4
III.
The right to have one’s honor respected and freedom of
thought and expression
15.
Article 11 of the Convention provides for the protection of the right to have
one’s honor respected and one’s dignity recognized as legal rights which are set forth
in Article 13(2). As human rights protected by the Convention, the duty of the State
to act as guarantor thereof, as stated in the Court’s case law, is applicable thereto.
Thus, the State has the obligation to ensure that the right to have one’s honor
respected is fully protected, for which purpose it must provide the individuals with
the appropriate means to achieve it.
16.
The right to have one’s honor respected must, therefore, be protected.
Particularly, the so-called “objective honor,” which refers to the value that others
attach to the individual in question insofar as his reputation or his good name in his
social context has been impaired. Along these lines, in accordance with the legal
provisions that protect the right to have one’s honor respected, freedom of thought
and expression as a fundamental right does neither sustain nor legitimize the use of
abusive expressions or terms which go beyond the legitimate exercise of the right to
express one’s opinions or the exercise of the right to criticism.
17.
Law has the intrinsic capability to properly solve the conflicts which may arise
between rules that protect opposing legal rights. Thus, freedom of thought and
expression and the right to have one’s honor respected are the poles of an important
conflict. In this regard, judges play an essential role in effectively determining the
limits of each of said rights, while protecting the full exercise of and respect for both.
The State must comply with its obligation to simultaneously ensure the right to
freedom of thought and expression and the right to have one’s honor respected, as
established by the Convention.
18.
It is not a matter of categorizing these rights, as this would come into conflict
with the Convention. The unitary and interdependent nature of rights would be
confronted with the attempt to consider rights as being “first” or “second” category.
What is relevant is defining the limits of each of these rights while seeking to
reconcile them. Every fundamental right must be exercised with regard for other
fundamental rights. In this reconcilement process, the State has a key role in trying
to determine responsibilities and impose sanctions as may be necessary to achieve
such purpose through the appropriate judicial mechanisms.
IV.
Legitimacy of the various judicial mechanisms
protection of the right to have one’s honor respected
for
the
19.
In this judgment the Court has dismissed the dichotomy posed by
civil/criminal proceedings as a divortium acquarum regarding the respect or lack of
respect for the right to freedom of thought and expression in the exercise of the
“subsequent liability” referred to in Article 13 of the Convention. Though in the
instant case the Court has ruled that there has been an abusive use of the State’s
punitive power, the Court has stated that “criminal proceedings are suitable as, by
threatening to impose sanctions, they serve the purpose of preserving the legal right
whose protection is sought; in other words, they may help achieve such purpose”
(para 71). Even more, the Court emphasizes that the State must provide society
with the mechanisms needed “to determine responsibilities and impose sanctions as
may be necessary to achieve such purpose” (para. 75).