recognized in the Convention and to ensure their free and full exercise to all
persons subject to its jurisdiction, as provided in Article 1(1) of theConvention; andn)the State must adopt all measures necessary so that its own system ofdomestic laws gives full effect to the Convention’s provisions, as Article 2
thereof requires.
101(3) With regard to the inclusion of Mauricio Herrera Ulloa’s conviction in the
Judiciary’s Record of Convicted Felons, the Commission argued that:a)in Costa Rica, “the existence of a conviction is sufficient in law for theconvicted person’s name to be entered into the Judiciary’s Record ofConvicted Felons.” Once the judgment becomes final, registration in the
Record of Convicted Felons is automatic and need not be ordered by thejudge in the judgment. There is no effective remedy against listing in the
Judiciary’s Record of Convicted Felons save for recourse to the solutions
under international human rights law;52b)in the instant case, the legal effect of entering Mr. Herrera Ulloa’s
name into the Judiciary’s Record of Convicted Felons was to restrict theexercise of his fundamental rights with regard to obtaining: 1) entry into civil
service; 2) a driver’s license; 3) an application for a degree examination andadmission; 4) a driver’s insurance policy; 5) a pension; 6) the right to adopt
minors; and 7) work in Costa Rica and abroad;c)having his name listed as a convicted felon is detrimental to Mr.
Herrera Ulloa’s name, honor and reputation vis-à-vis his family and Costa
Rican society as a whole, a situation exacerbated by the fact that many
institutions and persons are authorized to request information from the
Judiciary’s Record of Convicted Felons; andd)the inclusion of Mr. Mauricio Herrera Ulloa’s name in the Judiciary’s
Record of Convicted Felons is also an unlawful mechanism for restricting
freedom of expression and hence a violation of Article 13 of the American
Convention.
101(4) With regard to the civil damages that both journalist Mauricio Herrera Ulloa
and the newspaper “La Nación”, represented by Mr. Vargas Rohrmoser, were ordered
to pay, the Commission argued that:a)making it a crime to reproduce published news reports concerning the
conduct of a public official can have the effect of causing journalists to engage
in self-censorship, which obstructs the free exchange and flow of information,ideas and opinions;b)
if it is disproportionate or fails to serve the pressing social need thatwould otherwise justify it, the subsequent liability imposed in a concrete casewould be a clear violation of Article 13 of the American Convention;c)legal actions brought by public officials or private persons voluntarily
involved in public affairs, claiming defamation, calumny and insult, should be
matters for civil –not criminal- courts, applying the standard of actual malice,
where it is the alleged aggrieved party who must bear the burden of provingthat the social communicator intended to inflict harm or acted with fullknowledge that he was spreading false information;d)Mr. Przedborski, Costa Rican honorary consul, had an influential role
representing Costa Rican society abroad, so that Costa Rica’s citizens had a“substantial and legitimate interest” in knowing how he comported himself in
performing his functions; ande)inasmuch as Costa Rica has offered no convincing arguments to showthat there was manifest mens rea in the publication of the various disputed
articles, no criminal or civil liabilities can be imposed on Mr. Mauricio Herrera
Ulloa as the author of those allegedly prejudicial articles, or on the newspaper
business that ran the articles, or on Mr. Vargas Rohrmoser as thenewspaper’s legal representative. Consequently, the civil damages ordered
as a result of the criminal action are also a violation of Article 13 of theAmerican Convention.

53
101(5) With regard to the order to take down the existing link at the “La Nación
Digital” website between the surname Przedborski and Mr. Mauricio Herrera Ulloa’s
articles that were the cause of the criminal complaint and civil suit, and the order toestablish a link between those articles and the “Now, Therefore” portion of thejudgment of conviction, the Commission argued that:a)the order to eliminate the existing link constitutes interference and aform of prior censorship of the news by the State, in violation of Article 13 of
the Convention. The order to create another link with the operative part of
the guilty verdict is a restriction on freedom of expression, as it dictates what
the content of the news is to be, which is not within the limitations permitted
under Article 13 of the Convention;b)
the direct effect of the orders given in the judgment of conviction is
one of prior censorship, which presupposes control and veto power over news
before it is disseminated; thus, the individual whose expression has been
censored and society as a whole are prevented from exercising their right tofreedom of expression and information. The court orders also impair thejournalist’s right to impart information on issues of legitimate public interest
that are available in the foreign press; andc)the prohibition against prior censorship to protect the honor of a public
official is absolute and not covered by any of the exceptions provided for in
Article 13 of the Convention.
101(6) With regard to Mr. Fernán Vargas Rohrmoser’s status as alleged victim
inasmuch as he was directly affected by the enforcement of the court judgment, theCommission argued that:a)Mr. Vargas Rohrmoser’s status as an alleged victim is due to the factthat “he would have personally paid” the consequences of failing to comply
with the order for enforcement of the judgment of conviction for defamation,and the fact that the penalties imposed were disproportionate and prohibitedby the American Convention;b)
his status as an alleged victim is not lifted by the State’s claim that if
he failed to comply with the order for enforcement of the judgment ordering
execution of judgment, Mr. Rohrmoser would not have served time in prison
for the crime of contempt of authority; andc)the warning given to Mr. Vargas Rohrmoser on April 3, 2001, to theeffect that if he failed to comply with the judgment of conviction, he might becommitting the crime of contempt of authority, is the factor that makes him
an alleged victim.
Pleadings of the alleged victims’ representatives
102. As for Article 13 of the Convention, the alleged victims’ representatives
argued the following:
102(1)On the subject of freedom of expression in a democratic society:54a)Article 13 of the American Convention has two dimensions: theindividual and the social. Mauricio Herrera Ulloa’s articles cut across bothdimensions of freedom of expression;b)
freedom of expression is subject to certain legitimate limits. The
exceptional nature of those limitations is evidenced in paragraph 2 of Article
13 of the American Convention. Paragraph 3 of that article also prohibits
restriction of this right by any indirect methods or means, which it
enumerates, although not exhaustively;c)even when motivated by public order or the general welfare,limitations on freedom of expression and on human rights in general, “cannot
degenerate to the point that they end up draining those rights of all content.”
There is a classic conflict between freedom of expression and protection ofprivacy. However, the principle of proportionality must be strictly observed inthis area, since otherwise freedom of expression could be weakened; andd)the Commission has established that the right to freedom of
expression and information is one of the principal mechanisms society has toexercise democratic control over persons charged with public affairs.
102(2) With regard to the alleged violation of Article 13 by the conviction undercriminal law and by the fact that Mr. Mauricio Herrera Ulloa was found guilty on four
counts of the crime of publishing offenses constituting defamation, the alleged
victims’ representatives pointed out that:a)they fully concur with the Commission’s contention that the Costa
Rican courts’ conviction of Mr. Herrera Ulloa constitutes a violation of his
freedom of expression.
The conviction does not fit either precondition
established in Article 13(2) of the Convention for subsequent imposition of
liability, one of which is protection of reputation; but this is not the protectionof honor and reputation of which Article 11 of the Convention speaks;b)
the criminal law on defamation, calumny and offense, invoked toconvict Mr. Mauricio Herrera Ulloa, is expressly contemplated in the legislation
for protection of the honor, reputation and privacy of persons. However, toprosecute, convict and punish a person under criminal law, for conduct
involving statements on issues of public interest is a violation of Article 13 of
the Convention, as there is no pressing social need that justifies punishment
under criminal law;c)the State must refrain from censoring news of public interest thatconcerns the conduct of public officials or private citizens voluntarily engaged
in public affairs, and must provide that information to its citizens;d)because of the nature of their functions, public officials are subject topublic scrutiny and must be more tolerant of criticism, which means that thedegree of protection of privacy and reputation that they enjoy is different
from that enjoyed by private citizens. Costa Rican journalists and the media
could not turn a blind eye to the controversy reported in the Belgian press
involving diplomat Przedborski, a public figure alleged to have been
implicated in acts of corruption. Journalists and the media had a professional

55
responsibility to inform the public about the controversy unleashed in the
Belgian press surrounding that diplomat;e)Mr. Herrera Ulloa, as a journalist, and “La Nación”, as a newspaper,
aroused public discussion about a public official, which is a pressing social
need within a democratic society. The liabilities that the State subsequently
imposed upon them overstep the boundaries of Article 13(2) of theConvention;f)the penalty imposed prevents Mr. Mauricio Herrera Ulloa from freely
circulating information on the activities of public officials, as he might face
new criminal prosecution and conviction and be treated like a criminal;g)
the laws on criminal defamation, libel and slander were used tosilence criticism of a public official and to censor the publication of articles
related to the alleged illicit activities in which a public official engaged while
discharging his office. Therefore, the effect of the penalty imposed is, per se,
essentially tantamount to those imposed under the desacato laws and,
therefore, in violation of the Convention;h)Mr. Przedborski did not have to prove journalist Mauricio Herrera
Ulloa’s mens rea. But because of the way in which the Costa Rican courts
applied the principle of exceptio veritatis (defense of justification), the burdenof proof was reversed and it was the journalist who had to prove the accuracyof what the Belgian newspapers had published in order to plead justificationand qualify for the special grounds for acquittal allowed if he proves the truthof what he reported. The judgment that convicted Mr. Herrera Ulloa neverestablished that he had acted with full knowledge that the accusations thatthe Belgian papers made about Mr. Przedborski were false; nor did it establishthat he had acted with reckless disregard for the truth;i)the European Court has held that within a democratic society,journalists need not prove the truth of opinions or value judgments regarding
public figures;j)Mauricio Herrera Ulloa and Costa Rican society have a right toparticipate in lively, strong and challenging debates on every aspect having to
do with the normal and balanced workings of society. Articles 149 and 152 of
the Costa Rican Penal Code, or the convictions being challenged here, punish
discourse regarded as critical of a person in the public administration. They
punish that discourse in the person of Mr. Mauricio Herrera Ulloa, the author.
In so doing, they defy the very essence and substance of freedom of
expression;k)convicting Mauricio Herrera Ulloa of the crime of publishing offenses
constituting defamation and punishing him for having published articles on amatter of public interest, is a restriction on his freedom of expression that is
incompatible with the needs of a democratic society and serves no pressing
social need;l)
the State violated Article 1(1) of the Convention, in relation to articles
13 and 8 thereof, to the detriment of Mauricio Herrera Ulloa and Fernán
Vargas Rohrmoser; and56m)Article 2 of the Convention not only requires States parties to adopt
new provisions of domestic law, but also to do away with any law or practicethat is incompatible with the obligations they undertake as States parties to
the Convention.

102(3) With regard to freedom of expression, the circulation of news from thirdsources and proof of truth, the representatives stated that:a)the State’s imposition of criminal penalties to protect the honor andreputation of Mr. Przedborski, Costa Rica’s honorary consul, had a chilling
effect on freedom of expression and on the publication of news on issues ofpublic interest that involve public officials;b)
the convictions delivered against Mr. Herrera Ulloa were based on
articles 152 and 149 of the Costa Rican Penal Code; they asserted that hehad circulated news reproduced from the foreign press that had described Mr.
Przedborski as being implicated in shady dealings. The verdicts also statedthat Mr. Herrera Ulloa had merely demonstrated the existence of thoseforeign publications, but had failed to prove the accuracy of their news;c)when the defense of justification (exceptio veritatis) is used to protect
a person discharging public functions, the Convention is violated; thisapplication of the defense of justification violates freedom of expression andthe principle of presumption of innocence (Article 8(2) of the American
Convention);d)the right to “seek” information must be understood in its broadest
sense. “It is entirely normal in the media business for a media outlet torepeat what other media outlets have reported; and it is especially normal fora given country’s media to seek, find and impart news being reported in theforeign press on issues related to their own country, even more so when thatcountry’s public officials are involved”;
e)the Costa Rican laws are such that to avoid criminal prosecution andpunishment, Costa Rican journalists may delay before reporting news
circulated by a foreign medium or an international news agency, even when
Costa Rican society has an obvious interest in getting that news. This selfcensorship is incompatible with the concept of freedom of expression;f)
the way in which the Costa Rican courts applied the defense ofjustification (exceptio veritatis) in the instant case strikes at the function ofjournalists, who keep the public informed. The application of articles 149 and152 of Costa Rica’s Penal Code by the Third Chamber of the Costa Rican
Supreme Court in the January 24, 2001 judgment has had the effect of“criminalizing reporting in a manner that has no place in a democraticsociety”;g)a law that, without requiring proof of bad faith on the journalist’s part,makes it a crime for a journalist to publish news sourced to other foreign

57
media outlets and containing alleged offenses against a Costa Rican public
official, unless the journalist can prove that the information being reported istrue, is in violation of Article 13(1) of the Convention. Therefore, a criminal
conviction based on such a law is also a violation of Article 13(1) of theConvention; andh)journalist Herrera Ulloa used as his sources four well-known Belgian
newspapers; he contacted European newspapers to double-check the news;
he tried to contact the diplomat in question, but to no avail; and heinterviewed the foreign minister and deputy foreign minister, who confirmedthat there were questions that needed to be answered.
102(4)
With regard to the inclusion of Mauricio Herrera Ulloa’s conviction in the
Judiciary’s Record of Convicted Felons, the alleged victims’ representatives argued
that:a)in Costa Rica the existence of a conviction is sufficient in law for theconvicted person’s name to be entered into the Record of Convicted Felons.
Once the judgment becomes final, registration in the Record of Convicted
Felons is automatic and need not be ordered by the judge in the judgment.
There is no effective remedy to prevent registration, except recourse to thesolutions under international human rights law;b)
the legal effects of entering Mr. Herrera Ulloa’s name into the
Judiciary’s Record of Convicted Felons was to restrict the exercise of his
fundamental rights with regard to obtaining: 1) entry into civil service; 2) adriver’s license; 3) an application for a degree examination and admission; 4)a driver’s insurance policy; 5) pensions; 6) the right to adopt minors; and 7)
work in Costa Rica and abroad;c)an indirect effect of being registered in the Judiciary’s Record ofConvicted Felons is self-censorship, a restriction of freedom of expression in
violation of Article 13(3) of the Convention; andd)being registered in the Judiciary’s Record of Convicted Felons exposes
Mr. Herrera Ulloa to public censure and is thus prejudicial to his reputation; italso stigmatizes him in a way that prevents him from practicing his profession
freely and damages his credibility.
102(5)
With regard to the civil damages that both journalist Mauricio Herrera
Ulloa and the newspaper “La Nación”, represented by Mr. Vargas Rohrmoser, wereordered to pay, the representatives argued that:a)the pecuniary penalties imposed in the November 12, 1999 judgment
are a consequence of the criminal conviction; hence, had Mr. Herrera Ulloa
not been found guilty of the punishable offense, there would have been nobasis for the civil damages;b)
Mr. Przedborski had the option of either suing Mr. Herrera Ulloa fordamages and injuries in civil court, or filing a criminal complaint. By opting
for the second course of action, Mr. Przedborski, “of his own free will, staked
the outcome of the civil damages suit” on the journalist’s conviction in the

58
criminal case; in so doing, he also staked the fate of the newspaper “La
Nación”, as jointly and severally liable, on the journalist’s criminal conviction;c)legal actions brought by public officials claiming defamation, calumny
and insult, have no place in criminal courts; they are the purview of the civil
courts, applying the principle of actual malice;d)the factor “determining” the civil liability of Mr. Mauricio Herrera Ulloa
and the newspaper “La Nación” is a punishable offense whose authorship was
attributed to the journalist, not an autonomous civil wrong. Civil sanctions
and criminal penalties have the same chilling effect on freedom of expression.
That civil sanction is a violation of the freedom of expression guaranteed
under Article 13 of the Convention, as no civil wrongdoing was committed;
and because the penalty is disproportionate;e)according to the doctrine of actual malice, publication of news on theactivities of a public official that fall within the domain of public interest, canonly lead to imposition of civil liability if it can be proved that it was madewith malice, with full knowledge that the information being spread was false
or with reckless disregard for whether it was true or false;f)
the general rule is that the accessory follows the fate of the principal;
therefore, the civil damages ordered are a result of the criminal conviction;“both will be undone by the judgment that the Inter-American Court
eventually delivers”;
g)Article 1(2) of the Convention does not state, either directly or
literally, that legal persons are always and necessarily precluded from theConvention’s sphere of application. Every situation will have to be examined
for the context in which the matter occurred in order to determine, in
accordance with the object and purpose of the Convention, when the principal
interest at stake involves the rights of a “human being,” which is what theConvention recognizes;h)in certain situations, violation of Convention-recognized rights also
involves violation of legal persons’ rights, or can only happen through theviolation of the rights of certain legal persons; andi)“La Nación” was held jointly and severally liable for the sole reasonsthat it is the business that owns the newspaper that published the convictedjournalist’s articles. That civil award is a violation of freedom of expression
and is manifestly disproportionate in the instant case.
102(6)
With regard to the order to take down the existing link at the “La Nación
Digital” website between the surname Przedborski and Mr. Mauricio Herrera Ulloa’s
articles that were the cause of the criminal complaint and civil suit, and the order toestablish a link between those articles and the “Now, Therefore” portion of thejudgment of conviction, the alleged victims’ representatives argued that:a)the order to eliminate the link constitutes interference and a form ofState censorship of the news, in violation of Article 13 of the Convention. The
order to create another link with the operative part of the guilty verdict is a
restriction on freedom of expression, as it dictates what the content of the59news will be, which is not within the limits permitted under Article 13 of theConvention; andb)the direct effect of the orders given in the judgment of conviction isprior censorship, which presupposes control and veto power over news before
it is disseminated; thus, the individual whose expression has been censoredand society as a whole are prevented from exercising their right to freedom of
expression and information. The orders also impair the journalist’s right toimpart information on issues of legitimate public interest that are available in
the foreign press.
102(7) With regard to Mr. Fernán Vargas Rohrmoser’s status as alleged victim
inasmuch as he was directly affected by the enforcement of the court judgment, thealleged victims’ representatives argued that:a)the State violated the Convention when, in an April 3, 2001 order of
the Criminal Court of the First Judicial Circuit of San José, it demanded that
Mr. Fernán Vargas Rohrmoser comply with the order for enforcement of thejudgment of conviction, expressly warning him that should he fail to comply,
he might be deemed to have committed the crime of contempt of authority,
provided for in Article 307 of the Costa Rican Penal Code and carrying apenalty of imprisonment. This demand is what made Mr. Vargas Rohrmoser
an alleged victim; andb)
his status as an alleged victim is not lifted by the State’s claim that if
he failed to comply with the order for enforcement of the judgment ordering
execution of judgment, Mr. Rohrmoser would not have served time in prison
for the crime of contempt of authority.
Pleadings of the State
103.

With regard to Article 13 of the Convention, the State asserted that:a)the courts convicted Mr. Herrera Ulloa because the party filing thecriminal complaint proved the defendant’s mens rea. Moreover, democraticsociety is undermined as much by receiving untruthful information as it is byreceiving no information at all;b)
the reputation of others is regarded per se as one of the few legitimate
grounds for restricting freedom of expression and thought. Democraticsociety demands that the right to freedom of expression and the right to have
one’s honor respected be protected as equals. All the Convention-protectedrights must be the frame of reference for any quest for balance. The right tohonor is not a purely individual right;c)criminalizing utterances, words or deeds that besmirch a person’s
honor or dignity does not, per se, trample freedom of expression. Costa Rica
does not punish a person merely because he criticizes a public official. A
person is punished when a trial, in which all the guarantees of due process
are respected, proves that the reputation of a public official has been willfully
and maliciously harmed;d)moreover, “even when the guilty party has been convicted in criminal
court and ordered to pay damages and the victim has been allowed to60
exercise his right of reply, in all likelihood that inkling of doubt as to thevictim’s good name will linger in the minds of his contemporaries and those of
future generations;”e)
if the State fails to establish effective mechanisms to protect the honorof public officials, the public interest would be harmed and Costa Rica could
hardly recruit the best people to serve in government;f)
Costa Rica’s criminal laws strike a fair balance between freedom of
expression and the right to have one’s honor and reputation respected, since
they only criminalize malicious conduct;g)
Costa Rica is convinced that it has adopted the necessary safeguards
to guarantee the fundamental rights;h)one must not sink to simplistic reductionism and pretend that thehonor of a public servant is any less worthy of respect and protection thanthe honor of an ordinary private citizen. Such a distinction is an attack upon
the principle of equality;i)the policy on crime has determined that the best way to protect honor
against attack is through criminal sanctions. The principles of sovereignty
and self-determination dictate that the American Convention cannot force agiven course of action upon the mechanisms of the inter-American system;j)
if the conviction induces self-censorship, then Article 13(2) of theAmerican Convention would have the same effect because it allows
subsequent imposition of liability;k)
it is evident that the representatives have a profoundmisunderstanding of the principle of exceptio veritatis. This principle is an
exculpatory circumstance; by the time it comes into play, it has already been
established that the defendant’s conduct fits the crime, is unlawful andanswerable. Therefore, it does not relieve the party filing the criminal
complaint of his obligation to prove mens rea in the defendant’s conduct;l)
if in the exercise of one’s freedom of expression and thought, one says
something that is not true, then one must be subject to subsequentimposition of criminal or civil liability. Mr. Herrera Ulloa was not convictedbecause he failed to prove the accuracy of the news reported in the European
press; instead, he was convicted for having acted with mens rea by spreading
news that defamed and offended the honor of the party filing the criminal
complaint;m)“[i]t was the interested party himself […who] spread the news that his
name had been entered into the Judiciary’s Record of Convicted Felons. The
public, which might have lavished Mr. Herrera with credibility, respect anddignity, would likely have never learned of his registration had he not taken it
upon himself to announce it to the public.” “The interested party and thenewspaper for which he works drummed up the publicity themselves”;
n)entering Mr. Herrera Ulloa’s name into the Judiciary’s Record ofConvicted Felons does not create any serious restrictions in the seven areas

61
singled out by the Commission. And the fact that authorized institutions haveaccess to and know of the Record and its entries does nothing to limit
anyone’s social, professional and personal life. Furthermore, the listing of Mr.
Herrera Ulloa’s conviction was stayed by the provisional measures ordered by
the Inter-American Court;o)if Mr. Mauricio Herrera Ulloa’s honor was impugned in any way, it
would only have been for the period during which his name was listed in the
Judiciary’s Record of Convicted Felons;p)Mr. Mauricio Herrera Ulloa’s purported hesitation about reporting news
involving the activities of public officials is a “myth,” as shown by the“countless” op-ed pieces and news articles supplied;q)
under the doctrine of actual malice, utterances, words or deeds that
offend honor can be made punishable offenses. Indeed, other kinds ofpenalties for such conduct are compatible with a democratic society, provided
their purpose is to protect honor and reputation;r)
the “assertion that a civil award ordered in the course of a criminalcase is subordinate to the judgment in the criminal case, and follows virtuallyautomatically from the decision in the principal (criminal) case, as aconsequence of it and in addition thereto” is incorrect. The party filing thecriminal complaint must prove both the existence of the crime and the extent
and existence of the harm caused.
The civil action preserves its own
autonomy within the criminal case; the parties are responsible for moving theproceedings forward, as there is no ex officio procedural impetus. The civil
action is a private action that can be waived; it is negotiable, compensable
and can be abandoned;s)surely the Court would never consider that the Convention’s protection
also extends to a legal person, represented by its chief legal counsel. “La
Nación” has not the slightest right to claim protection not just belatedly but
also improperly.” Legal persons do not enjoy the same rights that humanpersons enjoy. Persons associated with “La Nación” are the only ones who
could demand protection, yet not one of them “acted promptly to seek
protection of his rights”;t)
Mr. Vargas Rohrmoser cannot be counted among the victims of theviolations alleged to be the result of the case prosecuted against Mr. Mauricio
Herrera Ulloa, as Mr. Vargas Rohrmoser was not a party to that process;u)
the proposal put forward by the representatives and the Commission
at the public hearing, which was to eliminate penalties for crimes against
honor in the case of public officials or private persons involved in publicaffairs, clashes with one of the essential pillars of the rule of law, which is theprohibition of discrimination. With that kind of scheme to eliminate such
penalties, the honor of public officials would be less protected by virtue of thefact that they have exercised their own political rights. Article 24 of theConvention prohibits arbitrary discrimination by proclaiming that all persons
are equal before the law; and62v)
public debate can be “heated or hurtful,” but in the end it is still
debate; in other words, it is a coming together of opinions, ideas orperceptions. However, the use of editorial space or articles in newspapers
when no opportunity for reply or rebuttal is given, ought not to be confusedwith public debate. Nor should the public official under attack have to remain
impervious to accusations or suspicions, no matter how unfounded they may
be.
Considerations of the Court
104.

Article 13 of the American Convention provides, inter alia, that:1.
Everyone has the right to freedom of thought and expression. This rightincludes freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the form of art, or throughany other medium of one's choice.

2.
The exercise of the right provided for in the foregoing paragraph shall not be
subject to prior censorship but shall be subject to subsequent imposition of liability,
which shall be expressly established by law to the extent necessary to ensure:a.

respect for the rights or reputations of others; orb.

the protection of national security, public order, or public health or

morals.
3.
The right of expression may not be restricted by indirect methods or means,such as the abuse of government or private controls over newsprint, radio broadcasting
frequencies, or equipment used in the dissemination of information, or by any othermeans tending to impede the communication and circulation of ideas and opinions.
[…]105. The case sub judice concerns the prosecution, conviction and criminal penalty
imposed on journalist Mauricio Herrera Ulloa and the civil liability imposed on him
and on Mr. Fernán Vargas Rohrmoser, legal representative of the newspaper “La
Nación,” for having published several articles that partially reproduced news reportsthat originally appeared in a number of European newspapers concerning the alleged
illicit activities of Mr. Félix Przedborski. At the time the articles appeared, Mr.
Przedborski was Costa Rica’s representative to the International Atomic Energy
Agency, headquartered in Austria, as honorary consul. Four of the articles publishedin“La Nación” were the subject of two criminal complaints brought by Mr.
Przedborski (supra para. 95.p), which ended in a conviction. The judgment foundMr. Herrera Ulloa guilty on four counts of publishing offenses constituting
defamation.”
The conviction carried with it the respective criminal and civil
consequences. The judgment also held the newspaper “La Nación” jointly andseverally liable.
106. Based on the proven facts in the instant case, the Court must determine
whether Costa Rica unduly restricted journalist Mauricio Herrera Ulloa’s right tofreedom of expression by his criminal prosecution and the criminal and civil penalties
imposed. The Court will not look at the question of whether the published articles
constitute a given crime under Costa Rican law; instead, it will examine whether,

63
through Mr. Mauricio Herrera Ulloa’s criminal conviction (and its consequences) andthe civil penalty imposed, the State violated or restricted the right to freedom ofthought and expression protected under Article 13 of the Convention.
107. The Court will proceed to analyze this article in the following order: 1) content
of the right to freedom of thought and expression; 2) freedom of thought andexpression in a democratic society; 3) the role of the mass media and journalism inrelation to freedom of thought and expression, and 4) permissible restrictions on
freedom of thought and expression in a democratic society.
1)

The content of the right to freedom of thought and expression

108. In relation to the content of the right to freedom of thought and expression,
the Court has indicated previously that those who are protected by the Convention
have not only the right and freedom to express their thoughts, but also the right andfreedom to seek, receive and disseminate information and ideas of all kinds.
Consequently, freedom of expression has an individual dimension 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.85

109. In this respect, the Court has indicated that the first dimension of freedom of
expression “is not exhausted in the theoretical recognition of the right to speak orwrite, but also includes, inseparably, the right to use any appropriate method todisseminate ideas and allow them to reach the greatest number of persons.”86 In
this sense, the expression and dissemination of ideas and information are indivisible,
so that a restriction of the possibilities of dissemination represents directly, and to
the same extent, a limit to the right to free expression.87
110. Regarding the second dimension of the right to freedom of expression, thesocial element, it is necessary to indicate that freedom of expression is a way of
exchanging ideas and information between persons; it includes the right to try tocommunicate one’s point of view to others, but it also implies everyone’s right toreceive other people’s opinions, information and news. For the ordinary citizen,
awareness of other people’s opinions and information is as important as the right toimpart their own.88
85

Case of Ivcher-Bronstein. Judgment of 6 February 2001. Series C No. 74, para. 146; Case of “TheLast Temptation of Christ” (Olmedo Bustos et al.). Judgment of February 5, 2001. Series C No. 73, para.
64; and Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (arts.
13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 del 13 November 1985.
Series A No. 5, para. 30.
86
Cf. Case of Ivcher-Bronstein, supra note 85, para. 147; Case of “The Last Temptation of Christ”(Olmedo Bustos et al.), supra note 85, para. 65; and Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism, supra note 85, para. 31.
87
Case of Ivcher-Bronstein, supra note 85, para. 147; Case of “The Last Temptation of Christ”,
supra note 85, para. 65; and Compulsory Membership in an Association Prescribed by Law for the Practiceof Journalism, supra note 85, para. 36.
88

Cf. Case of Ivcher-Bronstein, supra note 85, para. 148; Case of “The Last Temptation of Christ”(Olmedo Bustos et al.), supra note 85, para. 66; and Compulsory Membership in an Association Prescribedby Law for the Practice of Journalism, supra note 85, para. 32.

64

111. This Court has stated that both dimensions are of equal importance andshould be guaranteed simultaneously in order to give full effect to the right tofreedom of expression in the terms of Article 13 of the Convention.89

2)

Freedom of thought and expression in a democratic society

112. In its Advisory Opinion OC-5/85, the Inter-American Court referred to theclose relationship that exists between democracy and freedom of expression, when it
stated that:
Freedom of expression is a cornerstone upon which the very existence of a democraticsociety 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 andcultural 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 wellinformed is not a society that is truly free.90

113. In the same terms used by the Inter-American Court, the European Court of
Human Rights has underscored the importance that freedom of expression has in a
democratic society, when it stated that:[…] freedom of expression constitutes one of the essential pillars of democratic society
and a fundamental condition for its progress and the personal development of eachindividual. This freedom should not only be guaranteed with regard to the disseminationof information and ideas that are received favorably or considered inoffensive or
indifferent, but also with regard to those that offend, are unwelcome or shock the Stateor any sector of the population. Such are the requirements of pluralism, tolerance andthe spirit of openness, without which no ‘democratic society’ can exist. […] This meansthat […] any formality, condition, restriction or sanction imposed in that respect, should
be proportionate to the legitimate end sought.91

89
Cf. Case of Ivcher-Bronstein, supra note 85, para. 149; Case of “The Last Temptation of Christ”(Olmedo Bustos et al.), supra note 85, para. 67; and Compulsory Membership in an Association Prescribedby Law for the Practice of Journalism, supra note 85, para. 33.
90
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism(Arts. 13 and 29 American Convention on Human Rights) supra note 85, para. 70.
91
Cf. Case of Ivcher-Bronstein, supra note 85, para. 152; Case of “The Last Temptation of Christ”
Case (Olmedo Bustos et al.), supra note 85, para. 69; Eur. Court H.R., Case of Scharsach and News
Verlagsgesellschaft v. Austria, Judgment of 13 February, 2004, para. 29; Eur. Court H.R., Case of Perna v.
Italy, Judgment of 6 May, 2003, para. 39; Eur. Court H.R., Case of Dichand and others v. Austria,
Judgment of 26 February, 2002, para. 37; Eur. Court. H.R., Case of Lehideux and Isorni v. France,
Judgment of 23 September, 1998, para. 55; Eur. Court H.R., Case of Otto-Preminger-Institut v. Austria,
Judgment of 20 September, 1994, Series A no. 295-A, para. 49; Eur. Court H.R. Case of Castells v Spain,
Judgment of 23 April, 1992, Series A. No. 236, para. 42; Eur. Court H.R. Case of Oberschlick v. Austria,
Judgment of 25 April, 1991, para. 57; Eur. Court H.R., Case of Müller and Others v. Switzerland,
Judgment of 24 May, 1988, Seriess A no. 133, para. 33; Eur. Court H.R., Case of Lingens v. Austria,
Judgment of 8 July, 1986, Seriess A no. 103, para. 41; Eur. Court H.R., Case of Barthold v. Germany,
Judgment of 25 March, 1985, Seriess A no. 90, para. 58; Eur. Court H.R., Case of The Sunday Times v.
United Kingdom, Judgment of 29 March, 1979, Seriess A no. 30, para. 65; and Eur. Court H.R., Case ofHandyside v. United Kingdom, Judgment of 7 December, 1976, Seriess A No. 24, para. 49.

65

114. The African Commission on Human and Peoples’ Rights92 and the United
Nations Human Rights Committee93 have also upheld this same principle.
115. On September 11, 2001, the Chiefs of State and Heads of Government of theAmericas approved the Inter-American Democratic Charter, Article 4 of which reads
in part as follows:[t]ransparency in government activities, probity, responsible public administration on
the part of governments, respect for social rights, and freedom of expression and of thepress are essential components of the exercise of democracy.94

116. Thus, the different regional systems for the protection of human rights andthe universal system agree on the essential role played by freedom of expression in
the consolidation and dynamics of a democratic society. Without effective freedomof expression, exercised in all its forms, democracy is enervated, pluralism andtolerance start to deteriorate, the mechanisms for control and complaint by theindividual become ineffectual and, above all, a fertile ground is created forauthoritarian systems to take root in society.
3)
The role of the mass media and of journalism with regard to freedom ofthought and expression
117. The media play an essential role as vehicles for the exercise of the social
dimension of freedom of expression in a democratic society, which is why it is vitalthat the media are able to gather the most diverse information and opinions.95 The
media, as essential instruments of freedom of thought and expression, are required
to discharge their social function responsibly.
118. Within this context, journalism is the primary and principal manifestation of
freedom of expression of thought. For that reason, journalism cannot be equatedwith the mere delivery of a public service through the practice of university-acquired
knowledge or training.96 To the contrary, the profession that journalists practice isthe mass media business.97 The practice of journalism, therefore, requires that theindividual engage responsibly in activities that are indistinguishable from or
inextricably intertwined with the freedom of expression guaranteed in theConvention.98
91
Cf. African Commission on Human and Peoples' Rights, Media Rights Agenda and Constitutional
Rights Project v. Nigeria, Communication Nos. 105/93, 128/94, 130/94 and 152/96, Decision of 31
October, 1998, para 54.
93

Cf. U.N.
Human Rights Committee, Aduayom et al. v. Togo (422/1990, 423/1990 and
424/1990), report of July 12, 1996, para. 7.4.
94
Inter-American Democratic Charter, approved at the first plenary session of the General
Assembly, September 11, 2001, Article 4.
95

Cf. Case of Ivcher-Bronstein, supra note 85, para. 149.

96

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, supranote 85, para. 71.
97

The “La Nación” Case. Provisional Measures. Order of the Inter-American Court of Human Rights of
September 7, 2001, Considering 10.

98

Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,supra note 85, paragraphs 72 and 74.

66

119. The Court has held that 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.99

4)Permissible restrictions on freedom of thought and expression in a democraticsociety120. Freedom of expression is not an absolute right; instead, it may be subject torestrictions, as Article 13 paragraphs 4 and 5 of the Convention provide. Article
13(2) of the American Convention provides for the possibility of establishing
restrictions on freedom of expression where it states that abusive exercise of theright 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 fullscope of freedom of expression or become direct or indirect methods of priorcensorship. 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.
121.

The Court has written the following with regard to these requirements:
the "necessity" and, hence, the legality of restrictions imposed under Article 13(2) on
freedom of expression, depend upon a showing that the restrictions are required by acompelling governmental interest. Hence if there are various options to achieve thisobjective, that which least restricts the right protected must be selected. Given thisstandard, it is not enough to demonstrate, for example, that a law performs a useful ordesirable 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 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 rightprotected by Article 13 more than is necessary. That is, the restriction must be
proportionate and closely tailored to the accomplishment of the legitimate governmental
100
objective necessitating it.

122. In its interpretation of Article 10 of the European Convention, the European
Court of Human Rights ruled that "necessary," while not synonymous with"indispensable," implies "the existence of a 'pressing social need'" and that for a
restriction to be "necessary" it is not enough to show that it is "useful," "reasonable"

99

Cf. Case of Ivcher-Bronstein, supra note 85, para. 150.
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,supra note 85, para. 46; see also Eur. Court H. R., Case of The Sunday Times v. United Kingdom, supranote 91, para. 59; and Eur. Court H. R., Case of Barthold v. Germany, supra note 91, para. 59.
100

67
or "desirable."101 The Court espoused this concept of “pressing social need” in its
Advisory Opinion OC-5/85.
123. Hence, the restriction must be proportionate to the legitimate interest thatjustifies 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 freedomof expression.
124. Now that the Court has determined the content of the right to freedom ofthought and expression, has highlighted the importance of freedom of expression ina democratic society and the role that the media and journalism play therein, andhas established the requisites that must be met for restrictions on freedom of
expression to be compatible with the American Convention, it must now turn its
attention, based on the proven facts in the instant case, to the question of whether
the restrictions allowed on freedom of expression through subsequent imposition of
liability were compatible with the Convention. At the outset it must be said that Mr.
Herrera Ulloa was a journalist stating facts or opinions of public interest.
125. The jurisprudence constante of the European Court of Human Rights withregard to the permissible limits on freedom of expression has been that a distinction
must be made between the limits that apply when the restriction is to protect a
private individual and those that apply when the restriction is to protect a public
figure, such as a politician. That Court has written that:the limits of acceptable criticism are wider with regard to a politician acting in his public
capacity than in relation to a private individual, as the former inevitably and knowingly
lays himself open to close scrutiny of his every word and deed by both journalists andthe public at large, and he must display a greater degree of tolerance. A politician iscertainly entitled to have his reputation protected, even when he is not acting in his
private capacity, but the requirements of that protection have to be weighed against theinterests of the open discussion of political issues.102
Freedom of the press furthermore affords the public one of the best means of
discovering and forming an opinion of the ideas and attitudes of political leaders. Moregenerally, freedom of political debate is at the very core of the concept of a democraticsociety which prevails throughout the Convention.103

126.

In another judgment, the European Court ruled that:[…] freedom of expression […]is applicable not only to "information" or "ideas" that arefavourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb. […] The limits of permissible criticism are wider withregard to the Government than in relation to a private citizen, or even a politician. In a
democratic system the actions or omissions of the Government must be subject to theclose scrutiny not only of the legislative and judicial authorities but also of the press andpublic opinion.104

127. Democratic control exercised by society through public opinion encourages
the transparency of State activities and promotes the accountability of public officials
101

Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,supra note 85, para. 46; Eur. Court H. R., Case of The Sunday Times, supra note 91, para. 59.
102
Cf. Eur. Court H.R., Case of Dichand and others v. Austria, supra note 91, para. 39; Eur. Court
H.R, Case of Lingens v. Austria, supra note 91, para. 42.
103

Case of Lingens v. Austria, supra note 91, para. 42.

104

Cf. Eur. Court H.R., Case of Castells v. Spain, supra note 91, paragraphs 42 and 46.

68
in public administration, for which there should be a reduced margin for any
restriction on political debates or on debates on matters of public interest.105
128. In this context, it is logical and appropriate that statements concerning public
officials and other individuals who exercise functions of a public nature should beaccorded, in the terms of Article 13(2) of the Convention, a certain latitude in the
broad debate on matters of public interest that is essential for the functioning of atruly democratic system. The foregoing considerations do not, by any means, signifythat the honor of public officials or public figures should not be legally protected, butthat it should be protected in accordance with the principles of democratic pluralism.
129. A different threshold of protection should be applied, which is not based on
the nature of the subject, but on the characteristic of public interest inherent in theactivities or acts of a specific individual. Those individuals who have an influence onmatters of public interest have laid themselves open voluntarily to a more intense
public scrutiny and, consequently, in this domain, they are subject to a higher risk ofbeing criticized, because their activities go beyond the private sphere and belong to
the realm of public debate.
130. Given the foregoing, this Court will now determine whether the criminal
sanction imposed on journalist Mauricio Herrera Ulloa was a necessary restriction in a
democratic society and therefore compatible with the American Convention.
131. In the instant case, the information reported in the Belgian press about
diplomat Félix Przedborski, Costa Rica’s representative to the International Atomic
Energy Agency in Vienna, and his alleged illicit activities, drew journalist Mauricio
Herrera Ulloa’s immediate attention. He reproduced a portion of the news reported
in the Belgian press. The Court notes that journalist Herrera Ulloa basically confinedhimself to reproducing the news reports having to do with a public official’s conductabroad.
132.
This Court must go on record as noting that as a consequence of his actions,
Mr. Herrera Ulloa was subjected to criminal prosecution and convicted. Invoking
articles 146, 149 and 152 of the Costa Rican Penal Code, the judge ruled that Mr.
Herrera Ulloa’s justification defense (exceptio veritatis) had to be disregarded as hehad failed to prove that the facts that various European newspapers attributed to Mr.
Félix Przedborski were true; instead, the judge wrote, he was only able to show that“questions were raised in the European press about the party filing the criminal
complaint.”
Thus, the court disallowed the justification defense because thejournalist had not proved the veracity of the facts reported in the European
newspapers. This standard of proof is an excessive limitation on freedom of
expression that does not comport with Article 13(2) of the Convention.
133. The effect of the standard of proof required in the judgment is to restrict
freedom of expression in a manner incompatible with Article 13 of the American
Convention, as it has a deterrent, chilling and inhibiting effect on all those whopractice journalism. This, in turn, obstructs public debate on issues of interest tosociety.

105

Cf. Case of Ivcher-Bronstein, supra note 85, para. 155 ; see also Eur. Court H.R., Case of Feldek
v. Slovakia, Judgment of July 12, 2001, para. 88, and Eur. Court H.R., Case of Sürek and Özdemir v.
Turkey, Judgment of July 8, 1999, para. 60.

69
134.

The European Court has held the following in this regard:[…] punishment of a journalist for assisting in the dissemination of statements made byanother person ... would seriously hamper the contribution of the press to discussion ofmatters of public interest.106

135.
The Court therefore finds that the State violated the right to freedom ofthought and expression protected under Article 13 of the American Convention on
Human Rights, in relation to Article 1(1) thereof, to the detriment of Mr. Mauricio
Herrera Ulloa, since the restriction on this journalist’s exercise of that right oversteps
the boundaries set in that article.
136. The Court will not take up the allegation made by the Commission and by thealleged victims’ representatives to the effect that Article 2 of the Convention was
violated, because the facts in this case do not fit the propositions upon which that
article is based.
XI
VIOLATION OF ARTICLES 8 AND 25
IN COMBINATION WITH ARTICLES 1(1) AND 2(RIGHT TO A FAIR TRIAL AND RIGHT TO JUDICIAL PROTECTION)
Pleadings of the alleged victims’ representatives
137. In their brief of pleadings, motions and evidence, the alleged victims’
representatives argued that the State violated Article 8 of the Convention; in their
final oral arguments and final written pleadings, they argued that the State had also
violated Article 25 of the Convention. Their pleadings were as follows:
137(1) With regard to the admissibility of the petition alleging violations of Article 8of the Convention:a)the Commission did not address these claims in either its Report No.
84/02 or in the application. The representatives contend that they are notattempting to bring new facts to the Court’s attention; instead, their purpose
is to get a court to examine facts that are a matter of record, have been
proven, were never disputed when the case was before the Commission, andwere narrated in the application. They are also seeking application of the
maxim of the law known as iura novit curia;b)when the lower court found against Mr. Mauricio Herrera Ulloa, his only
procedural recourse to challenge the conviction was a writ of cassation. Given
the limitations of the writ of cassation, it does not meet the standard required
under Article 8(2)(h) of the Convention as it does not allow appeal to a higher
court;
c)in the instant case, the writ of cassation was inadequate and illusory,which violated Mr. Herrera Ulloa’s right to a competent, independent andimpartial judge or tribunal (Article 8(1) of the Convention).

106

Eur. Court H.R., Case of Thoma v. Luxemburg, Judgement of March 29, 2001, para. 62.

70
137(2) With regard to the right to appeal a judgment to a higher court (Article
8(2)(h) of the Convention) and of the right to judicial protection (Article 25 of theConvention), the representatives argued that:a)the writ of cassation is not a full remedy; it is an extraordinary
remedy. It does not authorize a full review of the facts and the law in thecase. Instead, it is used to resolve a variety of complicated procedural
formalities, and hence is not an appeal in the sense of Article 8(2)(h) of theConvention. The writ of cassation will not reopen the case for additional
evidence to be taken, nor re-assess the evidence already produced. Nor does
it offer any other means of defense other than those listed in Article 369 of
Costa Rica’s Code of Criminal Procedure;b)
by a judgment delivered in another case on June 26, 1990, theConstitutional Chamber of Costa Rica’s Supreme Court held that theextraordinary remedy of cassation does satisfy the requirements of theAmerican Convention, provided it is not regulated, interpreted or applied withmechanical rigor. This Third Chamber of the Costa Rican Supreme Court did
not abide by that earlier ruling in the case involving journalist Mauricio
Herrera Ulloa and the newspaper “La Nación”, as the judgment it delivered on
January 24, 2001, “by using evasive formalisms, circumvent[ed] the full
review of the lower court judgment that should happen with a broad and fullappeal”;c)
the writ of cassation does not allow, for example, a review of the facts
established as true in the lower court judgment;d)in the instant case, the writ of cassation was exercised liberally, but
the Third Chamber of the Costa Rican Supreme Court ruling was a pro forma
decision, which dismissed the writ on formal and narrow grounds, thereby
violating the alleged victims’ right to appeal the conviction by means of a full
review by a higher court;e)in the Costa Rican legal system, the only procedural regime that has
no remedy of appeal is the one for cases in the criminal courts. There is no
court of second instance for criminal cases, which is a violation of articles
8(2)(h) and 2 of the Convention;f)the Fourth Chamber of the Costa Rican Supreme Court ordered that to
be in compliance with Article 8(2)(h) of the Convention, the writ of cassation
was not to be interpreted or applied with mechanical rigor; that ruling wasdisregarded in the cassation judgment delivered against Mauricio Herrera
Ulloa;g)it has been shown, then, that the writ of cassation in a criminal law
case did not allow the facts established in the November 12, 1999 judgmentof the Criminal Court of the First Judicial Circuit of San José, Group three,which convicted Mr. Mauricio Herrera Ulloa, to be reviewed or checked;
hence, the writ of cassation in criminal cases does not meet the requirements
necessary to constitute an effective remedy filed with a higher court, in thesense of articles 8(2)(h) and 25 of the Convention;

71h)
as was established in the expert opinion given by Mr. Carlos Tiffer
Sotomayor, in Costa Rica the writ of cassation does not allow a full review ofa judgment; hence, it cannot be used to check the evidence assessment orother questions of fact;i)the right to appeal a judgment to a higher court can be construed as
an expression of the right to an effective recourse, upheld in Article 25(1) of
the Convention. Furthermore, the lack of an effective remedy of appeal is aviolation of Article 25(2)(b) of the Convention, which provides that the States
parties undertake “to develop the possibilities of judicial remedy”;
j)elsewhere the Commission has held that as a mechanism for reviewing
judgments, an appeal has characteristics that are: a) procedural: an appeal
must go forward against any lower court judgment to check for misapplicationof the law or failure to apply the law, or the misapplication of the provisions of
the law that determined the outcome of the judgment, and b) material: an
appeal must go forward when an irreversible error has occurred, when theaccused has not enjoyed a proper defense, or when rules of evidence
assessment are violated, provided those violations have caused the rules ofevidence to be misapplied or not applied at all;k)international case law has tended to regard remedies that do not
permit a review of the facts and of the law applied, to be contrary tointernational human rights law; andl)in attempting to refute the violation of Article 8(1) of the Convention,
the State is admitting that the writ of cassation is only permissible in mattersof procedure; therefore, on cassation, the Third Chamber of the Costa Rican
Supreme Court did not have an opportunity to review the facts of the criminalcase against Mr. Mauricio Herrera Ulloa.
137(3) With regard to the right to a hearing by an impartial judge or tribunal(Article 8(1) of the Convention), the representatives argued that:a)there was very little room for judicial impartiality, as the justices who
had issued the final judgment had already advanced their views on thesubject less than two years before the final ruling;b)in the wake of the nullification ordered by the Third Chamber of the
Costa Rican Supreme Court, the second judgment delivered by the court offirst instance adhered to the criterion established by the Third Chamber, “sothat when the same justices took up the case for a second time on cassation,
they confined themselves to checking to make certain that the position they
had already taken on the facts in the very same case had been effectively
applied”; andc)
if judges are to be impartial, they must not be predisposed or biased;
therefore, the justices who had nullified the first conviction should never havebeen the judges to hear the writ of cassation.
137(4) With regard to the right to be presumed innocent (Article 8(2) of theAmerican Convention), the representatives argued that:72
a)in convicting Mr. Herrera Ulloa, the Costa Rican courts maintained thatin a “case involving the crime of publishing insults […], the defendant’s mens
rea need not be proved. This is also true in cases involving criminal
defamation. In other words, the intent to harm another person’s honor neednot be proved.” The party filing the criminal complaint did not have to provethe defendant’s criminal intent; instead, it was the defendant who was
required to prove the veracity of the stories reported in the European press.
The doctrine of exceptio veritatis implies a kind of presumption of guilt, or atthe very least reverses the burden of proof to the journalist’s disadvantage.
In fact, it should be the party making the charge that is required to prove thedefendant’s bad faith or mens rea; a defendant should not be required toprove negatives, i.e., that he did not act with malicious intent or with recklessdisregard of the truth or with knowledge that the facts reported were false;b)in the instant case, the party making the charge was not required toprove the journalist’s culpable conduct; instead, it was the journalist who was
required to prove the accuracy of information reported by third parties onanother continent; that was the only way he could be acquitted. “A genuine
probatio diabolica was forced upon him that left the presumption of innocencedevoid of any content or effect;”c)the Costa Rican courts applied the principle of exceptio veritatis toprosecute and convict Mr. Mauricio Herrera Ulloa and the newspaper “La
Nación” and thus violated Article 8(2) of the Convention;d)the State violated Article 1(1) of the Convention, in combination witharticles 13 and 8 thereof, to the detriment of Mssrs. Mauricio Herrera Ulloa
and Fernán Vargas Rohrmoser; ande)
Article 2 of the Convention not only requires the States parties toadopt new domestic legal provisions, but also to suppress any law or practicethat is incompatible with the obligations undertaken with the Convention.
Pleadings of the Commission
138. The Inter-American Commission did not allege violation of articles 8 and 25 of
the American Convention.
Pleadings of the State
139. The State made no reference to the alleged violation of Article 25 of theConvention. On the matter of Article 8 it asserted that:139(1) With regard to the right to appeal a judgment to a higher court (Article
8(2)(h) of the Convention):a)the Convention requires that domestic legal systems provide a means
to challenge a ruling; it also requires that the remedy be decided by a court
higher than the one that delivered the judgment. The second condition is notin dispute. The Court does not demand that the remedy be an ordinary
remedy; it only demands that it be a “genuine guarantee that the case will be
re-examined” and that the existence of a remedy is not sufficient if that
objective is not accomplished. Neither the Convention nor the Court requires

73
that the remedy be one of appeal. The writ of cassation meets therequirements that a remedy must have to meet the standards required by theConvention. “The Convention [does not] require that the [State] have a courtof second instance, understood as a body for full review of a ruling deliveredby a court from which a case has been removed; what it does require is that
States ensure for their citizens that a means will be there to review a rulingby a judge or court of first instance, thus enabling the judgment to be truly
reconsidered”;b)courts of cassation used their own rulings to set about the task ofremoving some of the procedural formality that the writ of cassation involves;
those rulings recognize the need to strip away the restrictions that excessive
formality causes. Under certain circumstances, courts of cassation have evengone so far as to deviate somewhat from the set of facts examined in the
judgment delivered by the court of first instance;c)when setting out the grounds under which an interested party may filea writ of cassation, the Code of Criminal Procedure makes no distinction
between those related to merits and those related to procedure, so that theperson availing himself of that remedy is not required to make that distinction
either;d)
Article 8(2)(h) of the Convention does not require that the remedy tochallenge a ruling by a court of first instance be a full review. An examinationof procedural errors allows for evidentiary activity. The grounds under whicha writ of cassation may be filed guarantee the right to appeal the ruling.
Various defects in a judgment are grounds for cassation;e)“it is true that the remedy of cassation does have limits –as, forexample, the untouchability of the proven facts - and that it is not a full
review; but the Convention does not require a full review.” Furthermore,those limitations are the ones “strictly necessary to keep in place a proceduralsystem based on oral proceedings.” It is more advantageous to the accused(in general for the administration of criminal justice) that a system provide a
remedy with certain limitations, as a trade-off to get a criminal justice processthat puts the emphasis on oral proceedings;f)the writ of cassation as a means to challenge criminal court rulings isfound in legal systems throughout Latin America; andg)
the State is convinced that it has taken the necessary measures toguarantee fundamental rights.
139(2) With regard to the right to be heard by an impartial judge or tribunal (Article
8(1) of the Convention), the State asserted that:a)bias on the part of a judge cannot be assumed simply because he has
somehow been associated with the object of the proceeding. The very natureof the writ of cassation is such that it prevents violations of the guarantee of
impartiality, as the court of cassation serves as a merits tribunal and does notissue any finding as to the facts. The court of cassation only verifies whether
the judgment adheres to the law, both with respect to substantive law andprocedural law. When the Court of Cassation sends a case back to the court

74
that decided it, it does so because it has discovered procedural defects; itnever goes to the arguments presented on the merits or examines the facts.
Therefore, when it decided the writ of cassation filed against the acquittal, theThird Chamber of the Costa Rican Supreme Court never issued any findingthat could have influenced the ruling of the court of first instance; andb)
if Mr. Mauricio Herrera Ulloa believed that the conclusion reached by
the Third Chamber of the Costa Rican Supreme Court “violated the principleof an impartial judge,” he should have filed the remedy seeking review
provided for in Article 408(g) of the Costa Rican Code of Criminal Procedure.
That article lists “violation or absence of due process” as one of the grounds
for review of a conviction.
139(3) With regard to the right to a presumption of innocence (Article 8(2) of theAmerican Convention) the State asserted that:a)the crime of which Mr. Herrera Ulloa was convicted is one of criminal
intent, and meant that the person filing the criminal complaint had to prove
intent on the part of the person being so accused;b)a profound misunderstanding of the principle of exceptio veritatis isapparent. This principle is an exculpatory circumstance; by the time it comes
into play, it has already been established that the defendant’s conduct fits thecrime, is unlawful and answerable. Therefore, it does not relieve the party
filing the criminal complaint of his obligation to prove mens rea in the
defendant’s conduct;c)the question of the veracity of the attribution is not a defining elementin the case of criminal defamation or criminal insult (whereas veracity is adefining element in criminal slander). Therefore, truth does not have to be
proved to find that the conduct fits the crime. The exceptio veritatis assumes
the existence of a public interest, which justifies the preclusion ofpunishment, since the author’s conduct was not motivated solely by a desire
to offend;d)when a justifying or exculpatory circumstance is claimed, thedefendant must prove that the justifying or exculpatory circumstancedescribed by the law is present. This does not violate the principle ofpresumption of innocence because the accusing body or party filing thecriminal complaint bears the burden of proving that the defendant committed
the crime and is guilty; ande)the inversion of the burden of proof that Article 149 of the Penal Codeestablishes is the same standard that would apply to any other justifying or
exculpatory circumstance provided for under the Costa Rican Penal Code.
Considerations of the Court
140. The Court will not examine the allegation made belatedly by the alleged
victims’ representatives in their final oral arguments and final written briefs, to theeffect that Article 25 of the American Convention was violated, as this allegation
does not fit the facts of the instant case.
141.

The pertinent part of Article 8 of the American Convention provides that:75
1.
Every person has the right to a hearing, with due guarantees and within areasonable time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature madeagainst him or for the determination of his rights and obligations of a civil, labor, fiscal,
or any other nature.

2.
Every person accused of a criminal offense has the right to be presumed
innocent so long as his guilt has not been proven according to law. During theproceedings, every person is entitled, with full equality, to the following minimum
guarantees:[…]h)the right to appeal the judgment to a higher court.

142. On the question of whether the alleged victims’ representatives may include
facts or rights other than those included in the original application, this Court has
previously held that:[w]ith respect to inclusion of rights other than those already encompassed by theapplication filed by the Commission, the Court deems that the applicants can invoke said
rights. It is they who are entitled to all the rights embodied in the American Convention,and not admitting this would be an undue restriction of their status as subjects ofInternational Human Rights Law. It is understood that the above, pertaining to otherrights, adheres to the facts already contained in the application.107

143. Therefore, the Court will examine the alleged violation of Article 8 of theConvention, which the alleged victims’ representatives asserted in their written briefof pleadings, motions and evidence.
144. It is a basic principle of the law on the international responsibility of States,
embodied in international human rights law, that every State is internationallyresponsible for any action or omission committed by any of its branches of power ororgans in violation of internationally recognized rights.108 In the case of the actions
or omissions of domestic courts, Article 8 of the Convention spells out the scope ofthat principle whereby the international responsibility of a State is engaged by theactions or omissions of any and all State organs.109
145. 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 from107
Cf. Case of Maritza Urrutia, supra note 7, para. 134; Case of Myrna Mack-Chang, supra note 7,
para. 224; and the Case of “Five Pensioners”. Judgment of 28 February 2003. Series C No. 98, para. 155.
108

Cf. Case of Juan Humberto Sánchez, supra note 20, para. 142; the Case of “Five Pensioners”,
supra note 107, para. 163; and the Case of “Street Children” (Villagrán Morales et al.). Judgment ofNovember 19, 1999. Series C No. 63, para. 220.

109

Case of “Street Children” (Villagrán Morales et al.), supra note 108, para. 220.

76
acts that violate their fundamental rights or that lead to the determination of thelatter’s rights and obligations.110
146. In similar cases this Court has held that “[i]n order to clarify whether theState has violated its international obligations owing to the acts of its judicial organs,
the Court may have to examine domestic proceedings”111 to determine whether they
are compatible with the American Convention.
147. With regard to the criminal proceedings, when addressing the matter of
judicial guarantees, also known as procedural guarantees, the Court has establishedthat all the Article 8 requirements, which “are designed to protect, to ensure or toassert the entitlement to a right or the exercise thereof”,112 must be complied with;in other words, “the conditions necessary to ensure the adequate representation or
management of the interests or claims of those whose rights or obligations are underjudicial consideration.”113
148. The Court will examine the alleged violations of Article 8 of the Convention.
It will begin with the right of appeal to a higher court, provided for in Article 8(2)(h)of the Convention, then move on to the right to an impartial judge recognized in
Article 8(1) of the Convention, and finally the right to the presumption of innocenceestablished in Article 8(2) of the Convention.
149. Under Costa Rican law, the only remedy available to challenge a criminal
conviction is the writ of cassation, regulated under articles 443 to 451 of the Costa
Rican Code of Criminal Procedure.
150. Article 443 of the Costa Rican Code of Criminal Procedure provides that “thewrit of cassation shall be in order when the court’s order fails to observe or
misapplies some principle of the law.” Article 369 of the Code of Criminal Procedureprovides that the defects in a judgment that are grounds for cassation are as follows:a) the accused is not adequately identified; b) the circumstances of the fact that the
court deemed to have been proved are lacking; c) the verdict is based on means orelements of evidence not legally introduced in trial or introduced by being read, in
violation of the provisions of the Code; d) the arguments of the majority of the courtwith regard to the means or elements of decisive evidence are lacking, insufficient orcontradictory, or fail to observe the rules governing reasoned judgment arrived at
freely and on the basis of admissible evidence, within the relevant legal framework;e) the essential elements of the operative part of the judgment are missing; f) the110

Cf. Case of Baena-Ricardo et al. Competence. Judgment of November 28, 2003. Series C No.
104, para. 79; Case of Cantos. Judgment of November 28, 2002. Series C No. 97, para. 59; and the Caseof Mayagna (Sumo) Awas Tingni Community, Judgment of August 31, 2001. Series C No. 79, para. 135.
111
Cf. Case of Myrna Mack-Chang, supra note 7, para. 200; Case of Juan Humberto Sánchez, supranote 20, para. 120; and Case of Bámaca-Velásquez. Judgment of 25 November 2000. Series C No. 70,
para. 188.
112
Cf. Case of Maritza Urrutia, supra note 7, para. 118; Case of Myrna Mack-Chang, supra note 7,
para. 202; Case of Juan Humberto Sánchez, supra note 20, para. 124; and Habeas Corpus in Emergency
Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights). Advisory Opinion OC8/87 of January 30, 1987. Series A No. 8, para. 25.
113
Cf. Case of Maritza Urrutia, supra note 7, para. 118; Case of Myrna Mack-Chang, supra note 7,
para. 202; Case of Juan Humberto Sánchez, supra note 20, para. 124; and The Right to Information on
Consular Assistance. In the Framework of the Guarantees of the due Process of Law. Advisory Opinion OC16/99 of October 1, 1999. Series A No. 16, para. 118.

77
date of the act is either missing or cannot be determined, or the signature of some of
the judges is not present and it cannot be determined whether they participated in
the deliberations on the case, save for those exceptions that the law provides; g) therules for deliberating on and drafting the judgment were not observed; h) the rules
regarding the correlation between the judgment and the charge were not observed,
and i) the substantive law was either not observed or misapplied.
151. Article 445 of the Code of Criminal Procedure provides that the writ ofcassation shall be filed with the court that delivered the judgment, “by means of areasoned brief, which shall clearly cite the legal provisions that were not observed or
misapplied and explicitly state what claim is being made.” It states further that “eachcause and its legal grounds shall be listed individually.” Article 446 of the same Codeprovides that once the corresponding time period has been set, the court in question
shall refer the case file to either the Third Chamber of the Costa Rican Supreme
Court or to the Court of Criminal Cassation, depending upon which has territorial
jurisdiction. If it is the Third Chamber that takes cognizance of the writ of cassation,then it shall be composed of five justices. If the case goes to the Court of Cassation,
it shall be composed of three judges.
152. Under articles 448 and 449 of the Code of Criminal Procedure, in processing
the writ of cassation the court may call an oral hearing and order the taking ofwhatever evidence will be useful in determining whether procedural law has been
violated; however, no evidence may be introduced to prove whether or not the crime
was committed.
153. Article 450 of the Code of Criminal Procedure provides that should the courtof cassation deem it appropriate, it will nullify all or part of the decision being
challenged and will reinstate the case or order a new decision. It states further thatwhen only part of the original judgment is annulled, the concrete object of the newtrial or decision shall be indicated; otherwise, “the error shall be corrected” and thematter decided in accordance with the applicable law.
154. As has been shown (supra para. 95(w)), a writ of cassation was filed twice
during the criminal case against journalist Mauricio Herrera Ulloa. The first was filedby the attorney for Mr. Félix Przedborski (supra para. 95(r)) challenging the verdictof acquittal that the Criminal Court of the First Judicial Circuit of San José deliveredon May 29, 1998 (supra para. 95(q)). When it arrived at its decision on this writ on
May 7, 1999, the Third Chamber of the Costa Rican Supreme Court nullified theverdict being challenged on the grounds of an error on the part of the court in
explaining the absence of mens rea that was the grounds for the acquittal. It orderedthat the case be sent back to the competent court for retrial (supra para. 95(s)).
155. On November 12, 1999, the Criminal Court of the First Judicial Circuit of San
José convicted Mr. Mauricio Herrera Ulloa on four counts of publishing offenses
constituting defamation (supra para. 95(t)). Two writs of cassation were filed tochallenge the verdict, one by defense counsel for the defendant and the special
attorney for the newspaper “La Nación”, and the other by Mssrs. Herrera Ulloa andVargas Rohrmoser, respectively (supra para. 95(w)).
156. On January 24, 2001, the Third Chamber of the Costa Rican Supreme Court
dismissed the two writs of cassation. As a result of that decision, the November 12,
1999 conviction became final (supra para. 95(x)). The Chamber that took cognizanceof these two writs was composed of the very same justices who, on May 7, 1999,

78
had decided the writ of cassation filed by the attorney for Mr. Félix Przedborski(supra paragraphs 95(r) and 95(s)) and who had ordered nullification of the May 29,
1998 verdict of acquittal (supra para. 95(s)).
a)

Right to appeal to a higher court (Article 8(2)(h) of the Convention)

157. Article 8(2)(h) of the American Convention provides that in a case, every
person is entitled, with full equality, “to appeal the judgment to a higher court.”
158. The Court considers that 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 bycreating a remedy to prevent a flawed ruling, containing errors unduly prejudicial toa person’s interests, from becoming final.
159. The Court has held that the right to appeal a judgment, recognized in theConvention, 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, thehigher court must have the jurisdictional authority to take up the particular case inquestion. It is important to underscore the fact that from first to last instance, acriminal proceeding is a single proceeding in various stages,114 including theprocessing of the ordinary challenges filed against the judgment.
160.
that:

Article 31(1) of the 1969 Vienna Convention on the Law of Treaties provides
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object andpurpose.

161. In keeping with the object and purpose of the American Convention, which iseffective protection of human rights,115 the remedy contemplated in Article 8(2)(h) of
the Convention must be an effective, ordinary remedy whereby a higher judge or
court corrects jurisdictional decisions that are not in keeping with the law. While
States have a margin of discretion in regulating the exercise of that remedy, they
may not establish restrictions or requirements inimical to the very essence of theright to appeal a judgment. The Court has established that the “formal existence ofremedies is not sufficient; these must be effective;” in other words, they must
provide results or responses to the end that they were intended to serve.116
162. Based on the foregoing considerations, the Court will now determine whether
the writ of cassation to which Mr. Mauricio Herrera Ulloa had access fit theparameters described above and whether it was, in the final analysis, a remedy
114

Cf. Case of Castillo Petruzzi et al. Judgment of 30 May 1999. Series C No. 52, para. 161.

115
Cf. Case of Baena-Ricardo et al. Competence. Judgment of November 28, 2003. Series C No.
104, para. 95; Case of Cantos. Preliminary Objections. Judgment of September 7, 2001. Series C No. 85,
para. 37; and Case of Constantine et al. Preliminary Objections, supra note 24, para. 86.
116
Cf. Case of Baena-Ricardo et al. Competence, supra note 115, para. 77; Case of Maritza Urrutia,
supra note 7, para. 117; and Case of Juan Humberto Sánchez, supra note 20, para. 121.

79
regulated by and applied in accordance with the terms of Article 8(2)(h) of theAmerican Convention.
163. The higher court or judge in charge of deciding the remedy filed against acriminal judgment, has a special duty to protect the judicial guarantees and due
process to which all parties to the criminal proceeding are entitled, in accordancewith the principles governing that proceeding.
164. The possibility of appealing the judgment must be accessible; the kind ofcomplex formalities that would render this right illusory must not be required.
165. Regardless of the label given to the existing remedy to appeal a judgment,
what matters is that the remedy guarantees a full review of the decision being
challenged.
166. The Inter-American Court of Human Rights concluded the following in thisregard:[…] the lack of any possibility of fully reviewing the author's conviction and sentence, as
shown by the decision [...], the review having been limited to the formal or legal aspectsof the conviction, means that the guarantees provided for in article 14, paragraph 5, of
the Covenant have not been met. The author was therefore denied the right to a review
of his conviction and sentence, contrary to article 14, paragraph 5, of the Covenant.117

167. In the instant case, the writs of cassation filed to challenge the November 12,
1999 conviction did not satisfy the requirement of a liberal remedy that would permit
the higher court to do a thorough analysis or examination of all the issues debatedand analyzed in the lower court. Thus, the writs of cassation filed by Mssrs. Fernán
Vargas Rohrmoser and Mauricio Herrera Ulloa, and by the latter’s defense attorney
and the special counsel for the newspaper “La Nación”, respectively (supra para.
95.w) to challenge the conviction did not meet the requirements of Article 8(2)(h) of
the American Convention; the review allowed with those remedies was limited, notthorough and comprehensive.
168. The Court therefore finds that the State violated Article 8(2)(h) of theAmerican Convention, in combination with articles 1(1) and 2 thereof, to thedetriment of Mr. Mauricio Herrera Ulloa.
b)
Right to be heard by an impartial tribunal or judge (Article 8(1) of theConvention)
169. The alleged victims’ representatives argued that in the instant case, the Stateviolated the right to be heard by an impartial tribunal or judge, protected under
Article 8(1) of the Convention. The Court has held that any person subject to aproceeding of any nature before an organ of the State must be guaranteed that thisorgan is impartial and that it acts in accordance with the procedure established bylaw for hearing and deciding cases submitted to it.118
117
U.N., Human Rights Committee, M. Sineiro Fernández v. Spain (1007/2001), report of August 7,
2003, paragraphs 7 and 8; and U.N., Human Rights Committee, C. Gómez Vásquez v. Spain (701/1996),
report of July 20, 2000, para. 11.1.
118

Cf. Case of Ivcher-Bronstein, supra note 85, para. 112; Case of Constitutional Tribunal. Judgmentof January 31, 2001. Series C No. 71, para. 77; Case of Castillo-Petruzzi et al., supra note 114, para. 130131; Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human80

170. The European Court has held that “impartiality” involves both objective andsubjective aspects:
First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it
must also be impartial from an objective viewpoint, that is, it must offer sufficientguarantees to exclude any legitimate doubt in this respect. Under the objective test, it
must be determined whether, quite apart from the judges’ personal conduct, there areascertainable facts which may raise doubts as to their impartiality. In this respect evenappearances may be of a certain importance. What is at stake is the confidence which
the courts in a democratic society must inspire in the public and above all in the parties
to proceedings.119

171. The right to be tried by an impartial judge or court is a fundamental
guarantee of due process. In other words, the person on trial must have theguarantee that the judge or court presiding over his case brings to it the utmost
objectivity. This way, courts inspire the necessary trust and confidence in the parties
to the case and in the citizens of a democratic society.
172. As has been proved, in the criminal proceeding against Mr. Mauricio Herrera
Ulloa, the writ of cassation was filed on two occasions (supra para. 95(r) and 95(w)).
The Court notes that the four principal justices and the alternate justice on the benchof the Third Chamber of the Costa Rican Supreme Court when the May 7, 1999
decision on the writ of cassation filed by the attorney for Mr. Félix Przedborski tochallenge the acquittal was handed down, were the very same justices who decided
the January 24, 2001 writs of cassation that the defense attorney of Mr. Mauricio
Herrera Ulloa and the special counsel of the newspaper “La Nación”, and Mssrs.
Herrera Ulloa and Vargas Rohrmoser, respectively, filed to challenge the conviction(supra para. 95(y)).
173. When the Third Chamber of the Costa Rican Supreme Court decided the firstwrit of cassation, it nullified the court judgment being challenged and ordered thecase sent back to the competent court for retrial, based, inter alia, on the grounds
that “[t]he bases of the judgment are not sufficient to reasonably discard thepresence of actual or possible malice (with regard to the crimes charged).” (suprapara. 95(s)).
174. The justices of the Third Chamber of the Costa Rican Supreme Court shouldhave abstained from taking cognizance of the two writs of cassation filed tochallenge the November 12, 1999 conviction because when the writ of cassation filed
to challenge the May 29, 1998 acquittal was heard, those very same justices
examined the merits and did not confine themselves to the reasons of law.
175. Based on the above considerations, the Court concludes that the justices of
the Third Chamber of the Costa Rican Supreme Court that decided the two writs ofcassation filed to challenge the conviction, did not meet the impartiality requirement.
In the instant case, therefore, the State violated Article 8(1) of the American
Convention, in combination with Article 1(1) thereof, to the detriment of Mr. Mauricio
Herrera Ulloa.
Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9., para. 20; and Habeas Corpus in
Emergency Situations, supra note 112, para. 30.
119
Cf. Eur. Court. H. R., Case of Pabla KY v. Finland, Judgment of June 26, 2004, para. 27; and Eur.
Court. H. R., Case of Morris v. the United Kingdom, Judgment of February 26, 2002, para. 58.

81

c)

Right to be presumed innocent (Article 8(2) of the Convention)

176. The representatives of the alleged victims argued that in the case prosecuted
against Mr. Mauricio Herrera Ulloa and the newspaper “La Nación” the Costa Rican
courts, by the manner in which they applied the maxim of exceptio veritatis,“establish[ed] a kind of presumption of guilt, or at least reversed the burden of proof
to the journalist’s disadvantage.” They contend, therefore, that the State violated
Article 8(2) of the Convention.
177.
Given the circumstances of the instant case, the violation being alleged must
be examined in the context of Article 13 of the Convention. In the judgment
delivered by the Criminal Court of the First Judicial Circuit of San José on November
12, 1999, the latter required that Mr. Herrera Ulloa prove the veracity of the news
published in the Belgian newspapers and then reproduced in “La Nación”, which hehad simply cited.
178. As a consequence of the situation described in the preceding paragraph andas stated in the chapter on the violation of freedom of thought and expression(supra paragraphs 131, 132, 133 and 135), the Court is dismissing therepresentatives’ allegation and finds that the State did not violate the right to apresumption of innocence protected under Article 8(2) of the American Convention,in combination with Article 1(1).
XII
ARTICLE 50(THE COMMISSION’S REPORT)
Pleadings of the Commission
179.

The Commission did not claim violation of this article.

Pleadings of the alleged victims’ representatives
180. The representatives of the alleged victims argued the following with regard to
Article 50 of the Convention:a)
The State did not comply with the recommendations made by theInter-American Commission on Human Rights in the report it prepared under
Article 50 of the American Convention, which constitutes per senoncompliance with its international obligations. Moreover, Costa Rica also
informed the Commission that it would not take the measures theCommission recommended because “the Executive Branch cannot interfere indecisions taken by the Legislative or Judicial Branch;”b)
the State’s international responsibility can be compromised by any
State organ; because domestic remedies must be exhausted before theinternational protection that the inter-American system for the protection ofhuman rights offers can be sought, it is not strange that the violation of thoserights should ultimately emanate from the judicial branch;c)the existence of legislative bills hardly constitutes compliance with theCommission’s Article 50 recommendations; and82d)consequently, by not adopting measures to comply with thoserecommendations and by having advised the Commission that it would nottake the measures under domestic law, the State also violated Article 50 of
the Convention.
Pleadings of the State.
181.

With regard to Article 50 of the Convention, the State asserted that:a)the right to “believe” that its laws are compatible with the principles of
the Convention and the jurisprudence of the Inter-American Court, and hence
not to comply with a report that it considers wrong, does not constitute a
violation of the Convention; andb)once the Commission submits the case to the Court, there can be no
violation of the Convention for failure to comply with the recommendations
made in the Commission’s report.
***

Considerations of the Court
182.

The pertinent part of Article 33 of the Convention reads as follows:
The following organs shall have competence with respect to matters relating to the fulfillment of
the commitments made by the States Parties to this Convention:a.

the Inter-American Commission on Human Rights
[…]

183.

Article 50 of the American Convention provides that:1.
If a settlement is not reached, the Commission shall, within the time limit
established by its Statute, draw up a report setting forth the facts and stating its
conclusions. If the report, in whole or in part, does not represent the unanimous
agreement of the members of the Commission, any member may attach to it a separate
opinion. The written and oral statements made by the parties in accordance withparagraph 1.e of Article 48 shall also be attached to the report.

2.
The report shall be transmitted to the states concerned, which shall not be atliberty to publish it.

83
3.
In transmitting the report, the Commission may make such proposals andrecommendations as it sees fit.

184.

In earlier cases, the Court has held that:
Article 50 of the Convention concerns the preparation of a report by the Commissionthat is transmitted to the State, which may not publish it; it contains a series ofrecommendations to be complied with to settle the matter. If, within the three months
following the transmittal of the report to the State, the matter has not been settled andthe Commission considers that the State did not comply, it has two options: to refer
the case to the Court, by filing an application or to draw up the report referred to in
Article 51 of the Convention, which, by the vote of an absolute majority of its members,
shall set forth its opinion and conclusions concerning the question submitted for its
consideration. As in the Article 50 report, in the Article 51 report, the Commission shallprescribe a period within which the State must take the necessary measures to comply
with the recommendations and, thus, remedy the situation that is being examined.
Lastly, once this period has expired, the Commission shall determine whether the State
has complied and, if appropriate, decide whether to publish the report (cf: Articles 50
and 51 of the Convention). The Court has already stated that this decision is notdiscretional, but rather "should be based on the alternative most favourable for theprotection of the human rights" established in the Convention.120

185.

The Court has written that:[…] the term "recommendations" used by the American Convention should beinterpreted to conform to its ordinary meaning, in accordance with Article 31(1) of theVienna Convention on the Law of Treaties. For that reason, a recommendation does nothave the character of an obligatory judicial decision for which the failure to comply
would generate State responsibility. 121

186.

Nevertheless, this Court has also held that:[…] in accordance with the principle of good faith, embodied in the aforesaid Article
31(1) of the Vienna Convention, if a State signs and ratifies an international treaty,
especially one concerning human rights, such as the American Convention, it has theobligation to make every effort to apply with the recommendations of a protection organsuch as the Inter-American Commission, which is, indeed, one of the principal organs of
the Organization of American States, whose function is “to promote the observance anddefense of human rights” in the hemisphere (OAS Charter, Articles 52 and 111).
Likewise, Article 33 of the American Convention states that the Inter-American
Commission is, as the Court, competent "with respect to matters relating to thefulfillment of the commitments made by the State Parties" which means that by ratifying
said Convention, States Parties engage themselves to apply the recommendations madeby the Commission in its reports.122

187. This Court considers that, in keeping with its jurisprudence constante, once acase is submitted to the Court, it is up to the Court to determine whether or not theState violated substantive precepts of Convention; if so, it must then determine the120

Cf. Case of Baena Ricardo et al. Judgment of February 2, 2001. Series C No. 72. para. 189; Caseof Baena Ricardo et al. Preliminary Objections. Judgment of November 18, 1999. Series C No. 61, para.
37; and Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47,
50 and 51 of the American Convention on Human Rights). Advisory Opinion OC-13/93 of July 16, 1993.
Series A No. 13, para. 50.
121
Cf. Case of Baena Ricardo et al., supra note 120, para. 191; Case of Loayza-Tamayo. Judgmentof September 17, 1997. Series C No. 33, para. 79; and Case of Genie-Lacayo. Judgment of January 29,
1997. Series C No. 30, para. 93.
122

Cf. Case of Baena Ricardo et al., supra note 120, para. 192; and Case of Loayza-Tamayo, supranote 121, paragraphs 80 and 81.

84consequences of those violations. If a case is not submitted to the Court, however,
it is not up to the Court to determine the international responsibilities that the State
has incurred arising from State’s procedural conduct in the case before theCommission; in fact, a finding of responsibility is a necessary antecedent before acase can be submitted to the Court.123
XIII
REPARATIONS(Application of Article 63(1) of the Convention)
Pleadings of the Commission
188. The Commission asserted that the victims and their representatives wereentitled to reparations and costs. The Commission’s pleadings with regard to Article
63(1) of the Convention are summarized below:a)the beneficiaries of the reparations ordered by the Court as a result of
the violations found are: Mauricio Herrera Ulloa and Fernán Vargas
Rohrmoser;b)the measures to guarantee enjoyment of the violated right and thereparations required to bring the State into compliance with its international
responsibility include, inter alia, the following:
restitution, measures of
reparation and satisfaction and the payment of expenses and legal fees
incurred to bring the case both to the domestic courts and to international
jurisdiction;c)given the special characteristics of this case, measures of nonpecuniary reparations are of particular importance;d)the State has an obligation to make financial reparation to journalist
Mauricio Herrera Ulloa and Mr. Vargas Rohrmoser for the damages suffered;e)the damnum emergens and lucrum cessans
require special
consideration in the instant case, since there was no way to put a quantum on
those damages at the time the application was filed. The amounts fordamnum emergens and lucrum cessans could only have been determined if
the damages ordered in the judgment of conviction against the property of
Mr. Herrera Ulloa had been enforced at the domestic level;f)the moral damage consists on the impact that the violation has had on
his practice of journalism and the personal toll that the conviction took on Mr.
Herrera Ulloa, especially given his profession, where the journalist’s credibility
and personal image are paramount. A journalist’s performance depends on
his credibility; if the crime with which he is charged is somehow related to his
profession, the damage cause to him cannot be redressed like damages thatare essentially monetary in nature. It therefore petitioned the Court to order
the State to redress the moral damage caused to Mr. Herrera Ulloa “by his
prosecution, conviction, and listing in the Judiciary’s Record of Convicted
Felons”;

123

Cf. Case of Baena Ricardo et al., supra note 120, para. 193.

85g)
as one form of restitution and reparation, the Court was asked to order
the State to:g(1)vacate the November 12, 1999 conviction delivered by the
Criminal Court of the First Judicial Circuit of San José, and thejudgments that upheld that verdict, “as well as all their subsequent
practical and juridical effects that are detrimental to Mssrs. Mauricio
Herrera Ulloa and Fernán Vargas Rohrmoser”, among them the
February 21, 2000 order to Mr. Fernán Vargas Rohrmoser; the listingof Mr. Mauricio Herrera Ulloa’s name in the Judiciary’s Record ofConvicted Felons; and the order to take down the link at the “La
Nación Digital” website between the surname Przedborski and thearticles about which the criminal complaint was filed, and to create alink between those articles and the operative part of the judgment;g(2)undertake legislative amendment of those articles of the Costa
Rican Penal code that refer to crimes against honor, to make thosearticles conform to international standards on the subject. In otherwords, that Costa Rica be required to adopt the measures necessary sothat under the Costa Rican legal system the exercise of the right tofreedom of expression is not unduly restricted by means of its laws on
the crimes of calumny and insult in cases involving publications aboutpublic figures or issues of public interest; create a full and independent
system of courts of second instance for crimes of this type;g(3)issue a public apology for the human rights violations it has
committed;
g(4)publish the judgment delivered by the Inter-American Court in
the instant case; andh)once the position of the alleged victims’ representatives was heard,
the Court was asked to order the Costa Rican State to pay the costs incurredby the victims and their representatives in processing the legal cases in thedomestic courts and those incurred when the case was brought to theCommission and then to the Court.
Pleadings of the alleged victims’ representatives
189. The alleged victims’ representatives argued the following with regard to
reparations, costs and expenses:a)as one measure of restitution, the November 12, 1999 conviction andall the judgments that upheld it and the court orders to enforce them should
be declared void and of no legal effect;b)
the foregoing implies that the following shall be rendered without
effect: 1) the criminal conviction of Mauricio Herrera Ulloa; 2) the order topublish the “Now, Therefore” portion of the November 12, 1999 verdict in thenewspaper “La Nación” in the same print face in which the articles about
which the criminal complaint was filed appeared; 3) the order to take down
the link at the “La Nación Digital” website on the Internet between thesurname Przedborski and the articles about which the criminal complaint was

86
brought, and to create a link between those articles and the operative part of
the November 12, 1999 judgment of conviction; 4) the accessory penalty
ordered against the property of the defendant for civil liability; and 5) theorder to pay costs;c)both the civil liability resulting from the crime and the order to pay
costs are penalties associated with the criminal conviction and accessorial toit; therefore, if the attribution of the crime of which Mr. Mauricio Herrera Ulloa
was convicted is a violation of his human rights and therefore illegitimate, so,too, are the direct consequences of the criminal conviction;d)the effects of the civil damages ordered should disappear erga omnes,i.e., with respect to those convicted and with respect to any persons who, as
alleged creditors, might make a direct or indirect claim on the civil award;e)the listing for Mr. Mauricio Herrera Ulloa’s name in the Judiciary’s
Record of Convicted Felons should be definitively removed;f)with regard to Costa Rican domestic law, the representatives asked
the Court to order the State to adopt the reforms needed to ensure that theprovisions of the Penal Code that concern crimes against honor arecompatible with the Convention, taking care to guarantee that: i) the Costa
Rican legal system does not unduly restrict the right to freedom of expression
through laws criminalizing defamation, calumny and insult in cases involving
articles about public officials or on issues of public interest; ii) penalties for“publication of offenses,” criminalized in Article 152 of the Penal Code, are tobe eliminated, especially when the publication is about public officials or
persons who voluntarily expose themselves to public scrutiny; and iii) the“test of truth” or exceptio veritatis is made to conform to the normal rules for
distribution of the burden of proof and that in public interest cases such as
the instant case, it be the alleged aggrieved party who must prove the alleged
offending party’s mens rea;g)they petitioned the Court to order the State to adopt the reforms
needed so that domestic law comports with the Convention on the matter of
judicial guarantees, especially the guarantee of a “full and effective” remedy
against a criminal conviction delivered by a court of first instance, and toensure that that the possibilities of judicial remedy be developed beyond theextraordinary remedy of cassation, with all the limitations inherent therein;h)as one measure of satisfaction, the alleged victims’ representatives
asked the Court to order the State to publicly acknowledge the human rights
violations it had committed, to “offer adequate means of satisfaction to Mr.
Mauricio Herrera Ulloa” and to publish the judgment delivered by the InterAmerican Court;i)given the “imminence of the impending enforcement of the civil
damages ordered in the November 12, 1999 judgment, should that happen
the State should compensate those whom that ruling found to be jointly andseverally liable, namely Mssrs. Mauricio Herrera Ulloa and Fernán Vargas
Rohrmoser, as well as the newspaper “La Nación”, in the amount of sixty
million colones –which sum should be adjusted to the actual value of thecurrency at the time the payment is made- plus the corresponding interest.

87
The same compensation should be paid as repayment in the event ofenforcement of award for personal damages and court costs ordered in theamount of three million eight hundred ten thousand colones and one million
colones, respectively;j)moral damage has been sustained in the form of the impact that thehuman rights violation has had on Mr. Mauricio Herrera Ulloa’s practice ofjournalism and the personal effects that he suffered as a result of theNovember 12, 1999 conviction, especially given his profession, where “thejournalist’s credibility and personal image are paramount”;k)the representatives petitioned the Court to order the State to makecompensation for the moral damage caused to Mr. Herrera Ulloa “by his
prosecution, conviction, and his listing in the Judiciary’s Record of Convicted
Felons”; andl)under expenses incurred, they petitioned the Court to order the sum of
US$ 17,849.90 (seventeen thousand eight hundred forty-nine dollars andninety cents), which covers transportation, lodging, telephone and meals
during the representatives’ trips to Washington, D.C. and San José; they also
informed the Court that they were not filing a claim for attorneys’ fees.
Pleadings of the State
190. With regard to reparations, expenses and costs, the State petitioned the
Court to declare the application filed by the Commission and the written brief ofpleadings, motions and evidence filed by the alleged victims’ representatives to be
unfounded and inadmissible, and pointed out that:a)the requested nullification of the effects of the judgment, which would
render the accessory penalties ineffective, is improper and inadmissible;b)
it is equally inadmissible to nullify all the civil damages awarded
against the newspaper “La Nación”, which is the only party found liable onsome civil and cybernetic issues, while on others it was declared jointly andseverally liable with Mr. Herrera Ulloa;c)despite any harm that the listing of Mr. Mauricio Herrera Ulloa in the
Judiciary’s Record of Convicted Felons may have caused to his personal and“spiritual” condition, he won academic recognitions, studied in Germany andSpain, won national journalism awards, and did not have to file any request
with any public institution that, by law, had access to the information
contained in the Judiciary’s Record of Convicted Felons because he wasoutside the country. Therefore, if there was any harm done to Mr. Mauricio
Herrera Ulloa’s honor or prestige, it had to have been confined to the period
during which he was listed in the Judiciary’s Record of Convicted Felons, i.e.
from March 1 to April 26, 2001; that would be the one, brief period for which
any possible moral damage might be claimed;d)the only satisfaction that Mr. Fernán Vargas Rohrmoser could receive
would be in his personal capacity, because it is as an individual that he canlegitimately claim the protection of the inter-American system for theprotection of human rights; therefore, the titles or representations he boasts

88“count for nothing, […] it would be an absurdity to award satisfaction to anindividual […] who has not participated through the channels permitted by theinter-American system for the protection [of human rights]”; ande)with regard to the pecuniary claims, Mr. Fernán Vargas Rohrmoser
cannot be compensated for human rights violations he did not suffer, as forexample a violation of freedom of expression; as then Chairman of the Boardof Directors of La Nación and its senior legal counsel and representative, itwould appear that Mr. Vargas Rohrmoser never wrote a “single line;” if that isthe case, one can infer, then, that his right to freedom of expression andthought could hardly have been violated or denied.
Considerations of the Court
191. As recounted in the preceding chapters, the Court has found that by theevents in this case, the State violated articles 13 and 8(1) of the American
Convention, in relation to articles 1(1) and 2 thereof, to the detriment of Mr.
Mauricio Herrera Ulloa. In its case law, this Court has established that it is aprinciple of international law that any violation of an international obligation that hascaused damage creates a new obligation, which is to adequately redress the wrong
done.124 Here, the Court stands on Article 63(1) of the American Convention, whichholds that[i]f the Court finds that there has been a violation of a right or freedom protected by thisConvention, the Court shall rule that the injured party be ensured the enjoyment of hisright or freedom that was violated. It shall also rule, if appropriate, that theconsequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.

192. Reparation of the wrong caused by the violation of an international obligation
requires, whenever possible, full restitution (restitutio in integrum), which is torestore the situation as it was prior to the violation.
193. The obligation to repair, which is regulated in all its aspects (scope, nature,modes and establishment of beneficiaries) by international law, cannot be modified
by the State nor can the latter avoid complying with it by invoking provisions of its
domestic law.125
194. As the term implies, reparations are measures intended to erase the effects ofthe violations committed. In this respect, the reparations established should be in
relation to the violations that have previously been declared.
195. The Court has determined that the November 12, 1999 judgment delivered by
the Criminal Court of the First Judicial Circuit of San José that convicted Mr. Mauricio
Herrera Ulloa of a crime, had the effect of violating his right to freedom of thought
and expression (supra paragraphs 130, 131, 132, 133 and 135). For that reason,
the State must nullify that judgment and all the measures it ordered, including any
involving third parties. The effects of the judgment are as follows: 1) Mr. Mauricio
Herrera Ulloa was declared guilty on four counts of the crime of publishing offenses
124

Cf. Case of Maritza Urrutia, supra note 7, para. 141; Case of Myrna Mack-Chang, supra note 7,
para. 234; and Case of Bulacio, supra note 7, para. 70.
125
Cf. Case of Maritza Urrutia, supra note 7, para. 143; Case of Myrna Mack-Chang, supra note 7,
para. 236; and Case of Bulacio, supra note 7, para. 72.

89
constituting defamation; 2) the penalty imposed on Mr. Herrera Ulloa consisted of 40
days’ fine per count, at ¢2,500.00 (two thousand five hundred colones) a day, for a
total of 160 days’ fine. In application of the rule of concurso material (where anumber of related crimes are combined to reduce the penalty that would have beenrequired had each separate crime carried its own weight), “the fine [wa]s reduced tobe three times the maximum imposed”; in other words, the fine was reduced from
160 to 120 days, for a total of ¢300,000.00 (three hundred thousand colones); 3) inthe civil award, Mr. Mauricio Herrera Ulloa and the newspaper “La Nación,”
represented by Mr. Fernán Vargas Rohrmoser, were held jointly and severally liable
and ordered to pay ¢60,000,000.00 (sixty million colones) for the moral damages
caused by the articles carried in “La Nación” on March 19, 20, and 21, 1995, andthen again on December 13, 1995; 4) Mr. Mauricio Herrera Ulloa was ordered to
publish the “Now, Therefore” portion of the judgment in the newspaper “La Nación”,
in the section called “El País,” in the same print face used for the articles about which
the criminal complaint was filed; 5) “La Nación” was ordered to take down the link at
the La Nación Digital website on the internet, between the surname Przedborski andthe articles about which the criminal complaint was filed; 6) “La Nación” was ordered
to create a link at the La Nación Digital website on the internet between the articles
about which the complaint was filed and the operative part of the judgment; 7) Mr.
Herrera Ulloa and the newspaper “La Nación,” represented by Mr. Fernán Vargas
Rohrmoser, were ordered to pay court costs in the amount of ¢1,000.00 (onethousand colones) and personal damages totaling ¢3,810,000.00 (three million eight
hundred ten thousand colones); and 8) Mr. Mauricio Herrera Ulloa’s name wasentered into the Judiciary’s Record of Convicted Felons. The Court finds that theState must take all necessary judicial, administrative and any other measures tonullify and abolish any and all effects of the November 12, 1999 judgment.
196. By an order dated September 7, 2001, the Court ordered the State to adopt
provisional measures on behalf of Mr. Mauricio Herrera Ulloa (supra para. 17), as
follows: “a) to adopt forthwith those measures necessary to suspend the entry of
Mauricio Herrera Ulloa’s name in the Judiciary’s Record of Convicted Felons; b) tosuspend the order for “La Nación” to publish the “Now Therefore” portion of theconviction handed down by the San José First Circuit Criminal Trial Court on
November 12, 1999; c) to suspend the order to create a “link” at the La Nación
Digital website between the disputed articles and the operative part of that court
judgment. In other words, the Court had ordered a stay of some of the effects of
the November 12, 1999 ruling, and had further ordered that it should remain in place“until such time as the bodies of the inter-American system for the protection ofhuman rights ha[d] arrived at a final decision on the case.”
Given what the Court
set out in the preceding paragraph, it considers that the State’s obligations vis-à-vis
the ordered provisional measures are now replaced by the obligations ordered in thepresent judgment, effective as of the date of its notification.
197. The Court further considers that the State must respect and ensure the rightto freedom of thought and expression, in the terms of Article 13 of the American
Convention and the present judgment.
198. The Court also considers that within a reasonable period of time, the State
must adapt its domestic legal system to conform to the provisions of Article 8(2)(h)of the Convention, in relation to Article 2 thereof.
*

*

*

90
199. With regard to the claim seeking reimbursement of the payment that would
be made if the civil damages, court costs and personal damages ordered in theNovember 12, 1999 court judgment are enforced, the Court understands that thisclaim has been settled by the Court’s decision regarding nullification of the effects ofthat judgment (supra para. 195).
200. With regard to the other claims asserted by the Commission (supra para. 188
g.3 and g.4) and by the alleged victims’ representatives (supra para. 189.h), theCourt deems that the present judgment constitutes per se a form of reparation.126
However, the Court is persuaded that the events in the instant case caused Mr.
Mauricio Herrera Ulloa suffering, because of his criminal conviction, which the Court
has already held constituted a violation of the right to freedom of thought andexpression. Fairness dictates that compensation must be paid for the non-pecuniary
damages he sustained.127 Thus, the Court finds that the State must pay Mr.
Mauricio Herrera Ulloa the sum of US$ 20,000.00 (twenty thousand United States
dollars) or its equivalent in Costa Rican currency, as compensation for non-pecuniary
damages.
***201. As for the reimbursement of expenses, it is for the Court to prudently assess
their scope, which must include any expenses generated by the victim’s
representative in litigating the case before the inter-American system for theprotection of human rights. This assessment must be done on the basis of theprinciple of equity.128
202. To that end, the Court deems that the State must pay Mr. Mauricio Herrera
Ulloa the sum of US$10,000.00 (ten thousand United States dollars) or theequivalent in Costa Rican currency, to defray the expenses of litigating his defense
before the inter-American system for the protection of human rights.
***

203. The State must fulfill its pecuniary obligations by means of a payment in
United States dollars or in an equivalent amount in Costa Rican currency, using forthe respective calculation the exchange rate between both currencies at the New
York exchange the day before the payment.
204. The payments for non-pecuniary damages and expenses established in thepresent Judgment shall not be subject to any existing or future tax or levy. The
State shall comply with the measures of reparation and with the reimbursement ofexpenses ordered (supra paragraphs 195, 200 and 202) within six months of thedate of notification of the present Judgment. The State must comply with the otherreparation ordered (supra para. 198) within a reasonable period of time. Should the126

Cf. Case of Maritza Urrutia, supra note 7, para. 166; Case of Myrna Mack-Chang, supra note 7,
para. 260; and Case of Bulacio, supra note 7, para. 96.

127
Cf. Case of Maritza Urrutia, supra note 7 para. 166; Case of Myrna Mack-Chang, supra note 7,
para. 260; and Case of Bulacio, supra note 7, para. 96.
128
Cf. Case of Maritza Urrutia, supra note 7, para. 182; Case of Myrna Mack-Chang, supra note 7,
para. 290; and Case of Bulacio, supra note 7, para. 150.

91
State fall into arrears, it shall pay interest on the amount owed, which will be thebanking arrearage interest rate in effect in Costa Rica.
205. If for any reason attributable to the beneficiary of the compensation, he isunable to receive it within the stipulated six-month period, the State shall deposit
the respective amount in favor of said beneficiary in an account or certificate ofdeposit, at a sound financial institution, in United States dollars or their equivalent in
Costa Rican currency, under the most favorable financial terms allowed by banking
practice and law. If after ten years the payment has not been claimed, the amountwill be returned to the State, with the interest earned.
206. In keeping with its usual practice, the Court will oversee compliance with thisJudgment and will declare the case closed once the State has fully complied with it.
Within six months of the date of notification of this Judgment, the State shall submit
a report to the Court on the measures adopted to comply with this Judgment.
XIV
OPERATIVE PARAGRAPHS
207.

Now therefore,
THE COURT

unanimously
DECLARES:
1.
That the State violated the right to freedom of thought and expression
protected under Article 13 of the American Convention on Human Rights, in relation
to Article 1(1) thereof, to the detriment of Mr. Mauricio Herrera Ulloa, as describedin paragraphs 130, 131, 132, 133 and 135 of the present Judgment.
2.
That the State violated the right to judicial guarantees recognized in Article
8(1) of the American Convention on Human Rights, in relation to Article 1(1) thereof,
and Article 8(2)(h) of the Convention, in relation to articles 1(1) and 2 thereof, tothe detriment of Mr. Mauricio Herrera Ulloa, as described in paragraphs 172, 174,
175 and 167 of the present Judgment.
3.
That this Judgment constitutes per se a form of reparation, as established inits paragraph 200.
And unanimously
DECIDES THAT:4.
The State must nullify the November 12, 1999 judgment of the Criminal Courtof the First Judicial Circuit of San José and all the measures it orders, as establishedin paragraphs 195 and 204 of the present Judgment.
5.
Within a reasonable period of time, the State must adjust its domestic legal
system to conform to the provisions of Article 8(2)(h) of the American Convention on

92
Human Rights, in relation to Article 2 thereof, as established in paragraph 198 of thepresent Judgment.
The State must pay non-pecuniary damages to Mr. Mauricio Herrera Ulloa in6.
the amount of US$ 20,000.00 (twenty thousand United States dollars) or theequivalent in Costa Rican currency, as established in paragraphs 200, 203, 204 and205 of the present Judgment.
7.
The State must pay Mr. Mauricio Herrera Ulloa the sum of US$ 10,000.00 (tenthousand United States dollars) or the equivalent in Costa Rican currency, to defray
the expenses of his legal defense in litigating his case before the inter-Americansystem for the protection of human rights, as established in paragraphs 202, 203,
204 and 205 of the present Judgment.
8.
None of the compensation ordered in operative paragraphs 6 and 7 of thisjudgment shall be subject to any tax or levy currently in existence or ordered in the
future, as established in paragraph 204 of the present Judgment.
9.
Should the State fall into arrears, it shall pay interest on the amount owed,
which will be the banking arrearage interest rate in effect in Costa Rica, under theterms specified in paragraphs 203 and 204 of the present Judgment.
10.
The State’s obligations vis-à-vis the provisional measures previously orderedby the Court are replaced by the measures ordered in the present Judgment,
effective the date of its notification, in the terms set forth in paragraphs 195, 196,
198, 200 and 202 of the present Judgment.
11.
The State must comply with the measures of reparation and reimbursementof expenses ordered in operative paragraphs 4, 6 and 7 of the present Judgment,
within six months of the date of notification of the present Judgment.
12.
Within six months of the date of notification of this Judgment, the State shallsubmit a report to the Court on the measures taken to comply with the present
judgment, as established in paragraph 206 thereof.
13.
The Court will oversee compliance with this Judgment and will close thepresent case once the State has fully complied with the measures ordered herein.
Judge García Ramírez informed the Court of his Concurring Opinion, which isannexed to this Judgment.

Sergio García-Ramírez
President
Alirio Abreu-Burelli

Oliver Jackman

Antônio A. Cançado Trindade

Cecilia Medina-Quiroga

93

Diego García-Sayán
Marco Antonio Mata-Coto
Judge ad hoc
Pablo Saavedra-Alessandri
Secretary
So ordered,
Sergio García-Ramírez
President
Pablo Saavedra-Alessandri
Secretary

CONCURRING OPINION OF JUDGE SERGIO GARCIA RAMIREZ IN THE
JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE
CASE OF HERERERA ULLOA VS. COSTA RICA,
OF JULY 2, 2004

1.

Freedom of expression, the media and the practice of journalism

1.
This is not the first time that the Inter-American Court has had to adjudicate
matters constituting violations of freedom of expression. The Court has examinedcases in which such violations were alleged, but the backdrop against which thoseviolations occurred has varied. It might be one of gross human rights violations, aweakening of democracy and institutional conflict. Then again, the context mightalso be one in which democracy flourishes and fundamental rights are, on the whole,observed. The latter scenario is the one that best fits the case of Herrera Ulloa vs.
Costa Rica, which the Court decided in its Judgment of July 2, 2004. I concur with
the Court’s judgment in the case and am attaching the present Opinion thereto. The
differing backdrops point up an important issue, although not the one I am
addressing here: the features that attend the clash between legally protectedinterests and the preservation of human rights in an “authoritarian environment” as
opposed to those that attend such a clash in a “democratic environment.”
2.
When on those previous occasions the Court examined violations of Article 13of the American Convention on Human Rights, it took into account, as it does in thepresent judgment to which this Concurring Opinion is affixed, the specificcharacteristics of freedom of expression when exercised through the mass media.
The mass media carry messages to a large audience and therefore have a social
impact that the Court has also identified with Article 13 of the American Convention.
In a democratic society, the mass media provide information to society as a whole
and thus serve to inform the decisions that its members make, with all theconsequent implications.
3.
Obviously, freedom of expression is upheld and defended, no matter thecircumstance. There are no subjective boundaries. Freedom of expression is notconfined to any particular human group defined by socioeconomic status, ethnicity,
nationality, gender, age, conviction or belief. It is truly universal in that it is a
freedom that all people enjoy. However, when that freedom is exercised as aprofession, it does have some significant distinctive features that require
qualifications, precautions, and specific conditions. Professional journalists cultivate
an attitude that takes freedom of expression as a given. They use freedom of
expression as a tool for their personal realization and as a means to enable others todevelop their human and collective potential.
Thus, specific declarations or
instruments concerning freedom of expression are premised on its universality andfrom there go to the particular nature of freedom of expression in the context of themass media. One finds this, too, at the domestic level, where the effort is made –as
it has been in Costa Rica-- to have laws that pertain to the mass media and not justfreedom of expression in general.
4.
The “transcendental quality” of freedom of expression manifests itself injournalism. The distinctive features of freedom of expression exercised through themass media include its sweeping scope (which enables it to reach many people, mostof them well-removed from the source of the message and unknown to it), and the

2condition of those who practice journalism as a profession (communications
professionals upon whom the recipients of the message to a large extent rely for
their information.). The implication here is that freedom of expression has two
aspects: on the one hand, it is a fundamental right, connected to the other basic
rights and plays a role in social life as a whole. But freedom of expression can also
be viewed from a “functional” perspective, having to do with the service that itprovides and that enables the existence, survival, exercise, development andguarantee of other rights and freedoms.
5.
Other rights suffer, weaken or disappear when freedom of expression iseroded. The protection of life and liberty, preservation of integrity of person, respect
for property, and access to the courts: all these owe much to freedom of expression
manifesting itself as criticism or a power to denounce, which is an individual andcollective imperative. Authoritarianism tends to wield its power against freedom of
expression as a means to forestall revelation of the truth, to silence differences, todissuade or frustrate voices of protest and, in the end, to negate the pluralism that is
one of the distinctive features of a democratic society. Hence, society’s “democratic
senses” must be constantly alert so as to prevent and combat any violation of
freedom of expression which might bring with it, sooner or later, other forms of
oppression.

2.

Limitation of and restrictions on the enjoyment and exercise of freedom of

expression.
6.
Although the instant case did not occur against a backdrop of
authoritarianism, it does bring to mind issues that are both relevant to and importantfor freedom of expression and, by extension, its institutions and practices in a
democratic society. It also draws attention to some of the issues that are at theheart of the contemporary debate. One of these is how to resolve the conflict
between legally protected interests and rights, on the one hand, and what
constitutes a legitimate reaction to what happens when boundaries are crossed andthe exercise of one encroaches upon the other. Of course, this is hardly unexploredterritory. Indeed, these topics have been under constant study. The highest
national courts and international courts have heard cases involving the exercise of
freedom of expression as opposed to other rights and freedoms equally deserving ofrecognition and protection. The deliberations on the questions raised here have notalways resulted in unanimous conclusions. There are, in this area, unfinisheddeliberations and settlements pending.
7.
The judgment adopted by the Court, with which I am in agreement, takes into
account, on the one hand, the duality of freedom of expression to which I alluded
earlier; but it also considers the limits on the exercise of freedom of expression. The
proclamation of the basic rights of man as statute marked the advent of modern
man: no longer vassal, but a citizen and titulaire by the mere fact that he is a humanbeing. But the proclamation of the basic rights of man occurred in conjunction withanother resounding declaration embodied in the very same documents: that anindividual’s rights stop where another’s begin. One is titulaire of rights and exercises
them, on condition that the titularite and exercise of those rights do not deny otherfellow citizens of the titularite and exercise of their own rights. This boundary,announced in the classic declarations and preserved in modern-day instruments, is3expressed in various concepts: the rights of others, by the security of all, and by thejust demands of the general welfare and the advancement of democracy, to use, by
way of example, the language of the American Declaration of the Rights and Dutiesof Man (Article XXVII) and echoed in the Pact of San José (Article 32(1)).
8.
From this dialectic, which is a constant in social relations and an ever-present
issue before the courts, comes the limitation or restriction on the enjoyment andexercise of rights and freedoms. These restrictions “may not be applied except inaccordance with laws enacted for reasons of general interest and in accordance withthe purpose for which such restrictions have been established” (Article 30 of theAmerican Convention).
The rules for interpreting treaties, with the special
importance they have in the case of human rights, strive for maximum and optimum
respect for and enforcement of rights and freedoms, in keeping with the object andpurpose of the corresponding treaty. Hence, limitations must be understood andapplied by a narrow criterion and by the strictest standards of reasonableness,
opportunity and moderation. This point, too, is explored in international case law andechoed in the decisions of the Inter-American Court.
9.
Apart from the regime of generic limitations that pertain to various rights andfreedoms, the Convention adds specific limitations in the area of freedom of thought
and expression, as is evident in Article 13, paragraphs 2, 4 and 5. The Court has put
together a careful formula concerning the admissible restrictions in this case, which
can be used as a rule of thumb when assessing the restrictions that domestic legal
systems establish. In Advisory Opinion OC-5/85, on Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights), of November 13, 1985, this Court pointed
that the "necessity and, hence, the legality of restrictions imposed under Article
13(2) on freedom of expression, depend upon a showing that the restrictions are
required by a compelling governmental interest. Hence if there are various options toachieve 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, therestrictions must be justified by reference to governmental objectives which, becauseof their importance, clearly outweigh the social need for the full enjoyment of theright Article 13 guarantees. Implicit in this standard, furthermore, is the notion thatthe restriction, even if justified by compelling governmental interests, must be soframed as not to limit the right protected by Article 13 more than is necessary. Thatis, the restriction must be proportionate and closely tailored to the accomplishmentof the legitimate governmental objective necessitating it.” (para. 46)
3.

The criminal law reaction

10.
And so, one accepts the possibility and even the necessity of reacting in waysthat keep everyone’s rights and freedoms intact and that therefore punish those whocross boundaries and in so doing violate the rights and freedoms of others. This isthe bedrock of the system of responsibilities, in its various aspects, with thecorresponding list of sanctions. By selecting the lawful options wisely, a balance isstruck that discourages anarchy and authoritarianism.
11.
Not infrequently the freedom of expression protected under Article 13 of theAmerican Convention comes in conflict with, or seems to come in conflict with, otherrights, such as the rights to privacy, honor, dignity, and to the presumption of

4
innocence. Article 11 of the Convention alludes to the right to have one’s honor
respected and one’s dignity recognized.
The potential is there for a collision ofprotected rights, a collision that has particular connotations when it is freedom of
expression exercised through the mass media, with the enormous impact they (themedia) have, the power they represent and the effect that they can have, for thatvery reason, on the lives of persons, their integrity and the preservation of theirlegally protected interests. When such a collision cannot be averted, an authority
must intervene to correct the inequity, demand accountability and impose themeasures that follow from the responsibility incurred. This is where the “necessity”
comes into play. Identifying the interests that need to be protected, weighing theirimportance in the democratic scheme of things and selecting the proper means toprotect them are not always a simple matter.
12.
In the case brought to the Inter-American Court’s attention, resulting fromthe publication of certain articles in “La Nación” newspaper in Costa Rica, written byjournalist Mauricio Herrera Ulloa, it was argued that criminal sanctions had to beconsidered as a means to punish what was alleged to be unlawful conduct in thepractice of journalism, conduct that, it was claimed, caused harm to private persons.
From the beginning, this position necessitates an examination of the crimes alleged
and how they were interpreted in trial. This examination raises the problem ofmalice in general, and the specific malice that must be present when crimes against
honor are involved. It also raises the matter of the exceptio veritatis as a possible
grounds for preclusion of punishment –either because the conduct did not fit thecrime, or because of justification or lack of culpability, depending on how thatpossibility is dealt with in the positive law systems and the position that the doctrine
takes on the subject. Then, too, all this raises questions concerning the so-called
presumption of innocence, or to be more rigorous, the principle of innocence thatgoverns and tempers the treatment of the accused under criminal law and procedurallaw.
13.
Seen from this perspective, the following must be said: a) that in order to beclassified as a punishable offense for the improper exercise of freedom of expression,
the following must be present: specific malice to discredit a person’s reputation, todamage his good name or prestige, to cause harm to the passive subject, and to not
to confine oneself to predicting and suggesting a certain outcome; b) in democraticsystems, criminal law rightly lays the burden of proof on the party making theaccusation, not the party who, as the accused, denies the charge based on theprinciple of presumption of innocence; c) that if the principle of exceptio veritatis is
statute, then it ought not to reverse the burden of proof which would confound theevidentiary consequences of that principle; and d) that the practice of the journalism
profession involves rights and duties vis-à-vis information –among them certain
obligations of prudence and care, as is true of any profession. The practice ofjournalism is provided for and protected by the law, inasmuch as journalism is asocial interest that the State protects; there may, therefore, be a premise forpreclusion of crime on the grounds that the conduct is permissible if it meets theconditions set forth in the law regulating this preclusion, conditions similar or
identical to those required in the case of other grounds for justification. Of course,
the boundaries of the duty to be cautious must be established thoughtfully. The factthat the duty exists does not mean that the obligatory caution needs to exceed theboundaries of what is reasonable. Otherwise, journalists would feel overly inhibitedand silence would take the place of the free flow of ideas.

5
14.
Before settling on how best to classify these behaviors as criminal offenses,
one first has to decide whether the criminal law avenue is the one best suited togetting at the crux of the problem –in a manner consistent with the conflicting rights
and interests and with the implications of the alternatives available to the lawmakeror whether some other avenue, such as administrative or civil law, for example,
might be the better juridical response. Indeed most infractions are not addressed as
matters of criminal law or through criminal courts, but through measures of otherkinds.
15.
At this point in the analysis, it is worth recalling that as a rule, save for somedigressions into authoritarianism -all too many and unfortunately not yet on the
decline, the current thinking favors the so-called minimalist approach to criminal law.
In other words, moderate, restricted, marginal use of the criminal-law apparatus,
reserving it instead for only those cases when less extreme solutions are either outof the question or frankly inadequate. The power to punish is the most awesome
weapon that the State –and society, for that matter- has in its arsenal, deploying its
monopoly over the use of force to thwart behaviors that seriously –very seriouslythreaten the life of the community and the fundamental rights of its members.
16.
In an authoritarian political milieu, the criminal law solution is usedfrequently: it is not the last resort; it is one of the first, based on the tendency to“govern with the penal code in the hand,” a proclivity fostered by blatant andconcealed authoritarianism and by ignorance, that can think of no better way toaddress society’s legitimate demand for security.
The opposite happens in a“democratic environment”: criminalization of behaviors and the use of sanctions area last resort, turned to only when all others have been exhausted or have proven to
be inadequate to punish the most serious violations of important legal interests.
Then, and only then, does a democracy resort to punitive measures: because it isindispensable and unavoidable. Even so, classifying behaviors as criminal offenses
must be done carefully and by rigorous standards, and the punishment must always
be tailored to the importance of the protected interests, the harm done to them or
the peril to which they are exposed, and the culpability of the perpetrator. The
lawmaker has a number of useful options available to choose from, as does thejudge. Of course, a distinction has to be made between the “real need” to use thecriminal law system, which must have a clear, objective basis, and the “false need”
to do so because the authorities have been ineffective in doing their job and thenpretend “to correct” the problem by unleashing the repressive machinery.
17.
Reserving the criminal law forum for as few cases as possible must not beinterpreted to mean that illegal conduct is justified or that impunity is authorized,
allowing the offense to go unanswered. Were the State to do so, it would be remissin its obligations vis-à-vis the victim. It simply means redirecting the juridical
response into a forum where the offenses can be adjudged reasonably and theperpetrators punished appropriately. This alternative allows the State to address, inan appropriate manner and at less social cost, the need to preserve cherished but
apparently conflicting interests, without resorting to unnecessary and by extension
excessive punishments, while also ensuring that those who engage in unlawful
behavior will receive the condemnation they deserve. In short, decriminalization
does not mean license or impunity.
18.
This way of dealing with unlawful conduct seems particularly appropriate in
the case of (some or all) offenses against honor, good name and the prestige ofprivate persons. The civil law court can be used to achieve the same results that one

6might 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 thatthe 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 theCase of Herrera Ulloa vs. Costa Rica, the Inter-American Court underscored theimportance of the judgment itself as a means of reparation or moral satisfaction.
Furthermore, a civil judgment can order payment of moral damages and, whereappropriate, 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 greaterinterest 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 thestandards of journalism would remain intact. When such justification is present,
there can be no liability. Obviously, the civil solution does not pose the sameproblems that the criminal law solution poses vis-à-vis domestic and international
human rights standards, nor does the civil law solution have the intimidating effectthat 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 initiallypunishable under civil or administrative law. In such cases, the repetition of theoffense implies aggravation of the wrongdoing, to the point that it moves from therealm 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 lessdrastic options to find a solution, which many of us would consider preferable: toresolve in the civil courts the excesses committed through the mass media, byprofessionals 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 tobe solved by civil and administrative means.
21.
When the Court heard this case, it learned about a bill in Costa Rica on thesubject of freedom of expression and freedom of the press, which would introducechanges 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 beamended. Under the bill, which the Court is not called upon to address in the casesub judice, certain grounds for preclusion of the crime related to behaviors of thekind 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

7
have been aired by other mass media, by news agencies, public authorities or
private persons with authoritative knowledge of the facts, provided the publication
always indicates the source being cited” (paragraph 2); or the situation when an“unfavorable opinion is expressed in discharging a duty or exercising a right,
provided that the modus operandi or the lack of discretion, when discretion was inorder, do not establish the presence of an intent to offend” (paragraph 4).
4.

Protection of honor. Public interest and status as a public official

22.
Given the particulars of the instant case, the Court‘s judgment has addressedsome aspects of the conflict between freedom of expression, exercised in journalism
for purposes of reporting, and the right to a good name, to dignity, honor, privacy ofthe person alluded to in the press report. In the instant case, a distinction has beendrawn between the situation of a public official and that of the ordinary citizen who is
not performing any function by mandate of or on behalf of the State.
23.
Among the central purposes of the information required by citizens andprovided by the mass media is one that concerns “res populi”, understood in a broad,contemporary and “realist” sense to mean that “everyone can know that which ofinterest to everyone.” There is a legitimate interest in knowing what is of interest tosociety as a whole, what impacts the functioning of the State, what affects generalinterests or rights, and what has important consequences for the community: all thatengenders a legitimate use of freedom of expression for informative purposes. The
business of government –and more broadly the activities of the State through its
various organs- are not inconsequential to the everyday citizen and knowledge of thebusiness of government should not be beyond the reach of that everyday citizen.
Democracy is built upon a duly informed public, which steers its way of thinking andmakes its decisions on the basis of that information. Information about the businessof government should be much more readily available than strictly private
information about an individual’s personal or private life that does not cross overthose strict boundaries. Indeed, the business of government is one of the natural
domains for so-called “transparency.”
24.
In today’s complex, heterogeneous, developed society, which operates under
the influence of a variety of social, political and economic agents, that public “zone ofinterest” is not confined to what might be formally classified as “state,”“governmental,” or “official.” It extends far beyond that, as far as the public interest
demands. The situation and decisions of private persons are not affected just by theformal acts of the State: other agents can exert a powerful and even decisive
influence on the lives of private individuals. We cannot disregard another sensitiveand important aspect here: the distortions that the information can contain and theabuses of power –formal and informal- that can be concealed through thedissemination of news and the expression of thought.
25.
It has never been asserted that public officials, because they are public
officials, lose the right that all persons have to protection of their honor, good name,reputation, personal and private life.
However, the life of a public official –understood in the broad sense- does not have the clear boundaries, if any
boundaries at all, that a private citizen has in his life. In the case of a public official
it will not always be easy to distinguish between private acts and public acts; or
between personal acts that are of no public importance, relevance or interest, andthe personal acts that are of public importance, relevance or interest. The difficulty8in establishing the boundary does not mean that a strictly private zone does notexist, one that is legitimately removed from public scrutiny.
26.
When analyzing this point, which has been examined and debated time andtime again, one cannot ignore the fact that a public official can use the authority or
influence he has, precisely by virtue of his position, to serve private interests, his
own or those of third parties. Where this kind of accommodation of private interests
exists, it ought not to be beyond the realm of collective democratic scrutiny.
Otherwise, it would be an easy matter to erect artificial borders between “public andprivate” matters, as a means of removing private acts or situations that rely on theindividual’s position as a public official from that democratic scrutiny. The “umbrellaof protection” of someone who has agreed to serve the republic, in the broad sense,
is lower than someone who has not (just as it is lower in the case of those who havesought to put themselves in the public eye and thus permitted broad public access).
Again I must emphasize: the umbrella is there, of course; however, it is different
from the one that protects the citizen who has not taken on the position and the
responsibility of someone in public office who, for that very reason, has certain
obligations –ethical and legal- vis-à-vis the society he serves or the State thatmanages society’s interests.
27.
To put it another way, the republic heeds –as well it should- the manner inwhich its public officials represent it, serve its interests, perform the functions
inherent in the office conferred, and exercise their authority, the influence or theadvantages that that representation or those offices represent. The trust thatsociety invests –directly or through the appointments that certain organs of the State
make- is not a “blank check”. It rests upon and is renewed upon a rendering ofaccounts.
That rendering of accounts is not given in some solemn, periodic
ceremony; it is given in service, through reports, explanations, vouchers. Obviously,
the exercise of that public scrutiny through the information made available to the
public is not without its responsibilities: in today’s world, no one is legibus solutus.
Democracy does not mean transferring abusive exercise of power from someone’s
hands to someone else’s, who would be free to do whatever he wanted. However, I
already addressed the issue of accountability and the way to exact it.
5.

Recourse to a higher judge or court

28.
The Judgment in the Case of Herrera Ulloa vs. Costa Rica raises other issues
that I would like to examine in this Opinion. One is the remedy attempted tochallenge the court ruling that went against the victim. As to the minimum
guarantees to which the accused shall have a right, the American Convention
provides that every person accused of a criminal offense shall have “the right toappeal the judgment to a higher court” (Article 8(2)(h)). This is one of theingredients of due process, which the Court recognizes as applying to trials of all
types, not just criminal trials. In my view, this “right to appeal” may also apply tothe system of judicial protection provided for in Article 25 of the Convention, if it isunderstood that the recourse or remedy to which Article 25 refers, which has an
essence of its own that distinguishes it from the proceeding to which Article 8 refers,
must also conform to the system of due process of law, with everything that implies.
29.
The dual instance system is well known, although the second instance isperhaps more common in some places than in others. The purpose of that second
instance is to re-examine the material heard in first instance and to confirm, modify
or vacate the lower-court decision on the basis of that re-examination of the facts.

9
Review of the final judgment, i.e., the one delivered by the court of second instance,is also a possibility; in some cases there is a legal time frame in which review may
be requested, in some cases not; the request for review is in the form of a challenge
to review the judgment to test whether it was delivered in accordance with the lawthat was to be applied, the case being error in judicando and error in procedendo. In
criminal law, there is another possibility, which is the extraordinary appeal, whichauthorizes, in a limited number of circumstances, reconsideration and eventual
nullification of a conviction and sentence currently being served: proof that theperson that the convicted person is said to have murdered is still alive; a finding thatthe public document that was the sole evidence upon which the conviction was based
was false; conviction of two persons, in separate cases, when it was impossible thatboth committed the crime, and so on. Obviously, this exceptional remedy is not oneof the ordinary remedies for challenging a definitive criminal conviction. Neither isthe remedy by which one challenges the constitutionality of a law.
30.
Here, we ought to ask ourselves what can be required of the appeal
mentioned in Article 8(2)(h), from the standpoint of the mamimum protection of theindividual’s rights and, therefore, in keeping with the principle of presumption of
innocence to which the accused is entitled until a final judgment is handed down, andof the right to formal and material access to justice, which demands issuance of a“just” verdict (even if it is for conviction, although with a punitive content different
from what the appropriate one seemed to be at first glance). Is this a limited review
that could disregard factors that were truly relevant to determine the accused’
criminal responsibility? Ought we to content ourselves with a limited review, thatexamines only cerrtain aspects of the conviction, but must relegate others into somedark territory that cannot be entered, even though one might find there the motives
and reasons that could prove the accused’ innocence?
31.
The answer is obvious from the way in which the question is posed. The goal
here is to protect the human rights of the individual, one of which is not to beconvicted unless and until the commission of an offense punishable under criminal
law has been proved and the accused’ guilt under the law has been proved. It is not
merely a question of preserving the integrity of the process or the verdict.
Therefore, recourse to a higher court or judge –which would have to outrank, in thearea of competence and jurisdiction, the court whose decision is being challengedmust allow that higher court or judge to get into the merits of the case, examine thefacts alleged, the defense’s counter-arguments, the evidence taken, the weighing ofthat evidence, the laws invoked and their application, even for such matters as
identifying the punishment or measure (which includes the pertinent substitution),
and whether that punishment is just given the severity of the crime, the legally
protected interest affected, the culpability of the agent and other facts that go into
determining what the punishment should be (extenuating or aggravating
circumstances or other information that steers the court to a reasoned conclusion).
32.
Obviously, those needs are not met with a narrow, “phantom” remedy, muchless when the system offers no remedy at all, which some legal systems do not in
the case of crimes regarded to be of much less importance and in regard to which
court proceedings are very abbreviated. Affording the accused all the benefits of a
substantive defense is the best way to ensure a just outcome, rather than rely ontechnicalities, which are hardly the best way to achieve justice. Therefore, to fully
satisfy these needs, the system for appealing grievances to a higher court has to be
adopted and expanded. The errors and shortcomings of an incompetent defense
would be sorted out by the court, and justice will have been well served.

10

33.
In the judgment delivered in the Case of Castillo-Petruzzi, one Judge of the
Court produced a Concurring Opinion in which he alluded to this matter (and others),
although he did so in reference to a military court system that had failed to respect
the right of appeal: “that the victim’s right to a court of second instance was notrespected (because the courts that heard the case on review) did not function as
tribunals that re-examine all the facts in a case, weigh the probative value of theevidence, compile any additional evidence necessary, produce, once again, a juridical
assessment of the facts in question based on domestic laws and give the legal
grounds for that assessment.” (Concurring opinion of Judge Carlos Vicente de Roux
Rengifo, in the Judgment on the Case of Castillo-Petruzzi et al., May 30, 1999).
34.
In the instant case, the remedy of cassation was used, as it is the only one
that the Costa Rican procedural system provides, since the remedy of appeal –which
is what the court of second instance is for- was done away with. The Court is notunmindful of the important role that the petition of cassation has had in its long
history, or of how effective it has been and is to this day. However, as a rule, it is acomplicated challenge procedure and not always available as a remedy foreverything that is justiciable. The Court has considered the universe of issues that,
under positive law, are covered by a cassation system and therefore subject to thematerial jurisdiction of the higher court. In the instant case, cassation does not havethe scope that I described in paragraph 30 above and to which the Judgment of the
Court referred to confirm the scope of Article 8(2)(h) of the American Convention. It
is possible that elsewhere, where the petition seeking a writ of cassation has
developed differently, it may well cover points that an appeal would ordinarily
address, as well as a review of legality which is the essential function of cassation.
35.
I am, of course, aware that this raises important problems. There is a strong
and respected trend, embodied, for example in the excellent Model Code of Criminal
Procedure for Ibero-America put together by a select group of jurists, that favors
doing away with the traditional two-tiered system, leaving review of judgments
solely in the hands of the court of cassation. This position argues, inter alia, that
two-tiered systems –a lower court and an appellate court- are costly and that the
principle of procedural immediacy has to be preserved. Appellate courts do notalways observe that principle, as we customarily understand it. To retain theadvantages of the two-tiered system where a case is heard first by one judge andthen by a collegiate body whose members collectively represent an added guaranteeof a just outcome, the option that would do away with the two-tiered system would
have a collegiate bench for the one court that hears the case before it goes to thecourt of cassation.
6.

Tax exemptions

36.
The Judgment in the Case of Herrera-Ulloa raises two other questions that I
would like to briefly touch upon, although they have no bearing at all on thosepreviously discussed. One has to do with the practice of ordering that none of thepecuniary reparations, expenses and costs ordered may be subject to any existing
tax or any tax legislated into law at any time in the future. I understand and agreewith the material sense of that order, and have therefore voted in favor of thisclause: the idea, of course, is not to allow tax laws to eat into the reparations
ordered, and thus defeat the purpose of pecuniary damages and leave the victim’s
rights unprotected.

1137.
However, on previous occasions I have observed –and do so again in thisopinion– that the very same end can be achieved through less controversial means.
The solution that the Court customarily uses in its orders presupposes an alteration
to the State’s tax system: a tax exemption that may be complicated and impractical.
The same end can be achieved by some other means. One alternative would be toorder that the agreed upon sums shall be “liquid” or “net” of taxes. So long as theamount ordered by the Court is covered, the State could make allowance for taxes
owed by using a subsidy or by adding something to the amount ordered by the Court
so that, once the deductions for taxes required under tax law have been made, theamount owed and paid is precisely the amount that the Court ordered in its
Judgment.
7.

Expenses and fees of legal counsel

38.
This case is the first time that the Court has ruled that the amounts owed tothird parties in the form of expenses and fees for those who provided the victim’s
legal counsel, would be handed over directly to the victim, so that the victim –and
not the Court- would apportion that sum as he saw fit and with that satisfy any
obligations that he may have incurred or as equity dictates. It was with the
Judgment on Reparations in the Case of Garrido and Baigorria, of August 27, 1998,
that the Court established certain criteria regarding the amounts owed to those who
provide that assistance, which is unquestionably of the utmost importance. The
function of providing international protection of human rights would be a difficult one
without the efficient services so frequently rendered by professionals who are theadvocates, both domestically and internationally, of the victim’s rights. They are an
important –and sometimes even decisive- ingredient in the activities aimed atenabling access to justice.
39.
To assess costs and expenses in the present judgment, one of which is for thelegal counsel to which I alluded in the preceding paragraph, the Inter-American
Court deemed it appropriate to take into account not only the receipts and vouchers
provided –which in many cases is virtually impossible to do in the manner thatrigorous accounting practices require- but also the particular circumstances of thecase, the characteristics of the respective proceedings and the nature of thejurisdiction for the protection of human rights, which is so very different from what
one would find, for example, in the case of strictly financial matters. When the timecame to set costs and expenses, therefore, the Court dismissed the idea of setting
attorney’s fees as a percentage of the compensation obtained and held that there
were other factors to consider, such as “the evidence introduced to demonstrate thefacts alleged, full knowledge of international jurisprudence and, in general,
everything that would demonstrate the quality and relevance of the work
performed.” (par. 83).
40.
The Inter-American Court’s finding was that while it must recognize thevictim’s need to acknowledge the assistance he has received and the expenses thathave been incurred to provide that assistance, it is not the function of the Court toassess the performance of the legal advisors and to order that payment be made tothem directly. This has to be decided by the person who retained their services andwho was at all times abreast of their work and their progress. The Court did notorder direct payment of fees to physicians who attended the victim, or payment of
any other considerations to certain parties. It is the victim, using the sum that hereceives, who can best determine what is owed or what is equitable. The contract
was made between the victim and his advisors, directly and of their own free will,12
and the Court has no reason to intervene in the matter by setting a value on theamount owed to each. What the Court has to do –as it has in this case, invoking theprinciple of equity- is to provide for the considerations herein mentioned, take theminto account when deciding the compensation, and let the victim make the decisions
and determinations that are his.

Sergio García-Ramírez
Judge
Pablo Saavedra-Alessandri
Secretary