Case Summary and Outcome

The Inter-American Court of Human Rights heard the case of Humberto Antonio Palamara Iribarne, a retired military officer, who had received a conviction from the military criminal justice system for attempting to publish a book that criticized the Navy and over a series of comments to the media while the proceedings against him were ongoing. As part of the criminal proceedings, he was ordered to withdraw from circulation all physical and electronic copies of the book. The Court concluded both that the actions of the Chilean State amounted to prior censorship and that the military criminal justice rule on contempt that was applied to Palamara Iribarme imposed disproportionate penalties. As a consequence of violating the right to freedom of expression, among others, the Court ordered the State of Chile to annul the convictions that had been imposed, allow the publication of the book, return the copies that were seized, pay damages and modify its domestic legislation in order to guarantee freedom of thought and expression.

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Facts

A 1988 military ordinance of the Chilean Navy forbade anyone who is a member of the Navy or at its service to publish articles criticizing the Navy or the State. It also prohibited publishing references to secret, reserved or confidential topics or that would compromise the institution’s good name. Additionally, the ordinance allowed Navy personnel to publish in their own name after obtaining authorization from the competent naval commander or authority [par. 63.7]

Retired military officer Palamara Iribarne was working as a civilian employee of the Navy when he wrote a book entitled “Ética y Servicios de Inteligencia” (“Ethics and Intelligence Services”). Generally speaking, the book referred to some military intelligence issues and the need to be guided by ethical standards.

Mr. Palamara tried to publish and market the book but the military forces opposed several restrictions to its dissemination. In effect, Palamara’s military superiors demanded he obtain the necessary authorization to publish his book, however, when Palamara submitted the text for their review the authorization was denied on the grounds that the book threatened “national security and national defense.” Faced with Mr. Palamara’s insistence on publishing the book and his failure to attend an appointment at the printing house to collect the book materials, the authorities filed against him: i) criminal proceedings before the Naval Court of Magallanes for the crimes of disobedience and breach of military duties; and ii) an administrative investigation before the Administrative Naval Prosecutor, for administrative offenses .

In the Magallanes Court, the Naval prosecutor ordered the seizure of all papers, documents or publications in the printing house. As a result, the authorities seized all book copies, a floppy disk containing the text of the book, leftover pages, the “electrostatic masters” from the printing house and also deleted the book from its computers. Additionally, the authorities seized the copies that Palamara had in his home and made him delete the book file from his computer.

Palamara was arrested and the proceedings began. He was later released on bail and was ordered to keep the proceedings under reserve and to abstain from making “critical comments,” in public or private, that might harm the “image” of the Navy’s or of those investigating him.

Palamara gave public statements to the written and radio press about the proceedings against him. Following the statements, he was charged with the crime of disobedience of a superior’s orders for the second time. Additionally, the Chief Commander of the Third Naval Zone considered these statements offensive and he filed a complaint for the crime of contempt.

The final decision convicted Palamara of the crime of breach of military duties. Additionally, in the same proceedings, Palamara was absolved of the crime of disobedience with respect to the public statements, because he had already been convicted for these actions in other proceedings (see infra). Palamara was convicted to 61 days confinement, which was substituted for the conditional remission of the conviction. Further, he was convicted to the accessory penalty of suspension from public office and all the physical and electronic copies of the book and the printing materials in his possession were seized.

Simultaneously, Palamara was prosecuted for the crime of contempt in the military criminal proceedings for holding a press conference in which he criticized the Prosecution’s conduct in his case. His remarks were printed in “La Prensa Austral” newspaper. The Naval Military Court hearing his case stated, “the intent to slander was clear in the statements published by the [Newspaper “La Prensa Austral”] and they prov[ed] that the defendant was fully convinced of the insults he had uttered and aware of the seriousness of the charges.” [par. 63.91]. In 1995 Palamara was convicted of the crime of contempt established in Article 264.3 of the Criminal Code and convicted to a 61 day prison term, a fine of 11 minimum wages, suspension from public office, and payment of legal costs.

Article 264 of the ordinary Criminal Code established: “those who incur in the following conducts commit the crime of contempt against security: [ … ] 3. those who defame or threaten: 1^st  senators or representatives for their opinions expressed in Congress. 2^nd: members of a court of law for their rulings. 3^rd: ministers of State or other authority in public office. 4^th: their superiors when exercising their duties” [ 1] .

The Chilean Criminal Code was modified in the year 2005 and article 264, establishing the crime of disobedience of authority, was reformed.

The Inter-American Court of Human Rights heard the case and held the actions of the Chilean State constituted prior censorship and the military criminal contempt rule applied to Palamara Iribarne established disproportionate penalties. As a consequence of violating the right to freedom of expression, among others, the Court ordered the State of Chile to annul the convictions that had been imposed, allow the publication of the book, return the copies that were seized, pay damages and modify its domestic legislation in order to guarantee freedom of thought and expression.

[1] IACHR. Petition in the case of Humberto Antonio Palamara Iribarne (Case 11.571) against the Republic of Chile, April 13, 2004.

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Decision Overview

The Inter-American Court of Human Rights had to resolve two legal issues. First, it established “whether the State committed acts of prior censorship incompatible with the American Convention [on Human Rights (ACHR)] when it prohibited Mr. Humberto Antonio Palamara-Iribarne from publishing his book “Ética y Servicios de Inteligencia” (“Ethics and Intelligence Services”) and seized the copies thereof, instituting proceedings against Mr. Palamara-Iribarne for disobedience and breach of military duties” [par. 70].

The Court recalled that article 13 of the American Convention establishes the right of people to “seek, receive, and impart information and ideas of all kinds,” […] either orally, in writing, in print, in the form of art, or through any other medium of one’s choice”. It reiterated there are different forms of illegitimately affecting freedom of expression, ranging from total suppression to other affectations  that are less radical but also contrary to the ACHR. The Court added that this rule also refers to regulation of prior censorship and specifies the requirements and legitimate mechanisms to restrict freedom of expression.

The Court reiterated its jurisprudence that “the expression and the dissemination of ideas are indivisible” [par. 72] and that, consequently, effectively guaranteeing the right to freedom of expression implies the State cannot impose inappropriate restrictions on the right to disseminate opinions and ideas. It also noted that freedom of expression has both an individual and a social dimension. The first one concerns a person’s right to disseminate his or her thoughts and the second one, society’s right receive the information or thoughts of others.

In the case under review, the Court considered the dissemination of the book “Ética y Servicios de Inteligencia” (“Ethics and Intelligence Services”) and Mr. Palamara’s statements, involved both dimensions of the right to freedom of expression. It asserted that to effectively guarantee Mr. Palamara’s right to freedom of expression, the State had to permit him to write down his opinions and ideas and also protect their dissemination. The Court said that although the book had been published and copies were available for commercialization, the author could not actually distribute them and therefore the public could not access its contents.

Furthermore, the court considered the “control measures” applied by the State to Mr. Palamara’s exercise of freedom of expression “constituted acts of prior censorship that are incompatible with the parameters set by the Convention” [par. 78]. The measures were: the state prohibition to publish the book; the verbal order to withdraw the book’s records because they affected “national security and national defense;” the seizures conducted at the printing house and Mr. Palamara’s home; the suppression of electronic information from the computers belonging to Mr. Palamara and to the printing house; the efforts to recuperate several copies that were in possession of other people; the order forbidding Mr. Palamara from “making critical comments” about the proceedings  or about the Navy’s “image”.

Second, the Court decided “whether the contempt charge in the military criminal proceedings brought against Mr. Palamara-Iribarne based on the statements he made, as well as the military and criminal sanctions imposed as a result of said proceedings and the opening of an administrative investigation, which was subsequently closed, constitute an undue restriction on his right to freedom of thought and expression” [par. 70].

The Court reiterated that freedom of expression is not an absolute right and that article 13.2 of the American Convention allows determining subsequent liability as a consequence of abusing this right. It recalled the grounds for subsequent liability must be previously established by law expressly and restrictively, be necessary to ensure “respect for the rights or reputations of others” or “the protection of national security, public order or health or morals.” These measures should restrict freedom of expression as minimally as possible, in order to avoid constituting direct or indirect prior censorship. Additionally, the Court reiterated that criminal law is “the most restrictive and severe means of imposing liability for illegal conduct” [par. 79].

The Court indicated that when establishing subsequent liabilities, speech about public officials or those exercising duties with a public content enjoy a greater degree of protection. This protection seeks to permit and protect the broad debate that is vital for the functioning of a democracy. The Court asserted public opinion exercises a type of democratic control that encourages the activities and transparency of institutions. Thus, it promotes “the accountability of public officials when they perform their duties, which is why there should be more tolerance and openness to criticism in the face of the assertions and opinions of the people exercising democratic control this way. This applies to workers and members of the Navy, including those who that make up the courts. In addition, allowing the exercise of this democratic control encourages more participation from people in the interests of society [par. 83].

On that basis, the Court highlighted that speech about public officials, persons that exercise public duties, politicians or State institutions has a different protection threshold, due to the “public interest” nature of its activities. The Court stated the “necessity” and therefore the legality of restrictions on freedom of expression depended on whether they seek to satisfy a “compelling public interest.” It further explained that among the different options to attain this purpose, the one that places the least amount of restrictions on the protected right should be chosen. That is, the restriction should be proportional to the interest that justifies it and be strictly tailored for this purpose, reducing interference with the exercise of freedom of speech to the minimum.

Concerning the case under review, the Court spoke to the application of the contempt crime law as a restriction on Mr. Palamara’s freedom of expression. It stated, “criminal prosecution was used in a manner that is disproportionate and unnecessary in a democratic society, which led to the deprivation of Mr. Palamara-Iribarne’s right to freedom of thought and expression with regard to the negative opinion he had of matters that had a direct bearing on him and were closely related to the manner in which military justice authorities carried out their public duties during the proceedings instituted against him”. The Court considered “the contempt laws applied to Palamara-Iribarne established sanctions that were disproportionate to the criticism leveled at government institutions and their members, thus suppressing debate, which is essential for the functioning of a truly democratic system, and unnecessarily restricting the right to freedom of thought and expression” [par. 88]. Similarly, the Court found the summary administrative investigation, the restrictions to issue opinions in the media and the decision to suspend Mr. Palamara’s contract, constituted indirect means of restricting his freedom of expression [par. 94].

As a consequence of violating the right to freedom of expression, among others, the Court ordered the State of Chile to annul the convictions that had been imposed, allow the publication of the book, return the copies that were seized, pay damages and modify its domestic legislation in order to guarantee freedom of thought and expression.

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