Defamation against the President: threshold of tolerance and limits of free speech on social mediaDifamación contra la Presidenta: umbral de tolerancia y límites de la libertad de expresión en redes sociales

PODER JUDICIAL TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL Resolution: [Telf1] Case File: 13-000052-0016-PE (14) CRIMINAL SENTENCING APPEALS COURT. Second Judicial Circuit of San José. Goicoechea, at sixteen hours and five minutes on the thirteenth of February, two thousand fifteen.- APPEAL filed in the present case against [Name1], date of birth January 10, 1958, male, marital status married to [Name2], place of residence San Antonio de Belén Costa Rica, city of origin Zarcero, employment states Faculty of Law of the University of Name2042 and Baldí Hot Springs Resort & Spa, for the crime of DEFAMATION, to the detriment of [[Name3]]. Participating in the decision on the appeal are Judge Edwin Esteban Jiménez González, and Co-judges Mario Alberto Porras Villalta and [Name4]. Appearing before this court is attorney [Name5], in his capacity as special legal representative of the complainant and civil plaintiff [Name6].

WHEREAS:

I.- That by judgment number 625-2014, at eight hours and thirty minutes, on the twenty-first of July, two thousand fourteen, the Criminal Trial Court of the First Judicial Circuit of San José, resolved: "THEREFORE: In accordance with the foregoing, Articles 28, 29 and 41 of the Political Constitution; 1, 8 and 11 of the Universal Declaration of Human Rights; v and xviii of the American Declaration of the Rights and Duties of Man, 1, 13, and 14 of the American Convention on Human Rights; 19 of the International Covenant on Civil and Political Rights, 30, 31, 145, 146, 147, 149 and 151 of the Penal Code; 1 to 15, 34 to 41, 72 to 74, 141, 142, 143, 265 to 270, 360 to 368, 103 of the Code of Criminal Procedure, norms in force on civil reparation from the 1941 penal code, 1048 of the Civil Code; 221 to 234 of the Code of Civil Procedure, by unanimous vote, it is resolved: [Name7] is acquitted of a crime of DEFAMATION to the detriment of [[Name3]]. The civil action for damages filed by [[Name3]] AGAINST [Name8] is dismissed. The matter is resolved without special condemnation in costs. The costs of the process are to the State.- (sic.)" II.- That against the previous ruling, attorney [Name5], in his capacity as special legal representative of the complainant and civil plaintiff [Name6], filed an appeal.

III.- That having verified the respective deliberation in accordance with the provisions of Article 465 of the Code of Criminal Procedure, the Court considered the questions raised in the appeal.

IV.- That in the proceedings, the pertinent legal prescriptions have been observed.

Drafted by the Criminal Sentencing Appeals Judge [Name9]; and,

WHEREAS:

I.- In the process of this criminal sentencing appeal, an oral hearing was held at 9:30 a.m. on November 6, 2014. The Criminal Sentencing Appeals Court of the II Judicial Circuit of San José was composed of Judge [Name4], and Judges Edwin Esteban Jiménez González and Mario Alberto Porras Villalta. In said hearing, the complainant and civil plaintiff [Name6] [Name443 [Name10]] was represented by attorney [Name5], and the private accuser and civil defendant, [Name11] [Name12], was represented by Dr. [Name13]. These legal professionals orally presented the arguments they deemed pertinent for the defense of their represented party's interests (cf. folio 452). Likewise, in said procedural act, several documents were offered as evidence by Dr. [Name14], which are those visible from folio 453 to 461 of the summary, with the decision regarding such offer being deferred for the issuance of the present resolution. The specific actions carried out in the hearing were digitally recorded and are assessed by this court of appeal for the resolution of the present criminal sentencing appeal.

II.- a) By a written motion filed on August 13, 2014, attorney [Name5] (cf. folios 379 to 416), in his capacity as special legal representative of the complainant and civil plaintiff, [[Name3]], files an appeal against judgment No. 625-2014 issued by the Criminal Trial Court of the I Judicial Circuit of San José, at 8:30 a.m. on July 21, 2014, on the grounds that it acquitted [Name7] of all penalty and responsibility for the crime of defamation filed as committed to the harm of [[Name3]], and also dismissed the civil action for damages filed in the present criminal proceeding. He bases his challenge on the normative content of Article 8.2h) of the American Convention on Human Rights, as well as on the provisions of Numerals 448 and 458 to 466 of the Code of Criminal Procedure. From the study of the summary, it is inferred that said appeal was filed in a timely manner, within the legal deadline, and in accordance with the prerequisites required for the challenge to enable adequate and correct knowledge of the disagreements raised by the appellant for the comprehensive examination of the appealed judgment, as established by Article 8.2h of the American Convention on Human Rights, and as provided in Articles 458, 459, 460 and 462 of the Code of Criminal Procedure. b) In the petition visible from folios 421 to 437 of the main file, Dr. [Name13], in his capacity as representative of the private accuser and civil defendant party, responded to the hearing granted to him regarding the criminal sentencing appeal filed by attorney [Name5]. In said writing, attorney [Name14] sets forth the arguments on which he bases his petition to dismiss the challenge raised in subjudice, which are assessed for the purpose of issuing the present ruling.

III.- Regarding the evidence offered by Dr. [Name13] in the oral hearing held during the processing of the present appeal. In the oral hearing held during the processing of the present matter, Dr. [Name14] offered the following evidence: i.- certified photocopy of the digital version of a magazine in which mention is made of the complainant and civil plaintiff [[Name3]] (folios 453 and 454); ii.- Six certified photocopies obtained from the website http//es.wikipedia.org/wiki/Forbes (folios 455 to 461). We proceed to resolve the petition and offer of evidence raised by the representative of the private accuser and civil defendant party, for which the following aspects must be considered: a.- In the adjective criminal law governing the criminal sentencing appeal phase, no norm is contemplated that establishes the possibility of offering, nor that it is procedurally proper, to accept evidence for better provision or new evidence absolutely and without limitation on appeal, as may occur in other stages of the criminal process. b.- The evidentiary activity in the criminal sentencing appeal phase is directly linked to the effective protection of the right to appeal the criminal judgment, whereby the legislator established that the evidence admissible in the processing of such a challenge must be defined to guarantee the comprehensive examination of the judgment by the jurisdictional body on appeal. The foregoing, because what is sought with this means of challenge is broad control and comprehensive examination of the appealed judgment, as well as the trial that preceded it, such that evidentiary activity on appeal must develop cautiously and in strict adherence to the scope proper to the right to appeal, so as not to distort or dismiss the importance and legal-procedural relevance of the oral and public trial. Hence, the appeal phase, regarding the offer and admission of evidence, must be compatible with and respectful of the single-instance oral and public trial scheme governing our criminal procedural system. Therefore, what must be assessed in each case is whether the evidence offered and admitted is useful and pertinent to broadly and comprehensively review and control the criminal judgment issued by the criminal trial court, as well as the trial that preceded it. d.- It is by virtue of the foregoing that in Article 464 of the Code of Criminal Procedure, whose regulations govern evidentiary activity in the appeal phase, it is established that what proceeds in said procedural venue is the examination of the trial records and, exceptionally, the reproduction of a probatory means due to weaknesses in the records or, where appropriate, the receipt of new evidence that is useful and pertinent for the resolution of the appeal for the comprehensive examination of the judgment. Under such criteria, the legislator regulated that new evidence is procedurally proper in the appeal phase, only in the following cases: i.- evidence offered in due course but arbitrarily rejected; ii.- evidence appearing as new after the judgment; and iii.- evidence that, although pre-existing, could not effectively be offered by the interested party at the time. e.- Likewise, in order to guarantee that the appellate court had an adequate and sufficient legal-procedural instrument to achieve the comprehensive examination of the judgment, as a product of the sentencing appeal, the legislator established in Article 462 paragraph 3) of the Code of Criminal Procedure that the court may order ex officio the production of evidence it deems necessary, useful, and pertinent for verifying the alleged grievances. This being the case, it is concluded that the documentation described above is not encompassed within the presuppositions for new evidence regulated for the processing and resolution of the criminal sentencing appeal, nor are such pieces of evidence useful and pertinent for resolving the aspects discussed in subjudice, given that the information derived from the printouts described above relates to spheres of the personal life of the complainant and civil plaintiff [[Name3]] that are not linked in any way to the facts that are the subject of controversy in sub litem. Therefore, the evidence offered by Dr. [Name14] in the oral hearing held in the present case is rejected.

IV.- By virtue of the relationship existing between the three grounds of the appeal filed by attorney [Name5], they are analyzed and resolved jointly as set forth below. FIRST GROUND: Attorney [Name15] alleges a lack of reasoning regarding the theory elaborated by the trial court on the application of the crime of defamation when the affected party is a [...], according to which such illegality only occurs when the statements are direct, express, unequivocal, and injurious. He points out that the point being challenged is essential for the resolution of the case, given that the lower court judges elaborated, ex officio, a theory on the application of the crime of defamation for the specific case in which the victim of the criminal action is a [...]. In this sense, he argues that the a quo requires that the expressions be "expressly" injurious, which violates the normative content of Article 142 of the Code of Criminal Procedure, since such an affirmation is not supported by clear and precise reasoning, nor does it respect the strict application of the rules of sound criticism regarding probatory elements of decisive value, all of which implies, in turn, the violation of Article 363 of said procedural body. The appellant points out that based on the previously stated argument, the judges segmented each of the paragraphs of the publication he considers defamatory, thereby concluding that “[…] regarding the statement that the [ [Name10]] acquired a farm for the sum of two and a half million dollars, it contains no offense, nor the unequivocal attribution of a crime. The judges point out that this phrase does not expressly state that the acquisition is the product of the commission of a crime. Here the judges indicate that it is a personal opinion of the injured party to assert that her honor was harmed because she could not buy a property of that value with her income. The judges insist that the private accuser does not expressly say that the purchase was the product of a crime. The judges affirm that this is only a possibility and immediately afterwards, without indicating what they consist of or where they extract it from, the judgment states that a multiplicity of inferences concur. Subsequently, they point out among other hypotheses, the acquisition through lawful sources such as inheritance, donation, or lottery. Continuing with the analysis the judges make of the text filed as defamatory, regarding the accused's statement that the [ [Name10]] is the owner of a wind energy generation company, there is also no phrase that injures honor. The drafters of the judgment say it is again an appreciation by the complainant, without having previously weighed the testimony of the complainant and that of the accused. In the same vein, they determine that there was no direct harm to honor regarding the denounced illegal and supervening enrichment at the end of the term in the complainant's assets […]” (cf. folios 381 and 382). In this regard, the appellant claims that the judges did not consider nor give any value, in the reasoning of their decision, to the falsity of the imputations, a logical defect on which he indicates he raises an independent objection. Moreover, he points out that it is clear that the a quo reads each fact based on the theory it elaborated in the judgment, ruling out that the publication in question constitutes a direct offense against his represented party. He indicates that the judgment on the merits invokes the resolution issued by the Inter-American Court of Human Rights in the case [Name16] vs. [Name17] regarding the margin of tolerance applicable to the [...]; however, he alleges that the a quo did not make further considerations regarding what was argued in the debate concerning the scope of that tolerance threshold. In this sense, he indicates that the judgment established that whoever holds said public office may only bring a criminal action when a direct offense has been imputed to them, an assertion that lacks foundation. He adds that the criterion that the figure of the [...] is obliged to endure all public denunciations, criticisms, and complaints filed against their management was also not supported, given that the a quo did not state the considerations it took into account to establish a difference between the protection of the right to honor of ordinary persons and that of the holder of the aforementioned public office. The challenger concludes that the position of demanding a direct offense for a [...] to be able to access the criminal protection of their right to honor is merely a subjective opinion that has no dogmatic or jurisprudential reference whatsoever, to which must be added that such criterion outlined by the a quo lacks logical and sufficient reasoning. In this sense, the appellant claims that the criminal court in its judgment refers to the ruling issued in the case [Name18] vs. Name2042 by the Inter-American Court of Human Rights, yet it omits to specify that the citation it reproduces corresponds to the concurring vote of Judge [Name19], which is not equivalent to the majority opinion of said jurisdictional body. He adds that the judgment in question cites paragraphs 127, 128, and 129 of the referenced Inter-American Court resolution, and their content does not give rise to the requirement of a direct offense to protect the right to honor of a [...], a criterion he qualifies as arbitrary “[…] not only because in its support it refers to no autonomous or sufficient arguments that validate it, but also because, in terms of its effects, the unsubstantiated reasoning of the Lower Court produces a hollowing out of the content and protection of the honor of the [...]. This is especially important in the specific case because the judges also omit a pronouncement on the falsity or truth of the imputations made by the private accuser [Name20] against the injured party [ [Name10]], when she then held the office of […] […]” (see folios 383 and 384). He requests that this ground of appeal be granted, the judgment and the debate that preceded it be annulled, and both be reheard before a different composition of the trial court. SECOND GROUND. The appellant alleges the lack of reasoning in the judgment with respect to the arguments that allow the concurrence, in the specific case, of the exercise of the right to criticize to be excluded. This is because he considers that the private accuser [Name12] based his actions on the affirmation of falsehoods he decided to publish. He claims a lack of reasoning, as the a quo considered that in this case the private accuser acted in the exercise of a right to criticize, without taking into account or dismissing the arguments raised in this sense by the complainant and civil plaintiff party at trial, arguments according to which it is established that in this case no such right to criticize existed, given that the accused acted with full knowledge of the falsity of the story he disseminated. He adds that the lower court ignored numerous resolutions from the Inter-American Court of Human Rights, the Constitutional Chamber and the Third Chamber of the Supreme Court of Justice of our country, as well as from the Costa Rican Criminal Sentencing Appeals Courts, whose content excludes the exercise of the right to freedom of expression and to criticize public officials, when it is based on statements that are false, thereby violating the regulation of Article 142 in relation to that of Article 184, both of the Code of Criminal Procedure, regarding the duty to reason the judgment. Attorney [Name15] states that one of the central arguments on which the "Theory of the Case" of the complainant and civil plaintiff party gravitated consisted of explaining to the trial court the reasons why in this case the conditions justifying the application of the figure of the legitimate exercise of a right do not concur, which he emphasizes he set forth from the beginning of the adversarial process, so that the a quo would pay attention to this aspect, an argument which, he points out, he likewise reiterated and developed extensively in the closing arguments phase of the debate. In this regard, the challenger points out that in the adversarial phase he argued that in subjudice there was an excess within the margins of freedom of expression by the private accuser [Name12], by virtue of having uttered and disseminated a series of falsehoods, which excludes the applicability of the exercise of the right to criticize a public official. Notwithstanding the foregoing, in the text of the judgment, no opinion was issued regarding the theses defended by the complainant party, thereby generating defenselessness and breaching the trial court's duty to resolve all aspects argued in the adversarial process, which, he alleges, violates the precepts established in this regard by the Inter-American Court of Human Rights in the judgment it issued in the case [Name21] et al. on August 5, 2008. Specifically, attorney [Name5] points out that in the closing arguments of the trial, he argued that the account of the private accuser [Name12] was not credible, since he himself acknowledged that his assertions disseminated on his "Facebook" profile were false, as he stated he had not verified them before carrying out their indiscriminate dissemination. He points out that the claims he made regarding the point under analysis during the debate could only be known to someone who attended the trial, since someone who only reads the judgment will find no reference whatsoever to the arguments he raised to dismiss the existence of the legitimate exercise of a right on the part of the private accuser, all of which was improperly omitted from assessment in the appealed judgment, thereby violating the right to be heard and to obtain a timely judicial response due to the failure to observe the duty to motivate the criminal judgment in the present case. He alleges that the essential issue that the lower court failed to assess was that in this case there was no right to criticize the [CED1], since the disseminated comment referred to false facts, something no public official is obliged to tolerate, not even the holder of the highest representation of the State, as was the case here with the complainant and civil plaintiff [Name443 [Name10]]. He points out that in the debate, the reasons were established why the complainant postulated before the trial judges that in this specific case the right to criticize was not exercised, but rather what occurred was an irresponsible affirmation of falsehoods, which he considers was absolutely omitted from assessment in the judgment under appeal. He adds that in “[…] the closing argument it was also argued that Mrs. [Name443 [Name10]] indicated that the publication contained false facts, that it was disseminated from the Facebook page of the accused [Name22], and transcended beyond that virtual community, to the point that she was challenged by the chairwoman of the Public Income and Expenditure Committee of the Legislative Assembly, who requested explanations about the disseminated text, her response being that they were falsehoods regarding which the pertinent legal actions would be taken […]” (cf. folio 393). On the other hand, the appellant attorney points out that at trial he explained to the criminal court that the Inter-American Court of Human Rights establishes criteria of legality, necessity, and suitability to delimit the protection of honor vis-à-vis freedom of expression, and that this jurisdictional body has stipulated that the protection of the latter does not proceed when falsehoods are being affirmed, just as it has established that freedom of expression has limits and when these are transgressed, responsibility may be demanded for the abusive exercise of this prerogative. In this regard, the challenger alleges that in the judgment on the merits, the lower court judges did not analyze whether, in light of "inter-American" precedents, in the specific case the accused [Name7] incurred in falsehoods despite this being a point widely debated in the adversarial process, nor did they consider the jurisprudential precedent No. 1050-2002 of the Criminal Cassation Chamber, which establishes that the abuse of a right excludes the legitimacy of the use of freedom of expression. He indicates that the a quo did not reason regarding the arguments of the private complaint previously noted, and made a partial citation of resolution No. [Telf2] of the Constitutional Chamber, using it insofar as it suited its elaborated position, but failed to assess the aspects encompassed at the end of that ruling's citation, a segment of that resolution which refers to the fact that falsehoods, rumors, or insidious statements that lack truthfulness are not part of the exercise of freedom of expression. Attorney [Name15] points out that “[…] It is incredible that the Court indicated that the object of the trial was not whether at the end of her term Mrs. [Name10 [Name10]] had acquired the farm or had any participation in wind energy companies (cf. folio 365). This is absurd because precisely what was indicated in the private complaint is that since the content of the publication was false, there was no right to indiscriminately disseminate a falsehood. Now, from a comprehensive reading of the judgment, it can be deduced that the Court ASSUMES that the defendant exercised that right, but it cannot be interpreted that a contrario sensu, having resolved this way immediately excludes any other interpretation, such as the one proposed at trial by the complainant and civil plaintiff (…) As a decisive complement to the grievance, it must be considered that it was imperative for the Court to clarify whether or not it was before a text in which falsehoods were being affirmed. Instead of resolving this question, the judges opted for a single interpretation of the text, without taking into account that the offended party categorically denied each of the affirmations contained therein and qualified them as false (lack of reasoning for her declaration), and that the accused himself insisted in his deposition that he took no measure to verify the source of the text, that he assumed it and disseminated it without verifying whether it was true or not, and insisted at trial that Mrs. [Name10 [Name10]] was corrupt […]” (cf. folios 403 and 404). The challenger concludes that the seriousness of the grievance he raises is confirmed by hypothetically including the arguments he made at trial that were left unassessed in the judgment, given that had such aspects been analyzed, he estimates the a quo would have been obliged to establish that the defendant's action was typical of a crime of defamation, and that the application of the justification ground of the legitimate exercise of the right to free expression did not proceed. He requests that this ground of appeal be granted, the judgment and the debate that preceded it be annulled, and the rehearing of both be ordered. THIRD GROUND. Attorney [Name5] claims that the judgment lacks reasoning because the trial court used in its reasoning precedents from the Inter-American Court of Human Rights that are not applicable and lack any relation to the facts charged against the accused [Name7], which contravenes the regulations established in Article 41 of the Political Constitution, as well as the provisions of Articles 2, 6 and 142 of the Code of Criminal Procedure. He argues that “[…] the central thesis of the sentencing court lay in arguing that in the case of public officials, especially those elected by popular vote, as is the case of the complainant, a higher threshold of tolerance must be exhibited towards the criticisms and questioning of citizens. It is this reasoning that serves the lower court judges to subsequently conclude that the statements made by the accused, through a social network, had to be endured by my client. However, the a quo relied on two resolutions of the Inter-American Court of Human Rights –which, by the way, is not a continental court as the judges imprecisely state, but a regional one– whose factual assumptions differ substantially from the case brought by Mrs. [Name [Name10]]. In the judgments referred to by the trial court, although the scope of freedom of expression and its collision with other fundamental rights were analyzed, the facts responded to situations very different from those submitted to the knowledge of the judicial authorities in this process. Hence, the doctrine incorporated into the appealed judgment was inapplicable, which makes it a clearly unfounded vote […]” (cf. folios 406 and 407). In his argument, the appellant summarizes and sets forth the content of the resolution in the case [Name16] vs. [Name17] issued by the Inter-American Court of Human Rights on May 2, 2008. In this regard, he points out that the crucial difference between that case and that of the complainant and civil plaintiff [Name10 [Name10]], lies in the fact that what occurred in the former was an assessment or opinion about the work of a judge, not an imputation of an illegal or at least ethically suspicious conduct, as happened against his client. The challenger indicates that “[…] in relation to Mrs. [Name [Name10]], no assessment was made nor was a critical opinion shared about her condition, at the time, as head of State. What was done was to attribute an illegal or ethically reprehensible conduct to her. The conclusion derived from the vote under study is that a public official has the obligation, as part of the debate in a democratic society, to receive attacks and negative and severe assessments. However, that rigor in examining the performance of a State official, especially a high-ranking official like the one Mrs. [Name10 [Name10]] held, does not cover the imputation of false, criminal, or immoral facts. This aspect, which was not included in the Court's judgment, was marginalized by the criminal lower court judges to assert that the defendant's statements conformed to what was established by the regional court when they clearly do not, thus […]” (cf. folio 409). On the other hand, attorney [Name15] sets forth and summarizes the resolution issued by the Inter-American Court of Human Rights on July 2, 2004, in the case [Name18] vs. Costa Rica.

He points out that said process pursued against our country has notable differences from the criminal case brought against [Nombre7], which means the judgment suffers from a defect of lack of reasoning. In this regard, the appellant claims that “[…] the regional Court concluded that no crime had been committed because the journalist, who in any event enjoys a public interest in informing, merely reproduced information that was being generated in European media. Perhaps the crucial point is that both regional processes, while bringing them closer together, also distance them from the factual circumstances of the case against [Nombre12], revolving around statements or publications directed against acts of public officials in the exercise of their duties. In the instant case, no value judgments were made, nor was information published that came from any source about the [Nombre3]. What happened were statements that questioned, based on conduct allegedly engaged in by the complainant, her moral integrity […]” (cf. folios 411 and 412). The appellant cites in his argument the judgment of the European Court of Human Rights issued on March 15, 2011, in the case of [Nombre23] v. Spain. In that regard, he indicates that the most relevant aspect of that precedent with respect to the case being tried here is that “[…] the European judges established a line of review when assessing what was expressed by [Nombre23]. According to the Human Rights Court, the statements made by the Basque leader did not attack the personal life of the Head of State or his honor: ‘…the statements in dispute do not question the king's private life or his personal honor (…) they did not imply a gratuitous personal attack against his person […]’ (cf. folio 413. The transcription is verbatim). Thus, he claims that in the case of the accused [Nombre12], there was an attack on the personal honor of the [Nombre6], or in the terms defined by the European Human Rights Court, a gratuitous attack against her person. This is because a series of statements were published via a social network about the sudden and inexplicable enrichment of the [Nombre3], all while she held said office. For the foregoing reasons, the appellant considers that this factual picture differs from what was analyzed by the Inter-American Court of Human Rights in the two decisions considered by the trial judges in the judgment on the merits. He adds that no information was shared about any investigation being conducted against his client, nor was any assessment of her management carried out; rather, what was done was to attribute a specific conduct to her, to which it must be added that according to common experience it is unthinkable that a person who has dedicated herself to public service such as the [Nombre6] and civil plaintiff [Nombre3] would have the economic capacity to lawfully acquire a property such as the one [Nombre12] claimed his client owned. The salaries of public officials “[…] under no circumstances allowed for attaining a ‘millionaire's life’ according to the accused’s words; hence, Mr. [Nombre12]‘s statement speaks to an illicit enrichment on the part of someone who for almost two decades was a public official […]” (cf. folio 414). He points out that the sub judice matter involved a businessman who published false and injurious information against his client, which differs dramatically from the discussion regarding the right to freedom of expression resolved in the precedents of the Inter-American Court of Human Rights that the lower court improperly considered in the judgment on the merits. The appellant poses the following question in his plea: “[…] For what reason did statements harmful to honor, suggesting that a […] [Nombre11] became enriched during her term, constitute the exercise of freedom of expression? That was the question the lower court should have answered. That answer was not reflected in the challenged judgment […]” (cf. folio 415). He accuses that the grievance consists of the fact that, in issuing the acquittal in favor of the accused [Nombre12], the trial court invoked and assessed decisions of the inter-American human rights system that bear no factual relation to the facts at issue, which entails a violation of the principle of derivation and sufficient reason and, consequently, a lack of reasoning in the judgment. The claims are admissible. From a comprehensive examination of the ruling, as well as the arguments raised by attorney [Nombre5], it is established that the challenges brought against the acquittal issued in favor of the accused [Nombre7] are admissible. This is because the judgment on the merits was not reasoned as legally required and as demanded by Articles 39 and 41 of the Political Constitution, as well as Articles 1, 142, 180, 181, and 363 of the Code of Criminal Procedure (Código Procesal Penal). The extensive study of the descriptive, factual, intellectual, and legal foundation of the judgment on the merits leads to the conclusion that the lower court did not support its decision to acquit the defendant [Nombre7] of all punishment and liability for the crime of defamation (difamación) brought against him, in accordance with the strict application of the rules of sound criticism (sana crítica), nor in accordance with the proper application of the criminally relevant legal norms for the resolution of the present case. This conclusion rests upon three essential axes of legal reasoning, which are set forth below. A.- Analysis of the main contents and foundations of the challenged judgment. In order to have clarity regarding the scope of the judgment on the merits, it is necessary to specify and analyze the most important aspects on the basis of which the trial judges acquitted the accused [Nombre12]. The following is thus noted: i.- The criminal court establishes that, based on the judgment subject to challenge, a novel jurisprudential line is being erected –as the appellant claims–, which will regulate the relationship between whoever holds the office of [...] and the citizens, regarding the boundary between the right to honor and freedom of expression. ii.- The lower court indicates that in order to “educate” the population regarding the use and abuse of social networks –mainly “Facebook”– it will define the legal nature of such networks. In that regard, the trial judges point out that “Facebook,” and social networks in general, are means of communication equal to any other already known, since from the moment third parties have access to a given person’s account or profile, what is published is disseminated and is accessible to several people. Thus, they conclude that it is clear that people cannot publish just any statement through such a communication channel; social networks are not excluded from the regulation established in our legal system, and therefore anyone who abuses their freedom of expression through that means exposes themselves to criminal sanctions; that is, if they insult or offend another, or in the appropriate case falsely attribute the commission of a crime, the person can be criminally prosecuted for the crimes of slander (injurias), libel (calumnias), or defamation (difamación). iii.- The trial court indicates that the analysis of the conduct complained of against [Nombre12], in order to define whether or not he abused his freedom of expression to the detriment of the honor of the [Nombre3], goes beyond the boundaries of Criminal Law, since the discussion must be carried out in the field of Constitutional Law. For this reason, the trial judges consider that the principle of equality must first be assessed, according to which all persons are equal before the law, it being necessary to appreciate in every case that equal treatment must be given to those who hold the same condition, position, or situation. A contrario sensu, if there are persons who are not in a similar condition, position, or situation, they cannot be given the same treatment. The ruling establishes that the points set forth above are fundamental for the correct resolution of the case, since the [Nombre6] [Nombre3] was the [...] at the time of the events in question, a condition different from that of the rest of the people, and it was in that condition that [Nombre12] referred to the [Nombre6] in his “Facebook” profile. On the basis of the foregoing, the lower court considered in its ruling that, in order to determine the scope of the right to honor of [Nombre3], account must be taken of the [...] investiture that the [Nombre6] held at that time, since it considers that for that reason the content of her honor is not the same as that of the rest of the public officials, nor that of other Costa Ricans. In that regard, the criminal court indicates that all public officials are more exposed to criticism by virtue of having voluntarily assumed an office of that nature, so that by agreeing to a greater exposure inherent to the position, they must also accept greater criticism than that which must be tolerated by those who do not exercise public office. In this respect, the trial judges cite a precedent of the Inter-American Court of Human Rights issued on May 2, 2008, in the case of [Nombre16] v. [Nombre17], in which, according to their appreciation, said Inter-American Court considered that “[…] the activities of public servants leave the domain of the private sphere to insert themselves into the sphere of public debate. This threshold (…) rests on the public interest of the activities they perform […]” (cf. folio 346 of the main file). In this regard, the lower court concludes as follows: “[…] Let it be noted that the highest continental human rights body establishes that in the Americas public officials are more exposed to criticism, that this is inherent to the office they voluntarily accepted, and that the activities they perform are of public interest. Now then, it must be noted that these statements of the Inter-American Court have been produced within the framework of cases involving high-ranking public servants, but not of the highest rank as in this complaint, the [...]. It is clear that the highest-ranking public office in our country is the [...]; it is a popularly elected position, it implies the hierarchy of the Executive Branch, whoever holds this office exercises the national and international representation of the Costa Rican State, and is the person who directs the main institutions of the central government, including, for example, the Ministry of Security, the Ministry of Health, and the Ministry of Finance. These assessments are important because if we affirm with the Inter-American Court ‘…that in a democratic society public officials are more exposed to public scrutiny and criticism’ (Case of [Nombre24] v. [Nombre17], idem), even greater is the exposure of the highest-ranking official of the public service, and correlatively, even greater must be the public criticism. Note that the Court is interpreting the Inter-American Court’s jurisprudential line in accordance with the principle of proportionality, since if greater criticism and exposure is inherent to the public official than to persons who do not exercise a public function, the graduality inherent in a fair, proportional, and reasonable judicial assessment determines that within the ‘public official’ category, the level of tolerance for criticism must be greater according to the official’s rank. That is, if premise number one dictates that a public official must tolerate more criticism than those who are not public officials, as premise number two it can be affirmed that within the ‘public servant’ category, the level of tolerance will be greater the higher the official’s rank. This premise is justified for the following reasons. A public servant appointed through ordinary administrative procedures –the civil service regime, for example– is not the same as a public servant appointed through national elections; the latter servant has a direct mandate from the Sovereign and holds an office of greater responsibility; nor is a public servant who does not make decisions the same as a servant who does make decisions; a public servant who directs or presides over a public institution is not the same as a public servant who works in the same institution but in a lower-ranking position. Therefore, the court cannot ignore the investiture of the [Nombre6], since on the date the events occurred, Mrs. [Nombre10 [Nombre10]] was the [...]; therefore, while she was a public official like thousands of other people, she held the highest-ranking office in the public sector, she held the representation of the Costa Rican State, she had the direction of the policies of all public institutions under her mandate, and therefore she was in a special condition that the Court cannot ignore. The aspiration to justice obliges us to assess each case according to its own characteristics, since only then can an equitable decision be made that truly responds to the assessment of the facts, the evidence, and the personal conditions of the litigants; this is proportional and adjusted justice; the opposite would be generic, impersonal justice, and therefore would not be justice. Following this line, the Court faces the decision to establish the content of the right to honor of whoever holds the office of [...], in relation to the freedom of expression of citizens [...]” (cf. folios 346 to 349. The transcription is verbatim). iv.- In its substantive reasoning, the lower court transcribes the content of the publication made on [Nombre7]’s “Facebook” profile, namely: “[…] “[…] MILLIONAIRE” “…I am visiting the Nicoya Peninsula, and on these paradisiacal beaches I ask about a beautiful estate. A local answers that our […] [Nombre12] bought it for two and a half million dollars…”. Talking with some businessmen about the millionaire acquisition of the [...], they tell me that it does not end there, that she also owns a wind power generation business –the one made with wind–, and that a [...] [Nombre13] finishing her term has turned into quite an entrepreneur…”. “It reminds me of the case of the ‘Cinderella,’ but that was a fictional story from a fairytale, so then the case of [Nombre [Nombre25]] comes to mind, who in five days of study at INCAE discovered lukewarm water and became a millionaire, owner of yachts, airplanes, a life of luxury, and fine dress. From Hatillo to Valle del Sol in an instant just by touching the ball. Now the leap is from Desamparados to Escazú. If that parallelism of touching the ball leaves a lot of profit without any effort, more than the enjoyment of participating in the game, I compare the Lady’s instantaneous wealth with this player, whose entrepreneurship and business vision we applaud, that ease of paying millions of dollars, without us mortals finding an explanation in our daily life where money takes a lifetime of effort and work to earn…”. “…These instant riches amaze us and we find no logical explanation. Now then, perhaps they read the Book of Secrets and discovered the shortcut to wealth. In any case, we congratulate Mrs. [Nombre [Nombre10]] who is preparing to leave public office as a millionaire and owner of material riches that for any citizen take a lifetime to earn, and for public officials and footballers seem to take only five days of touching the ball […]” (cf. folios 348 and 349). In this regard, in the judgment on the merits the lower court points out that the [Nombre6] [Nombre3] considered the text to be defamatory because, from her perspective, it contains offensive and false statements that accuse her of illicit enrichment, since her salary for the office of [...] she held at that time did not allow for the purchase of an estate worth two and a half million dollars, and additionally the [Nombre6] considered that her honesty was attacked, since Costa Ricans could have presumed as true facts that are not true. At this point in the ruling, the trial court refers to the content of the statement given at trial by [Nombre3], appreciating that the [Nombre6] emphatically denied her participation in wind power generation, as well as denied being the owner of a property in Guanacaste valued at two and a half million dollars. Subsequently, the trial judges assessed what the accused [Nombre12] stated during the hearing as follows: “[…] Regarding the accusation, at trial the accused [Nombre7] –in summary– accepted that he made the cited publication on his ‘Facebook’ account, which was not drafted by him, that he does not know who drafted it, that he took it from the same social network, ‘copied and pasted it’ into his own account, making it public because he thought it was important for others to know about it. He said he never wanted to harm the honor of Mrs. [Nombre6] and defined himself as an activist who has been dedicated to reporting actions of the government of Mrs. [Nombre3] that he considered incorrect or illegal, for which he even filed several complaints before the Public Prosecutor’s Office (Ministerio Público), the final outcome of which he does not know. He alleged that by publishing the [Identificacion1], he was exercising his right to expression, to inform and be informed. Based on his statement at trial, the issue of the authorship of the publication ceases to be relevant, since [Nombre12] admits to having made the content of the text his own and furthermore published it through his Facebook account. Moreover, as demonstrated by the notarial certification provided by the [Nombre6], said account is publicly accessible to any user of this social network. The Court also considers it proven that when the text was disseminated, its content reached an indeterminate number of people, many of whom reacted by expressing their opinions and perceptions regarding it, as included in the complaint, as well as in the notarial certification corresponding to a printout of [Nombre12]’s ‘Facebook’ account, specifically the comments on his publication […]” (cf. folio 360). After taking it as established that the publication in question was made by the accused [Nombre12] and that it was disseminated to an undetermined number of third parties, the trial judges proceed to refer to freedom of expression as the normative support for the formation of free public opinion, characteristic of a thoughtful, analytical, and critical people. Likewise, they point out that a democratic State respectful of the Political Constitution must facilitate its inhabitants’ effective participation in public debates, granting a broad, but not permissive, content to freedom of expression, so as to also allow it to fulfill a supervisory function over political power and the handling of public affairs. In this regard, the ruling cites what the judges enunciate as a precedent of the Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia) that refers to the right to expression, without providing any data to identify that pronouncement. Subsequently, the trial criminal court establishes that the accused distributed the text in question to an indefinite number of people, thereby informing about two facts –the purchase of the property and the participation in the wind energy business by the [Nombre6]–, as well as providing his opinion in that regard, regarding which [Nombre10] stated that it affected her honor. However, without carrying out a thorough assessment of the previously mentioned points, the lower court proceeds to establish that freedom of expression and the right to information are not unrestricted, since these find a limit in the honor of persons, regulated in Article 41 of the Political Constitution, the content of which the judges deem must be read together with the provisions of Article 33 of our Magna Carta, which recognizes the value of human dignity, to which they indicate must be added the criminal protection of the right to honor through the crimes of slander (injurias), libel (calumnias), and defamation (difamación) established in the Criminal Code (Código Penal). Thus, the trial judges conclude that every person has the right to honor, understood as the esteem, opinion, or consideration that others have of them. The lower court establishes that any statement that affects a person’s honor is, in principle, capable of being considered a crime, and that freedom of expression does not encompass certain types of expressions and does not justify them, namely those that, despite having the form of thoughts, ideas, or opinions, turn out to be phrases unnecessary to express what is going to be said and, furthermore, those that are directly insulting or that expressly and unequivocally attribute the commission of a crime. In this sense, the trial court invokes the content of Resolution No. [Telf2] of the Constitutional Chamber of the Supreme Court of Justice, a pronouncement in which the scope of the right to freedom of expression is delineated. Subsequently, the judges point out that, according to doctrine and jurisprudence, honor has two aspects: the subjective, which corresponds to the concept that a given individual has of themselves, their self-love or self-esteem; and the objective, which is the image that the subject projects to others, and is therefore composed of the way in which others perceive that image. Based on the foregoing, the lower court establishes in its analysis that an expression or statement constitutes a crime of defamation (difamación) or any other crime against honor when the offense affects said legal interest from the objective perspective, and it must be a literal, express offense or one that is axiomatically understood as an insult. Based on the foregoing, the trial judges indicate that in the specific case they choose to assess and take into consideration the investiture held by the [Nombre6] [Nombre3] on the date [Nombre7] made the publication in question on his “Facebook” account, “[…] this with the purpose of outlining a jurisprudential line regarding the content of the right to honor of public servants in general, and of whoever holds the office of [...] in particular. Only in this way, as will be seen, can it be established which statements are covered by the normative justification that freedom of expression provides, and thus resolve the case submitted for study before this jurisdictional body. The [Nombre6] [Nombre10 [Nombre10]] on the date of the events was exercising the [...] and was therefore a public servant. But the statement cannot end there. The [Nombre6] [Nombre [Nombre10]] held the highest-ranking public position, was a popularly elected position that gave [Nombre [Nombre10]] not only greater administrative responsibilities of the State, but also the maximum exposure to public scrutiny of all her actions. And this is so since in this Court’s opinion, every public official, especially those of higher rank, and categorically the one of highest rank, namely the [...] of [...], is subject to a paramount duty of transparency, which ‘implies access to public information and the broad, permanent, and impartial dissemination of public decisions. Only in this way is the Principle of Maximum Disclosure complied with, which establishes the presumption that all information is accessible, subject to a restricted system of exceptions (Tiffer [Nombre26]. The constitutionality of the crimes of slander (injurias) and defamation (difamación) in relation to criticism of public officials), and the obligation of accountability also comes into play, in the same hierarchical proportion mentioned, this latter duty enshrined in Article 11 of the Political Constitution, which obliged [Nombre3] to endure all public complaints, criticisms, and grievances presented regarding her person and her management; yes, regarding her person because by exercising the highest-ranking office in the Executive Branch, that investiture transcends into private life precisely because of the principles of transparency and accountability. According to the doctrine of transparency. Public activity must be and appear as a ‘Glass House’ […]” (cf. folios 354 and 355. The transcription is verbatim). For the reasons stated, the trial judges reiterate that the [Nombre6] [Nombre3] was held to a higher threshold of tolerance than the rest of public officials, in relation to thoughts, ideas, or questions about her conduct, since she voluntarily placed herself in public service, and therefore must maintain an impeccable public and private conduct. In their argument, the trial court reiterates that, according to the principles of proportionality and equality, the higher the public office held, the greater the tolerance, owing to the duties of accountability and transparency to which the public official is subject, and in that sense several paragraphs of the resolution issued by the Inter-American Court of Human Rights in the case of [Nombre18] v. Costa Rica are cited. In the analysis presented by the lower court in the judgment on the merits, it carries out a reasoning it defines as “the ideological basis” of its ruling, indicating the following in that regard: “[…] In the first recital (considerando) of this judgment, it was affirmed that this was a very important case. To what was said then, the Court adds the following considerations that are intended to constitute the ideological basis supporting this ruling. In this judgment, the Court faces the difficult decision of interpreting social reality in order to establish from it, what type of State and society constitutes the aspiration of the majority of Costa Ricans. In attempting to do so, the Court will not simply impose its position, but we will try to base it on a reasonable reading of the reality of recent years. Premise number one: in 2005, as a rapid response to criminal complaints involving [...] and high officials of State institutions, the Law Against Corruption and Illicit Enrichment (Ley Contra la Corrupción y el Enriquecimiento Ilícito) was enacted. This legislation created new crimes, such as influence peddling (tráfico de influencias), and reformed other existing ones, such as embezzlement (peculado) and misappropriation (malversación), with the aim of sending a clear and forceful message to society: from the heart of the Legislative Assembly (Asamblea Legislativa), the representative body of the popular will, a firm stance was taken against corruption by public servants. This legislative declaration constitutes the first historical-normative premise used by the Court to affirm that from a normative standpoint, a process of transformation of the existing law began in the last decade, which is now strengthened by other laws that have bolstered the State’s fight not only against illicit enrichment in general, but also against organized crime infiltrating the public service. Thus, from the legislative sphere there is a call for transparency in public office. Premise number two: always, with the aim of giving full effect to the duty of transparency in public office, the strengthening of State oversight bodies has been evident over the last decade. The Ethics Ombudsman’s Office (Procuraduría de la Ética) was created so that the ‘State’s attorney’ not only concerns itself with the strict legality of public actions, but also incorporates into the debate the ethical and moral duty that is also an expression of transparency. The Office of the Comptroller General of the Republic (Contraloría General de la República) has also played a greater role, through rigorous control of the financial reality of public officials. Highlighted here is the duty of some public officials to submit a sworn statement of their assets, and moreover, what is most important to the Court is that the scope of this obligation has increased over the last decade. Indeed, over the years we have witnessed that more and more public positions are added to the list of servants who must submit a declaration of their assets – their assets and liabilities – and that the declaration increasingly seeks to be more detailed and comprehensive of the financial reality of the servants, including, for example, shares in corporations and de facto beneficial interests (usufructos). Incidentally, this Court is a clear example of this whirlwind; for the past two years, the Judges of the Republic – thankfully – also submit a sworn statement before the Office of the Comptroller General of the Republic. Note that with this second premise, the Court wishes to illustrate that the national reality is evident: there has been a pursuit to give effective content to the duty of accountability, always with the aim of guaranteeing transparency in the functions of those of us who voluntarily serve the country in public office. Premise number three: citizen complaints and public complaints led by the media are also a reality that the Court wishes to make visible in this ruling. In the last decade, the Courts of Justice have processed a large number of complaints from citizens against public officials. That is, the citizenry assimilated the importance of transparency in public office, and has assumed a preponderant role in the criminal investigation of the conduct of public servants.

Without regard for the outcome of those proceedings, or their specific citation, the truth is that the Tribunal interprets a reality that all persons have been able to witness in recent years. To this dynamic of citizen complaints has been added the active role of the communication media, which have also undergone a process of change, fundamental in the consideration of this jurisdictional body. In the last decade, most of the communication media left behind an exclusively informative journalistic task, to introduce alongside it an investigative function. This is evident; now the press does not limit itself only to informing, but rather it investigates, seeks out the news. In that search it has found fertile ground in the public function, and a great number of public servants have been investigated, with the aim of exposing and denouncing possible criminal acts. In the Tribunal's view, it is not a valid argument to affirm that this new journalistic paradigm is due to the interest in generating higher audience ratings; reasonable though they may be due to the interest that the denunciation of possible crimes committed by public servants awakens in public opinion; the important thing is that those ratings increase precisely because the interest of persons in this type of investigative journalism is due to the collective's interest in transparency and accountability from those who exercise the public function. These premises that the Tribunal has elaborated are suitable for affirming that there is a social reality in Nombre2042 and that it constitutes the ideological basis of this ruling. In this judgment the Tribunal expresses its legal reasons, based on the answer to a fundamental question: what kind of State and society does the majority of Costa Ricans want? Is a strong State wanted, where the honor of public servants has greater legal protection than freedom of expression? Or is a Constitutional State wanted, where there exists a fair proportion between the honor of public officials and the freedom of expression of other Costa Ricans? Based on the premises set forth by the Tribunal, we estimate that a just decision, in accordance with social reality and constitutional parameters, is one where, without leaving the honor of the person who exercises the […] unprotected, greater protection is provided to the freedom of expression of Costa Ricans […]” (cf. folios 358 to 360 of the main case file. The transcription is literal). Based on what the lower court sets forth as the “ideological basis” of its judgment—which it extracts from its particular reading of the socio-political reality of our country—it specifies the essential aspect or pillar on which it sustains its ruling, individualizing a parameter—which it estimates corresponds to the philosophical platform that it develops in its reasoning—based on which it sifts the expressions made by the respondent in the publication that the [Nombre6] [[Nombre10]] deemed harmful to its honor, and that led it to consider that the content of the text disseminated on the “Facebook” profile of [Nombre12] does not affect the honor of said [Nombre6]. Thus, such parameter is defined by the lower court as follows: “[…], whoever holds the […] will be the victim of a crime against their honor, solely and exclusively when a person makes a manifestation, idea, thought, or opinion that is expressly and unequivocally insulting, defamatory, or slanderous, even when linguistically irritating, annoying, suggestive, and even sarcastic. In other words, all manifestations that, although annoying or irritating to the honor of whoever is a [...], are justified as long as they are not openly insulting or defamatory per se, and as long as the attribution of a crime is not the only reasonable inference that can be extracted from the manifestation. With this panorama, now a very careful reading of the facts of the complaint must be made, in the first order to know if the threshold of objective criminality is reached – that is, the express and sole defamation or slander – and in the second order to establish if the text has a critical opinion or expression of thought that exceeds the limit of what a [...] must tolerate […]” (cf. folio 360 of the summary). In this manner and under such parameter, the trial court performs an analysis of the facts that comprise the complaint discussed in the sub judice, concluding that they do not contain any explicit insult or word that unquestionably constitutes an offense, nor the concrete and unequivocal attribution of a criminal act to the [Nombre6] [[Nombre3]]. Thus, when analyzing the content of the fourth point of the complaint, the trial court considers that the respondent [Nombre12] suggested as “a possibility,” that the [Nombre6] had acquired a property irregularly, in the sum of 2.5 million dollars, and that the judges estimated that it is valid to interpret that the [[Nombre3]], with its income, could not acquire such an expensive real estate property. Despite such affirmation, the lower court points out that this is only one of the possible inferences to be derived from the text in question, concluding that there is no imputation that is expressly and unequivocally suitable to affect the objective honor of the [Nombre6]. The trial court concludes that the objective element of Article 146 of the Penal Code does not exist, since it estimated that the existence of “suitable statements (especies idóneas)” as a synonym for insult or offense was not verified. On the other hand, when examining the fifth point of the complaint, the criminal court, following the same parameter indicated above, considers that the [Nombre6] [[Nombre3]] makes its own inference that is also not the only one deduced from the text complained of, thereby ruling out the existence of any crime in the action of [Nombre12]. In relation to the sixth fact of the complaint, the lower court establishes that [[Nombre3]] estimated that, in its content, there is a denigrating affirmation to its detriment, because the respondent linked her to a former soccer player who at that time was being investigated by the Public Prosecutor's Office. In this regard, the trial judges considered that the textual reading of the phrases encompassed in the aforementioned point of the complaint do not contain any “derogatory qualifying adjective” towards the [[Nombre3]], nor does it directly and unequivocally impute any crime to her. In this sense, it is established in the judgment on the merits that “[…] The inference made in the complaint is again a conclusion, a personal appreciation, respectable and valid, in accordance with logic but not literal nor unique. Note that [Nombre [Nombre25]], a well-known former soccer player, who at the time of [Nombre12]’s publication was linked in the media to an investigation for money laundering—does not have a conviction against him that points to him as the perpetrator or participant in a crime, so it is also not valid to conjecture that the conduct of [[Nombre3]] is equated with that of a criminal, as the [Nombre6] mistakenly does. Without a doubt, [Nombre12] suggests that just as [Nombre [Nombre25]] may have become illicitly enriched being a person under criminal investigation, [[Nombre3]] may also have been enriched in the same way; however, this is not the only reasonable inference that can be extracted from the text complained of. If that were the only conclusion, the unequivocal suggestion of [Nombre12], the conclusion of the Tribunal would be different; however, the respondent also suggests other possible scenarios and, in doing so, does not formally commit a crime but rather harshly questions something that seemed to him should be clarified by the then [Nombre [Nombre10]], in short, his conduct not only is not typical of any crime, but is justified in the legitimate use of his freedom of expression […]” (cf. folio 363. The transcription is literal). Regarding the seventh point of the complaint, the trial court estimated that [Nombre [Nombre10]] considered it offensive because, in her view, it was said against her that she was the possessor of a “sudden and illegal fortune.” According to the judgment on the merits, the following is stated in the referenced segment: “[…] These instantaneous riches amaze us and we find no logical explanations. Now then, could it be that they read the Book of Secrets and discovered the short path to wealth. In any case, we congratulate the [Nombre [Nombre10]] who is preparing her exit from public service as a millionaire and possessor of material riches that cost any citizen a lifetime and public officials and soccer players only five days of kicking the ball […]” (cf. folio 363). In the analysis of the text described above, the lower court, under the lens of its aforementioned parameter, considered that in said segment there is no word or sentence whatsoever that constitutes an insult, opprobrium, or ignominy, nor is [Nombre [Nombre10]] pointed out as the owner, recipient, or creator of an illegal fortune. Thus, the criminal court concludes that this is a new personal process of understanding by the [Nombre6], since the referenced statement allows a “different apprehension” from the one derived by [Nombre [Nombre10]], which it qualifies as sarcastic on the part of the respondent [Nombre12] since it refers to the “Book of Secrets” and expresses a congratulation to the [Nombre6]. In this sense, literally in the challenged decision, the judges considered the following: “[…] It is undoubtable that the publication by the respondent [Nombre12] is written in an ironic, sarcastic, and scathing tone and its comprehensive reading, with prior knowledge and prejudices, may be shocking, so the annoyance, which according to what was narrated at trial, has been caused to the [Nombre6] [Nombre [Nombre10]], is understandable. However, neither the literal sense of the words used by [Nombre12], nor their context contain defamations, nor is the commission of a crime the only reasonable inference from the insinuations that the respondent outlined in his publication. As analyzed, the text does not insult nor offend the decorum of [Nombre [Nombre10]]; the suggestion might be inferred that she committed a crime but that suggestion is not the only one the respondent makes, and hence the Tribunal infers that there was no injury to the honor of [Nombre [Nombre10]], who as [Nombre [Nombre10]] should consequently tolerate those suggestions, yes, all of them, and not appropriate just one to seek the conviction requested in the trial conclusions […]”. v.- Another aspect that is developed in the judgment and is significant in the solution of the sub judice is that relating to the trial court's consideration that [Nombre7] did not have the obligation to prove that [Nombre [Nombre10]] had purchased the property in question, nor that she effectively had participation in companies generating electricity from wind sources. This was outlined by the lower court based on two reasons: “[…] the first consists in that neither one thing nor the other are per se defamatory affirmations, much less slanderous, and, secondly, because from the comprehensive reading of the text complained of, the Tribunal infers that there is a direct relationship between those two events that the respondent sets forth, and his opinion in that regard; that is, [Nombre12] reported two facts with the sole purpose of opining on them. Therefore, if the Tribunal were to give merit to the pretense of [[Nombre3]] and demand that [Nombre12] should have proven the two facts to obtain an acquittal, it would nullify the free expression of which the person who at that moment exercised the […] is the holder, and due to that condition [Nombre12] first reported two facts that drew his attention to the public of the [Nombre6], and from that he expressed his opinion […]” (cf. folio 364 of the summary. The transcription is literal). Regarding the reasoning set out above, based on which the trial court downplayed the importance of the truthfulness or falsity of the facts encompassed in the publication disseminated by [Nombre12], the trial judges considered that the text complained of is not the best example of serious and substantiated information, nor the exposition of an elaborated thought or a profound criticism by [Nombre7]. Despite the above, they estimated that the content of the text in question is indeed proper to what the Political Constitution empowers all citizens in the exercise of the right of expression towards the person who exercises the [...] that, due to that “voluntarily accepted condition,” they are compelled to tolerate, provided that they are not expressly offended, nor is the commission of a crime the only suggestion that is reasonably derived from a comment, opinion, or publication made by a citizen. Due to the foregoing, the lower court concluded that the action carried out by [Nombre7] is atypical, since the judgment estimated that it does not contain a “suitable statement (especie idónea)” to affect the honor of the [Nombre6], and therefore the corroboration of the subjective criminal type cannot be reached either. The trial court adds that the respondent acted under the protection of exercising a fundamental right such as freedom of expression, since, despite using a strong, sarcastic, and undoubtedly annoying text to express his opinion based on the facts he took as a basis for his manifestation, it does not emerge unequivocally from the text he published that the [Nombre6] had committed a crime, but rather several possibilities arose, which determines that the conduct of [Nombre12] is not unlawful by virtue of the special condition of [...] of the [Nombre6] [[Nombre3]], a situation that meant a very broad margin of transparency to be fulfilled and accounts to be rendered, all of which the lower court assessed to rule out, in the specific case, the excessive exercise of the right of expression. Finally, the court closes its analysis to acquit [Nombre7], pointing out the following: “[…] The national author [Nombre27], in the article cited above, affirms that when a collision is detected between the individual right to honor of a public official and the collective right to expression, prevalence must be given to the latter, in application of the principle of minimum criminal law, an affirmation that the Tribunal shares and that, in the task of establishing this line between the abuse of the right of expression and its correct use, has estimated that the text at hand falls within the line of what is considered not to be abuse. Matters being thus, [Nombre7] is acquitted of all penalty and responsibility for the crime of DEFAMATION to the detriment of [[Nombre3]]. This judgment is issued without special condemnation in costs. The costs of the proceeding are to be borne by the State […]” (cf. folio 367). The examination and description of the aspects that were considered in the judgment on the merits to acquit [Nombre7] provides clarity and a full understanding of the failings of the judgment, which entail the defect of lack of legal reasoning that is claimed and that is upheld in this pronouncement. Subsequently, legal aspects that are of essential character for the correct solution of this case will be set forth, and then the defects in the reasoning of the trial court that violate the regulations established in Articles 39 and 41 of the Political Constitution, as well as those stipulated in Articles 1, 142, and 184 of the Code of Criminal Procedure, will be detailed. B.- Legally relevant aspects for the solution of the case in accordance with the Law. The present case has two particularities that must necessarily be assessed with care and rigor for the correct legal solution of the disputed matter under review, namely: 1.- that the [Nombre6] [Nombre [Nombre10]] held the [...] at the date on which [Nombre7] – the respondent – published on his “Facebook” profile the text accused as defamatory; 2.- that the facts subject to adjudication are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals its importance for the social and individual development of each of the inhabitants of our country, namely: i.- the right to honor and; ii.- the right to free expression. In attention to and under the prism of these two essential pillars of the sub litem, the legally relevant and necessary aspects for the solution of the case in accordance with the Law must be defined. Thus, we proceed to individualize such assumptions. b.1.- Normative legal framework. In the first place, it is necessary to establish the normative framework that is linked to the facts being judged and that must be assessed and applied for their correct understanding. Thus, the regulations that are part of the constitutional block that are related to and regulate the subject matter in question must be defined in the first place, namely the following: i.- Article 11 of the Political Constitution; Its regulations govern a principle that is of essential character for the proper application of criminal law – and undoubtedly for the specific case – such as the principle of legality. In this constitutional precept, the following is stipulated: “(…) Public officials are simple depositaries of authority. They are obligated to fulfill the duties that the law imposes on them and cannot arrogate powers not granted in it. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability from them for their acts is public. The Public Administration, in a broad sense, shall be subject to a procedure for evaluating results and rendering accounts, with the consequent personal responsibility for the officials in the fulfillment of their duties. The law shall indicate the means so that this control of results and rendering of accounts operates as a system covering all public institutions. (Thus amended by Law No. 8003 of June 8, 2000) (…)”. Another aspect of essential character for the solution of the case, and that derives from Article 11 of the Constitution, is the duty of accountability of public officials as well as the requirement of personal responsibility in the fulfillment of their duties. ii.- Article 41 of the Political Constitution. In this precept, the right to honor is established with constitutional rank, that is, it is granted the degree of fundamental right, hence the relevance that this norm has for resolving the merits of the dispute under review in the specific case. In said article, it is established: “(…) Resorting to the laws, everyone must find reparation for the injuries or damages they may have received in their person, property, or moral interests. Swift, complete, and unerring justice must be done to them, in strict conformity with the laws (…)”. iii.- Another article of our Political Constitution whose regulations are applicable and important for the solution of the present case is that established in numeral 28, in which the following is regulated: “(…) No one may be disturbed or persecuted for the manifestation of their opinions nor for any act that does not infringe the law. Private actions that do not harm public morals or order, or that do not harm a third party, are outside the action of the law (…)”. iv.- On the other hand, we have Article 29 of our Magna Carta, in which freedom of expression, information, and press are protected as fundamental rights, which are undoubtedly directly linked to the event complained of in this criminal case. Literally, in said norm, the following is regulated: “(…) Everyone may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law (…)”. Likewise, it is necessary to detail the regulation of Conventional Law that is linked and must be assessed in the solution of the present case, namely the following: i.- Article 11 of the American Convention on Human Rights. In this norm, the protection of a person’s honor and dignity is expressly recognized as a human right. Thus, the following is provided: “(…) Protection of Honor and Dignity. 1. Every person has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference in his private life, in that of his family, in his home or in his correspondence, nor of illegal attacks on his honor or reputation (…)”. ii.- Also, as part of the “conventional block” that governs our legal order, Article 19 of the International Covenant on Civil and Political Rights expressly recognizes the right to freedom of expression and information, such rights being regulated as follows: “(…) 1. No one shall be subject to coercion that would impair his freedom to have or to adopt opinions. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, which shall, however, be only such as are provided by law and are necessary: (a) For respect of the rights or reputation of others; (b) For the protection of national security, public order, or public health or morals (…)”. iii.- In the same vein, Article 13 of the American Convention on Human Rights stipulates the following: “(…) 1. Everyone has the right to freedom of thought and expression. This right includes 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 through any 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 and be necessary to ensure: (a) respect for the rights or reputations of others; or (b) 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 other means tending to impede the communication and circulation of ideas and opinions (…)”. iv.- A norm related to those previously set forth and relevant for the decision of the sub judice is that provided in Article 19 of the Universal Declaration of Human Rights, which establishes the following: “(…) Everyone shall have the right to freedom of opinion and expression; this right shall include freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (…)”. On the other hand, in the legal sphere of our legal order, a series of regulations are contemplated that are of vital importance for the solution of the present complaint in accordance with the Law, namely the following: i.- Article 146 of the Penal Code criminalizes the crime of defamation, which is precisely the punishable act that was complained of as committed by the accused [Nombre7]. In said article, it is established: “(…) Defamation. Anyone who dishonors another or propagates suitable statements (especies idóneas) to affect their reputation shall be punished with a fine of twenty to sixty days (…)”. Thus, it is clear that the fundamental right to honor is at stake in the resolution of the sub judice, with the particularity that the rigorous assessment of the right to freedom of expression, protected in the superior legal norms set forth above, is also important for this purpose; ii.- The regulations set forth in Article 25 of the Penal Code are directly linked to the subject matter under discussion, specifically, regarding the legitimate exercise of the right to freedom of expression. Its regulation provides: “(…) Compliance with the law. Anyone who acts in compliance with a legal duty or in the legitimate exercise of a right does not commit a crime (…)”. This ground for justification is of utmost importance for defining, in a case such as the one being resolved, whether or not criminal liability exists for the dissemination of facts complained of as harmful to honor. iii.- Also legally relevant in the present case is the normative content of Article 22 of the Civil Code, as this expressly regulates the prohibition of abuse of a right, a provision that is linked to freedom of expression according to the norms that recognize and protect such fundamental right in the legal instruments that make up the constitutional block, as set forth above. In said article, the following is provided: “(…) The law does not protect the abuse of a right or its antisocial exercise. Any act or omission in a contract, which due to the intention of its author, its purpose or the circumstances under which it is carried out, manifestly exceeds the normal limits of the exercise of a right, with harm to a third party or to the counterparty, shall give rise to the corresponding indemnification and to the adoption of judicial or administrative measures that prevent the persistence of the abuse (…)”. iv.- On the other hand, by virtue of the special personal condition of the [Nombre6] [[Nombre3]], it must be appreciated that the General Law of Public Administration regulates provisions related to the substantive issue, which are relevant for the solution of the case. In the first place, Article 11 of the cited law regulates the principle of legality as an essential guiding principle for the actions of public officials, stipulating the following: “(…) The Public Administration shall act subject to the legal order and may only carry out those acts or provide those public services that said order authorizes, according to the hierarchical scale of its sources. An act expressly regulated by written norm shall be considered authorized, at least regarding its motive or content, even if in an imprecise form (…)”. For its part, Article 113 of the General Law of Public Administration provides the following: “(…) 1. The public servant must perform their functions so as to primarily satisfy the public interest, which shall be considered as the expression of the coinciding individual interests of the administered parties. 2. The public interest shall prevail over the interest of the Public Administration when these are in conflict. 3. In the assessment of the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, to which mere convenience may in no case be preferred (…)”. Another relevant legal norm is Article 114 of the General Law of Public Administration, which establishes: “(…) 1. The public servant shall be a servant of the administered parties, in general, and in particular of each individual or administered party with whom they relate by virtue of the function they perform; each administered party must be considered in the individual case as a representative of the collectivity on which the official depends and for whose interests they must watch. 2. Without prejudice to what other laws establish for the servant, any act, fact, or omission that through their fault or negligence causes unjustified or arbitrary obstacles to the administered parties shall be considered, in particular, irregular performance of their function (…)”. The normative framework set forth contains the provisions that must be considered and applied in the solution of the sub judice, which, as pointed out above, presents two particularities of great legal relevance that must necessarily be assessed to issue the decision that corresponds in accordance with the Law, namely: that the [Nombre6] [Nombre [Nombre10]] occupied the [...] at the moment when [Nombre7] published on his personal “Facebook” account the text that was complained of as defamatory in this cause; and that the facts subject to adjudication are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals its importance for the social and individual development of each of the inhabitants of our country, namely: i.- the right to honor and; ii.- the right to free expression. Thus, from the study and application of the norms pointed out above, it is determined that in the present case there exists what can be described as a kind of “friction” between the fundamental rights to honor and to freedom of expression, about which it must be indicated, expressly, that despite such situation, they are not mutually exclusive.

This, because what is determined in that regard, based on what is regulated in our legal system, is that both fundamental rights are closely linked to one another, since both the right to honor and freedom of expression are essential for the individual and social development of every person, to which it must be added that freedom of expression has an essential quality from a political-institutional and social point of view, which is that the protection and respect of such a right are absolutely necessary to guarantee the structuring, validity, and development of a society based on a Democratic State, such as the one enshrined in our Political Constitution. This being the case, the provisions contained in the reference normative instruments allow establishing that it is not feasible to think or consider that one of such human rights is of a higher degree or that it should be applied to the absolute detriment of the other, since what corresponds in order to guarantee and protect both human rights, duly, in accordance with the precepts of our legal system, is their equal application, and in the event of a collision between the two – by virtue of their special link – what corresponds is to assess the objective and subjective circumstances of each specific case, in order to rationally and proportionally modulate the value that corresponds to granting to the right to honor with respect to freedom of expression in a specific matter of criminal-legal relevance. It is important to complement the previous idea, so that in addition to the considerations specific to the particular case regarding the "modulation" of the reference fundamental rights, the scope or ambit of each of such fundamental precepts must also be appreciated and carefully defined. This, with the objective of determining if in a specific case the right to free expression was exceeded or "stepped outside" its legitimate sphere of protection. The foregoing is important because, normally, the right to honor will be affected by manifestations, opinions, or criticisms from third parties, but that affectation – by itself – cannot be the sole parameter to consider, since the extent to which honor and decorum – in the case of public officials – must tolerate such criticisms must also be appreciated and defined, so that it is not only sufficient to "modulate" the specific sphere of protection of one or another human right, but rather, limits and scopes of such rights must also be established. The foregoing is based on the study and objective and comprehensive analysis of the stated regulations, an analysis that leads to the conclusion that freedom of expression cannot be limited or restricted a priori, which would imply that such restrictions translate into prior censorship that would denature and signify, in turn, the emptying of the content and effectiveness of freedom of expression, which is absolutely harmful for the adequate development and validity of a Democratic State of Law. From the exposed regulations, as well as from the legal nature and purposes of freedom of expression, what is pertinent is that the limits to its exercise be given a posteriori, if and only if, in cases where there has been an abusive use of freedom of expression that exceeds its normative content, and that implies, in turn, the violation of other fundamental rights, just as can occur with respect to the right to honor, with which it has already been indicated that the right to free expression is closely linked. In this way, it is not appropriate to establish as an absolute rule that the right to freedom of expression will prevail in all cases and without any limit over the right to honor, what is legally appropriate being to consider and define in each specific case, what is the weight or value that corresponds to one or the other, in order to adequately guarantee and in accordance with constitutional parameters, the validity and effective protection of both fundamental rights under their balance and adequate recognition. The foregoing is of utmost legal relevance for the solution of the subjudice in accordance with the Law and to guarantee one of the fundamental pillars of criminal due process, as is the right to a fair sentence subject to legality, as established in the celebrated resolution No. 1739-92 of the Constitutional Chamber of the Supreme Court of Justice. Specifically by virtue of the fact that, as has been previously established, [Nombre6] [Nombre443 [Nombre10]] held the position of […] at the time the acts under judgment occurred. Such a situation introduces another essential theme in the analysis of the subjudice, namely, the condition of a public official and the obligation that, by virtue of such quality, exists towards the administered in general, so that by reason of what is prescribed by the principles of legality and accountability, anyone who holds the status of public official has greater responsibility in the exercise of the powers inherent to their investiture, as well as being subject to greater scrutiny and oversight in the exercise of public function, a parameter that definitively gives a special nuance to the fundamental right of freedom of expression versus the right to honor. Thus, it is clear that by reason of the principle of accountability derived from articles 11 of the Political Constitution, as well as from articles 11, 113, and 114 of the General Public Administration Act, whoever is a public official and exercises a position of such nature, whether by popular election or of any other type, by virtue of their condition as a public official and for having voluntarily opted for the management of a position of that category, is obliged to bear a greater level of tolerance in the scrutiny and oversight of the exercise of their position, as well as in the performance of their actions – including those of a personal nature – that are directly or indirectly linked to, affect, or have an incidence on the management of their public function. By reason of the foregoing, there is no doubt that whoever holds a position such as the one held at the date of the facts by [Nombre6] [Nombre [Nombre10]], that is, that of the […] – and in general anyone who holds or exercises public function – has the duty to submit – and accept – greater control in the exercise of their functions, not only by the formal bodies or mechanisms created for that purpose, such as, for example, the Office of the Comptroller General of the Republic, but also – and to a degree of utmost importance – by informal means of control and oversight, such as the press media and public opinion in general. Thus, it is guaranteed that the administration of the goods and resources of the State – which in reality belong to all the inhabitants of the country and have been delegated for their correct governance to public officials – is carried out in accordance with the purposes and with the efficiency required by law, by those who exercise some public position. In turn, the effective safeguarding and validity of the democratic State is protected, in which prior restrictions – or of any other type – to freedom of expression as a means of control and social domination are in no way admissible, it being rather that in a democratic scheme such as the one governing our country, freedom of expression must be guaranteed as a form of control of the exercise of public power. In this way, and concretely, whoever exercises the position of the […] is subject to a greater level of tolerance in the scrutiny of their functions, which without a doubt encompasses the aspects related to the exercise of freedom of expression with respect to the right to honor of the […] or the […], so that whoever holds the position is subject to criticisms, questions, opinions, or manifestations that are directed or based on the exercise of their public function or that are directly or indirectly linked to their condition as a public official and to the powers they perform. Notwithstanding the foregoing, and it must be established from now, the interpretation that the criminal court carries out of the above-exposed norms in the judgment on the merits is not legally appropriate. This, because such a decision derives from a subjective interpretation of the Costa Rican political-social reality by the trial judges, a position according to which they define an ideological basis for their decision, which, as they expressly indicate in the ruling, sustains the essential parameter based on which they resolve the merits of the present matter, that is, that the judges appreciate or consider that whoever holds the position of the […] must bear or tolerate even greater limitations to their right to honor with respect to the rest of the public officials, regarding the exercise of freedom of expression, so that only direct offenses to such a fundamental right or the reference to facts that expressly constitute a crime, would be the assumptions in which the unlawful violation of the right to honor of the […] [Nombre04[…] could occur, which they dismiss the affectation to the right to honor in the case of the […] [Nombre6], [Nombre443 [Nombre10]]. In this sense, the study and interpretation that in accordance with the Law corresponds to the previously defined normative framework does not allow establishing that it is expressly or tacitly regulated that the level of tolerance of whoever holds the position of the […] of the […] is different from that of the rest of the public officials who are members of the Supreme Branches of the Republic, or of any other public position of a lower grade than those previously indicated. Thus, the differentiation carried out by the lower court – distinguishing where the norm does not – regarding the point under analysis, is not objective nor legally supported, but derives from their opinion or subjective position regarding what the trial judges estimate is the answer that corresponds to the questions they pose to themselves in their ruling, these being: "[…] what type of State and society does the majority of Costa Ricans want? Do they want a strong State where the honor of public servants has greater legal protection than freedom of expression? or Do they want a Constitutional State where there exists fair protection between the honor of public officials and freedom of expression of the rest of the Costa Ricans [...]" (cf. folio 360 of the main file). The limitations and existing relationship between the right to freedom of expression with respect to the right to honor of Costa Rican public officials is not defined based on the interpretation or subjective individualization of the ideology of what in that sense it is considered that the majorities of our country want, just as the lower court erroneously carries out in the judgment on the merits. The legal relationship between the right to honor and freedom of expression in order to adequately guarantee the principles of legality, transparency, and accountability of public officials, for the validity and correct development of the democratic model established by our Magna Carta, must be defined based on the application of the above-exposed normative framework, from which the following is determined: i.- Public officials are subject to the principles of legality and accountability in their capacity as depositories of public function. ii.- The strict application of such principles implies that public officials have a greater level of tolerance in the scrutiny and oversight of the exercise of their positions, in order to guarantee the adequate handling of public resources of all administered persons, as well as to guarantee the full development of the democratic principle and the safeguarding of the Democratic State established by our Political Constitution. iii.- The constitutional, conventional, and legal regulations stated above determine that public officials, despite the duty of tolerance to which they are subjected by their condition as such, do possess and are holders of the right to honor, which must be protected and guaranteed under the strict application of the principle of accountability and transparency proper to a Democratic State of Law, which give a special nuance and a greater tolerance threshold, in the honor versus freedom of expression relationship of public officials, which legally cannot translate into the emptying or de facto disregard of the protection of the honor of those who exercise public function, in which, obviously, the position of the […] is included. Thus, although the person who holds said position must bear criticisms, questions, or opinions, which even can be strong, harsh, or uncomfortable, they maintain their right to honor, so that it cannot be violated under the curtain or the screen of the legitimate exercise of a right (article 25 of the Penal Code), that of freedom of expression, when in reality what exists is an abusive and illegitimate exercise of such a fundamental right that implies a violation of the decorum and dignity of the person that not only affects them in their individual sphere, but also, by virtue of their special condition, affects them with respect to the exercise of public function and administration. Such abusive use of the right to honor can be carried out in many ways, as has been expressly stipulated in constitutional jurisprudence, conventional jurisprudence, and that of our Chamber III of the Supreme Court of Justice – to which reference will be made in a subsequent section – and not only through direct offenses or express criminal accusations against a […] [Nombre19[…], as the trial judges estimated in the judgment on the merits without an objective and legal basis. This being the case, in order to guarantee the protection and effective application of the above-exposed regulations governing the fundamental rights to honor and freedom of expression in a case like the one being elucidated in the subjudice, without an illegitimate impairment of one of such rights to the detriment of the other, and to achieve the safeguarding and effectiveness of both, forms of offense to the honor of a specific public official, in this present matter that of whoever occupies the position of the […], should not be assessed or defined a priori or as exhaustive as proper or necessary. Rather, what is appropriate is to appreciate or assess in each specific case the species that is denounced or complained of as offensive to the honor of the public official, from two perspectives; 1.- that the text or content of the published material is made, expressed, or raised in a form or manner that leads to an objectively verifiable affectation or impairment of the honor, decorum, or dignity of the public official, by virtue of the abusive exercise of freedom of expression. That is to say, that the main thing is the offensive content of the publication, however, as indicated by the Third Chamber in the resolution studied above, it is important to assess the form in which ideas are expressed, shaped, or the publication is carried out; 2.- that from "the species" that is complained of or reputed as harmful to honor, the existence of a general intent (dolo común) of the person who performs it is derived, that is, the knowledge and will that the manifestation is offensive to honor, that is, to affect the honor or decorum of the public official, a will that departs from and exceeds the exercise of freedom of expression that corresponds to the scrutiny and oversight that public officials must tolerate as part of the duty of transparency and accountability that is attached to the position they hold. In simple terms, it can be pointed out that the minimum that can be required of a person who carries out a publication or dissemination of an expression with respect to a person who holds a public position – a posteriori in order to avoid any possibility of prior censorship – is that they have at least ascertained the seriousness or real existence of the source, that is, to appreciate and define at least an objective basis that justifies the questioning, criticism, denunciation, comment, etc., that is disseminated or published. It is clear that depending on each particular case, and in attention to the degree of responsibility, hierarchy, and degree of exposure of a specific public official, the margin of tolerance for criticism, questions, or unfavorable opinions carried out in the serious and measured exercise of freedom of expression, as a means of control and formation of public opinion, will be more common and will have to be accepted with greater regularity, just as occurs in the case of the […]. iv.- From the exposed regulations, it is inferred that freedom of expression regarding the right to honor of public officials does not cover nor protect the exercise of that freedom through the pointing out or disclosure of false facts, simple speculations, or malicious comments that have as their true purpose that of affecting the honor of the involved public official, and not that of making effective the legitimate exercise of a right with the objective of informing or generating public opinion with respect to situations that are relevant for the correct exercise of public function. The foregoing does not translate into obligating whoever carries out a manifestation, criticism, or opinion with respect to the performance of a public official to demonstrate the truth of the content of their publication, since such a stance could unduly limit freedom of expression as a form of prior censorship. What proceeds in each specific case – as anticipated above – is to analyze, first, the objective basis of the comment, opinion, or publication, and second, that its issuance and dissemination do not have as their true purpose that of unduly affecting the right to honor of a public official under the appearance or subterfuge of invoking the exercise of freedom of expression. This, by reason that openly accepting and without any discrimination any type of negative expression or comment against a public official, without sifting such manifestations under the lens of the greater level of tolerance that corresponds to them, is not appropriate. Nor is it acceptable to radically affect their right to honor, by virtue of the definition and appreciation of exhaustive factual assumptions that are neither derived from nor regulated in any way in the above-exposed legal framework, just as the lower court does. Such a stance, far from satisfying, procuring, and allowing the control, scrutiny, and oversight of those who hold public positions, in order to guarantee the constitutionally established duties of transparency and accountability, for the validity and development of the democratic State through the formation of public opinion and the questioning of the different acts that occur in the exercise of power and state administration, what it generates is the "deformation of public opinion," which leads to the disenchantment and undue loss of confidence in those who exercise public administration and, consequently, to the possible irregular affectation of the correct institutional order. The foregoing not only affects the individual honor of such persons, but also, and what is extremely harmful for a Democratic State, impairs its institutionality and governability, since it unduly produces an environment of distrust and disenchantment of the administered in general, with respect to those who exercise public function by their delegation and on their behalf. In this way, freedom of expression and communication in a democratic constitutional scheme not only includes the possibility of carrying out manifestations in a free manner and without prior censorship by the inhabitants of the State, but also contemplates the right to receive and for truthful, serious, objective, and responsible information to be disseminated about the performance of those who hold public function, in order to guarantee the formation of an adequate public opinion that enriches and enshrines the democratic principle through the protection and correct application of the principles of transparency and accountability which, obviously, concern and bind whoever exercises the position of the […]. By reason of all of the foregoing, it is determined that the ideological basis that was subjectively defined by the lower court, based on their particular appreciation of the reality of our country, to define parameters that according to their appreciation dismiss the existence of unlawful conduct harmful to honor to the detriment of [Nombre443 [Nombre10]] for the acts that she complained of against the accused [Nombre7], is a decision that is not supported by nor does it conform to the norms that in our legal system regulate the right to honor of public officials with respect to the exercise of freedom of expression. b.2.- Jurisprudential precedents applicable to the substantive issue. In the judgment on the merits, the trial judges invoke and appreciate in their argumentation jurisprudential precedents from the Constitutional and Third Chambers of the Supreme Court of Justice, as well as from the Inter-American Court of Human Rights. Notwithstanding the foregoing, the comprehensive examination of the ruling reveals that, just as the challenger claims, the trial court did not fully assess the content of such pronouncements, even though they are very important for deciding the merits of the present matter, given that they study and develop the topic related to the precepts and criteria that must be followed in the criminal-legal approach to the relationship that exists between the fundamental rights of freedom of expression with respect to the right to honor of those who exercise public function, as well as also define other legally relevant aspects for the solution of the case. For this reason and by virtue that the reference jurisprudential framework has been appreciated and assessed in order to base the present pronouncement, it is necessary to recapitulate and analyze the most important contents of each one of the precedents invoked in the judgment on the merits, related to the subject matter of the litigation. 1.- Constitutional Chamber of the Supreme Court of Justice. The study of the judgment on the merits allows establishing that the trial judges used, in the foundation of their decision to acquit the respondent [Nombre7], the jurisprudential precedent of the Constitutional Chamber No. 2006-05977, of 3:16 p.m. on May 3, 2006, in which an unconstitutionality action filed against the text "Those responsible for the crimes of slander or libel committed through the press shall be punished with a penalty of arrest from one to one hundred twenty days," contained in the first paragraph of article 7 of the Printing Press Act, No. 32 of July 12, 1902, was resolved. In said pronouncement, whose provisions, it must be remembered, are erga omnes, the following aspects are highlighted: i.- In the precedent under study, the fundamental right of freedom of the press is analyzed, with the Constitutional Chamber indicating in that sense that the case is approached from the perspective of said right in relation to public officials and the dissemination of topics of social relevance -newsworthy facts-, this even though the norm is conceived within a broader framework of subjects. In this regard, it should be noted that in the judgment on the merits, the judges in no way appreciated that although the case analyzed in the reference constitutional precedent has some aspects that are applicable to the present matter – because they are related to a certain degree with the facts being judged in the sublitem – the topic specifically addressed by the Constitutional Chamber was that of freedom of the press, which differs from what is discussed in this complaint, given that "the species" that was complained of as harmful to the honor of [[Nombre3]] was not published in a press medium, nor was it carried out by any person dedicated to that professional field. This, because [Nombre7] is not a journalist, to which must be added that the respondent also did not carry out the publication in question as a result of journalistic investigation, nor under the characteristics of dissemination that are styled and are proper to communication media of such nature. This situation must be kept in mind in order to be able to dimension the scope of the pronouncement in question, in order to derive the aspects thereof that are indeed applicable in the solution of the subjudice, which was completely left aside by the lower court in the assessment it carried out in the ruling of the constitutional precedent under study. ii.- Another aspect that the criminal court did not assess with the weight that legally corresponds is the statement made by the Constitutional Chamber regarding the limits that freedom of the press has – which at some point in its reasoning it identifies as freedom of expression – with respect to those who exercise public function and their right to honor. In that sense, it is stipulated, in general terms, that the norms that establish restrictions on said fundamental right do not have as their purpose limiting the duty of transparency, but rather that of sanctioning the bad faith and the inexcusable negligence of whoever uses freedom of the press as a means to harm the honor of a public official. Literally, on the aspects previously noted, the Constitutional Chamber establishes: "[…] It is not therefore a norm configured to shield public function, nor to avoid the necessary transparency that must exist over its acts, but rather it aims, in general, to sanction whoever, in bad faith or by inexcusable negligence, uses freedom of the press as a means to harm the honor of persons and the right of citizens to receive adequate and timely information from journalists and media that disseminate information through written media. Topics outside the indicated framework are not addressed as they are not part of the case, such as other non-journalist subjects or communication media, who express and inform on different topics daily to the citizenry through the printing press that generically encompasses all types of printed matter, printing, edition, circulation of brochures, magazines, and publications of all kinds […]". The foregoing reveals the weaknesses in the reasoning and, consequently, in the foundation of the decision under challenge. iii.- Regarding freedom of expression, the Constitutional Chamber establishes that such a fundamental right is an essential pillar of democracy, which this appellate chamber fully assumes and shares, according to what was stated in the preceding point of this pronouncement. Specifically, in that sense, the Constitutional Chamber stipulates the following: "[…] Freedom of expression as an indispensable requirement of democracy. Freedom of expression without a doubt is one of the conditions – although not the only one – for democracy to function. This freedom is what allows the creation of public opinion, essential to give content to several principles of the constitutional State, such as, for example, the right to information, the right of petition, or the rights in matters of political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchange of knowledge, ideas, and information, which allows the generation of consensus and decision-making among the components of the various social groups, but which also constitutes a channel for the expression of dissensus, which in a democracy are as necessary as agreements. For its part, the exchange of opinions and information that originates with public discussion contributes to forming personal opinion, both of which form public opinion, which ultimately manifests itself through the channels of representative democracy […]". iv.- In the precedent under study, the Constitutional Chamber defines the content of freedom of expression framing it in different facets, a categorization that is of capital importance for the solution of the present case. In this regard, the following is stipulated: "[…] Content of freedom of expression. Freedom of information could be said to have several facets, as national doctrine has recognized (of which the first three are related to what is discussed here): a) freedom of the press in a broad sense, which covers any type of publication, b) freedom of information through non-written means, c) the right of rectification or response. Freedom of the press generically encompasses all types of printed matter, printing, edition, circulation of newspapers, brochures, magazines, and publications of all kinds. It is by its nature the natural vehicle for the freedom of expression of citizens. It translates into the right for the administered to seek and disseminate information and ideas to an indeterminate number of persons about facts that by their nature are of interest to the general public because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. Its functions in a democracy are: to inform (newsworthy facts, events), to integrate opinion (stimulating social integration), and to control political power, as it is a permanent guardian of the honesty and correct handling of public affairs.

Given its symbiotic link with democratic ideology, a multitude of international instruments and practically all the Constitutions of the free world, since the French Declaration of 1789 (Art. 11), have recognized it (…) Freedom of expression has as a consequence the prohibition of all forms of censorship, in a double sense: interlocutors cannot be censored, on the one hand; and, in general, the possible contents of the discussion cannot be censored in advance either: in principle, in a democracy, all topics are debatable. The non-censorability of subjects has a practically universal character, as established by our Constitution, no one can be deprived of the freedom to speak and express themselves as they see fit; the non-censorability of content, while it is not imposed in advance, does find some limitations, however, these must be such that freedom continues to have meaning or is not emptied of its content, basically, like all freedom, it must be exercised with responsibility, ultimately to pursue legitimate ends within the system […]” (The underlining is not part of the original text). From the foregoing, two fundamental points are inferred regarding the exercise of freedom of expression, in order to fulfill the proper purposes of a Democratic State, namely: a.- it is defined as the right of the governed to disseminate ideas to an indeterminate number of people about facts that, by their nature, are of general interest because they are considered newsworthy. Thus, it is clear that what freedom of expression allows to be disseminated are “facts” that are relevant and have a newsworthy character, because they are linked to the exercise of public function. Such aspects were not assessed by the a quo despite using in its core reasoning the jurisprudential content of the precedent of reference, given that it did not carry out any assessment to define if in the present matter, “the account” that was complained of as suitable to affect the right to honor of [[Name3]] for being defamatory, has the character of a “fact” and, in turn, if it can be considered of interest to the generality of people for being newsworthy. In this regard, it must be reiterated as was established supra by this appellate court, that from a criminal law point of view, whoever exercises the right to freedom of expression or press is not obliged to prove the truthfulness of the facts they disseminate, however, the verification of a certain objective basis is necessary to rule out that what is hidden behind the publication is a falsehood or mere speculation that is maliciously circulated or disseminated with knowledge that it is suitable to affect the honor of the public official involved, just as the Constitutional Chamber itself stipulates in the jurisprudence under examination. The comprehensive examination of the appealed ruling reveals that the trial court did not assess, with the rigor demanded by Articles 142 and 184 of the Criminal Procedure Code, the aspects previously noted despite being essential to properly categorize and decide the facts complained of in the present case. b.- The Constitutional Chamber expressly establishes that prior limits on the exercise of freedom of expression are not admissible, since such types of restrictions could imply a form of prior censorship. Notwithstanding the foregoing, our Constitutional Court establishes that certain limits a posteriori are admissible, provided that they do not suppress the content of the fundamental right, limits that are justified in that all freedom must be exercised with responsibility, in order to procure and achieve the legitimate ends within the system. v.- Another essential aspect touched upon in the precedent under study, is that relating to the limits that the Constitutional Chamber stipulates correspond to freedom of expression. In this sense, it is established that not all expressions have the same value, and consequently, they do not enjoy the same constitutional protection. In this regard, the jurisprudence of the Spanish Constitutional Court is taken up, indicating the following: “[…] To determine which expressions can be limited and to what extent, it is important to take into account that not all expressions can have the same value nor enjoy, consequently, the same constitutional protection. For example, even international jurisprudence, e.g., the Spanish Constitutional Court, has indicated that insults or value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion lack constitutional protection […]”. From the foregoing, it is inferred that insults or value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion lack protection. In this sense, the comprehensive examination of the trial court's judgment leads to the conclusion that the judges of the instance did not assess, under the parameters stipulated by the Constitutional Chamber, the content of the publication that was complained of as defamatory in the present matter, given that they did not assess whether the manner in which such statement and its content were drafted were necessary for the expression of the account that was disseminated on the “Facebook” profile of [Name7]. In this sense, it should be added that the a quo analyzed the publication in question in a segmented and restrictive manner, based on the way it subjectively defined what it considered its "ideological basis" for its judgment, from which it established the parameters it considered and determined as the only ones that can generate an impact on the right to honor of whoever holds the […]. It limited its examination of the case to assessing whether the text in question was directly injurious or unequivocally attributed criminal conduct to the [Name6], an analysis that evidently does not conform to the parameters defined by our Constitutional Chamber in the precedent of reference, a situation that translates into the erroneous legal basis of the appealed judgment. Continuing with the analysis that said Chamber carries out in the jurisprudence under study, regarding the limitations that constitutionally correspond to the right to freedom of expression, it is important to highlight the following points that delimit the legitimate exercise of said fundamental right: “[…] On another rung are opinions, that is, personal value judgments that are not formally injurious and unnecessary for what one wants to express, even if they contain what is known as \"disturbing or hurtful opinions\"; these opinions would be constitutionally protected by freedom of expression and could even have content such as irony, satire, and mockery. On another step would be information, understood as the truthful narration of facts, which would be protected as a general rule, unless it violates other fundamental rights or constitutionally protected assets (for example, honor, privacy, the order and tranquility of the nation, the rights of children and adolescents). On another level would be news, understood as the truthful narration of facts that have public relevance, either because of the facts themselves, or because of the people involved in them; news contributes prominently to the creation of a free public opinion. On the last rung would be falsehoods, rumors, or insidious statements that are hidden behind a neutral narration of facts and that, in reality, completely lack truthfulness. On the subject of truthfulness, the Human Rights Commission has indicated (Declaration of Principles on Freedom of Expression, adopted by the Inter-American Commission on Human Rights at its 108th regular session in October 2000) that any prior conditioning, on aspects such as truthfulness, timeliness, or impartiality of the information, is considered prior censorship, but by this Court, it must be understood that this refers to the possibility of using such arguments as justification for prior censorship of the information, not to impede the right to effective judicial protection for the injuries or damages that they have received in their person, property, or moral interests, as established by Article 41 of our Constitution stating: “Resorting to the laws, everyone must find reparation for the injuries or damages they have received in their person, property, or moral interests. Justice must be administered to them promptly, completely, without denial, and in strict accordance with the laws.” It is recognized that the exercise of press freedom, understood as part of the right to inform and therefore a form of freedom of expression, must be exercised within elementary ethical principles, “press freedom is not synonymous with a right to injure.” This is because another fundamental right exists that justifies the legal system providing a balance, which will always be determined by an analysis of the specific case. This does not mean that in all cases the honor of persons must prevail, or that they are rights of the same rank. They are rather liberties that relate to each other within the system of freedom that supports our democratic institutionality […]” (The underlining is not part of the original text). From the foregoing, two very important aspects regarding the right to honor are derived, which were not duly assessed by the a quo, namely: a.- Opinions or personal value judgments are not exempt per se or in an absolute manner from generating an abuse of the right to freedom of expression to the detriment of other fundamental rights. Thus, as provided by our Constitutional Court, to rule out such abusive use of the right to freedom of expression, it must be assessed and defined whether the opinions are formally injurious and unnecessary for disseminating what is intended to be expressed, an analysis that the trial court omitted carrying out in the sub judice, by virtue of the absolute preponderance it gave to the parameter it subjectively defined, to delimit the conducts it exhaustively determined as the only ones that can affect the right to honor in the specific case of whoever holds the […]. It should be added that disturbing, hurtful, ironic, satirical, or mocking opinions, provided they are not formally injurious and unnecessary to express what is published, do not exceed freedom of expression according to what the Constitutional Chamber stipulates in the precedent under analysis. In this regard, it must be indicated that in the trial court's judgment, the criminal court points out that what was stated by the accused [Name12] against [[Name3]], was carried out through a “strong”, “sarcastic” text and undoubtedly “annoying” for said [Name6], based on the facts that [Name12] reported as the basis for his statement or opinion. In this sense, it must be reiterated that in the contested judgment, neither the logical reasoning nor based on what evidentiary means the a quo correctly conferred the character of “facts” to the points encompassed in the text published on the “Facebook” profile of [Name28] against the [Name [Name10]], is established or derived. Likewise, in the judgment, the judges of the instance also did not express the reasons why they considered that “the account” disseminated by the accused was done in a manner that is not formally injurious and unnecessary to communicate what was disseminated on the “Facebook” account of [Name12]. b.- Another defect in the legal basis of the judgment, which is verified from its comprehensive examination – based on what was prescribed by the Constitutional Chamber in the pronouncement that the a quo invoked in its judgment – is that the trial court did not express any reasoning or reason by virtue of which it ruled out in the sub judice that the statements that were complained of as defamatory do not constitute falsehoods, rumors, or insidious statements that were disseminated under an apparent “neutral narration of facts” on the “Facebook” profile of [Name7] – since it was not analyzed – if the publication in question completely lacks truthfulness. In this sense, as argued by the appellant [Name15], the criminal court did not comprehensively assess the testimony of the [Name6] [[Name3]] rendered at trial, since it only assessed it in order to conclude in the segmented analysis of the publication in question that it carried out in the judgment, that “the feelings expressed by the [Name6] were mere personal assessments and derivations among many others that could be inferred from the content of the publication complained of as defamatory” (without the judgment objectively specifying what those “other many derivations” are). In relation to the point under analysis, it must be indicated that the Constitutional Chamber, in the precedent under study, establishes that the accreditation of the truth of what is published cannot be claimed a priori, since such a situation would imply a type of prior censorship and would affect the right to freedom of expression, but in turn, our Constitutional Court considers that in the case where a person decided to exercise such fundamental right with knowledge that it has limits and can generate responsibilities for them, it is admissible and necessary a posteriori to establish that what was expressed does not involve falsehoods or rumors that completely lack truthfulness. This assumption, defined as one of the constitutional parameters to limit freedom of expression, was not adequately assessed by the criminal court in the trial court's judgment. vi.- One of the most relevant points for the resolution of the sub judice, developed in the jurisprudence of the Constitutional Chamber under study, is that relating to the way in which the collision that can occur between the right to honor and the exercise of freedom of expression must be resolved, in the case where a person or persons who exercise public function are involved, given that in this sense the Chamber assesses the doctrine of the “preferred position” of the right to information. In this regard, it stipulates the following: “[…] It is recognized that freedom of expression in its broadest sense is so fundamental that it represents the foundation of the entire political order, that is, it is not just one more freedom, hence the doctrine of the \"preferred position\" of the right to information has emerged - mainly due to North American influence - in matters of constitutionality control, understood as that which affirms that when the right to inform freely conflicts with other rights, even if they are fundamental rights, it tends to supersede them, a position that explains why aspects of the right to privacy and honor of public persons must yield before the interest of information. The Spanish Constitutional Court has referred to the preferred position of freedom of expression over other fundamental rights in the following terms: Given its institutional function, when a collision of freedom of information occurs with the right to privacy and honor, the former generally enjoys a preferred position and the restrictions that may derive from said conflict on freedom of information must be interpreted in such a way that the fundamental content of the right to information is not, given its institutional hierarchy, distorted or incorrectly relativized (judgments 106/1986 and 159/1986). However, it is evident that the preferred position exists insofar as the right is exercised to fulfill its legitimate function in democracy and therefore as an essential part of it, not to permit falsehoods, rumors, or insidious statements that are hidden behind the exercise of a fundamental right with the excuse, as indicated, of a supposed neutral narration of facts completely lacking truthfulness, which cause violations to liberties that are also essential from the point of view of the system of freedom, such as the honor of persons and the right to be informed adequately and in a timely manner. This freedom is so important that it effectively enjoys special protections for the sake of its correct exercise, such as freedom of conscience, protection of sources, no prior censorship to mention some, all for the sake of exercising the social function it is called to fulfill within the democratic framework. In that sense, the appellant is correct when pointing out that press freedom, contrary to the right to honor, has, in addition to its dimension of individual protection, a social dimension. However, it is forgotten that the other side of press freedom, also with an evident social dimension, is precisely the right of persons to receive adequate and timely information (not manipulated), which excludes the possibility of exercising this freedom contrary to the legitimate ends of the system or that, in turn, harms equally legitimate interests thereof. In that sense, the preferred position is valid as long as it is not used as a mechanism to violate other relevant ends of the system, because it was not conceived for that purpose. Otherwise, a manipulation or disinformation of persons or masses would be authorized, an objective as contrary to democracy as censorship itself. In that sense, when it is said that the right to transmit information regarding facts or persons of relevance with preeminence over the right to privacy and honor, in case of collision, it is obligatory to conclude that in that confrontation of rights, that of freedom of information, as a general rule, must always prevail provided that the information transmitted is truthful, and refers to public matters that are of general interest due to the subjects they address, due to the people who intervene in them, contributing, consequently, to the formation of public opinion in a legitimate manner. In this case, the content of the right to free information reaches its maximum level of justifying efficacy over the right to honor, which weakens, proportionally, as an external limit to the freedoms of expression and information (judgment STC 107/1988). It must be clarified that legally it is not possible to demand that everything published be true or exact, or as the Spanish Constitutional Court has pointed out, if truth were imposed as a condition for the recognition of the right, the only guarantee of legal certainty would be silence (STC 28/96), but neither can it protect the journalist who has acted with contempt for the truth or falsity of what was communicated. What it protects is information that is correctly obtained and disseminated “even if it turns out to be inaccurate, provided that the duty to verify its truthfulness through the appropriate inquiries proper to a diligent professional has been observed.” (STC 178\\93). It also protects, the neutral report, understood as “those cases in which a media outlet limits itself to reporting statements from third parties, even when they turn out to be contrary to the rights to honor, personal and family privacy, and one's own image, (STC 22|93), provided that good faith mediates, that is, that the person responsible for the dissemination has not learned of its inaccuracy or lack of truthfulness, because from that moment on, if it is not corrected, one would be acting in bad faith, affecting other relevant guarantees for the system of freedom […]” (the underlining is not part of the original text). Regarding the doctrine of the “preferred position” of the freedom of communication with respect to the protection of other fundamental rights such as the right to honor, it must be indicated that undoubtedly, the trial court gave preference to freedom of expression over the right to honor of the [Name6] [[Name3]], just as, in principle, it is established as what corresponds by the Constitutional Chamber in the precedent of reference. Notwithstanding the foregoing, in the reasoning set forth in the judgment in question, no consideration was made regarding the aspects that, according to our Constitutional Court, must be assessed to determine if the “preferred position” is applicable or not in a specific case, namely, that the a quo did not express the reasoning based on which it determined that in the present matter said doctrine was fully applicable. Thus, in the contested judgment, no analysis was carried out to rule out that the statements or information disseminated by the accused [Name12] on his “Facebook” profile do not constitute falsehoods, rumors, or insidious statements hidden behind the apparent exercise of a fundamental right under the facade of a supposed neutral narration of facts completely lacking truthfulness. In this sense, the comprehensive examination of the ruling reveals that the a quo limited itself to considering that in the present matter it was not necessary to establish whether the information disseminated by the accused was truthful or not, since it was his “opinion” regarding the facts that were included in the publication in question, given that as indicated supra, the criminal court also did not establish the reasons - nor the evidence - based on which it considered the affirmations expressed by [Name12] against the complainant as “facts”, or why it qualified said affirmations as a mere opinion, all of which contravenes the precepts defined by the Constitutional Chamber and evidences the erroneous legal basis of the acquittal judgment issued in the present case. vii.- In the basis of the precedent of the Constitutional Chamber under study, emphasis is placed on the fact that one who exercises their freedom of expression or press cannot be required beforehand to verify the truthfulness of what they publish, since one would be in the presence of a situation that can degenerate into prior censorship as a form of limiting such fundamental rights, however, the same Constitutional Chamber, likewise, reiterates that it is not possible to invoke freedom of expression to disseminate situations that are known to be false or regarding which no effort was made by the person making the publication, to try to verify some objective aspect to rule out their falsity, or to assess the specific case to rebut bad faith as the real objective of the publication. In this sense, the precedent of reference takes up what the Inter-American Court of Human Rights has indicated on the subject of prior censorship, and analyzes the content of the judgment issued by the Supreme Court of Justice of the United States in the case New York Times vs. Name57321, considerations that undoubtedly must be kept in mind and assessed in the resolution of the present case. In this regard, the Constitutional Chamber considered the following: “(…) Evidently, as indicated, State protection cannot be given, as the Human Rights Court has pointed out, through the right to censor information beforehand, which would be clearly unconstitutional (Art. 28), but rather refers to its control a posteriori, in the case that there was an intention to inflict harm or one acted with full knowledge that false news was being disseminated or one conducted oneself with manifest negligence in the search for its truth or falsity and the honor and reputation of some person was affected thereby. The Chamber shares the opinion of the Inter-American Court of Human Rights (advisory opinion 5/85) in the sense that: 33. ... It would not be licit to invoke the right of society to be truthfully informed to base a regime of prior censorship supposedly destined to eliminate information that would be false according to the censor's standard. Just as it would not be admissible that, based on the right to disseminate information and ideas, public or private monopolies over the media be constituted to try to mold public opinion according to a single point of view. Likewise, it recognizes the jurisprudence set in the case New York Times vs. Name57321 of 1964 in which it is pointed out that the protection that the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs manifested, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, based on which the government and the courts must allow a \"uninhibited, robust, and open\" debate to develop, which may include caustic, vehement expressions and sometimes severely unpleasant attacks towards the government and public officials. Erroneous statements are inevitable in a free debate, and must be protected to give freedom of expression air to breathe and survive. The rules must prevent a public official from suing a media outlet or an individual for damages caused by a false defamation relating to their official behavior, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This caveat that is made is indispensable to the obligation of the State to protect the reputation and honor of persons and even more, within its obligation to ensure that the misuse or diversion of this freedom is not used to violate equally essential ends of the democratic system, among which is the system of fundamental rights […]” (the underlining is not part of the original text). The content of the segment of the precedent set forth above was not assessed in any way by the trial court, in order to establish if, in the present case, the publication made by [Name7] constituted a misuse of freedom of expression, since the a quo without greater basis set aside considering whether the dissemination of the affirmations against the [Name6] had any degree of objectivity or even truthfulness, nor did it assess whether the text published on the “Facebook” profile of [Name12] was done with “knowledge that it was false or with reckless disregard of whether it was false or not,” just as our Constitutional Chamber defines it based on the analysis of what was resolved in the case New York Times vs. Name57321. In conclusion, two fundamental aspects are determined from all that has been set forth: a.- Pronouncement No. 2006-05977 of the Constitutional Chamber develops an extensive interpretation and analysis of the way in which the collision between the right to freedom of expression and the right to honor must be understood, and the limits that constitutionally correspond to the exercise of freedom of expression and communication, which undoubtedly constitutes a necessary legal input for the correct resolution of the present case; b.- Although in the trial court's judgment the a quo refers to and assesses a segment of the constitutional precedent mentioned above, it does not apply it in a comprehensive and adequate manner in the legal analysis of the facts that were complained of as defamatory by the [Name [Name10]] against [Name7], which implies not only ignorance of what was prescribed by the Constitutional Chamber for the analysis of a case like the one being elucidated in the instant matter. 2.- Third Chamber of the Supreme Court of Justice. In the judgment under challenge, the trial court invoked the jurisprudential content of Resolution No. 2002-01050, handed down at 8:50 a.m. on October 25, 2002, by our Criminal Cassation Chamber. The study of such pronouncement with respect to the substantive issue being considered in the sub judice allows establishing that in this precedent a series of legal aspects are analyzed and developed that are of the utmost relevance to determine the way in which it is appropriate to approach criminally the issue relating to the exercise of freedom of expression versus the protection of the right to honor, in order to define in which cases there is a legitimate exercise of the fundamental right to express and communicate ideas, and in which cases there is an abusive exercise of such constitutional guarantee that signifies the violation of the criminally protected legal interest “honor”, that is, in the sub litem, regarding the crime of defamation provided for in Article 146 of the Criminal Code that was complained of against [Name7]. It is necessary to indicate that the comprehensive examination of the appealed ruling allows establishing that the judges of the instance did not comprehensively analyze the pronouncement of the Cassation Chamber that they cited in the basis of the contested judgment, since they did not assess its content with the rigor demanded by Articles 142 and 184 of the Criminal Procedure Code, in order to adequately support the acquittal issued in the present case. In order to support the present pronouncement, we proceed to define and assess the main aspects established by the Third Chamber of the Supreme Court of Justice regarding the substantive issue that is the subject of discussion in the sub judice, namely, the following: i.- The resolution under study deals, specifically, with the exercise of freedom of communication by those engaged in journalism, regarding the criminal law protection of the right to honor of persons. Such particularity must be recognized in order to mark the difference that exists with respect to the facts adjudicated in the instant matter; however, from the resolution of the Criminal Cassation Chamber of reference, aspects are derived that are applicable for the adequate legal analysis and solution of the present matter.

ii. As established by this appellate chamber and developed in section A) of this resolution, the Third Chamber of the Supreme Court of Justice considers that a criminally relevant case in which there is a collision between the fundamental rights to honor and freedom of communication, expression, or press cannot be decided by considering only criminal law provisions; rather, it is necessary to evaluate constitutional and conventional norms in order to properly analyze and resolve the case. In this sense, the referenced opinion stipulates the following: “[…] The conflict between the right to honor and the freedoms of information and press is one of the most difficult to resolve, since it involves fundamental rights of the person and this requires defining very clearly when one of them takes precedence over the others. The problem is not resolved by taking into account only what is provided in the Penal Code, but must rather be approached directly from the Constitution and international human rights norms to understand the scope of punitive legislation […]”. The position expressed by the Third Chamber is the one followed and justified in this pronouncement, which has enumerated the legal framework whose provisions are linked to the substantive conflict resolved in this case, and which, in turn, is the one appreciated to demonstrate the erroneous legal reasoning of the trial court’s judgment.

iii. The Criminal Cassation Chamber establishes that in the event of a conflict or collision between the right to honor and freedom of expression, the first of these fundamental rights yields to the second, except in cases where an abusive use is made of the right to freedom of communication – because it exceeds or goes beyond the scope of protection that this right contemplates – a case in which the criminal provisions that protect the right to honor as a legally relevant criminal interest are applicable. Thus, the Third Chamber considered the following: “[…] As is evident, we are in the presence of legal interests deserving equal protection by the legal system. By virtue of what has just been indicated, the problem to be addressed in this case is when the right to honor prevails over the indicated freedoms. In accordance with constitutional and international humanitarian provisions, this conflict between fundamental rights can only be resolved in favor of the right to honor when an abusive exercise of the freedoms of information and press is verified. The foregoing is because the Costa Rican legal system contemplates as a general rule (enshrined in Article 22 of the Civil Code) not protecting the abuse of a right or its antisocial use. This is precisely because abusing a right implies that the scope of protection it contemplates has been exceeded or overstepped, so that said excess is not covered by it and lacks protection. Thus, if no abuse is committed, but rather the freedoms of information and press are legitimately exercised, then there is no possibility whatsoever of criminally sanctioning the communicator, as no crime against honor would have been committed […]”. From the foregoing, it is determined that, in cases where there is an excess in the performance of human conduct related to the underlying criminal matter, whether due to the abuse of freedom of communication or expression leading to an antisocial use thereof, such excess is not covered by the content of the fundamental right, and for that reason it lacks protection and, rather, the criminal protection of the right to honor arises. The foregoing fully applies in the event that persons who are public officials are involved, since it is not possible to discriminate or define areas of exclusion that permit or justify an antisocial and abusive exercise of freedom of expression or communication, solely because the affected person holds a public office, whatever that office may be, including that of the […], since the position being questioned does not heed criteria of rationality and proportionality that must be appreciated for the protection and application of fundamental rights. Thus, one cannot disregard a constitutionally enshrined right such as the right to honor, which is fully retained by those who exercise public function, albeit nuanced and tempered by the duty or obligation to endure greater tolerance in aspects related to questioning, criticism, opinions, control, and oversight – undoubtedly related to the right to honor – that derives from the exercise of their function and their special condition, and which is based on the duties of transparency and accountability constitutionally and legally stipulated. Therefore, the criterion by which the lower court defines a minimal and practically null scope of criminal protection for the right to honor of the person holding the position of […], by virtue of exercising such office, is forced and legally unfounded, since what actually derives from its reasoning is that the aforementioned duty of tolerance is erroneously equated with the de facto emptying of the legal interest of honor of the person holding that office, such that this position would permit, without possibilities of exclusion, the abusive and antisocial exercise of freedom of expression and communication, which – as indicated above – far from guaranteeing and reinforcing the democratic model that governs us, would imply the impairment of the right to receive truthful information for the formation of adequate public opinion, as well as for the suitable oversight of public function and, obviously, of the exercise of public powers by all citizens.

iv. In the Criminal Cassation Chamber resolution under study, the principle of accountability to which all public officials are subject is defined and legally framed, by virtue of which they are subject to broad control and scrutiny by official or formal bodies established for that purpose – for example, the Comptroller General of the Republic – and by informal sectors – the press, mass media, citizens in general – which carry great weight and importance in a democratic regime such as that which governs our country. Likewise, the Third Chamber stipulates which acts of those who exercise public function are subject to such scrutiny, namely, in general terms, those that are of public interest and correspond to the public facet of the lives of those who hold an office of such nature. These parameters allow establishing the criminal-legal scope of the duty of tolerance, and in which areas of the life or existence of the person holding a public office there is an obligation to endure greater scrutiny and control, such that in this sense and regarding the relationship between the right to honor versus freedom of expression, the Criminal Cassation Chamber establishes that the right to honor of the public official prevails and must be criminally protected when there is an excess in the exercise of freedom of communication or expression, even by those who engage in journalistic activity. The points set forth above were not appreciated in any way in the trial court’s judgment, despite being essential for the correct legal analysis of the facts alleged as defamatory in this case. In the content of the resolution being examined regarding the aspects previously set forth, the following is stipulated: “[…] The events of interest here – namely, the video recording of the vehicle of [Name6], the information disseminated by Noti-Catorce, and the response given by [Name29] to said newscast’s reports – occurred between October and December 1999. At that time, the Political Constitution provided in its Article 11 the following: ‘Public officials are simple depositaries of authority and cannot arrogate to themselves powers that the law does not grant them. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability for their acts is public.’ (It should be noted that after the constitutional reform carried out by Law No. 8003 of June 8, 2000, published in the Official Gazette La Gaceta No. 126 of June 30, 2000, said article of the Constitution was amended and a provision was added to the effect that public officials must fulfill the duties imposed on them by law; additionally, the principle of accountability was formally established, aspects that this Chamber considers – as will be seen throughout this Considerando – could be extracted from the previous wording combined with provisions of the General Law of Public Administration, although certainly the reform makes the constitutional rank of said principle easier to appreciate). As can be observed, the Fundamental Law (as applicable to the specific case) clearly establishes that public servants are subject to the legal system; that is what derives from being classified as mere ‘depositaries of authority’; in other words, they are not above the Law. In this context, it follows from the constitutional provision under comment (a precept revitalized by the aforementioned 2000 reform) that public officials are bound by permissive, mandatory, and prohibitive norms, adding furthermore that they can only do what the law expressly authorizes them to do. In this regard, every public official (whether popularly elected, appointed by another or by a collegiate body, or having obtained the position through competitive examination; whether permanent, substitute, or interim; appointed indefinitely or for a term; whether a confidential appointment or enjoying employment stability; whether a career official or not; etc.) is exposed, from the moment they assume office, to the oversight of their acts in the performance of the office. This is because everything that person does on the occasion of the public office they hold is of interest to the generality of the inhabitants of the Republic, since the aim is to ensure that they act, as a servant, in strict conformity with the legal system. This constant supervision of their acts is one of the consequences entailed by being a public servant, so that whoever assumes an office of this nature implicitly accepts that their conduct will be publicly examined. By virtue of their investiture, the official is subject to the principle of legality, according to which they are only authorized to do what the law – in a broad sense and in accordance with the normative hierarchy – expressly permits them, everything else being prohibited. In these circumstances, performing a public function entails for the person a subjection to controls, which have been conceived to verify that the exercise of the powers deriving from the position is correct, and to prevent the breach of the duties inherent to the office. Now, within these controls are counted not only the institutionalized ones (such as those of the Public Administration itself, as well as judicial ones), but in a democratic State – the Constitution defines [Country] as such in its Article 1 – it is also necessary to consider the role of communicators. If every human being has the right to be informed, if there also exists the freedom to communicate thoughts and opinions, even publishing them, and if it is considered that communicators have as their profession gathering data, analyzing it, and based on it informing others about matters of interest to them, then it is evident that the practice of journalism is a perfect manifestation of the freedoms of information and press. In this context, it is irrefutable that the mass media, journalists, and other communicators have the right to inform – making public the data they handle – the inhabitants. That is the premise that must prevail in a democratic society. The foregoing requires certain clarifications when dealing with a matter of public interest related to the conduct of a state servant. The first is that a matter of public interest is everything that, in a reasonably presumable manner, coincidentally attracts the individual interest of citizens (Article 113(1) of the General Law of Public Administration); note that speaking of ‘citizens’ makes it evident that these are matters related to the running of the State (in a broad sense, that is, the Government of the Republic – described in Article 9 of the Constitution – and other public entities) and the management of its resources, aspects that can validly be presumed to interest the generality of the inhabitants of a country, who are those who contribute to defray the State’s expenses. The second is that it is normal, when dealing with matters of public interest, for the intervention of a state official to be involved, although it is also possible (an aspect to be seen at the end of this Considerando) that there are individuals not vested as public servants who carry out a task that is public, so that they would also be subject to the oversight of their actions in the exercise of that public function. Thus, in the case of matters of public interest, the freedoms of information and press that protect communicators are so important, as they constitute one of the means of controlling public management in a democratic State, that if confronted with the right to honor that those who perform a public function also hold as persons, the latter can yield before the former, only with regard to the public facet of their conduct. In accordance with this approach, only when abuse is committed by the communicator when informing will it be possible to place the official’s right to honor before the freedoms of information and press that protect the communicator, and before the right to be informed that assists every person. There is a large number of norms supporting this position. For example, note that Article 26 of the Constitution guarantees the inhabitants of the country the right to assemble peacefully and without arms to examine the public conduct of officials. This is important; it is evident that the constitutional framer was aware that there are public and private aspects in the behavior of state servants, only the former being susceptible to open examination and discussion by society. Those public acts of officials are precisely those that have been established here as related to the fulfillment of the office; private acts – and therefore not susceptible to public debate – are those pertaining to personal and family privacy not connected with the exercise of the function. If one can publicly debate, in a meeting, aspects of the public conduct of state servants, it is then undeniable that one must be able to inform about their acts so that they may be examined by the inhabitants of the national territory. In addition, it should be remembered that according to the terms of Article 28 of the Constitution, no one may be disturbed, even slightly, for the expression of their opinions, nor for acts that do not violate the law. As a corollary to the foregoing, it should be noted that Article 29 of the Constitution expressly provides for the possibility that every person may communicate (direct to another) their thoughts, by word or in writing, and even publish them (make them known to the public) without prior censorship, such that they will only be responsible if they abuse these rights. In this context, it results that the exercise of the communicators’ activity, which is essential to guarantee the right to be informed that assists every person, allows freely informing about aspects related to the performance of public function, as this is a matter of evident public interest […]”.

It should be added to the above that the Third Chamber, when defining the criminal protection of the right to honor corresponding to the particular situation of public officials, does not make any discrimination regarding the type of specific office that a particular person holds, whether of popular election or corresponding to a public competitive examination, etc. The foregoing demonstrates that the thesis sustained by the lower court, and on the basis of which it dismisses the affectation of the right to honor of [Name6] [[Name3]], does not heed the precepts established by the Criminal Cassation Chamber regarding the protection of said fundamental right that must be guaranteed to those who exercise public function, regardless of the type of office they hold, including those designated by popular election, among which, of course, is that of the position of […]. In this sense, the comprehensive examination of the judgment allows establishing that the criminal court does not set forth weighty legal arguments that justify departing from the jurisprudential precepts defined by the Third Chamber regarding the subject matter under judgment, such that the only thing derived from the intellectual foundation of the appealed judgment is what the trial judges define based on their particular reading of the Costa Rican reality and the ‘ideology’ that, expressly, they indicate they derive from that aspect, determining, from such argumentation, an exceptional and specific margin of criminal protection of the right to honor that they particularly deem corresponds to the person who holds the position of […], a criterion that, as has been established throughout this pronouncement, is neither intellectually nor legally grounded as legally required, pursuant to the provisions of Articles 39 and 41 of the Political Constitution, and numerals 1, 142, 184, and 363 of the Criminal Procedure Code. Another aspect that the Criminal Cassation Chamber specifies as legally relevant, in order to define in which cases the right to honor of public officials should be criminally protected with respect to the abusive exercise of freedom of communication and expression, is that pertaining to the ways in which the dissemination or exposure of comments, opinions, or thoughts may occur that have sufficient capacity to violate the honor of the public official, and for that reason the appropriateness of the criminal protection of their honor and decorum. In this sense, it is clear that the Third Chamber does not restrict the cases of criminal protection for the right to honor of public officials to the meager margins and subjectively defined cases determined by the lower court in the trial judgment, that is, based on its notion of ‘absolute exceptionality’ or exceptional regime of criminal protection, which the trial court deems corresponds to the honor of the person who exercises the position of […], namely, direct insults or the imputation of criminal acts as the only possible interpretations of ‘the subject matter’ being published. In this regard, the Criminal Cassation Chamber establishes that the honor and decorum of a public official can be affected by the manner in which ideas are expressed, the way in which the publication is made, when there is dissemination of false data knowingly, when no attempt is made to obtain the official’s side of the story in order to provide balanced information, etc. In this sense, the Third Chamber stipulated the following: “[…] Only when the freedoms of information and press are abused (such as could be the case of knowingly disseminating false data, not attempting to obtain the official’s version to offer balanced information, denying the servant their rights of rectification and/or reply, dealing with purely private matters or sensitive information not related to the office the person holds, presenting as certain before the public that the servant’s conduct is criminal without a judicial sentence to that effect, having the sole intention of offending a person – an aspect that must be examined case by case and in which various factors could be relevant, such as the context in which information is disseminated, the way photographs or images are handled, the manner in which the news or comments regarding it are presented, or similar situations) can the communicator be held responsible, since abusing a right (a situation that must be verified in each specific case) implies exceeding the scope of its protection. Such abuse is not protected by the legal system (Article 29 of the Constitution in relation to Article 22 of the Civil Code), so that a communicator who engages in abusive conduct must answer for their acts (which could even eventually entail the liability of the medium that disseminated the information). […]”. As such, it is determined that the criminal court did not adequately appreciate or evaluate the jurisprudential precept in question – despite having expressly mentioned it in its judgment – in order to support the basis on which it analyzed the alleged facts and dismissed them as harmful to the honor of [CED1], which demonstrates the erroneous legal reasoning outlined by the lower court and, consequently, the lack of legal foundation for its decision to acquit the defendant [Name7].

v. Another point addressed in the Criminal Cassation Chamber resolution under study, which is relevant for the adequate legal analysis of this case, relates to public interest, which is defined as a parameter to be appreciated to delimit the degree of criminal protection to be given to the right to honor of a public official with respect to the exercise of freedom of expression and communication. In this regard, the following is indicated: “[…] It is clear that the coexistence of these two provisions in the same normative text reveals that they are complementary. In that sense, the freedoms of information and press related to matters of public interest would displace the protection of honor and dignity insofar as it refers to public officials; note at once that this rule would not apply to persons who do not hold such character. This is because in these cases (when dealing with a case of public importance related to state servants), what is involved is not the privacy of a person, but rather the manner in which they perform in the exercise of a public office, an aspect that – given the conflict of the legal interests in question, namely the right to honor and the freedoms of information and press – is the most important from the point of view of the national community. If what is disseminated is correct and indeed corresponds to a matter of public interest, then there is no possibility whatsoever for the official to claim that their honor has been injured (in any case, if the news concerns an inappropriate act, it would be the servant themselves who injured their own honor and not the communicator, so that the latter could not be held liable for the former’s act). Of course, if the information is false or does not relate to a matter of public interest, then it could eventually be one of the cases of abusive conduct mentioned above (which could even constitute a crime) that do entail a declaration of liability for the communicator. In this context, the two international provisions under comment (Articles 11 and 13 of the American Convention on Human Rights), viewed together, reveal that in matters of public interest relating to the manner in which servants perform their duties, the right to honor yields before the freedoms of information and press, and before the right to be informed. To understand that it does not displace it would be tantamount to creating a very broad sphere of topics in which the referenced freedoms could not be exercised, which would be an attack on the democratic regime contemplated in the Costa Rican Constitution. In addition to the foregoing, it should be indicated that Articles 17 and 19 of the International Covenant on Civil and Political Rights also address the problem that concerns us. The first of these establishes that no one may be subjected to arbitrary or illegal interference in their private life, nor to illegal attacks on their honor or reputation. This wording is important to highlight because – examined a contrario sensu – it shows that honor can be legally affected, which reinforces the thesis that there are cases (such as those of interest here) in which, despite there being an affectation of said legal interest, no one can be held liable for it. This Chamber considers that the foregoing occurs precisely in cases where information is published about matters of public interest related to questionable acts by public officials (or even by persons who perform a public function), cases in which the honor of the persons involved is evidently affected (as a consequence and not as an intention). In those cases in which what is disclosed will inevitably affect some public servant, in which, moreover, a sole intent to offend must not be present, the freedoms of information and press must prevail over the right to honor, since the communicator acts in compliance with their right to inform and does not become liable for the consequent affectation of the honor of the officials (which in any case, as already stated, would have its cause in their own acts and not in what is published) related to the news. Of course – it bears repeating – if the information is not of public interest, if the sole intent is to offend a person, or if what is reported is false, then the communicator (and eventually the medium) does become liable for the abuse committed. In summary, both in the Political Constitution and in the applicable international Human Rights provisions in [Country], there are norms that allow affirming that public officials (not private individuals, except in cases where they perform a public function) are subject to public examination of their actions in the exercise of their office, so that the freedom to disseminate information about their acts in relation to matters of public interest displaces their right to honor, such that no communicator can be criminally responsible for that type of information, unless they acted abusively. This is because, in accordance with the provisions of Article 25 of the Penal Code, whoever legitimately exercises a right does not commit a crime. To what has already been stated, it should be added that there are also provisions of legal rank that reinforce the position maintained here. Of special importance is what is established in Articles 113 and 114 of the General Law of Public Administration. The first provides: ‘1. The public servant must perform their duties in such a way that they primarily satisfy the public interest, which shall be considered as the expression of the coinciding individual interests of the citizens. 2. The public interest shall prevail over the interest of the Public Administration when in conflict. 3. In the appreciation of the public interest, account shall be taken, firstly, of the values of legal certainty and justice for the community and the individual, to which mere convenience may in no case be preferred.’ For its part, the second of the mentioned numerals stipulates: ‘1. The public servant shall be a servant of the citizens, in general, and in particular of each individual or citizen who relates to them by virtue of the function they perform; each citizen must be considered in the individual case as a representative of the community on which the official depends and for whose interests they watch over. 2. Without prejudice to what other laws establish for the servant, any act, fact, or omission that, through their fault or negligence, causes unjustified or arbitrary obstacles or hindrances to the citizens shall be considered, in particular, irregular performance of their function.’ As can be appreciated, the legislator grants great importance to the satisfaction of the public interest as the guiding axis of administrative activity, so much so that it formulates the principle of objectivity of public function as acting for the sake of satisfying said interest. In addition, the duty of accountability on the part of public servants is evident, who must consider themselves – in each specific case – servants of the person with whom they interact by virtue of the function they perform (it should be noted that these provisions have existed since 1978, so that if they were related to the previous wording of Article 11 of the Constitution, the enshrinement in the Costa Rican legal system of the principle of accountability was evident, even before the constitutional reform of the year 2000 previously alluded to). This further highlights the public character of the conduct of officials in relation to the fulfillment of the duties inherent to the position they hold. In this context, it is unthinkable – unless the democratic principle established in the Political Constitution is disregarded – to criminally sanction a person who acts in accordance with their right to disseminate information related to the actions of state officials in matters of public interest, unless they have incurred some abuse (such as those set forth above) when making the information public.

[…]” (Bold highlighting is not part of the original text). Based on the foregoing, it is appropriate to indicate that a comprehensive examination of the merits judgment reveals that the trial judges did not conduct any consideration regarding the factual and legal reasons why they concluded that the content of the text disseminated on the Facebook profile of the defendant [Name7] corresponds to a situation inherent to or directly or indirectly linked to the exercise of the […], or that the public position held by [Name6] [[Name3]] at that time. Similarly, the appealed judgment also does not exhibit a broad and sufficient analysis to establish whether the content of the publication disseminated by said defendant is correct—or at least supported by certain objective and verifiable data—or whether it refers to an action performed by [Name [Name10]] as […] that constitutes a questionable action in the performance of said public office. The foregoing, in order to rule out that the publication subject to this complaint is not, in reality, mere malicious speculation or a falsehood that is not linked to or derived from an action performed by [[Name3]] during their administration. Such an intellectual exercise must necessarily be carried out in the sub judice, to accurately determine if the content of said publication corresponds to a matter of public interest or not, since it is in this scenario that the Third Chamber defines that there is no possibility whatsoever for a person exercising a public function to claim that their right to honor or dignity has been harmed, a criterion shared by this appellate chamber and which should have been assessed with greater rigor by the trial court to comply with the grounding parameters legally required for the efficacy and validity of a criminal judgment.

In conclusion, the Criminal Cassation Chamber determines in the ruling under study that the right to honor of those who exercise a public function yields to the exercise of freedom of expression by reason of the duty of accountability and due to the very condition of being a public servant—higher level of tolerance—when dealing with matters of public interest or questionable actions by state servants in the performance of their duties or in matters related to such public tasks, regardless of the office they hold, which has its limit and justifies the criminal protection or guardianship of the right to honor of state servants, in cases where an abusive use is made of freedom of expression or communication that exceeds the scope of protection of said fundamental right. Such scenarios were neither broadly, precisely, nor sufficiently assessed and reasoned by the trial court in the merits judgment, by virtue of its subjective purpose of restricting the scenarios it defined ad hoc as appropriate for the applicability of criminal protection of the right to honor of whoever holds the position of […]. This reasoning is not sufficient to disregard and ignore the criteria of interpretation and application that, based on a profound, broad, and comprehensive analysis of the norms linked to the substantive issue, have been established by our Criminal Cassation Chamber, criteria regarding which it must be indicated follow the jurisprudential guidelines stipulated by the Constitutional Chamber, in the precedent analyzed supra in this resolution.

3.- Inter-American Court of Human Rights. In the ruling under appeal, the criminal court invokes and cites some segments contained in two precedents of the Inter-American Court of Human Rights, namely, the judgment issued in the case of [Name18] vs. Nombre2042 on July 2, 2014, as well as the judgment issued in the case of [Name16] vs. [Name17] on May 2, 2008, judgments in which topics were addressed and criteria issued regarding the exercise and protection of the right to freedom of expression and communication regulated in Article 13 of the American Convention on Human Rights.

3.1. Judgment of the case of [Name18] vs. Nombre2042. Regarding the analysis of said precedent issued in the Inter-American System of Human Rights, carried out by the trial court in the merits judgment, as well as regarding its relevance to the solution of the sub judice, it is appropriate to indicate the following:

i.- Firstly, it must be indicated that the appellant [Name15] is correct in that the trial court errs in citing and assessing the referenced ruling. This, by virtue of the fact that the criminal court erroneously and without any justification, refers to and assesses in the grounds of the appealed judgment the particular aspect established in the “reasoned concurring vote of Judge [Name19]” (In this sense, the paragraphs identified as 26 and 27 in the textual quote included in the merits judgment, visible on folios 356 and 357 of the main dossier), as if the individual considerations of said judge were part of the decision that the Inter-American Court of Human Rights – as a collegiate jurisdictional body – issued regarding the case indicated supra, which is evidently incorrect and reveals the weakness of the legal reasoning of the impugned judgment. The foregoing, because the trial judges granted a legal value and weight to a dissenting vote that does not correspond to it, by invoking and assessing its content as if it were part of the grounds that the majority of the members of the Inter-American Court considered and established to issue the judgment in the case of [Name18] vs. Costa Rica, without even carrying out any clarification as to whether it endorsed the individual thesis of Judge [Name30]. Thus, the merits judgment has a defect in its legal grounding regarding the parameters and scenarios the trial court assessed to support its criterion, regarding the definition of a restrictive and specific scope for the protection of the right to honor of whoever holds the public office of […], based on which it ruled out the existence of a punishable act in the sub judice and decided to acquit [Name7] of all penalty and responsibility.

ii.- It is important to indicate that in the case of [Name31], two very important aspects were present that differ from those discussed in the present case, namely, that [Name18] is a journalist and it was in the exercise of that profession that a complaint was filed against them, and secondly, that their action consisted of reproducing in four journalistic articles they wrote, the content of reports made by European newspapers in which reference was made to alleged illicit actions of a person who was part of the Costa Rican diplomatic service. Such aspects are important to consider in order to gauge the scope of what was resolved by the Inter-American Court in the case of [Name18] vs. Nombre2042 and modulate its content to the objective and subjective circumstances of the case being judged, an intellectual analysis that the trial court omitted to carry out in the merits judgment.

iii.- The comprehensive examination of the appealed judgment allows us to establish that the trial judges referred to the content of the judgment in the case of [Name18] and assessed it, to establish that whoever holds the position of […] has the maximum level of tolerance regarding their right to honor, in view of the preference held by the exercise of freedom of expression, a margin of tolerance that the trial court considered is not comparable to that of other public servants, specifically, by virtue of the hierarchical degree corresponding to whoever holds the office of […]. Notwithstanding the foregoing, from the examination of the analysis carried out by the trial judges regarding the jurisprudence of the referenced Inter-American Court, no sufficient elements of judgment can be deduced that, when compared with what is stipulated in the judgment of the case of [Name18], allow arriving at the position held by the trial court and assessed to issue the acquittal judgment under appeal. In this sense, the reading and study of the judgment issued in the referenced case allows us to establish that the Inter-American Court of Human Rights does not make any discrimination regarding the margins of protection of the right to honor corresponding to those who exercise a public function, with respect to the exercise of freedom of expression, regardless of the type or hierarchy of the position the person holds. Specifically, the Inter-American Court establishes that in the situation under study, a higher level of tolerance is required from those who exercise a public function, in order to not unduly restrict the right to freedom of communication and expression, the respect and effectiveness of which it establishes as absolutely necessary for the consolidation and dynamics of a democratic society. Similarly, the Inter-American Court establishes that although there is a higher level of tolerance for public servants regarding the protection of their right to honor or dignity, by virtue of the duties of transparency of governmental activities and probity to which they are subject – and with the objective of guaranteeing the validity and development of a democratic society – the exercise of freedom of expression is not absolute and has limits that must be observed, which cannot be applied as a form of prior censorship, but rather based on subsequent responsibilities expressly established by law, and for the purpose of guaranteeing respect for the rights of others or their reputation. In this regard, the judgment in question establishes: “[…] 120. It is important to highlight that the right to freedom of expression is not an absolute right; it can be subject to restrictions, as indicated by Article 13 of the Convention in its paragraphs 4 and 5. Likewise, the American Convention, in its Article 13.2, foresees the possibility of establishing restrictions on freedom of expression, which are manifested through the application of subsequent responsibilities for the abusive exercise of this right, which must in no way limit, beyond what is strictly necessary, the full scope of freedom of expression and become a direct or indirect mechanism of prior censorship. To determine subsequent responsibilities, it is necessary that three requirements be met, namely: 1) they must be expressly established by law; 2) they must be intended to protect either the rights or reputation of others, or the protection of national security, public order, or public health or morals; and 3) they must be necessary in a democratic society (...) 123. Thus, the restriction must be proportional to the interest that justifies it and must closely adjust to the achievement of that objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression [...]”.

iv.- From the foregoing, it is determined that the Inter-American Court recognizes that the right to freedom of expression is not absolute, and that for this reason it can have limits or restrictions that must not be applied a priori, but can only be subsequent and proportional to the interest that justifies such limitations, and in accordance with what is absolutely necessary to achieve such objective, in a manner that interferes to the least possible degree in the exercise of freedom of expression. Such a position of the Inter-American Court, assessed with respect to what our Political Constitution and the regulations analyzed supra in this ruling establish, allows concluding that the protection of the right to honor of public servants in cases of abusive exercise of freedom of expression and thought, is proportional to the interest of the criminal-legal system to safeguard against intentional, malicious, and offensive attacks to the honor and dignity of those who exercise a public function under the apparent exercise of the free expression of ideas or thoughts, or, as applicable, freedom of communication, while also being that such exceptional and a posteriori limitation is proportional and interferes to a minimal degree with freedom of expression, just as the Inter-American Court prescribes. This because, according to our constitutional, conventional, and legal normative framework, and as established by the Constitutional and Third Chambers of our country in the precedents analyzed supra, the restriction of freedom of expression and information only applies in cases of excesses and abuses in the exercise of said fundamental right that exceed the proper content of its protection. Such irregularity not only entails the affectation of the right to honor of the offended person but also violates the social component of the right to communication and expression, since it implies the violation of society’s right to have ideas, thoughts, or information shared that is in accordance with reality, in such a way that the correct formation of public opinion and due control of the exercise of the public function is sought and achieved. The fulfillment of these objectives is what allows achieving the strengthening of the institutional and democratic framework of society, as an inherent effect of the correct exercise of freedom of expression, which is not achieved, and even a contrary result can be obtained, if malicious attacks and abusive expressions against the decorum and honor of public servants are endorsed without any limit, which does not in any way constitute a task of oversight and control of the public sphere, but simply a way of affecting public activity through the unjust discrediting of their honor, which undoubtedly affects the credibility of those who exercise state activity. This situation would be extremely serious in the particular case of whoever exercises the office of […], since not only their personal honor would be unduly affected, but also the dignity of the office and the respect for the position they hold, generating problems of public distrust, loss of faith in public institutions and state activity, which is not suitable for the development of a society based on a democratic model.

Thus, from the precedent under study as well as from what is stipulated by the Constitutional Chamber and the Third Chamber, the right to honor of whoever exercises state activity – such as those who hold political positions – yields to the exercise of freedom of expression, by virtue of having to endure, due to that condition, a higher degree of tolerance, as well as by reason of the protection of the principles of transparency, probity, and accountability, it being even the case that strong, uncomfortable, and annoying criticisms made regarding situations that are of public interest and are directly or indirectly linked to the actions that state servants perform in the exercise of their function are permissible, which has as its limit – subsequent – the abusive and irregular exercise of freedom of expression or communication, which does not conform to and exceeds the scope of protection of such fundamental right.

The comprehensive examination of the merits judgment reveals that the trial court did not perform an adequate and careful factual and legal analysis of the normative content of the provisions that govern the matter under discussion in our legal system, nor did it carry out a sufficient intellectual and rational exercise to disregard the precedents that have been issued on the legal point under judgment, with the trial judges opting to create an ad hoc [criterion] for the solution of the case – previously and repeatedly indicated in this ruling – which they supported on their particular appreciation of the contemporary Costa Rican political-institutional and social reality, as well as on the definition of an equally particular ideology, aspects based on which they conceived and particularized – without greater objective support – a specific and disproportionately restrictive scope of criminal protection of the right to honor of the person holding the office of […].

v.- It is necessary to note that in the judgment issued in the case of [Name18] vs. Nombre2042 by the Inter-American Court – extensively transcribed, but however, not as extensively nor rigorously assessed in the judgment by the merits court – it is expressly established that “politicians” have a higher level of tolerance in the relationship of the right to honor versus freedom of expression. Notwithstanding the foregoing, the Inter-American Court establishes that despite the particular situation of those who exercise a state function according to the foregoing, their right to honor and dignity must be protected, and in this sense, the [Name18] judgment stipulates the following: “[…] 127. Democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials for their public management, which is why there must be a reduced margin for any restriction on political debate or on debate on matters of public interest. 128. In this context, it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature must enjoy, in the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. This does not mean, in any way, that the honor of public officials or public persons should not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism […]”.

In this regard, it is necessary to indicate that, even though in the merits judgment several segments of what was resolved in the case of [Name18] are cited, the jurisprudential precepts established by the Inter-American Court in the referenced judgment are not comprehensively assessed, with the criminal court disregarding, without greater justification, the scope of protection of the right to honor that the Inter-American Court establishes is proportional to the condition of being a public servant and the higher level of tolerance to which they are subjected due to that condition. In this same sense, the trial court does not appreciate in its substantive reasoning that the Inter-American Court, regarding the protection of the right to honor corresponding to those who exercise public positions, does not specify or determine that there are different degrees of protection of such fundamental right depending on the hierarchy or the type of state position the person holds. Thus, it is clear that the criminal court did not adequately assess such a precedent of the Inter-American System of Human Rights, by establishing ad hoc and disproportionately restrictive criteria regarding the criminal protection of the right to honor that it considered particularly corresponds to whoever exercises the position of […], it being that such a position implies and translates in reality into the almost absolute emptying of the content of the constitutional and legal protection that such fundamental right holds in our legal system, which is improper.

In this regard, it is important to point out that the same trial judges established in their judgment that, from the publication made by the defendant [Name12], some meanings can be derived that can indeed be considered offensive to [Name6] [[Name3]], but that nevertheless, by considering that they are not univocal or the only ones emanating from the content of the text disseminated, since according to the trial court other meanings arise – without defining in the judgment what other possible derivations are – that have nothing to do with offensive situations, the right to honor of the [[Name3]] was not violated. To arrive at such a conclusion, the criminal court expounds the [criterion] it defined, in accordance with what was stated supra to restrict the scope of criminal protection it considered corresponds to the […], namely, that only direct offenses and the expression of ideas or opinions whose sole meaning is the imputation of a criminal act are punishable as injurious to the honor and dignity of whoever holds said public office. Such argumentation does not derive from the legal guidelines that have been defined in the jurisprudential precedents studied in this ruling – and cited in the appealed judgment – regarding the interpretation and application of the norms that regulate the factual and legal situation of a case like the one discussed in the sub judice, including the binding jurisprudence of the Constitutional Chamber, all of which reveals a serious weakness in the intellectual and legal grounding of the judgment under appeal.

3.2. Judgment of the case of [Name16] vs. [Name17].

i.- In the appealed judgment, two segments of the judgment issued by the Inter-American Court of Human Rights in the case of [Name16] vs. [Name17] are cited, it being that in this sense the trial judges established the following: “[…] Now, regarding this point, the Inter-American Court of Human Rights has said that the activities of public servants: ‘...leave the domain of the private sphere to be inserted into the sphere of public debate. This threshold (…) is based on the public interest of the activities they perform.’ (Case of [Name16] vs. [Name17], May 2, 2008, paragraph 86). Note that the highest continental body on human rights establishes that in the Americas, public officials are more exposed to criticism, that this is inherent to the position they voluntarily accepted, and that the activities they perform are of public interest. Now, it must be noted that these statements by the Inter-American Court have been produced in the context of cases where high-ranking public servants are involved, but not of the highest rank as in this complaint, that of the […] […] These assessments are important because if we affirm with the Inter-American Court ‘...that in a democratic society, public officials are more exposed to the scrutiny and criticism of the public.’ (Case of [Name24] vs. [Name17], idem), the exposure of the highest authority of the public function is even greater and, correlatively, the public criticism must be even greater […]” (Cf. folios 346 and 347. The transcription is literal).

In this sense, it must be established that the trial court does not fully or correctly assess the content of the resolution issued in the case of [Name16] vs. [Name17], since by referring to such precedent, the trial judges determine they must differentiate the scope of protection of the right to honor of whoever holds the office of […] with respect to other public servants who do not have such investiture or hierarchy. This, because the trial court considered that the case of [Name16] establishes a higher degree of tolerance for state servants and, consequently, of its own accord considers that the degree of tolerance must be greater according to the public office held, a conclusion that the criminal court reaches despite no such differentiation being made in such precedent. Likewise, the trial judges conclude motu proprio that a specific, more restrictive parameter of protection of the right to honor corresponds to whoever holds the office of […] with respect to other public servants, a differentiation they deemed necessary to make by virtue of the fact that the case of [Name16] vs. [Name17] did not resolve the particular situation of whoever holds such type of public office. Such interpretation and analysis of the precedent in question is not logical, and in reality, what it reveals is that the trial court’s thesis is in no way derived from what is stipulated by the Inter-American Court of Human Rights in the referenced case, but rather it is a criterion that the merits court defines based on its particular appreciation of what it deemed is the ideology desired by the majority of Costa Ricans regarding the management of public offices, particularizing such popular aspiration for the case of the […].

ii.- In the same sense, it is important to point out that, from the comprehensive analysis of what is established in the precedents of the Constitutional Chamber and the Third Chamber, as well as what is indicated by the Inter-American Court, it is not derived nor can it be considered that the totality of the acts of the private life of those who exercise a public office are part of or can be included in the broader scope of tolerance that their right to honor is subjected to due to their condition as public servants. This, because the greater margin of tolerance of the right to honor of state servants with respect to the exercise of freedom of expression pertains to their actions that are of public interest and are directly, or at least indirectly, related to the exercise of the activities inherent to the position, to which must be added that it is necessary to analyze each case concretely to define the proportionality of the margin of tolerance that should be protected to guarantee the validity of the fundamental rights to honor and freedom of expression, all of which was not duly appreciated by the judges in the merits judgment.

Specifically, regarding the points previously analyzed, the judgment in the case of [Name32] stipulates the following: “[…] 51. Regarding these facts, the parties presented various arguments in which a conflict underlies between the right to freedom of expression in matters of public interest and the protection of the honor of public officials. The Court recognizes that both freedom of expression and the right to honor, enshrined in the Convention, are of utmost importance. It is necessary to guarantee the exercise of both. In this sense, the prevalence of one over the other in a given case will depend on the weighing carried out through a proportionality judgment. The resolution of the conflict that arises between certain rights requires the examination of each case, according to its characteristics and circumstances, to assess the existence and intensity of the elements on which said judgment is based (…) 53. Regarding the content of freedom of thought and expression, the Court has indicated that those under the protection of the Convention have the right to seek, receive, and disseminate ideas and information of all kinds, as well as the right to receive and know the information and ideas disseminated by others. It is for this reason that freedom of expression has an individual dimension and a social dimension: the former requires, on the one hand, that no one be arbitrarily diminished or impeded from expressing their own thoughts and represents, therefore, a right of each individual; but it also implies, on the other hand, a collective right to receive any information and to know the expression of others’ thoughts. 54. However, freedom of expression is not an absolute right. Article 13.2 of the Convention, which prohibits prior censorship, also provides for the possibility of demanding subsequent responsibilities for the abusive exercise of this right. These restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship. 55. For its part, Article 11 of the Convention establishes that everyone has the right to have their honor respected and their dignity recognized. This implies limits on the interferences of individuals and the State. Therefore, it is legitimate for anyone who considers their honor affected to resort to the judicial means that the State provides for its protection. 56. The need to protect the rights to honor and reputation, as well as other rights that could be affected by an abusive exercise of freedom of expression, requires due observance of the limits set in this regard by the Convention itself. These must respond to a criterion of strict proportionality. 57. Given the importance of freedom of expression in a democratic society and the high responsibility this entails for those who professionally engage in social communication work, the State must not only minimize restrictions on the circulation of information but also balance, as far as possible, the participation of different information in public debate, promoting informational pluralism. Consequently, equity must govern the informational flow. In these terms, the protection of the human rights of those who face the power of the media and the attempt to ensure structural conditions that allow the equitable expression of ideas can be explained (…) 71. As established in paragraph 55 supra, judges, like any other person, are protected by the safeguard afforded by Article 11 of the Convention, which enshrines the right to honor. Moreover, Article 13.2.a) of the Convention establishes that the ‘reputation of others’ can be grounds for establishing subsequent responsibilities in the exercise of freedom of expression. Consequently, the protection of the honor and reputation of every person is a legitimate aim in accordance with the Convention. Likewise, the criminal instrument is suitable because it serves the purpose of safeguarding, through the commination of a penalty, the legal interest intended to be protected, i.e., it could be capable of contributing to the achievement of said objective.

However, the Court warns that this does not mean that, in the specific case under analysis, the criminal avenue is necessary and proportional, as will be seen below (…) 79. On the other hand, in the framework of freedom of information, the Tribunal considers that there is a journalist's duty to verify in a reasonable manner, although not necessarily exhaustively, the facts on which they base their opinions. That is, it is valid to demand fairness and diligence in the confrontation of sources and the search for information. This implies the right of individuals not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and contrast them with other relevant data (…) 82. The representatives agreed with the Commission and argued that "the facts on which Mr. [Name16] reported are of public interest," considering that the investigation referred "to a paradigmatic case of repression" and that the "investigation carried out by the journalist is part of [the] review that Argentine society must carry out and of the discussion about the reasons why the military government deployed its actions without having encountered obstacles in the [J]udicial [P]ower." They added that Mr. [Name16] "did not use any language that could be considered abusive" nor did he use "excessive, much less outrageous words"; that he referred to the judge "solely and exclusively on the occasion of his functional performance and did not delve into any aspect of his life or personality unrelated to his work as a public official"; that in the sections of the book where statements of fact are made "everything he held conforms to reality" and that "the paragraphs that formed part of the criminal trial" contain "critical value judgments about the judicial power of that era," which is why "they are not susceptible to being true or false, nor can they justify, by themselves, a restriction on freedom of expression, as it concerns the right of every person to freely express opinions on matters of public interest and on the functional performance of a judge in a matter of the greatest public relevance." 83. In this last step of the analysis, it is considered whether the restriction is strictly proportional, such that the sacrifice inherent to it is not exaggerated or disproportionate to the advantages obtained through such limitation. The Court has endorsed this method by pointing out that: for restrictions to be compatible with the Convention, they must be justified according to collective objectives that, due to their importance, clearly preponderate over the social need for the full enjoyment of the right that Article 13 of the Convention guarantees and not limit the right proclaimed in said article more than is strictly necessary. That is, the restriction must be proportional to the interest that justifies it and closely adjusted to the achievement of that legitimate objective, interfering to the least possible extent in the effective exercise of the right to freedom of expression. 84. For the case at hand, the restriction would have to achieve significant satisfaction of the right to reputation without rendering nugatory the right to free criticism of the actions of public officials. To carry out this balancing, one must analyze i) the degree of affectation of one of the legal interests at stake, determining whether the intensity of said affectation was serious, intermediate, or moderate; ii) the importance of the satisfaction of the opposing interest; and iii) whether the satisfaction of the latter justifies the restriction of the other. In some cases, the balance will tip towards freedom of expression and in others towards safeguarding the right to honor (…) 86. Regarding the right to honor, expressions concerning the suitability of a person for the performance of a public office or regarding acts carried out by public officials in the performance of their duties enjoy greater protection, so as to foster democratic debate. The Court has noted that in a democratic society, public officials are more exposed to public scrutiny and criticism. This different threshold of protection is explained because they have voluntarily exposed themselves to more demanding scrutiny. Their activities leave the domain of the private sphere to enter the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they carry out, as occurs when a judge investigates a massacre in the context of a military dictatorship, as happened in the present case […]." From the foregoing, it is determined how the court of merit carried out a biased and partial analysis of the precedent issued by the Inter-American Court in the case of [Name16] vs. [Name17], given that it limited its considerations to a minimal segment of that decision, which it forcibly adjusted, with particular attention to the basis on which it analyzed the facts of the complaint, that is, the exclusive differentiation of the protection of the right to honor that the trial judges defined corresponds to a person who holds the position of […], which demonstrates that they neither analyzed nor gave the legally appropriate weight to the content of the decision in the [Name16] case for the correct resolution of the sub judice matter, which does not protect or serve as any basis to justify the dismissal with which they discarded the violation of the right to honor of [Name6] [[Name3]] by virtue of the facts accused against [Name7], all of which implies a lack of legal reasoning in the judgment. By reason of all the foregoing, it is concluded that the jurisprudential precedents analyzed supra in this pronouncement are extremely important for the resolution of the present matter. Likewise, it is established that such precedents were not fully and correctly assessed by the criminal court in the judgment on the merits, given that none of these supports the basis on which the trial court almost absolutely limited the protection of the right to honor of a person who holds the position of […] in the relationship of said fundamental right with the exercise of freedom of expression and communication, which while they must endure a greater margin of tolerance in the case of public officials compared to the rest of the community, such limitation cannot imply the emptying of the fundamental right to honor and decorum of any person, including those who exercise public function regardless of the hierarchy they hold. Thus, there is no doubt that in a democratic society like the one instituted in the organic component of our Political Constitution, the exercise and effectiveness of freedom of expression must be guaranteed by giving it preference, even, over the protection of the right to honor of State servants. In this way, it is appropriate to protect a wide margin for denunciation, opinion, investigation, questioning, and strong and bothersome criticism from the social collective, and from those who are directly actors and linked to the development of freedom of press and communication, with respect to the scrutiny and oversight of activities related to the exercise of public function by those who are its mere depositaries, which allows for maintaining democratic pluralism, overseeing the correct exercise of public function, and avoiding undue restrictions on freedom of expression in order to prevent a propitious environment or fertile ground for the emergence of authoritarian political systems. Notwithstanding the foregoing, as the Costa Rican Constitutional and Criminal Cassation Chambers, as well as the Inter-American Court of Human Rights, have already clearly and precisely indicated, freedom of expression and communication is not absolute, as it has restrictions that must be applied a posteriori in order to avoid prior censorship, but which imply responsibility for the violation of other fundamental rights by those who exercise it in an abusive and disproportionate manner, as occurs in the case of the constitutionally protected right to honor, even of public officials. In this regard, it is important to highlight that none of the aforementioned jurisdictional entities has established any discrimination or differentiation regarding the right or scope of protection of the honor and decorum of public servants, by virtue of the specific office or hierarchy they hold, which only emanates from the position defined ad hoc by the court of merit to analyze the merits of the event that is the object of judgment in the present case. In this respect, it must be established that the position of the trial court is not duly substantiated – from a legal perspective – since it attends to a very particular way of reasoning and defining an ideological parameter, to create a highly subjective thesis regarding the scope of protection of the right to honor that they consider corresponds, exclusively, to the person who holds the position of […], a position that lacks an objective and rigorous legal and jurisprudential basis. In this sense, throughout the development of this pronouncement, it has been demonstrated that the trial court did not rigorously apply nor sufficiently analyze the legal framework that regulates the subject under discussion, nor did it assess in a comprehensive and sufficient manner the jurisprudential precedents it cites in its ruling, and which have been previously analyzed in this resolution. b.3. Social networks and their importance in the exercise of freedom of expression and communication, regarding the protection of the right to honor. In the present case, the publication complained of as defamatory by [Name [Name10]] against [Name7], was carried out in one of the most modern and, without any doubt, most effective means of communication, namely, a social network on the Internet, specifically, “Facebook”. In order to analyze and define the legal-criminal importance of the existence of such socio-virtual groups, with respect to the protection of the right to honor, it must be noted that one of the main characteristics of social networks in our contemporary reality is the amplifying effect of the spectrum of dissemination of ideas, comments, photographs, videos, news, texts, etc., that are shared and published by any of the members that make up the “virtual community”, to the entirety of it, or to a group of its members that make up their environment or virtual group in the social network. In the specific case of “Facebook”, for example, the virtual community is composed of all those who have an account or profile, which allows them to have their own page – or profile – on the Internet and within the social network, thereby making them part of that community, and in that way they can be in contact with all other members of “Facebook” and share all the information and content of their profile. Likewise, anyone with a Facebook account can restrict access to their profile to a certain number of users, so that they share communication with that group, just as they can limit access to part of the content of their profile, for example their “wall”, photos, some publications, friends, etc. Similarly, the user can limit the dissemination of what they publish on their “Facebook” page, either to a group of members with whom they are virtually linked, or what is known as the “group of friends” or even to some of those who belong to that group or another of which they are a part. Thus, the power of dissemination and communication that “Facebook” has is clear, given that one can share all types of information “online” or communicate via “chats” or conversations at any time, and anywhere in the world where any of the members of the virtual community may be, whether nationally or even globally. The foregoing reveals the great importance that social networks have in the formation of public opinion today, through the expression of ideas, thoughts, and criticisms, as well as in the dissemination of information of any type, to the point that the traditional mass media themselves, such as radio, television, and the press, feed on the content and participate in the traffic of information circulating on the Internet through social networks, hence the importance that such forms of communication currently have for the protection of the right to honor with respect to the exercise of freedom of expression. Another highly important characteristic of social networks, not only “Facebook”, but also another significant number of such groups existing in cyberspace, such as for example “Twitter”, “Instagram”, “Linkedin”, etc., is the ease of access for the greater part of the social conglomerate to the different virtual communities that exist and develop on the Internet and, consequently, to all the information and the wide range of content transmitted, disclosed, shared, or disseminated by the members of such social networks – for example through the publication of “posts”, photographs, videos, comments, etc. – given that today the different events, points of view, news information – among others – of social, political, economic, scientific reality, etc., are published and reproduced practically “online” or in real time. Thus, any event can become of great importance on the network, and its dissemination will occur in a very short time and among a large number of people who have access or are part of the virtual environment. In this last aspect, one must bear in mind the great advances in current technology, which has come to produce electronic devices that practically allow a very large number of people to be “online” at all times, such as for example through “smartphones”, “tablets”, portable personal computers, etc., artifacts that are economically more accessible every day for the vast majority of the population of our country and many countries in the world. In the present case, the study of the body of evidence produced at trial reveals that the publication made by the defendant [Name7] generated a large number of comments and assessments regarding its content, by a large number of “Facebook” users, participations among which there is a significant number expressing direct offenses against [Name6] [[Name3]], who was the […] at that time (In this regard see folios 23 to 37 of the main file), a situation that demonstrates the supreme impact and transcendence that social networks have in the dissemination of ideas and formation of public opinion today, dissemination of information that is even faster than what traditional media achieve nowadays. Thus, it is clear that conduct carried out on the Internet has great legal-criminal relevance today, which is why it has been necessary to create specific legislation in this regard, such as the framework of Computer Crimes introduced into the Penal Code through Law No. 9048 of July 10, 2012. Similarly, there are norms in common criminal legislation that regulate and are applicable to conduct carried out through computer means, as occurs in the case of crimes against honor, typified in articles 145, 146, and 147 of the Penal Code. Based on all the foregoing, it is concluded that in the present case it is possible and necessary to analyze in depth and with the rigor required by the duty of legal reasoning of a criminal judgment, whether the publication made by the defendant [Name7] on his public “Facebook” profile generated an injury to the honor of [Name6] [[Name3]], for which it is required and important to assess the particularities that, according to the foregoing, social networks have in our current reality, just as one must consider the aspects related to the relationship between the right to honor of public officials versus the exercise of freedom of expression, in a democratic society, and in accordance with the limits that this latter fundamental right has as a result of its abusive and disproportionate exercise, as considered throughout this pronouncement. C.- Specific defects of the contested judgment that constitute the defect of lack of reasoning. In the preceding sections of this pronouncement and based on the comprehensive examination of the ruling by this appellate court, factual and legal reasons have been established and set forth that demonstrate and confirm that the judgment on the merits violates the duty of legal reasoning required for its validity and effectiveness, in accordance with the provisions of articles 39 and 41 of the Political Constitution, as well as what is regulated in articles 1, 142, 184, and 363 of the Criminal Procedure Code. Thus, and as a complement to what was previously stated, it is timely to point out certain aspects of the ruling that likewise reveal its erroneous legal reasoning, as claimed by attorney [Name15]. Thus, the following is noted: i.- While it is true that public officials have a greater level of tolerance regarding the exercise of freedom of expression concerning the protection of their right to honor, due to the fact that they voluntarily subjected themselves to greater public scrutiny, which derives from the principles of transparency and accountability, such particularity is not coupled with the absolute emptying of the right to honor and decorum that must be protected for those who exercise state function, given that the definition adopted in this sense by the court of merit leads in practical terms to the emptying of said fundamental right, since practically no conduct could affect the right to honor of anyone who is […]. Such aspects were not duly assessed by the trial court, as it set aside any objective consideration regarding the constitutional, conventional, and legal norms linked to the substantive issue, just as it omitted to fully and objectively assess the jurisprudential precedents that, regarding the point under litigation, have been previously issued by the Costa Rican Constitutional and Criminal Cassation Chambers, and also by the Inter-American Court of Human Rights. This is because the trial judges limited themselves to supporting the basis on which they decided to acquit the defendant [Name12], based on the definition and appreciation of the ideology they considered corresponds to the majority of Costa Rican society regarding the subject under discussion, reasoning from which the court of merit established an ad hoc and exclusive parameter to delimit the scope of protection to honor that it deemed proper for the person who holds the position of […]. Such a position is subjective and, in accordance with the principle of legality, exceeds the functions proper to jurisdictional activity, namely, to interpret and apply the law, since it is not appropriate for a criminal court to define motu proprio an ideology that, according to its particular appreciation, corresponds to the social majorities, and thus, assess ideological assumptions to define parameters of protection for a fundamental and constitutionally recognized right such as the honor of state servants, and what is even more sensitive and inadequate, to establish ad hoc and exclusive criteria for the protection of such right of the citizen who holds the position of […], which far from guaranteeing the principle of equality established in Article 33 of the Political Constitution, implies discriminatory treatment and the lack of protection of the essence of the referenced human right by virtue of a particular situation that does not justify its absolute suppression. Thus, the criminal court does not assess the normative framework that is linked to and regulates the substantive issue regarding the guarantee of freedom of expression and communication with respect to the protection of the right to honor and decorum of those who exercise public function, which demonstrates the weakness of the reasoning on which the trial court bases the decision under appeal. Likewise, the trial judges do not set forth sufficient legal and objective reasons that justify their decision not to follow the jurisprudential criteria previously issued on the way to legally approach the relationship between right to honor versus the exercise of freedom of expression in the case of public officials, given that they renounce carrying out a comprehensive analysis of the jurisprudential precedents that they only cite and biasedly reproduce in their ruling, and instead, limit their substantive reasoning to the consideration of a subjective thesis, which according to their particular appreciation creates a jurisprudential line regarding the scope of protection that exclusively corresponds to the person who holds the position of […], an analysis that is legally incorrect. This is because it is not appropriate to define the scope of protection of a fundamental right based on ideological assumptions that, even if they might coincide with the position of the majorities, might not coincide with the will of the constituent power, an aspect that is not proper to elucidate through diffuse control of constitutionality, but solely, through the direct and concentrated control that corresponds to the Constitutional Chamber, a situation that demonstrates the excess of its powers that the trial court carried out to establish the basis on which it grounded its decision on the merits. ii.- As has been extensively analyzed in this pronouncement, it is not possible to achieve adequate protection of freedom of expression in a democratic society if limitations are established that operate as prior censorship and discourage the exercise of such a fundamental right, which is characteristic of authoritarian regimes that do not correspond to the scheme contemplated by our Political Constitution. Thus, it is not appropriate to generically and previously demand that what is to be published must be true or previously verified – proven – since such a position implies establishing limitations that can result in the imposition of prior censorship of opinions, questions, and criticisms of situations that are of public interest, as would occur with acts carried out by state officials in the exercise of their powers or in relation to them, an assumption that is undoubtedly of public interest and is subject to greater control and oversight by all the governed, which, as indicated, derives from the principles of transparency and accountability of state servants. Notwithstanding the foregoing, as established by the supra-mentioned norms, and as stipulated in the jurisprudential precedents that have been previously analyzed, it is appropriate, without violating freedom of expression and communication, to have a posteriori controls or to demand subsequent responsibilities from those who exercise such fundamental rights abusively and disproportionately. Thus, in each specific case, it must be established whether the exercise of freedom of expression is not a screen or curtain used to disseminate false, speculative, or insidious facts whose real objective is to affect the honor of a public official, which is an assumption that is not covered by the scope of protection or the scope of tutelage that corresponds to freedom of expression and communication, even when referring to a person who holds a public office regardless of their hierarchy. This is because neither the Constitutional Chamber, the Third Chamber, nor the Inter-American Court of Human Rights establish any difference regarding the margin of protection of the right to honor corresponding to those who exercise public function, whether their position is by popular election or of any other type, as noted supra. Thus, the basis on which the trial court renounced to hear the arguments and thesis of the defense of [Name6] [Name443 [Name10]], regarding whether in the sub judice matter it is necessary to define if the content of the publication made by [Name7] is false and speculative, and whether it was disseminated with knowledge of its suitability to affect the honor of the person who held the position of […], is not appropriate. In this sense, the trial judges limited themselves to establishing that because it concerned the [[Name3]] it was not necessary to establish whether what was disseminated by the defendant was true or false, since he simply exposed his idea, opinion, or personal thought about the "facts" he published on his "Facebook" profile. Thus, it is determined that the reasoning of the trial court is unfounded, as it disregarded the scope of protection of the right to honor corresponding to public officials established even by our Constitutional Chamber, whose jurisprudence is binding "erga omnes". Similarly, it omitted to carry out a legal analysis or rigorous assessment of the content of the "item" disseminated on the "Facebook" profile of [Name12], limiting its reasoning, in this sense, to indicating that it was not necessary to establish whether such content was true or not, since it is an opinion, and opinions do not have to be verified, which is incorrect according to what was stated supra in that regard. In this sense, it must be added that the trial court also does not set forth the reasoning that legally allows it to classify the publication in question as "a mere or simple opinion", despite the fact that it is based on the affirmation of a series of situations that, in principle, are closer to an imputation than to an opinion about the "facts" that are part of the publication. To the foregoing must be added that the trial court does not establish in the basis of the judgment on the merits what evidence it assessed and in what way it managed to grant the character of "facts" – as it states in its reasoning – to the events that the defendant cites in his publication, and regarding which he merely indicated that they came to his knowledge, and based on that situation, he gave his opinion and disseminated it on his public "Facebook" profile. In the same sense, the contested judgment does not establish the aspects that the trial court assessed to establish with certainty that the "facts" disseminated and criticized by the defendant [Name12] are of public interest by virtue of being related to the activity – verifiably or objectively presumable – of the public functions of [Name6] [[Name3]] in the exercise of her position as […]. Thus, the court of merit did not adequately assess the point under analysis, in order to define whether the "facts" brought to the light of public opinion by [Name12] are evidently false or merely speculative, this for the purpose of establishing their legal aptitude to be the object of criticism, by virtue of corresponding to the exercise of the public function of [Name6], or failing that, whether the exposure of the content of the publication in question without addressing or respecting the quality or reality of the information disseminated, constitutes in itself an action that pursues and demonstrates a defamatory purpose to the detriment of [Name6] [[Name3]], who emphatically denied in her statement at trial that the facts aired by [Name12] were true, an aspect that, it is reiterated, the trial court did not assess with the depth and rigor legally required. iii.- In relation to the foregoing, the comprehensive examination of the judgment reveals that the criminal court does not define or base with precision in what manner it concludes with certainty that in the sub judice matter we are in the presence of simple thoughts, ideas, or questions disseminated by the defendant [Name12], and not in the presence of a nuanced offense against the right to honor of [[Name3]]. Thus, the trial court did not assess whether, through the content and the manner in which the exposition of the "facts" in question was given, unverified, under the appearance and affirmation of being truthful or certain, and written in a way that could lead to the conclusion that there was influence peddling or improper conduct by [Name6] to enrich herself by virtue of the exercise of public function, we could be in the presence of an item apt, suitable, and sufficient to affect the right to honor of [Name6]. Such a situation occurs because the court of merit analyzed the events complained of solely and exclusively based on its definition defined ad hoc to establish the scope of protection of the right to honor that the trial court considered corresponds to the person who holds the position of […], a criterion that, in accordance with what has been extensively stated throughout this pronouncement, is not duly substantiated as it does not conform to the interpretation and application of the supra-analyzed norms that regulate the protection corresponding to the right to honor versus the protection and exercise of freedom of expression in the case of those who exercise public function.

iv.- The reasoning of a criminal judgment cannot be based on the definition of an ideology derived from what an ordinary criminal jurisdiction body considers to be the stance of “the majorities”; rather, it must be circumscribed to the application and interpretation of the law, as well as to assessing the binding jurisprudential criteria, such as those emanating from superior judicial authorities which, without limiting the principle of judicial independence, are applicable to the specific case. In this regard, it is pertinent to add that the human nature of whoever holds the office of judge of the Republic cannot be ignored, nor their relationship with the social environment, which entails that they have a particular ideology that could indirectly carry some weight when interpreting and applying the legal norm; however, it is not acceptable for the basis of a judicial decision to have a direct and manifestly ideological foundation, derived from a particular perception of social reality. In the present case, this latter situation is what actually defines the scope of the protection of the right to honor (derecho al honor) that the trial judges concretized as corresponding to whoever holds the […], by considering that such a legal interest can only be affected when the offense is direct or expressly imputes the commission of a crime to the person holding such public office. Such an assessment, as already indicated, is not only unfounded but also disregards the precepts that the Constitutional Chamber (Sala Constitucional) and the criteria that the Third Chamber (Sala Tercera) and the Inter-American Court of Human Rights have defined regarding the scope and limits of the right to honor of public officials versus the exercise of freedom of expression in a democratic State, which are very clear in establishing that a greater level of tolerance does exist and must be recognized, but in turn, they emphasize that excesses and abuses of freedom of communication are not protectable, which actually seek to disguise, through the supposed exercise of such a fundamental right, the exposure of false facts that are insulting and defamatory, knowing that such action can affect the right to honor of the public official. The foregoing, far from guaranteeing the validity of a democratic society, rather causes it harm, by violating the social component of the right to freedom of expression to receive pertinent and adequate information for the correct formation of public opinion, and in this way to guarantee the correct functioning of public service so that it is not affected by unjust attacks that harm the institutionality, governance, and credibility of those who hold public power, which is more sensitive and delicate in the cases of those who exercise the Supreme Powers of the Republic.

v.- The court conducts a segmented and not a comprehensive analysis of the entirety of the text that was complained of as defamatory, an approach which does not correspond to what the Third Chamber (Sala Tercera) has established is appropriate in this regard according to the foregoing, since in each specific case, not only the content of the disseminated information must be assessed, but also the form in which it is disseminated—writing, vocabulary, positioning of photographs, etc.—must be evaluated to establish whether the publication is suitable or not for achieving a defamatory result. Thus, the analysis of the list of proven facts of the judgment on the merits (cf. folios 323 and 324 of the main file), allows us to establish that the judges considered it proven that in the content of the publication in question, it is presented as true that [Nombre6] acquired a property valued at two and a half million dollars, and that she is an owner of wind generation, and based on these statements, the defendant [Nombre12] makes a comparison with the case of a person—a well-known footballer—who at that time was being criminally investigated, regarding whom he indicates that by “discovering warm water” and with five days of study at INCAE, he became a millionaire and owner of yachts, airplanes, and a life of luxury. Likewise, the defendant expressly points out that “[…] I compare the wealth of the Lady with this player, whom we applaud for their entrepreneurship and business vision, that ease of paying millions of dollars, without us mortals finding an explanation in our daily lives where money is hard to earn over a lifetime of effort and work (…) these instant riches amaze us and we find no logical explanations. Now, could it be that they read the Book of Secrets and discovered the short path to wealth. In any case, we congratulate [Nombre [Nombre10]], who is preparing her departure from public service being a millionaire and possessor of material riches that for any citizen takes a lifetime, and for public officials and footballers seems like just five days of touching a ball […]” (cf. folio 324, the transcription is literal). From the foregoing, it follows that, in the present case, it is necessary to analyze in a comprehensive and not segmented manner, as the trial court did, the content and the form in which the publication disseminated by [Nombre12] occurred, in order to define whether it was disclosed in the pure exercise of the defendant's right to freedom of expression, in an ironic, tiresome, and annoying way, or if, on the contrary, the text disseminated on [Nombre12]'s “Facebook” profile corresponds to an abusive and disproportionate exercise of such fundamental right. This analysis was not carried out by the lower court (a quo), because it did not comprehensively assess the content of the publication in question, and, in turn, because it analyzed the text in question solely based on the idea that only direct offenses and the imputation of criminal acts, as the only possible meaning of a publication, can violate the right to honor of whoever exercises the […]. In addition to the above, the lower court considered that [Nombre6] deemed her honor affected based on subjective appreciations that she derived from “the piece” published by [Nombre12], which the lower court (a quo) considered are not the only ones possible to derive from it—without providing further basis in this regard, as already noted—all of which it assessed to conclude that the facts complained of in the present case are not defamatory. Based on all the foregoing, it is concluded that the factual, intellectual, and legal analysis carried out in the judgment on the merits does not conform to the normative precepts established in Articles 39 and 41 of the Political Constitution, nor to those stipulated in Articles 1, 142, 184, and 363 of the Code of Criminal Procedure, which implies the defect of erroneous legal reasoning of the ruling that is claimed by the representative of [Nombre6] [[Nombre3]]. Consequently, the appeal filed by attorney [Nombre5] is declared with merit, and the appealed ruling is annulled in its entirety. The referral of the case back to the court of origin is ordered so that, with a different panel, it resolves what is legally appropriate.

POR TANTO:

The evidence offered in the oral hearing by the representative of the defendant is rejected. The criminal judgment appeal filed by attorney [Nombre5] is declared with merit, by virtue of which the contested ruling and the trial that preceded it are annulled in their entirety, and the holding of a new trial before the same criminal court with a different panel is ordered, so that it proceeds to resolve what is legally appropriate. NOTIFÍQUESE.- Edwin Esteban Jiménez González Mario Alberto Porras Villalta [Nombre4] Judges of the Criminal Judgment Appeals Court Imputado: [Nombre33].

Ofendido: [[Nombre3]] Delito: Difamación Nombre22 b) In the visible pleading on pages 421 to 437 of the main file, Dr. [Name13], in his capacity as representative of the accused and civil defendant, responded to the hearing granted regarding the appeal of the criminal sentence filed by attorney [Name5]. In said writing, attorney [Name14] presents the arguments on which he bases his request that the challenge raised in the sub judice be dismissed, which are considered for the purpose of issuing this ruling.

III.- Regarding the evidence offered by Dr. [Name13] in the oral hearing held during the processing of this appeal. In the oral hearing held during the processing of this matter, Dr. [Name14] offered the following evidence: i.- certified photocopy of the digital version of a magazine mentioning the [Name6] and civil plaintiff [[Name3]] (pages 453 and 454); ii.- Six certified photocopies obtained from the electronic address http//es.wikipedia.org/wiki/Forbes (pages 455 to 461). The request and offering of evidence raised by the representative of the accused and civil defendant is hereby resolved, for which the following aspects must be considered: a.- The adjective criminal law that regulates the phase of appealing a criminal sentence does not contemplate any rule establishing the possibility of offering, nor that it is admissible, to accept evidence for better resolution or absolutely and unlimitedly new evidence on appeal, as may occur in other stages of the criminal process. b.- Evidentiary activity in the phase of appealing a criminal sentence is directly linked to the effective protection of the right to appeal the criminal judgment, whereby the legislator established that the evidence admissible in the processing of such a challenge must be defined in order to guarantee the comprehensive examination of the judgment by the appellate court. This is because what is sought with said means of challenge is broad control and comprehensive examination of the appealed judgment, as well as the trial that preceded it, so that evidentiary activity on appeal must be developed cautiously and in strict adherence to the scope of the right to appeal, in order not to distort or ignore the importance and legal-procedural relevance of the oral and public trial. Hence, the appeal phase, with respect to the offering and acceptance of evidence, must be consistent with and respectful of the single-instance oral and public trial scheme that governs our criminal procedural system. Therefore, what must be assessed in each case is whether the evidence offered and accepted is useful and pertinent to broadly and comprehensively review and control the criminal sentence issued by the criminal trial court, as well as the trial that preceded it. d.- It is by virtue of the foregoing that Article 464 of the Criminal Procedure Code, whose regulation governs evidentiary activity in the appeal phase, establishes that what is appropriate in said procedural venue is the examination of the trial records and, exceptionally, the reproduction of some evidentiary means due to weaknesses in the records or, as applicable, the reception of new evidence that is useful and pertinent for the resolution of the appeal in order to comprehensively examine the judgment. Under such criteria, the legislator regulated that new evidence is admissible in the appeal phase only in the following circumstances: i.- evidence offered in a timely manner but arbitrarily rejected; ii.- evidence that appears as new after the sentence; and iii.- evidence that, although existing previously, was not effectively possible to be offered by the interested party at the time. e.- Similarly, in order to ensure that the appellate court had an adequate and sufficient legal-procedural instrument to achieve a comprehensive examination of the judgment, as a product of the appeal of a criminal sentence, the legislator established in Article 462, paragraph 3) of the Criminal Procedure Code that the court may order to bring, of its own motion, evidence it deems necessary, useful, and pertinent for the verification of the alleged grievances. As such, it is concluded that the documentation described above does not fall within the prerequisites for new evidence regulated for the processing and resolution of the appeal of a criminal sentence, nor are such proofs useful and pertinent for resolving the aspects discussed in the sub judice, since the information emerging from the impressions supra described pertains to areas of the personal life of the [Name6] and civil plaintiff [[Name3]] that are not linked in any way to the facts that are the subject of controversy in the sub litem. Therefore, the evidence offered by Dr. [Name14] in the oral hearing held in this case is rejected.

IV.- By virtue of the relationship among the three grounds of the appeal filed by attorney [Name5], they are analyzed and resolved jointly as set forth below. FIRST GROUND: Attorney [Name15] alleges a lack of reasoning regarding the theory developed by the trial court on the application of the crime of defamation when the affected party is a [...], according to which such illegality only occurs when the statements are direct, express, unequivocal, and injurious. He indicates that the point subject to claim is essential to the solution of the case, since the trial judges developed, on their own motion, a theory on the application of the crime of defamation for the specific case in which the victim of the criminal action is a [...]. In this regard, he argues that the a quo requires that the expressions be “expressly” injurious, thereby violating the normative content of Article 142 of the Criminal Procedure Code, since such assertion is not supported by clear and precise reasoning, nor does it respect the strict application of the rules of sound judgment regarding evidentiary elements of decisive value, all of which in turn implies a violation of Article 363 of said procedural body. The appellant indicates that, based on the aforementioned argument, the judges proceeded to segment each of the paragraphs of the publication he considers defamatory, thus concluding that “[…] regarding the assertion that the [Name [Name10]] acquired a property for the sum of two and a half million dollars, it contains no offense, nor the unequivocal attribution of a crime. The judges indicate that this phrase does not expressly indicate that the acquisition is the product of committing a crime. Here the judges indicate that it is a personal opinion of the aggrieved party to affirm that her honor was damaged because with her income she could not purchase a property of that value. The judges insist that the accused does not expressly say that the purchase was the product of a crime. The judges affirm that this is merely a possibility and immediately thereafter, without indicating what they consist of or where they extract it from, the judgment states that a multiplicity of inferences occurs. Subsequently, they indicate, among other hypotheses, acquisition through lawful sources such as inheritance, donation, or lottery. Continuing with the analysis the judges make of the text accused as defamatory, regarding the accused's assertion that the [Name [Name10]] is the owner of a wind generation company, there is also no phrase that damages honor. The drafters of the judgment say that this is again an assessment by the [Name6], without having previously weighed the statement of the [Name6] and that of the accused. In the same sense, they determined that there was no direct affectation to honor regarding the denounced illegal and sudden enrichment at the end of the mandate in the [Name6]'s assets […]” (cf. pages 381 and 382). In this regard, the appellant accuses that the judges did not consider or give any value, in the basis of their decision, to the falsehood of the accusations, a logical defect on which he indicates he raises an independent objection. Furthermore, he points out that it is clear that the a quo reads each fact based on the theory it elaborated in the judgment, dismissing that the publication in question constitutes a direct offense against his client. He indicates that the judgment on the merits invokes the resolution issued by the Inter-American Court of Human Rights in the case [Name16] vs. [Name17] regarding the margin of tolerance applicable to a [...], however, he alleges that the a quo did not carry out greater consideration regarding what was argued in the debate concerning the scope of that tolerance threshold. In this sense, he indicates that the judgment established that whoever holds said public office may only bring criminal action when a direct offense has been attributed to them, an assertion that lacks basis. He adds that the position that the figure of the [...] is obliged to tolerate all public denunciations, criticisms, and complaints filed against their administration was also not supported, and that the a quo did not state the considerations it took into account to establish a difference between the protection of the right to honor of ordinary persons with respect to someone who holds the aforementioned public office. The appellant concludes that the position of requiring a direct offense for a [...] to be able to access the criminal protection of their right to honor is merely a subjective opinion that has no dogmatic or jurisprudential referent, to which it must be added that such position outlined by the a quo lacks logical and sufficient reasoning. In this sense, the appellant accuses that the criminal trial court in its judgment refers to the pronouncement issued in the case [Name18] vs. Name2042 by the Inter-American Court of Human Rights, however, it omits to specify that the quote it reproduces corresponds to the concurring vote of Judge [Name19], which is not equivalent to the position of the majority vote of said jurisdictional body. He adds that in the judgment in question, paragraphs 127, 128, and 129 of the resolution of the referenced Inter-American Court are cited, yet from their content the requirement of a direct offense to protect the right to honor of a [...] is not inferred, a criterion he qualifies as arbitrary “[…] not only because it does not refer to autonomous or sufficient arguments in its support to validate it, but because, regarding its effects, the unsubstantiated reasoning of the Trial Court empties the content and protection of the [...]'s honor. This is of special importance in the specific case because the judges also omit to rule on the falsehood or not of the accusations made by the accused [Name20] against the aggrieved party [Name [Name10]], when she then held the office of […] […]” (cf. pages 383 and 384). He requests that this ground of appeal be granted, the sentence and the debate that preceded it be annulled, and both be renewed before a different panel of the trial court. SECOND GROUND. The appellant alleges lack of reasoning in the judgment regarding the arguments that allow excluding, in the specific case, the concurrence of the exercise of the right to criticism. This is because he considers that the accused [Name12] based his actions on the assertion of falsehoods that he decided to publish. He accuses lack of reasoning because the a quo considered that in the instant case the accused acted in the exercise of a right to criticism, without considering or dismissing the arguments raised in this regard by the [Name6] and civil plaintiff in the trial, arguments according to which it is established that in this case such right to criticism did not exist, given that the defendant acted with full knowledge of the falsehood of the information he disseminated. He adds that the trial court ignored numerous resolutions of the Inter-American Court of Human Rights, the Constitutional Chamber, and the Third Chamber of the Supreme Court of Justice of our country, as well as of the Costa Rican Courts of Criminal Sentence Appeal, whose content excludes the exercise of the right to freedom of expression and criticism of public officials when it is based on statements that are false, thereby violating the regulation of Article 142 in relation to the provisions of Article 184, both of the Criminal Procedure Code, regarding the duty to provide reasoning for the judgment. Attorney [Name15] establishes that one of the central arguments on which the “Theory of the Case” of the [Name6] and civil plaintiff revolved consisted of explaining to the trial court the reasons why, in the instant case, the prerequisites justifying the application of the figure of the legitimate exercise of a right do not concur, which he emphasizes he exposed from the beginning of the adversarial proceedings, so that the a quo would pay attention to this aspect, an argument that, he points out, was similarly reiterated and broadly developed in the conclusions phase of the debate. In this regard, the appellant indicates that during the adversarial proceeding he alleged that in the sub judice there was an excess in the margins of freedom of expression by the accused [Name12], by virtue of having uttered and spread a series of falsehoods, which excludes the appropriateness of exercising the right to criticize a public official. Notwithstanding the foregoing, no position was issued in the text of the judgment regarding the theses defended by the [Name6], thereby generating defenselessness and violating the trial court's duty to resolve all aspects alleged in the adversarial proceeding, which, he alleges, violates the precepts established in this regard by the Inter-American Court of Human Rights in the judgment it issued in the case [Name21] and others on August 5, 2008. Specifically, attorney [Name5] points out that in the trial's conclusions he argued that the account of the accused [Name12] was not credible, since he himself acknowledged that his assertions spread on his “Facebook” profile were false, and he stated he had not verified them before carrying out their indiscriminate dissemination. He indicates that the claims he made regarding the point under analysis during the debate could only be known by someone who attended the trial, since someone who only reads the judgment will find no reference to the arguments he raised to dismiss the existence of the legitimate exercise of a right by the accused, all of which was improperly omitted from consideration in the appealed judgment, thereby violating the right to be heard and to obtain a timely judicial response due to non-observance of the duty to state the reasons for the criminal sentence in this case. He alleges that the essential issue omitted from assessment by the trial court was that in the instant case there was no right to criticize the [CED1], since the comment disseminated referred to false facts, which no public official is obliged to tolerate, not even someone holding the highest representation of the State, as was the case here with the [Name6] and civil plaintiff [Name443 [Name10]]. He indicates that during the debate, the reasons were established for which the [Name6] postulated before the trial judges that in the specific case the right to criticism was not exercised, but rather what occurred was an irresponsible assertion of falsehoods, which he considers was completely omitted from evaluation in the judgment under appeal. He adds that in “[…] the concluding presentation it was also argued that Mrs. [Name443 [Name10]] indicated that the publication contained false facts, that it was disseminated from the Facebook page of the accused [Name22], and transcended beyond that virtual community, to the point that she was confronted by the deputy chairing the Commission on Public Income and Expenditure of the Legislative Assembly, who requested explanations about the disseminated text, her response being that they were falsehoods regarding which they would take the pertinent legal actions […]” (cf. page 393). Furthermore, the appealing attorney indicates that at trial he explained to the criminal trial court that the Inter-American Court of Human Rights establishes criteria of legality, necessity, and suitability to delimit the protection of honor vis-à-vis freedom of expression, and that this jurisdictional body has stipulated that protection of the latter is not appropriate when falsehoods are asserted, and has also established that freedom of expression has limits and when they are transgressed, liability may be demanded for the abusive exercise of such prerogative.

In this regard, the appellant alleges that in the judgment on the merits, the trial judges did not analyze whether, in light of “inter-American” precedents, in the specific case the accused [Name7] incurred in falsehoods despite this being an aspect widely debated in the adversarial proceedings, nor did they set aside consideration of the jurisprudential precedent N° 1050-2002 of the Criminal Cassation Chamber, which establishes that the abuse of a right excludes the legitimacy of the use of freedom of expression. He indicates that the lower court (a quo) did not reason with respect to the arguments of the complaint previously pointed out, nor did it perform a partial citation of resolution N° [Telf2] of the Constitutional Chamber, using it only when convenient for its elaborated position, but disregarding the evaluation of the aspects encompassed at the end of the citation of said pronouncement, a segment of that resolution in which reference is made to the fact that falsehoods, rumors, or insidious statements that lack veracity are not part of the exercise of freedom of expression. Attorney [Name15] points out that “[…] It is unheard of that the Court indicated that the object of the trial was not whether at the end of her term Ms. [Name10 [Name10]] had acquired the property or if she had any participation in wind energy companies (cf. folio 365). This is absurd because precisely what was indicated in the complaint is that because the content of the publication is false, there was no right to indiscriminately disseminate a falsehood. Now, from the integral reading of the sentence, it is deduced that the Court ASSUMES that the defendant exercised that right, but it cannot be interpreted that, a contrario sensu, by having resolved in this way, it immediately excludes any other interpretation, such as the one proposed at trial by the [Name6] and civil plaintiff (…) As a decisive complement to the grievance, it must be considered that it was essential for the Court to clarify whether or not it was dealing with a text in which falsehoods were or were not affirmed. Instead of resolving this question, the judges opt for a single interpretation of the text, without taking into account that the offended woman categorically denied each of the statements made therein and classified them as false (lack of substantiation of her declaration), and that the accused himself insisted in his deposition that he did not take any measure to verify the source of the text, that he assumed it and disseminated it without verifying if it was true or not, and insisted at trial that Ms. [Name10 [Name10]] was corrupt […]” (cf. folios 403 and 404). The appellant concludes that the seriousness of the grievance he raises is verified by hypothetically including his arguments presented at trial that were not evaluated in the sentence, since had such aspects been analyzed, he estimates that the lower court (a quo) would have been forced to establish that the defendant's action was typical of the crime of defamation, and that the application of the defense (causa de justificación) of the legitimate exercise of the right to free expression was not appropriate. He requests that this ground be declared with merit, the sentence and the hearing that preceded it be annulled, and the reinstatement of both be ordered.

THIRD GROUND. Attorney [Name5] claims that the sentence lacks substantiation because the trial court used in its reasoning precedents from the Inter-American Court of Human Rights that are not applicable and bear no relation to the facts complained of against the accused [Name7], which contravenes the rules established in article 41 of the Political Constitution, as well as the provisions of articles 2, 6, and 142 of the Criminal Procedure Code. He argues that “[…] the central thesis of the sentencing court rested on arguing that in the case of public officials, especially those elected through popular vote, as occurs in the case of the [Name6], a greater threshold of tolerance must be exhibited for the criticisms and questioning of citizens. It is this reasoning that serves the trial judges to later conclude that the statements made by the accused, through a social network, had to be endured by my client. However, the lower court (a quo) relied on two resolutions from the Inter-American Court of Human Rights – which, by the way, is not a continental court as the judges imprecisely affirm, but rather a regional one – whose factual circumstances differ substantially from the case brought by Ms. [[Name Name10]]. In the judgments referred to by the court of merit, although the scope of freedom of expression and its collision with other fundamental rights were analyzed, the facts responded to situations very different from those submitted to the knowledge of the judicial authorities in this process. Hence, the doctrine incorporated into the contested ruling was inapplicable, which makes it a clearly unfounded vote […]” (cf. folios 406 and 407). In his argument, the appellant carries out a summary and exposition of the content of the resolution of the case [Name16] vs. [Name17] issued by the Inter-American Court of Human Rights on May 2, 2008. In this regard, he indicates that the crucial difference between that case and that of the [Name6] and civil plaintiff [Name10 [Name10]], lies in the fact that the former involved a value judgment or opinion about a judge's work, not an imputation of an illicit or at least ethically suspicious conduct, as occurred against his client. The appellant indicates that “[…] in relation to Ms. [[Name Name10]], a value judgment was not made nor was a critical opinion shared about her status, at the time, as head of State. What was done was to attribute illicit or ethically reprehensible conduct to her. The conclusion derived from the vote under study is that a public official has the obligation, as part of the debate in a democratic society, to receive attacks and negative and severe value judgments. However, this rigorousness in examining the performance of a State official, especially a high official like the one held by Ms. [Name10 [Name10]], does not cover the imputation of false, criminal, or immoral facts. This aspect. That was not included in the Court's judgment, was marginalized by the criminal trial judges to assert that the statements of the accused person were in accordance with what was established by the regional court when clearly it is not so […]” (cf. folio 409). On the other hand, attorney [Name15] carries out an exposition and summary of the resolution issued by the Inter-American Court of Human Rights on July 2, 2004, in the case [Name18] vs. Costa Rica. He indicates that said process brought against our country has notable differences from the criminal case processed against [Name7], which determines the existence of a defect in the substantiation of the sentence. In this regard, the appellant alleges that “[…] the regional Court concluded that no crime had been committed because the journalist who, in any case, has the public interest to inform, only reproduced information that was being generated in European media. Perhaps the crucial point is that both regional processes, which as they bring them closer together also distance them from the factual circumstances of the case against [Name12], revolve around statements or publications directed against acts of public officials in the exercise of their duties. In the specific case, value judgments were not made; information was not published that came from any source about the [[Name3]]. What were made were statements that questioned her moral integrity, based on conduct supposedly displayed by the complainant […]” (cf. folios 411 and 412). The appellant cites in his argument the ruling of the European Court of Human Rights issued on March 15, 2011, in the case of [Name23] against Spain. In this sense, he indicates that the most relevant aspect of said precedent, with respect to the case being judged in the specific case, is that “[…] the European judges established a line of examination when evaluating what was expressed by [Name23]. According to the Court of Human Rights, what was indicated by the Basque leader did not attack the personal life of the head of State nor his honor: ‘…the statements in dispute do not question the private life of the king or his personal honor (…) they did not imply a gratuitous personal attack against his person […. ]’ ” (cf. folio 413. The transcription is literal). Thus, he alleges that in the case of the accused [Name12], there was a questioning of the personal honor of the [Name6] or, in the terms defined by the European Court of Human Rights, a gratuitous attack against her person. This, given that a series of statements were published through a social network about the surprising and inexplicable enrichment of the [[Name3]], all while she was holding said position. Therefore, the appellant considers that such a factual framework differs from what was analyzed by the Inter-American Court of Human Rights in the two votes appreciated by the trial judges in the judgment on the merits. He adds that no information was shared about any investigation being carried out against his client, no value judgment of her management was made, and what was done was to attribute a specific conduct to her, to which must be added that according to common experience it is not conceivable that a person who has dedicated themselves to public service like the [Name6] and civil plaintiff [[Name3]], would have the economic capacity to lawfully obtain a property like the one [Name12] assured his client possessed. The salaries of public officials “[…] in no way allowed achieving a ‘millionaire life’ according to the words of the accused; hence the statement of Mr. [Name12] accounts for illicit enrichment on the part of someone who for almost two decades was a public official […]” (cf. folio 414). He indicates that in the subjudice case, what was dealt with was a businessman who published false and injurious information against his client, which is markedly distant from the discussion regarding the right to freedom of expression that was resolved in the precedents of the Inter-American Court of Human Rights that the lower court (a quo) improperly appreciated in the judgment on the merits. The appellant poses the following question in his pleading: “[…] For what reason did some statements harmful to honor, suggesting that a […] official enriched herself during her term, constitute the exercise of freedom of expression? That was the question the lower court (a quo) should have answered. That answer was not reflected in the contested sentence […]” (cf. folio 415). He charges that the grievance consists of the fact that to issue the acquittal sentence in favor of the respondent [Name12], the court of merit invoked and evaluated resolutions of the inter-American human rights system that have no factual relation to the facts subject to litigation, which implies the violation of the principle of derivation and sufficient reason and consequently the lack of substantiation of the sentence. The claims are meritorious. From the integral examination of the ruling, as well as the arguments raised by attorney [Name5], it is established that the challenges brought against the acquittal sentence issued in favor of the accused [Name7] are meritorious. This is because the judgment on the merits was not substantiated as legally proceeds and as required by articles 39 and 41 of the Political Constitution, and numerals 1, 142, 180, 181, and 363 of the Criminal Procedure Code. The extensive study of the descriptive, factual, intellectual, and legal basis of the judgment on the merits leads to the conclusion that the lower court (a quo) did not support its decision to acquit the defendant [Name7] of all penalty and responsibility for the crime of defamation complained of against him, pursuant to the strict application of the rules of sound judicial reasoning, nor pursuant to the due application of the criminal legal norms legally relevant for the solution of the present case. This conclusion rests on three essential axes of legal reasoning, which are set forth below.

A.- Analysis of the principal contents and foundations of the contested sentence. In order to be clear as to the scope of the judgment on the merits, it is necessary to specify and analyze the most important aspects based on which the trial judges acquitted the respondent [Name12]. Thus, the following is observed:

i.- The criminal court establishes that, based on the sentence subject to appeal, a novel jurisprudential line is erected – just as the appellant alleges – which will regulate the relationship of whoever holds the position of [...] vis-à-vis the citizens, regarding the boundary between the right to honor and freedom of expression.

ii.- The lower court (a quo) indicates that in order to “educate” the population regarding the use and abuse of social networks – mainly “Facebook” – it will define the legal nature of this type of network. In this sense, the trial judges indicate that “Facebook”, and social networks in general, are means of communication equal to any other already known, since from the moment third parties have access to the account or profile of a specific person, what is published is disseminated and is within the reach of several people. Thus, they conclude that it is clear that people cannot publish any manifestation through such a communication channel, and social networks are not excluded from the regulation provided in our legal system, so that whoever abuses their freedom of expression through that means is exposed to a criminal sanction, such that if they insult or offend another, or in their case falsely attribute the commission of a crime, the person can be criminally prosecuted for the crimes of slander (injurias), libel (calumnias), or defamation.

iii.- The trial court indicates that the analysis of the conduct complained of against [Name12], in order to define whether or not he abused his freedom of expression to the detriment of the honor of the [[Name3]], transcends the barriers of Criminal Law, since the discussion must be held in the field of Constitutional Law. Therefore, the trial judges consider that the principle of equality must be evaluated in the first place, according to which all persons are equal before the law, it being necessary to appreciate in every case that equal treatment must be given to those who hold the same condition, position, or situation. A contrario sensu, if there are persons who are not in a similar condition, position, or situation, they cannot be given the same treatment. The ruling establishes that the points set forth above are fundamental for the correct solution of the case, since the [Name6] [[Name3]] was the […] at the time of the facts at hand, a condition distinct from that of the rest of the people, and it was in that condition that [Name12] referred to the [Name6] in his “Facebook” profile. By reason of the foregoing, the lower court (a quo) considered in the ruling that, to determine the scope of the right to honor of [[Name3]], the investiture as […] that the [Name6] held at that moment must be taken into account, since it estimates that for this reason the content of her honor is not the same as that of the rest of the public officials, nor that of other Costa Ricans. In this sense, the criminal court indicates that all public officials are more exposed to criticism for having voluntarily assumed a position of such a nature, so that by agreeing to a greater exposure inherent in the post, they must also accept greater criticism compared to what those who do not exercise public office must tolerate. In this regard, the trial judges cite a precedent of the Inter-American Court of Human Rights issued on May 2, 2008, in the case [Name16] vs [Name17], in which, according to their appreciation, said Inter-American Court considered that “[…] the activities of public servants leave the domain of the private sphere to insert themselves into the sphere of public debate.

This threshold (…) is based on the public interest of the activities carried out […]” (cfr. folio 346 of the main file). In this regard, the *a quo* concludes the following: “[…] Note that the highest continental body for human rights establishes that in the Americas, public officials are more exposed to criticism, that this is inherent to the Nombre01 they voluntarily accepted, and that the activities they carry out are of public interest. However, it should be noted that these statements by the Inter-American Court have been produced within the framework of cases involving high-ranking public servants, but not of the highest rank as is the case in this complaint, the […]. It is clear that the highest-ranking public Nombre01 in our country is the […], it is a popularly elected position, it implies the hierarchy of the Executive Branch, whoever holds this Nombre01 exercises the national and international representation of the Costa Rican State, and is the person who directs the main institutions of the central government, including, for example, the Ministry of Security, the Ministry of Health, and the Ministry of Finance. These assessments are important because if we affirm with the Inter-American Court ‘...that in a democratic society public officials are more exposed to public scrutiny and criticism.’ (Case [Nombre24] vs. [Nombre17], idem), the exposure of the highest leader of the public function is even greater and, correlatively, public criticism must be even greater. Note that the Court is interpreting the Inter-American Court's jurisprudential line in accordance with the principle of proportionality, and if a greater level of criticism and exposure is inherent to a public official than to persons who do not exercise a public function, the graduality inherent in a fair, proportional, and reasonable judicial assessment determines that within the category of 'public official,' the level of tolerance for criticism must be greater according to the official's hierarchy. That is, if premise number one dictates that a public official must tolerate more criticism compared to those who are not public officials, as premise number two, it can be affirmed within the category 'public servant,' that the level of tolerance will be greater as the official's hierarchy is also greater. This premise is justified for the following reasons. A public servant appointed through standard administrative procedures—the civil service regime, for example—is not the same as a public servant appointed in national elections; the latter servant has a direct mandate from the Sovereign and has a Nombre01 of greater responsibility; nor is a public servant who does not make decisions the same as a servant who does make decisions; a public servant who directs or presides over a public institution is not the same as a public servant who works in the same institution but in a lower-ranking position. Therefore, the court cannot ignore the investiture of the party [Nombre6], since on the date the events occurred, Mrs. [Nombre10 [Nombre10]] was the […], therefore, although she was a public official like thousands of other people, she held the highest-ranking Nombre01 in the public sector, she held the representation of the Costa Rican State, she directed the policies of all public institutions under her mandate, and, therefore, she was in a special condition that the Court cannot ignore. The aspiration to justice obliges us to assess each case according to its own characteristics, since only in this way can an equitable decision be made that truly responds to the assessment of the facts, the evidence, and the personal conditions of the litigants; this is proportional and adjusted justice; the contrary would be generic, impersonal justice and, therefore, would not be justice. In this vein, the Court faces the decision of defining the content of the right to honor of whoever holds the Nombre01 of [...], in relation to the freedom of expression of citizens [...]” (cfr. folios 346 to 349. The transcription is literal).

iv.- In its substantive reasoning, the *a quo* transcribes the content of the publication made on the “Facebook” profile of [Nombre7] , namely: “[…] “[…] MILLIONAIRE” “... I am visiting the Nicoya Peninsula, and on these paradisiacal beaches, I ask about a beautiful estate. The local tells me that our […] Nombre12 acquired it for two and a half million dollars...”. Talking with some businesspeople about the million-dollar acquisition by the […], they tell me that the thing doesn't end there, but that she owns wind generation—that which is made with the wind—, so we have a […] Nombre13 finishing her mandate who has become quite an entrepreneur...”. “ It reminds me of the case of 'Cinderella,' but that was a fictional story from a fairy tale, so the case of [Nombre [Nombre25]] comes to my memory, who in five days of study at INCAE discovered the wheel and became a millionaire owner of yachts, planes, a life of luxury, and fine dressing. From Hatillo to Valle del Sol in an instant just by touching the ball. Now the leap is from Desamparados to Escazú. If that parallelism of touching the ball leaves a lot of gain without any effort, more than the fun of participating in the game, so I compare the instant wealth of the Lady with this player, whose entrepreneurship and business vision we applaud, that ease of paying millions of dollars, without us mortals finding an explanation in our daily lives where money is hard-earned over a whole life of effort and work...”. “... These instant riches astonish us, and we find no logical explanations. Now, maybe they read the Book of Secrets and discovered the short path to wealth. In any case, we congratulate the [Nombre [Nombre10]] who is preparing her exit from public office being a millionaire and possessor of material riches that cost any citizen a lifetime and public officials and footballers seem to achieve in just five days of touching the ball […]” (cfr. folios 348 and 349). In this regard, in the judgment on the merits, the *a quo* points out that the [Nombre6] [[Nombre3] ] considered the text to be defamatory because, from her perspective, it contains offensive and false statements that accuse her of illicit enrichment, since her salary for the Nombre01 of [Nombre443 [Nombre10]] that she held at that time, did not allow the purchase of an estate worth two and a half million dollars, and furthermore, the [Nombre6] considered that her honesty was attacked, since Costa Ricans could presume as true, facts that are not so. At this point in the ruling, the trial court refers to the content of the statement given at trial by [[Nombre3] ], and it appreciates that the [Nombre6] emphatically rejected her participation in wind energy generation, just as she denied being the owner of a property in Guanacaste worth two and a half million dollars. Next, the lower court judges assessed what the accused [Nombre12] stated in the debate as follows: “[…] Regarding the accusation, at trial the defendant [Nombre7] —in summary— accepted that he made the cited publication on his “Facebook” account, which was not drafted by him, that he does not know who drafted it, that he took it from the same social network, 'copied and pasted' it to his own account, making it public because he thought it was important that others knew about it. He said he never intended to damage the honor of Mrs. [Nombre6] and defined himself as an activist who has been responsible for denouncing actions by the government of Mrs. [[Nombre3] ] that he considered incorrect or illegal, for which he even filed several complaints before the Public Prosecutor's Office, the final results of which he is unaware of. He alleged that by publishing the [Identificacion1], he was exercising his right to expression, to inform and be informed. Based on his statement at trial, the issue of the authorship of the publication ceases to be relevant, since [Nombre12] admits to having adopted the content of the text as his own and also published it through his Facebook account. Furthermore, as demonstrated by the notarial certification provided by the [Nombre6], the cited account is publicly accessible to any user of this social network. The Court also considers it proven that when the text was disseminated, its content reached an indeterminate number of people, many of whom reacted by expressing their opinions and perceptions about it, included in the libel of the complaint, as well as in the notarial certification that corresponds to a printout of [Nombre12]'s “Facebook” account, specifically the comments on his publication […]” (cfr. folio 360). After taking for granted that the publication in question was made by the accused [Nombre12] and that it was disseminated to an indeterminate number of third persons, the lower court judges proceed to refer to freedom of expression as the normative support for the formation of free public opinion, typical of a thinking, analytical, and critical people of reality. Likewise, they point out that a democratic State that respects the Political Constitution must facilitate its inhabitants' effective participation in public debates, giving broad content, but not permissive, to freedom of expression, so that it allows, in turn, to fulfill an oversight function of political power and the management of public affairs. In this regard, the ruling cites what the judges state as a precedent of the Constitutional Chamber of the Supreme Court of Justice that refers to the right to expression, although no identifying data for such a pronouncement is provided. Next, the lower criminal court establishes that the accused distributed the text in question to an indefinite number of people, thereby reporting two facts—the purchase of the property and the participation in the wind energy company by the [Nombre6]—, as well as providing his opinion in this regard, which [Nombre443 [Nombre10]] indicated affected her honor, and without carrying out a deep assessment of the aforementioned points, the *a quo* proceeds to establish that freedom of expression and the right to information are not unrestricted, since the latter find a limit in the honor of persons regulated in Article 41 of the Political Constitution, the content of which the judges consider must be read in conjunction with the provisions of Article 33 of our Magna Carta, which recognizes the value of human dignity, to which they indicate the criminal protection of the right to honor must be added through the crimes of libel, slander, and defamation contemplated in the Penal Code. Thus, the lower court judges conclude that every person has the right to honor, understood as the esteem, opinion, or consideration that others have of them. The *a quo* establishes that any manifestation that affects a person's honor is, in principle, capable of being considered a crime, and that freedom of expression does not cover certain types of expressions and does not justify them, namely those that, despite having the form of thoughts, ideas, or opinions, turn out to be phrases unnecessary to externalize what is going to be said, and, furthermore, those that are directly insulting or that expressly and unequivocally attribute the commission of a crime. In this sense, the trial court invokes the content of resolution No. [Telf2] of the Constitutional Chamber of the Supreme Court of Justice, a pronouncement in which the scope of the right to freedom of expression is delimited. Next, the judges point out that, according to doctrine and jurisprudence, honor has two aspects: the subjective, which corresponds to the concept that a specific individual has of themselves, their self-esteem or self-respect; and the objective, which is the image that the subject projects to others, and is therefore composed of the way in which others perceive that image. Based on the foregoing, the *a quo* establishes in its analysis that an expression or manifestation constitutes a crime of defamation or any other offense against honor when the insult affects said legal right from the objective perspective, and it must be a literal, express, or axiomatically understood insult. Based on the foregoing, the lower court judges indicate that in the specific case, they choose to assess and take into consideration the investiture that the [Nombre6] [[Nombre3] ] held on the date when [Nombre7] made the publication in question on his “Facebook” account, “[…] this in order to outline a jurisprudential line regarding the content of the right to honor of public servants in general, and of whoever holds the […] in particular. Only in this way, as will be seen, can it be established which manifestations are covered by the normative justification granted by freedom of expression, and thereby resolve the case submitted for study to this jurisdictional body. The [Nombre6] [Nombre10 [Nombre10]] at the time of the events, held the office of […], and was therefore a public servant. But the statement cannot remain there. The [Nombre6] [Nombre [Nombre10]] held the highest-ranking public post, it was a popularly elected post that gave [Nombre [Nombre10]] not only more administrative responsibilities of the State, but also the maximum exposure to public examination of all her actions. And this is so, since in the view of the Court, every public official, especially those of higher rank, and categorically the one of highest rank, namely the […], is bound by a paramount duty of transparency, which 'implies access to public information and the broad, permanent, and impartial dissemination of public decisions. Only in this way is the Principle of Maximum Disclosure fulfilled, which establishes the presumption that all information is accessible, subject to a restricted system of exceptions (Tiffer [Nombre26]. The constitutionality of the crimes of libel and defamation in relation to criticism of public officials), and the obligation of accountability also comes into play, in the same hierarchical proportion mentioned, this latter duty enshrined in numeral 11 of the Political Constitution, which obliged [[Nombre3] ] to endure all public denouncements, criticisms, and complaints filed about her person and her management; yes, about her person, because by exercising the highest-ranking office in the Executive Branch, that investiture transcends private life precisely because of the principles of transparency and accountability. In accordance with the doctrine of transparency, public activity must be and appear as a 'Glass House' […]” (cfr. folios 354 and 355. The transcription is literal). By reason of the foregoing, the lower court judges reiterate that the [Nombre6] [[Nombre3] ] was subject to a higher threshold of tolerance than the rest of the public officials, in relation to thoughts, ideas, or questions about her conduct, since she voluntarily placed herself in public service, for which an impeccable public and private conduct corresponds to her. In its argumentation, the trial court reiterates that, according to the principles of proportionality and equality, the higher the public office one occupies, the greater the tolerance by reason of the duties of accountability and transparency to which the public official is subject, and in this regard, certain paragraphs of the resolution issued by the Inter-American Court of Human Rights in the case [Nombre18] vs. Costa Rica are cited. In the analysis proposed by the *a quo* in the judgment on the merits, it carries out a reasoning that it defines as the “ideological basis” of its ruling, indicating the following in this regard: “[…] In the first whereas clause of this judgment, it was stated that this was a very important case. To what was said then, the Court adds the following considerations that aim to constitute the ideological basis that supports this ruling. In this judgment, the Court faces the difficult decision of interpreting social reality to establish, based on it, what type of State and society constitutes the aspiration of the majority of Costa Ricans. In attempting to do so, the Court will not impose its position without more, but we will try to base it on a reasonable reading of reality in recent years. Premise number one: in 2005, as a rapid response to the criminal complaints that involved […] and high-ranking officials of State institutions, the Law Against Corruption and Illicit Enrichment was enacted. This regulation created new crimes, such as influence peddling, and reformed others already existing, such as embezzlement and misappropriation, with the aim of sending a clear and resounding message to society: from the heart of the Legislative Assembly, the representative body of the popular will, corruption by public servants was rejected. This legislative voice constitutes the first normative historical premise used by the Court, to affirm that from a normative point of view, in the last decade a process of transformation of the current law began, which is invigorated today by other laws that have strengthened the State's fight not only against illicit enrichment in general, but also against organized crime that infiltrates the public function. In this way, from the legislative sphere, there is a call for transparency in the public function. Premise number two: always, with the aim of giving full force to the duty of transparency in the public function, during the last decade, the strengthening of state control bodies has been evident. The Office of the Ethics Attorney was created so that 'the State's lawyer' not only deals with the strict legality of public actions, but also to incorporate the ethical and moral duty into the debate, which is also an expression of transparency. The Comptroller General of the Republic has also had a greater role, through rigorous control of the financial reality of public officials. It is highlighted here that some public officials have the duty to file a sworn declaration of their assets, and moreover, what is most important for the Court is that in the last decade, the scope of this obligation has increased. Indeed, over the years we have witnessed that more and more public positions are added to the list of servants who must file a declaration of their assets – their assets and liabilities –, and that the declaration increasingly intends to be more detailed and comprehensive of the servants' financial reality, by including, for example, shareholdings in corporations and de facto usufructs. Incidentally, this Court is a clear example of this whirlwind, two years ago the Judges of the Republic – happily – also file a sworn declaration before the Comptroller General of the Republic. Note that with this second premise, the Court wishes to illustrate that the national reality is evident: it has been sought to give effective content to the duty of accountability, always with the aim of guaranteeing transparency in the functions of those of us who voluntarily serve the country in the public function. Premise number three: citizen complaints and public denouncements led by the media are also a reality that the Court wishes to make visible in this ruling. In the last decade, the Courts of Justice have processed a large number of complaints from citizens against public officials. That is, the citizenry assimilated the importance of transparency in the public function, and has assumed a preponderant role in the criminal investigation of public servants' conduct. Without the outcome of those processes being of interest now, or their specific citation, the truth is that the Court interprets a reality that all people have been able to know in recent years. To this dynamic of citizen complaints, the active role of the media has joined, which has also undergone a process of change, fundamental in the consideration of this jurisdictional body. In the last decade, the majority of the media set aside an exclusively informative journalistic work, to introduce alongside it an investigative function. This is evident; now the press is not limited only to informing, but investigates, seeks the news. In that search, it has found fertile ground in the public function, and a large number of public servants have been investigated, with the aim of exposing and denouncing possible criminal acts. In the Court's view, it is not a valid argument to affirm that this new journalistic paradigm is due to the interest of generating higher audience percentages; it is reasonable that they are due to the interest awakened in public opinion by the denouncement of possible crimes committed by public servants; the important thing is that these percentages increase precisely because people's interest in this type of investigative journalism is due to the collective's interest in transparency and the accountability of those who exercise the public function. These premises that the Court has elaborated are apt to affirm that there is a social reality in Nombre2042 and that this constitutes the ideological basis of this ruling. In this judgment, the Court must express its legal reasons, based on the answer to a fundamental question: what type of State and society does the majority of Costa Ricans want? Is a strong State wanted, where the honor of public servants has greater legal protection than freedom of expression? Or is a Constitutional State wanted, where there is a fair proportion between the honor of public officials and the freedom of expression of other Costa Ricans? Based on the premises set forth by the Court, we consider that a just decision in accordance with social reality and constitutional parameters, is one where, without leaving the honor of the person who exercises the […] unprotected, greater protection is afforded to the freedom of expression of Costa Ricans […]” (cfr. folios 358 to 360 of the main file. The transcription is literal).

Starting from what the trial court (a quo) presents as the "ideological basis" of its judgment—which it extracts from its particular reading of the socio-political reality of our country—it specifies the essential aspect or pillar on which it sustains its ruling, identifying a parameter—which it deems corresponds to the philosophical platform it develops in its reasoning—against which it sifts the expressions made by the defendant in the publication that the [Nombre6] [Nombre [Nombre10]] considered harmful to her honor, and which led it to consider that the content of the text disseminated on the Facebook profile of [Nombre12] does not affect the honor of said [Nombre6]. Thus, this parameter is defined by the trial court (a quo) as follows: “[…] whoever holds the […] will be a victim of a crime against their honor, solely and exclusively when someone issues a statement, idea, thought, or opinion that is expressly and unequivocally insulting, defamatory, or slanderous, even if it is linguistically irritating, annoying, suggestive, and even sarcastic. In other words, all expressions that, although annoying or irritating to the honor of whoever [...], are justified as long as they are not openly insulting or defamatory per se, and as long as the attribution of a crime is not the only reasonable inference that can be extracted from the statement. With this panorama, a very careful reading of the facts of the complaint must now be made, first to determine if the threshold of objective criminality is reached—that is, express and sole defamation or slander—and second to establish if the text contains a critical opinion or expression of thought that exceeds the limit of what a [...] must tolerate […]” (cfr. folio 360 of the summary). In this manner and under this parameter, the trial court conducts an analysis of the facts comprising the complaint discussed in the case at bar (subjudice), concluding that they contain no explicit insult or word that unquestionably constitutes an offense, nor a concrete and unequivocal attribution of a criminal act to the [Nombre6] [[Nombre3] ]. Thus, when analyzing the content of point four of the complaint, the trial court considers that the defendant [Nombre12] suggested, as “a possibility,” that the [Nombre6] may have acquired a property irregularly, in the sum of 2.5 million dollars, with the judges estimating that it is valid to interpret that the [[Nombre3] ], with her income, could not acquire such an expensive property. Despite this assertion, the trial court (a quo) indicates that this is only one of the possible inferences to be derived from the text in question, concluding that there is no imputation expressly and unequivocally capable of affecting the objective honor of the [Nombre6]. The trial court concludes that the objective element of Article 146 of the Penal Code does not exist, as it deemed that the existence of “suitable species” (especies idóneas), as a synonym for insult or offense, was not verified. On the other hand, when examining point five of the complaint, the criminal court, following the same parameter indicated above (supra), considers that the [Nombre6] [[Nombre3] ] makes her own inference, which is also not the only one that can be deduced from the text of the complaint, thereby ruling out the existence of any crime in the actions of [Nombre12]. Regarding the sixth fact of the complaint, the trial court (a quo) establishes that [[Nombre3] ] deemed that, within its content, there is a denigrating statement to her detriment, because the defendant linked her to a former soccer player who, at that time, was being investigated by the Public Ministry. In this regard, the trial judges considered that a textual reading of the phrases encompassed in the point of the complaint stated above (supra) contains no “pejorative qualifying adjective” toward the [[Nombre3] ], nor does it directly and unequivocally impute any crime to her. In this sense, it is established in the decision on the merits that “[…] The inference made in the complaint is again a conclusion, a personal, respectable, and valid appreciation, consistent with logic but not literal or unique. Note that [Nombre [Nombre25]], a well-known former soccer player, who at the time of the publication by [Nombre12] was linked in the media to an investigation for money laundering—does not have a conviction against him that identifies him as the perpetrator or participant in a crime, so it is also not valid to conjecture that the conduct of [[Nombre3] ] is equated with that of a criminal, as the [Nombre6] erroneously does. Without a doubt, [Nombre12] suggests that just as [Nombre [Nombre25]] could have become illicitly enriched, being a person under criminal investigation, [[Nombre3] ] could also have become enriched in the same way; however, this is not the only reasonable inference drawn from the text of the complaint. If that were the only conclusion, the unequivocal suggestion of [Nombre12], the Court's conclusion would be different; however, the defendant also suggests other possible scenarios, and in doing so, he does not formally commit a crime but rather harshly questions something that he believes should be clarified by the then [Nombre [Nombre10]]; in sum, his conduct is not only not typical of any crime, but is also justified in the legitimate use of his freedom of expression […]” (cfr. folio 363. The transcription is literal). With respect to point seven of the complaint, the trial court deemed that [Nombre [Nombre10]] considered it offensive because, in her view, it was said against her that she possessed a “sudden and illegal fortune.” According to the decision on the merits, the referenced segment states the following: “[…] These instant riches astonish us and we find no logical explanations. Now, perhaps they read the Book of Secrets and discovered the shortcut to wealth. In any case, we congratulate the [Nombre [Nombre10]] who is preparing to leave public office as a millionaire and in possession of material riches that for any citizen takes a lifetime to acquire, and for public officials and soccer players, it seems just five days of touching the ball […]” (cfr. folio 363). In analyzing the text described above, the trial court (a quo), under the lens of its parameter indicated above (supra), considered that in this segment there is no word or sentence whatsoever that constitutes an insult, opprobrium, or ignominy, nor is [Nombre [Nombre10]] identified as the owner, recipient, or creator of an illegal fortune. Thus, the criminal court concludes that it is another personal process of understanding by the [Nombre6], since the referenced statement allows for a “different apprehension” from that derived by [Nombre [Nombre10]], which it qualifies as sarcastic on the part of the defendant [Nombre12], since he refers to the “Book of Secrets” and expresses congratulations to the [Nombre6]. In this sense, literally in the appealed resolution, the judges considered the following: “[…] There is no doubt that the publication by the defendant [Nombre12] is written in an ironic, sarcastic, and caustic tone, and that its integrated reading, along with prior knowledge and prejudices, can be shocking, such that the annoyance it has caused the [Nombre6] [Nombre [Nombre10]], as she narrated at trial, is understandable. However, neither the literal meaning of the words used by [Nombre12], nor their context, contain defamations, nor is the commission of a crime the only reasonable inference from the insinuations the defendant outlined in his publication. As was analyzed, the text does not insult or offend the decorum of [Nombre [Nombre10]]; the suggestion could be inferred that she committed a crime, but that suggestion is not the only one the defendant makes, and from this the Court infers that there was no injury to the honor of [Nombre [Nombre10]], who, as [Nombre [Nombre10]], consequently had to tolerate those suggestions, yes, all of them, and not adopt just one to seek the conviction requested in the closing arguments of the debate […].” v.- Another aspect developed in the judgment and of significant weight in the resolution of the case at bar (subjudice) concerns the trial court's consideration that [Nombre7] was not obligated to prove that [Nombre [Nombre10]] had purchased the property in question, nor that she indeed held stakes in wind-power generation companies. This was outlined by the trial court (a quo) based on two reasons: “[…] the first is that neither one thing nor the other are, per se, defamatory statements, much less slanderous, and secondly, because from a comprehensive reading of the text of the complaint, the Court infers there is a direct relationship between those two events exposed by the defendant, and his opinion regarding them; that is, [Nombre12] reported two facts with the sole purpose of opining on them. Therefore, if the Court were to give merit to the claim of [[Nombre3] ] and require that [Nombre12] should have had to prove the two facts to obtain an acquittal, it would render nugatory the free expression held by the person who at that time exercised the […], and due to that condition, [Nombre12] first reported two facts that caught the attention of the public of the [Nombre6], and based on that, he expressed his opinion […]” (cfr. folio 364 of the summary. The transcription is literal). Regarding the reasoning set forth above, on the basis of which the trial court downplayed the truth or falsity of the facts encompassed in the publication disseminated by [Nombre12], the trial judges considered that the text of the complaint is not the best example of serious, well-supported information, nor the exposition of an elaborate thought or a profound critique by [Nombre7]. Notwithstanding the foregoing, they estimated that the content of the text in question is indeed characteristic of what the Political Constitution empowers all citizens to do in the exercise of the right of expression to a person who holds the position of [...], which, due to that “voluntarily accepted condition,” they are compelled to tolerate, provided they are not expressly offended, nor is the commission of a crime the only suggestion reasonably derived from a comment, opinion, or publication made by a citizen. Based on the foregoing, the trial court (a quo) concluded that the action carried out by [Nombre7] is atypical, since the ruling deemed that it does not contain a “suitable species” (especie idónea) to affect the honor of the [Nombre6], meaning it is also impossible to reach the corroboration of the subjective elements of the crime. The trial court adds that the defendant acted under the protection of a fundamental right, namely freedom of expression, since, despite using a strong, sarcastic, and undoubtedly annoying text to express his opinion based on the facts he took as a basis for his statement, it does not unequivocally emerge from the text he published that the [Nombre6] committed a crime; rather, several possibilities arose, which determines that the conduct of [Nombre12] is not unlawful by virtue of the special condition of [...] the [Nombre6] [[Nombre3] ], a situation that required a very wide margin of transparency and accountability from her, all of which the trial court (a quo) assessed to rule out, in this instance, the excessive exercise of the right of expression. Finally, the court closes its analysis to acquit [Nombre7], stating the following: “[…] The national author [Nombre27], in the article cited above, affirms that when a collision is detected between the individual right to honor of a public official and the collective right of expression, prevalence must be given to the latter, in application of the principle of minimal criminal law, a statement the Court shares, and in the task of establishing this line between the abuse of the right of expression and its correct use, it has deemed that the text at hand falls within the line of what is considered not to be abuse. Therefore, [Nombre7] is acquitted of all penalty and responsibility for the crime of DEFAMATION to the detriment of [[Nombre3] ]. This judgment is issued without special condemnation in costs. The costs of the process shall be borne by the State […]” (cfr. folio 367). The examination and description of the aspects considered in the decision on the merits to acquit [Nombre7] allows for clarity and a complete understanding of the flaws in the ruling, which entail the defect of lack of proper reasoning being claimed and which is upheld in this pronouncement. Next, legal aspects of an essential nature for the correct resolution of this case will be set forth, and then the defects in the trial court's reasoning that violate the rules established in Articles 39 and 41 of the Political Constitution, as well as those stipulated in Articles 1, 142, and 184 of the Criminal Procedure Code, will be pointed out.

B.- Legally relevant aspects for the resolution of the case in accordance with the Law. The present case has two particularities that must necessarily be assessed with care and rigor for the correct legal resolution of the litigation at hand, namely: 1.- that the [Nombre6] [Nombre [Nombre10]] held the position of [...] on the date that [Nombre7]—the defendant—published on his Facebook profile the text accused of being defamatory; 2.- that the facts subject to judgment are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals their importance for the social and individual development of each of the inhabitants of our country, namely: i.- the right to honor and; ii.- the right to free expression. In consideration of and under the prism of these two essential pillars of the matter at hand (sublitem), the legally relevant and necessary aspects for resolving the case in accordance with the Law must be defined. Thus, we proceed to identify such premises.

b.1.- Normative legal framework. First, it is necessary to establish the normative framework that is linked to the facts being judged and that must be considered and applied for their proper understanding. In this way, the regulation that forms part of the block of constitutionality related to and regulating the subject matter in question must first be defined, being the following: i.- Article 11 of the Political Constitution; Its regulation governs a principle of an essential nature for the due application of criminal law—and undoubtedly for the specific case—namely the principle of legality.

In said constitutional precept, the following is stipulated: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) Public officials are mere depositaries of authority. They are obligated to fulfill the duties the law imposes upon them and may not arrogate faculties not granted therein. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability for their acts is public. The Public Administration in a broad sense shall be subject to a procedure of evaluation of results and accountability, with the consequent personal liability for officials in the fulfillment of their duties. The law shall indicate the means for this control of results and accountability to operate as a system covering all public institutions. (Thus amended by Law No. 8003 of June 8, 2000) (…)”. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Another essential aspect for the resolution of the case, derived from Article 11 of the Constitution, is the duty of accountability of public officials and the demand for personal liability in the fulfillment of their duties. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- Article 41 of the Political Constitution. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">This precept establishes the right to honor with constitutional rank, that is, it is granted the status of a fundamental right, hence the relevance this norm holds for resolving the merits of the litigation being heard in the present case. Said article establishes: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) Resorting to the laws, all must find reparation for insults or damages they have received in their person, property, or moral interests. [They must be] done prompt, complete justice, without denial and in strict conformity with the laws (…)”.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Another article of our Political Constitution whose regulations are applicable and important for the resolution of the present case is that established in its numeral 28, which regulates the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) No one may be disturbed or persecuted for the expression of their opinions or for any act that does not violate the law. Private actions that do not harm public morals or order, or that do not harm a third party, are beyond the reach of the law (…)”.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iv.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Furthermore, we have Article 29 of our Magna Carta, which protects as fundamental rights freedom of expression, information, and press, which are undoubtedly directly linked to the event complained of in the present criminal case. Literally, said norm regulates the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) All may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law (…)”</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">. Likewise, it is necessary to specify the regulation of Conventional Law that is linked to and must be assessed in the resolution of the present case, which is the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.- Article 11 of the American Convention on Human Rights. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">This norm expressly recognizes the protection of a person's honor and dignity as a human right. Thus, the following is provided: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) Protection of Honor and Dignity. 1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference in his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation (…)”</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Also, as part of the “conventional block” that governs our legal system, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 19 of the International Covenant on Civil and Political Rights</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> expressly recognizes the right to freedom of expression and information, these rights being regulated as follows: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals (…)”.”</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">In the same vein, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 13 of the American Convention on Human Rights</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> stipulates the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) 1. Everyone has the right to freedom of thought and expression. This right includes 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 through any 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 and be necessary to ensure: a) respect for the rights or reputations of others; or b) 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 other means tending to impede the communication and circulation of ideas and opinions (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iv.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">A norm related to those previously set forth and relevant to the decision in the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">subjudice</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> case is that provided in Article 19 of the Universal Declaration of Human Rights, which establishes the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (…)”.”</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">On the other hand, within the legal sphere of our legal system, a series of regulations exist that are of vital importance for resolving this complaint according to Law, which are the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.-</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 146 of the Penal Code</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> defines the crime of defamation, which is precisely the punishable act alleged to have been committed by the accused [Name7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">. Said article establishes: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) Defamation. Whoever dishonors another or spreads statements suitable for affecting their reputation shall be punished with a fine of twenty to sixty days (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Thus, it is clear that the fundamental right to honor is at stake in the resolution of the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">subjudice</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> case, with the particularity that a rigorous assessment of the right to freedom of expression protected in the higher legal norms set forth </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> is also important for this purpose; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">The regulation contained in </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 25 of the Penal Code</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> is directly linked to the subject matter under discussion, specifically, regarding the legitimate exercise of the right to freedom of expression. Its regulation provides the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) Compliance with the law. Whoever acts in compliance with a legal duty or in the legitimate exercise of a right does not commit a crime (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">This ground for justification (causa de justificación) is of utmost importance in determining, in a case such as the one being resolved, whether criminal liability exists or not for the dissemination of facts complained of as harmful to honor. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Also legally relevant in the present case is the normative content of </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 22 of the Civil Code</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">, since this expressly regulates the prohibition of abuse of a right, a provision linked to freedom of expression according to the norms that recognize and protect such fundamental right in the legal instruments that make up the block of constitutionality, as set forth </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">. Said article provides the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) The law does not protect abuse of a right or its antisocial exercise. Every act or omission in a contract that, due to the intention of its author, its purpose, or the circumstances in which it is carried out, manifestly exceeds the normal limits of the exercise of a right, causing harm to a third party or counterparty, shall give rise to the corresponding compensation and the adoption of judicial or administrative measures to prevent the persistence of the abuse (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iv.-</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Furthermore, by virtue of the special personal status of [Name6] [[Name3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">], it must be appreciated that the General Law of Public Administration regulates provisions related to the substantive issue, which are relevant for resolving the case. Firstly, Article 11 of the cited law regulates the principle of legality as an essential guiding principle for the actions of public officials, stipulating the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) The Public Administration shall act subject to the legal system and may only carry out those acts or provide those public services authorized by said system, according to the hierarchical scale of its sources. An act expressly regulated by a written norm shall be considered authorized, at least regarding its motive or content, even if imprecisely (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">For its part, Article 113 of the General Law of Public Administration provides the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) 1. The public servant must perform his duties in a manner that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered persons. 2. The public interest shall prevail over the interest of the Public Administration when these are in conflict. 3. In assessing the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, to which mere convenience may in no case be placed above (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Another relevant legal norm is Article 114 of the General Law of Public Administration, which establishes: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">“(…) 1. The public servant shall be a servant of the administered persons, in general, and in particular of each individual or administered person who relates to him by virtue of the function he performs; each administered person must be considered in the individual case as a representative of the community on which the official depends and for whose interests he must watch. 2. Without prejudice to what other laws establish for the servant, any act, fact, or omission that by his fault or negligence causes unjustified or arbitrary obstacles or hindrances to the administered persons shall be considered, in particular, irregular performance of his function (…)”.” </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">The legal framework set forth contains the provisions that must be considered and applied in the resolution of the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">subjudice</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> case, which, as previously noted, presents two particularities of great legal relevance that must necessarily be assessed to render the decision that corresponds according to Law, these being: that [Name6] [Name [Name10]] held the [position] of [description] at the time when [Name7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">published on his personal “Facebook” account the text complained of as defamatory in the present case; and that the facts subject to judgment are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals their importance for the social and individual development of each inhabitant of our country, these being: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">the right to honor, and; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">the right to free expression. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">Thus, from the study and application of the norms indicated </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">supra</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">, it is determined that in the present case there exists what can be described as a kind of “friction” between the fundamental rights to honor and freedom of expression, regarding which it must be expressly indicated that, despite such a situation, they are not mutually exclusive. This, because what is determined in this sense, based on what is regulated in our legal system, is that both fundamental rights are closely linked to one another, since both the right to honor and freedom of expression are essential for the individual and social development of every person, to which it must be added that freedom of expression possesses an essential quality from a political-institutional and social point of view, which is that the protection and respect of such a right are absolutely necessary to guarantee the structuring, validity, and development of a society based on a Democratic State, such as the one framed in our Political Constitution.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">Thus, the provisions contained in the referenced normative instruments allow establishing that it is not feasible to think or consider that one of these human rights is of a higher degree or must be applied to the absolute detriment of the other, since what is appropriate in order to duly guarantee and protect both human rights, in accordance with the precepts of our legal system, is their equal application, and in the event of a collision between the two – by virtue of their special connection – what is appropriate is to assess the objective and subjective circumstances of each specific case, in order to rationally and proportionally modulate the value that should be assigned to the right to honor with respect to freedom of expression in a particular matter of criminal legal relevance.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> It is important to complement the previous idea, such that in addition to the considerations specific to the particular case regarding the “modulation” of the referenced fundamental rights, the scope or ambit of each of these fundamental precepts must also be assessed and carefully defined. This is to determine whether, in a specific case, the right to free expression was overstepped or “exceeded” its legitimate scope of protection. The foregoing is important because, normally, the right to honor will be affected by third-party expressions, opinions, or criticisms, but that affectation – by itself – cannot be the sole parameter to consider, since it must also be assessed and defined to what extent honor and decorum – in the case of public officials – must tolerate such criticisms, so that it is not only sufficient to “modulate” the specific sphere of protection of one or another human right, but limits and scope of such rights must also be set. The foregoing is supported by the objective and comprehensive study and analysis of the enunciated regulations, an analysis that leads to the conclusion that freedom of expression cannot be limited or restricted </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a priori</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">, which would imply that such restrictions translate into a </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">prior censorship</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> that would denature and, in turn, mean the emptying of the content and effectiveness of freedom of expression, which is absolutely harmful for the proper development and validity of a Democratic State of Law. From the regulations set forth, as well as from the legal nature and purposes of freedom of expression, the pertinent course is that the limits on its exercise occur </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a posteriori</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">, if and only if, in cases where an abusive use of freedom of expression has occurred that exceeds its normative content, and which implies, in turn, the violation of other fundamental rights, as can occur with respect to the right to honor, with which it has already been indicated that the right to free expression is closely linked. Consequently, it is not appropriate to establish as an absolute rule that the right to freedom of expression will prevail in every case and without any limit over the right to honor; what is legally appropriate is to consider and define, in each specific case, the weight or value corresponding to one or the other, in order to adequately guarantee, and in accordance with constitutional parameters, the validity and effective protection of both fundamental rights under their adequate balance and recognition. The foregoing is of utmost legal relevance for the resolution of the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">subjudice</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> case in accordance with Law and to guarantee one of the fundamental pillars of criminal due process, which is the right to a just sentence subject to legality, as established in the renowned Resolution No. 1739-92 of the Constitutional Chamber of the Supreme Court of Justice. Specifically because, as previously established, [Name6] [Name443 [Name10]] held the [position] of [description] at the time the facts subject to judgment occurred.</span> Such a situation introduces another essential theme in the analysis of the *sub judice* case, namely, the condition of public official and the obligation that, by virtue of such quality, exists towards the administered public in general, so that by reason of the provisions of the principles of legality and accountability, anyone who holds the position of public official has greater responsibility in the exercise of the powers inherent to their investiture, just as they are subject to greater scrutiny and oversight in the exercise of public function, a parameter that ultimately gives a special nuance to the fundamental right to freedom of expression *versus* the right to honor. Thus, it is clear that by reason of the principle of accountability derived from Article 11 of the Political Constitution, as well as from Articles 11, 113, and 114 of the General Law of Public Administration, whoever is a public official and exercises a position of such nature, whether by popular election or any other type, by virtue of their condition as a public official and for having voluntarily opted for the management of a position of that category, is obliged to bear a higher level of tolerance in the scrutiny and oversight of the exercise of their office, as well as in the performance of their actions—even of a personal nature—that are directly or indirectly linked to, affect, or have an impact on the management of their public function. By reason of the foregoing, there is no doubt that whoever holds a position like the one held on the date of the events by [Nombre6] [Nombre [Nombre10]], that is, that of the […]—and in general anyone who occupies or exercises public function—has the duty to submit to—and accept—greater control in the exercise of their functions, not only by the organs or formal mechanisms created for that purpose, such as, for example, the Office of the Comptroller General of the Republic (Contraloría General de la República), but also—and to a highly important degree—by the means of informal control and oversight, such as the press and public opinion in general. Thus, it is guaranteed that the administration of the assets and resources of the State—which in reality belong to all the inhabitants of the country and have been delegated to public officials for their proper governance—is carried out in accordance with the purposes and with the efficiency required by law, on the part of those who exercise some public office. In turn, the effective safeguarding and validity of the democratic State are protected, in which prior restrictions—or of any other type—on freedom of expression as a means of social control and domination are in no way permissible, it being rather that in a democratic scheme like the one governing our country, freedom of expression must be guaranteed as a form of control over the exercise of public power. In this way, and specifically, whoever exercises the office of the […], is subject to a higher level of tolerance in the scrutiny of their functions, which undoubtedly covers aspects pertaining to the exercise of freedom of expression with respect to the right to honor of the […] or the […], so that whoever holds the office is subject to criticism, questioning, opinions, or statements that are directed at or based on the exercise of their public function or that are directly or indirectly linked to their condition as a public official and to the powers they perform. Notwithstanding the foregoing, and it must be established from the outset, the interpretation of the rules *supra* set forth carried out by the criminal trial court in the judgment on the merits is not legally admissible. This is because such derivation derives from a subjective interpretation of the Costa Rican political-social reality on the part of the trial judges, a position according to which they define an ideological basis for their decision, which, as they expressly state in the ruling, supports the essential parameter based on which they resolve the merits of this case, that is, that the judges appreciate or consider that whosoever occupies the […] must bear or tolerate even greater limitations on their right to honor compared to the rest of the public officials, regarding the exercise of freedom of expression, so that only direct offenses to such fundamental right or the reference to facts that expressly constitute a crime would be the scenarios in which the unlawful violation of the right to honor of the […] [Nombre04][…] could occur, thereby dismissing the impact on the right to honor in the specific case of the [Nombre6] [[Nombre6], [Nombre443 [Nombre10]]]. In this regard, the study and interpretation that correctly corresponds under the Law of the normative framework previously defined does not allow establishing that it is expressly or tacitly regulated that the level of tolerance of whoever holds the office of the […] of the […] is different from that of the rest of the public officials who are members of the Supreme Branches of the Republic, or of any other public official of a lower grade than those indicated above. Thus, the differentiation carried out by the lower court (*a quo*)—distinguishing where the norm does not—regarding the point under analysis, is neither objective nor legally substantiated, but rather derives from their opinion or subjective position regarding what the trial judges estimate to be the answer to the questions they pose to themselves in their ruling, these being: *“[…] what type of State and society do the majority of Costa Ricans want? Do we want a strong State where the honor of public servants has greater legal protection than freedom of expression? or, Do we want a Constitutional State where there is just protection between the honor of public officials and the freedom of expression of other Costa Ricans […]”* (cf. folio 360 of the main file). The limitations and existing relationship between the right to freedom of expression with respect to the right to honor of Costa Rican public officials are not defined based on the subjective interpretation or individualization of the ideology of what, in that sense, it is considered that the majorities of our country want, as erroneously carried out by the lower court (*a quo*) in the judgment on the merits. The legal relationship between the right to honor and freedom of expression, in order to adequately guarantee the principles of legality, transparency, and accountability of public officials, for the validity and correct development of the democratic model established by our Magna Carta, must be defined based on the application of the normative framework *supra* set forth, from which the following is determined: **i.-** Public officials are subject to the principles of legality and accountability in their capacity as depositaries of public function. **ii.-** The strict application of such principles implies that public officials have a higher level of tolerance in the scrutiny and oversight of the exercise of their offices, in order to guarantee the proper handling of the public resources of all administered persons, as well as to guarantee the full development of the democratic principle and the safeguarding of the Democratic State established by our Political Constitution. **iii.-** The constitutional, conventional, and legal regulations *supra* set forth determine that public officials, despite the duty of tolerance to which they are subjected by virtue of their status, do possess and are holders of the right to honor, which must be protected and guaranteed under the strict application of the principle of accountability and transparency inherent to a Democratic State of Law, which give a special nuance and a higher threshold of tolerance in the honor *versus* freedom of expression relationship of public officials, which legally cannot translate into the emptying or *de facto* disregard of the protection of the honor of those who exercise public function, in which, obviously, the office of the […] is included. Thus, although the person who holds said position must bear criticism, questioning, or opinions, which may even be strong, harsh, and uncomfortable, they maintain their right to honor, so that it cannot be violated under the curtain or the screen of the legitimate exercise of a right (Article 25 of the Penal Code), that is, freedom of expression, when in reality what exists is an abusive and illegitimate exercise of such fundamental right that implies a violation of the decorum and dignity of the person that not only affects them in their individual sphere, but also, by virtue of their special condition, affects them regarding the exercise of public function and administration. Such abusive use of the right to honor can be carried out in many ways, as has been expressly stipulated in the constitutional, conventional jurisprudence and that of our Chamber III of the Supreme Court of Justice (Sala III de la Corte Suprema de Justicia)—to which reference will be made in a subsequent section—and not only through direct offenses or express criminal accusations against a […] [Nombre19][…], as the trial judges subjectively and without legal support estimated in the judgment on the merits. Therefore, to guarantee the protection and effective application of the regulations *supra* set forth that govern the fundamental rights to honor and freedom of expression in a case such as the one being adjudicated in the *sub judice* matter, without an illegitimate impairment of one of such rights to the detriment of the other occurring, and to achieve the safeguarding and efficacy of both, forms should not be valued or defined *a priori* or as exhaustive categories as appropriate or necessary for the offense against the honor of a specific public official, that is, in this matter, that of whoever occupies the […], but rather, what is appropriate is to appreciate or evaluate in **each specific case** the particular statement that is accused or complained of as offensive to the honor of the public official, from two perspectives; **1.-** that the text or content of the published material is made, expressed, or presented in a form or manner that leads to an objectively verifiable impact or impairment of the honor, decorum, or dignity of the public official, by virtue of the abusive exercise of freedom of expression. That is, the main thing is the offensive content of the publication, however, as indicated by the Third Chamber (Sala Tercera) in the resolution *supra* studied, it is important to value the way in which ideas are expressed, captured, or the publication is carried out; **2.-** that from the specific "statement" that is complained of or deemed harmful to honor, the existence of common intent (*dolo común*) on the part of the person making it is derived, that is, the knowledge and will that the statement is offensive to honor, specifically, to affect the honor or decorum of the public official, a will that departs from and exceeds the exercise of freedom of expression corresponding to the scrutiny and oversight that public officials must tolerate as part of the duty of transparency and accountability inherent to the position they hold. In simple terms, it can be pointed out that the minimum that can be required of a person who carries out a publication or dissemination of a statement regarding a person who holds a public office—*a posteriori*, in order to avoid any possibility of prior censorship—is that they have at least verified the seriousness or real existence of the source, that is, to appreciate and define at least an objective basis that justifies the questioning, criticism, complaint, comment, etc., that is disseminated or published. It is clear that depending on each particular case, and in attention to the degree of responsibility, hierarchy, and degree of exposure of a specific public official, the margin of tolerance for criticism, questioning, or unfavorable opinions carried out in the serious and measured exercise of freedom of expression, as a means of control and formation of public opinion, will be more common and will have to be accepted with greater regularity, as occurs with the office of the […]. **iv.-** From the regulations set forth, it is deduced that freedom of expression regarding the right to honor of public officials does not cover or protect the exercise of the former through the pointing out or dissemination of false facts, simple speculations, or malicious comments whose true purpose is to affect the honor of the public official involved, and not to make effective the legitimate exercise of a right with the objective of informing or generating public opinion regarding situations that are relevant for the correct exercise of public function. The foregoing does not translate into the person who makes a statement, criticism, or opinion regarding the actions of a public official being obliged to prove the truth of the content of their publication, since such a position could unduly limit freedom of expression as a form of prior censorship. What is appropriate in each specific case—as anticipated *supra*—is to analyze, in the first instance, the objective basis of the comment, opinion, or publication, and in second place, that its issuance and dissemination do not have as their true purpose to unduly affect the right to honor of a public official under the appearance or subterfuge of invoking the exercise of freedom of expression. This is because accepting openly and without any discrimination any type of negative expression or comment against a public official, without sifting such statements through the lens of the higher level of tolerance that corresponds to them, is not appropriate. Nor is it acceptable to radically affect their right to honor, by virtue of the definition and appreciation of exhaustive factual assumptions that are not derived from or regulated, in the legal framework *supra* set forth in any way, as done by the lower court (*a quo*). Such a posture, far from satisfying, procuring, and allowing the control, scrutiny, and oversight of those who hold public office, in order to guarantee the constitutionally established duties of transparency and accountability, for the validity and development of the democratic State through the formation of public opinion and the questioning of the different acts that occur in the exercise of state power and administration, what it generates is the "deformation of public opinion," which leads to undue disenchantment and loss of trust in those who exercise public administration and, consequently, the possible irregular impact on the correct institutional order. The foregoing not only affects the individual honor of such persons but also, and what is extremely harmful for a Democratic State, impairs its institutionality and governability, since an atmosphere of distrust and disenchantment is unduly produced among the administered public in general, regarding those who exercise public function by their delegation and on their behalf. In this way, freedom of expression and communication in a democratic constitutional scheme not only includes the possibility for the inhabitants of the State to make statements freely and without prior censorship, but also contemplates the right to receive and for truthful, serious, objective, and responsible information to be disseminated about the actions of those who hold public function, in order to guarantee the formation of adequate public opinion that enriches and enshrines the democratic principle through the protection and correct application of the principles of transparency and accountability, which obviously concern and bind whoever exercises the office of the […]. By reason of all the foregoing, it is determined that the ideological basis that was subjectively defined by the lower court (*a quo*), based on its particular appreciation of the reality of our country, to define parameters that according to its appreciation rule out the existence of unlawful conducts harmful to honor to the detriment of the [[Nombre443 [Nombre10]]] for the facts that it complained of against the accused [Nombre7], is a decision that is not supported by nor does it conform to the rules that in our legal system regulate the right to honor of public officials with respect to the exercise of freedom of expression.

**b.2.- Applicable jurisprudential precedents on the substantive issue.** In the judgment on the merits, the trial judges invoke and appreciate in their argumentation jurisprudential precedents from the Constitutional Chamber (Sala Constitucional) and Third Chamber (Sala Tercera) of the Supreme Court of Justice, as well as from the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos). Notwithstanding the foregoing, the comprehensive examination of the ruling reveals that, just as the appellant claims, the trial court did not fully assess the content of such pronouncements, even though they are very important for deciding the merits of this matter, since in them the topic relative to the precepts and criteria that must be followed in the legal-criminal approach to the relationship existing between the fundamental rights of freedom of expression with respect to the right to honor of those who exercise public function is studied and developed, as well as defining other legally relevant aspects for the resolution of the case. For this reason and by virtue of the fact that the referenced jurisprudential framework has been appreciated and assessed in order to substantiate this pronouncement, it is necessary to recapitulate and analyze the most important contents of each of the precedents invoked in the judgment on the merits, related to the subject matter of the litigation.

**1.- Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia).** The study of the judgment on the merits allows establishing that the trial judges used, in the basis of their decision to acquit the accused [Nombre7], the jurisprudential precedent of the Constitutional Chamber No. 2006-05977, of 3:16 p.m. on May 3, 2006, in which an action of unconstitutionality filed against the text *"Those responsible for crimes of slander or libel committed through the press shall be punished with a penalty of arrest from one to one hundred and twenty days,"* contained in the first paragraph of Article 7 of the Printing Press Law (Ley de Imprenta), No. 32 of July 12, 1902, was resolved. In said pronouncement, whose provisions must be remembered to be *erga omnes*, the following aspects are highlighted: **i.-** In the precedent under study, the fundamental right to freedom of the press is analyzed, the Constitutional Chamber indicating in that regard that the case is approached from the perspective of said right in relation to public officials and the dissemination of issues of social relevance—news events—, this even though the norm is conceived within a broader framework of subjects. In this regard, it should be noted that in the judgment on the merits, the judges did not appreciate in any way that although the case analyzed in the referenced constitutional precedent has some aspects that are applicable to this matter—since they are related to a certain degree with the facts being judged in the *sub litem* case—, the topic that was specifically addressed by the Constitutional Chamber was that of freedom of the press, which differs from what is being discussed in this lawsuit, given that the specific "statement" that was complained of as harmful to the honor of [ [Nombre3] ] was not published in a press medium, nor was it carried out by any person dedicated to such professional field. This is because [Nombre7] is not a journalist, to which must be added that the accused also did not carry out the publication in question as a result of journalistic investigation, nor under the characteristics of dissemination that are customary and proper to communication media of such nature.

This situation must be kept in mind in order to gauge the scope of the pronouncement in question, for the purpose of deriving the aspects thereof that are indeed applicable in the resolution of the *subjudice*, which was completely disregarded by the *a quo* in the assessment it carried out in the ruling on the constitutional precedent under study. **ii.-** Another aspect that the criminal court did not assess with the legally appropriate weight is the statement made by the Constitutional Chamber regarding the limits on freedom of the press—which at some point in its reasoning it identifies as freedom of expression—with respect to those who exercise public functions and their right to honor. In that sense, it is stipulated, in general terms, that the rules establishing restrictions on said fundamental right are not intended to limit the duty of transparency, but rather to sanction the bad faith and inexcusable negligence of one who uses freedom of the press as a means to injure the honor of a public official. Literally, regarding the aspects previously noted, the Constitutional Chamber establishes: *“[…] It is not, therefore, a rule designed to shield public functions, or to prevent the necessary transparency that must exist regarding its acts, but rather it generally seeks to sanction those who, in bad faith or through inexcusable negligence, use freedom of the press as a means to injure the honor of individuals and the right of citizens to receive adequate and timely information from journalists and media outlets that disseminate information through written media. Topics outside the indicated framework are not addressed, as they are not part of the case, such as other non-journalist subjects or media outlets, who express themselves and inform the citizenry daily on various topics through the press, which generically encompasses all types of printed matter, printing, editing, and circulation of pamphlets, magazines, and publications of all kinds […]”.* The foregoing reveals weaknesses in the reasoning and, consequently, in the foundation of the decision being challenged. **iii.-** Regarding freedom of expression, the Constitutional Chamber establishes that this fundamental right is an essential pillar of democracy, which this appellate chamber fully assumes and shares, according to what was set forth in the preceding point of this pronouncement. Specifically, in that sense, the Constitutional Chamber stipulates the following: *“[…] Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—though not the only one—for democracy to function. This freedom is what allows the creation of public opinion, essential for giving content to several principles of the constitutional State, such as, for example, the right to information, the right of petition, or rights regarding political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchanging knowledge, ideas, and information, which allows for the generation of consensus and decision-making among the components of diverse social groups, but which also constitutes a channel for the expression of dissent, which in a democracy is as necessary as agreements. For its part, the exchange of opinions and information originating from public discussion contributes to forming personal opinion; both form public opinion, which ultimately manifests itself through the channels of representative democracy […]”.* **iv.-** In the precedent under study, the Constitutional Chamber defines the content of freedom of expression, framing it in different facets, a categorization of capital importance for resolving the present case. In this regard, the following is stipulated: *“[…] Content of freedom of expression. Freedom of information could be said to have several facets, as recognized by national doctrine (of which the first three relate to what is discussed here): a) freedom of the press in a broad sense, covering any type of publication, b) freedom of information through non-written means, c) the right of rectification or reply. Freedom of the press generically encompasses all types of printed matter, printing, editing, and circulation of newspapers, pamphlets, magazines, and publications of all kinds. By its nature, it is the natural vehicle for citizens' freedom of expression. It translates into the right for administered persons to seek and disseminate information and ideas to an indeterminate number of people about facts that, by their nature, are of general interest because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. Its functions in a democracy are: to inform (facts, newsworthy events), to integrate opinion (stimulating social integration), and to control political power, as it is the permanent guardian of honesty and proper handling of public affairs. Given its symbiotic link with democratic ideology, a countless number of international instruments and practically all the Constitutions of the free world, from the French Declaration of 1789 (art. 11), have recognized it (…) Freedom of expression has as a consequence the prohibition of all forms of censorship, in a dual sense: interlocutors cannot be censored, on the one hand; nor can, in general, the possible contents of the discussion be censored beforehand: in principle, in a democracy, all topics are debatable. The non-censorability of subjects has a practically universal character, as established by our Constitution, no one may be deprived of the freedom to speak and express themselves as they see fit; the non-censorability of contents, while not occurring beforehand, finds some limitations, however, these must be such that the freedom still makes sense or is not emptied of its content, basically, like all freedom, it must be exercised responsibly, in short, to pursue legitimate ends within the system […]”* (The underlining is not part of the original text). From the foregoing, two fundamental points are deduced regarding the exercise of freedom of expression, in order to fulfill the proper purposes of a Democratic State, namely: **a.-** It is defined as the right of the administered to disseminate ideas to an indeterminate number of people about **facts that, by their nature, are of general interest because they are considered newsworthy.** Thus, it is clear that what freedom of expression permits to be disseminated are “facts” that are relevant and have a newsworthy character, due to being linked to the exercise of public functions. Such aspects were not assessed by the *a quo*, despite using the jurisprudential content of the referenced precedent in its substantive reasoning, given that it did not carry out any appreciation to define whether, in the present matter, “the story” that was complained of as suitable for affecting the right to honor of [[Nombre3] ] by being defamatory, bears the character of a “fact” and, in turn, whether it can be considered of interest to the generality of people for being of a newsworthy nature. In this sense, it bears repeating, as was established *supra* by this appellate court, that from a criminal standpoint, one who exercises the right to freedom of expression or press is not obligated to prove the veracity of the facts they disseminate; however, verification of a certain objective basis is necessary to make it possible to rule out that what is hidden behind the publication is a falsehood or mere speculation that is maliciously circulated or disseminated with knowledge that it is suitable for affecting the honor of the public official involved, just as the Constitutional Chamber itself stipulates in the jurisprudence being examined. A comprehensive examination of the appealed judgment reveals that the trial court did not assess, with the rigor demanded by Articles 142 and 184 of the Code of Criminal Procedure, the previously noted aspects, despite them being essential for properly categorizing and deciding the facts complained of in the present case. **b.-** The Constitutional Chamber expressly establishes that prior limits on the exercise of freedom of expression are not appropriate, since such types of restrictions could imply a form of prior censorship. Notwithstanding the foregoing, our Constitutional Court establishes that certain *a posteriori* limits are appropriate, provided they do not suppress the content of the fundamental right, limits that are justified on the basis that all freedom must be exercised responsibly, in order to seek and achieve legitimate ends within the system. **v.-** Another essential aspect touched upon in the precedent under study is that relating to the limits that the Constitutional Chamber stipulates correspond to freedom of expression. In this regard, it is established that not all expressions have the same value, and consequently, they do not enjoy the same constitutional protection. In this respect, it revisits the jurisprudence of the Spanish Constitutional Court, indicating the following: *“[…] To determine which expressions can be limited and to what extent, it is important to take into account that not all expressions can have the same value nor, consequently, enjoy the same constitutional protection. For example, even international jurisprudence, e.g., the Spanish Constitutional Court, has indicated that insults or value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion lack constitutional protection […]”.* From the foregoing, it is deduced that insults, and value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion, lack protection. In this sense, the comprehensive examination of the judgment on the merits allows for the conclusion that the trial judges did not assess, under the parameters stipulated by the Constitutional Chamber, the content of the publication that was complained of as defamatory in the present matter, given that they did not appreciate whether the manner in which said statement was drafted and its content were necessary for the expression of the story that was disseminated on the “Facebook” profile of [Nombre7]. In this sense, it should be added that the *a quo* analyzed the publication in question in a segmented and restrictive manner, based on the way it subjectively defined as the “ideological basis” of its judgment, from which it established the parameters it considered and determined as the only ones that can generate an infringement of the right to honor of the person who holds the […]. It limited its examination of the case to appreciating whether the text in question was directly injurious or undoubtedly attributed criminal conduct to [Nombre6], an analysis that clearly does not conform to the parameters defined by our Constitutional Chamber in the referenced precedent, a situation that translates into the erroneous legal basis of the appealed judgment. Continuing with the analysis that said Chamber performs in the jurisprudence under study, regarding the limitations that constitutionally correspond to the right to freedom of expression, it is important to highlight the following points that delimit the legitimate exercise of said fundamental right: *“[…] On another rung are opinions, that is, personal value judgments that are not formally injurious and unnecessary for what one wishes to express, even if they contain what are known as 'disturbing or hurtful opinions'; these opinions would, in fact, be constitutionally protected by freedom of expression and could even have content such as irony, satire, and mockery. On another step would be information, by which is meant the truthful narration of facts, which would be protected as a general rule, unless it violates other fundamental rights or constitutionally protected legal interests (for example, honor, privacy, the order and tranquility of the nation, the rights of children and adolescents). On another level would be news, by which is meant the truthful narration of facts that have public relevance, whether because of the facts themselves or because of the persons involved in them; news contributes prominently to the creation of free public opinion. On the last rung would be falsehoods, rumors, or insidious statements that hide behind a neutral narration of facts and that, in reality, are completely lacking in veracity. On the topic of veracity, the Human Rights Commission has indicated (Declaration of Principles on Freedom of Expression, adopted by the Inter-American Commission on Human Rights at its 108th regular session in October 2000) that any prior conditioning on aspects such as veracity, timeliness, or impartiality of information is considered prior censorship, but this must be understood by this Court to refer to the possibility of using such arguments as justifications for prior censorship of information, not to impede the right to effective judicial protection for injuries or damages suffered to one's person, property, or moral interests, as established in Article 41 of our Constitution when stating: 'Resorting to the laws, all must find reparation for the injuries or damages they have received to their person, property, or moral interests. They must be afforded prompt justice, completely, without denial, and in strict conformity with the laws.' It is recognized that the exercise of freedom of the press, understood as part of the right to inform and therefore a form of freedom of expression, must be exercised within elementary ethical principles, 'freedom of the press is not synonymous with the right to injure'. This is because another fundamental right exists that justifies the legal system providing a balance that will always be determined by analysis of the specific case. This does not mean that in all cases the honor of individuals must prevail, or that they are rights of the same rank. They are rather liberties that relate to each other within the system of freedom that underpins our democratic institutional framework […]”* (The underlining is not part of the original text). Two very important aspects are derived from the foregoing regarding the right to honor, which were not duly assessed by the *a quo*, namely: **a.-** Personal opinions or value judgments are not *per se* or absolutely exempt from generating an abuse of the right to freedom of expression to the detriment of other fundamental rights. Thus, as provided by our Constitutional Court, to rule out such abusive use of the right to freedom of expression, it must be appreciated and defined whether the opinions are formally injurious and unnecessary for disseminating what one wishes to express, an analysis that the trial court omitted to carry out in the *subjudice*, by virtue of the absolute preponderance it gave to the parameter it subjectively defined to delimit the conducts it exhaustively determined as the only ones that can affect the right to honor in the specific case of one who holds the […]. It should be added that disturbing, hurtful, ironic, satirical, or mocking opinions, provided they are not formally injurious and unnecessary for expressing what is being published, do not exceed freedom of expression according to what the Constitutional Chamber stipulates in the precedent being analyzed. In this regard, it should be noted that in the judgment on the merits, the criminal court points out that what was stated by the accused [Nombre12] against [[Nombre3] ] was carried out through a “strong,” “sarcastic,” and undoubtedly “bothersome” text for said [Nombre6], based on the facts that [Nombre12] reported as the basis for his statement or opinion. In this sense, it must be reiterated that in the appealed judgment, neither the logical reasoning is established nor is it derived on the basis of what evidentiary means the *a quo* accurately granted the character of “facts” to the points encompassed in the text published on the “Facebook” profile of [Nombre28], against [Nombre [Nombre10]]. Likewise, in the judgment, the trial judges also did not express the reasons why they considered that “the story” disseminated by the accused was done in a manner that is not formally injurious and unnecessary for communicating what was disseminated on the “Facebook” account of [Nombre12]. **b.-** Another defect in the legal basis of the judgment, which is verified from its comprehensive examination—based on what was prescribed by the Constitutional Chamber in the pronouncement that the *a quo* invoked in its ruling—is that the trial court did not express any reason or reasons by virtue of which it ruled out in the *subjudice* that the statements that were complained of as defamatory do not constitute falsehoods, rumors, or insidious statements that were disseminated under an apparent “neutral narration of facts” on the “Facebook” profile of [Nombre7]—for it was not analyzed—if the publication in question is completely lacking in veracity. In this sense, just as the appellant [Nombre15] alleges, the criminal court did not fully assess the statement of [Nombre6] [[Nombre3] ] given at trial, since it only appreciated it in order to conclude in the segmented analysis of the publication in question that it performed in the judgment, that *“the feelings expressed by [Nombre6] were mere personal appreciations and derivations among many others that could be inferred from the content of the publication complained of as defamatory”* (without the judgment objectively specifying what those “many other derivations” are). In relation to the point being analyzed, it should be indicated that the Constitutional Chamber, in the precedent under study, establishes that the accreditation of the truth of what is published cannot be demanded *a priori*, since such a situation would imply a form of prior censorship and would affect the right to freedom of expression, but in turn, our Constitutional Court considers that in the case where a person decided to exercise said fundamental right knowing that it has limits and may generate liabilities for them, it is appropriate and necessary *a posteriori* to establish that what was expressed does not involve falsehoods or rumors that are completely lacking in veracity.

This assumption, defined as one of the constitutional parameters for limiting freedom of expression, was not adequately assessed by the criminal court in the judgment on the merits.</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">vi.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">One of the most relevant points for the resolution of the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">sub judice </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">case, which is developed in the jurisprudence of the Constitutional Chamber under study, is that relating to the way in which the collision that may occur between the right to honor and the exercise of freedom of expression should be understood</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">resolved, in the case where a person or persons exercising public office are involved, and in this regard the Chamber assesses the doctrine of the "preferred position" of the right to information. In this regard, the following is stipulated: </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">"[…]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">It is recognized that freedom of expression in its broadest sense is so fundamental that it represents the foundation of the entire political order; that is, it is not just one more freedom, hence the emergence—mainly due to North American influence—of the doctrine of the 'preferred position' of the right to information in matters of constitutionality control. This is understood as the doctrine affirming that when the right to freely inform conflicts with other rights, even fundamental rights, it tends to prevail over them. This position explains why aspects of the right to privacy and honor of public persons must yield before the interest of information. The Spanish Constitutional Court has referred to the preferred position of freedom of expression over other fundamental rights in the following terms: Given its institutional function, when a collision occurs between freedom of information and the right to privacy and honor, the former generally enjoys a preferred position, and any restrictions on freedom of information that may derive from said conflict must be interpreted in such a way that the fundamental content of the right to information is not, given its institutional hierarchy, distorted or incorrectly relativized (judgments 106/1986 and 159/1986). </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">However, it is evident that the preferred position exists insofar as the right is exercised to fulfill its legitimate function in democracy and, therefore, as an essential part of it, not to permit falsehoods, rumors, or insidious remarks hidden behind the exercise of a fundamental right with the excuse, as indicated, of a supposed neutral narration of events completely lacking in truthfulness, which cause violations of liberties also essential from the standpoint of the system of freedom, such as the honor of persons and the right to be informed adequately and in a timely manner</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">. This freedom is so important that it effectively enjoys special protections for the sake of its correct exercise, such as freedom of conscience, protection of sources, and the prohibition of prior censorship, to mention a few, all for the sake of exercising the social function it is called upon to fulfill within the democratic framework. In this sense, the appellant is correct in pointing out that freedom of the press, unlike the right to honor, has, in addition to its dimension of individual protection, a social dimension. However, it is forgotten that the other side of freedom of the press, also with an evident social dimension, is precisely the right of persons to receive adequate and timely information (not manipulated), which excludes the possibility of exercising this freedom in a manner contrary to the legitimate ends of the system or that, in turn, harms equally legitimate interests of the system. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">In this sense, the preferred position is valid insofar as it is not used as a mechanism to violate other relevant ends of the system, because it was not conceived for that purpose. Otherwise, manipulation or disinformation of individuals or the masses would be authorized, an objective as contrary to democracy as censorship itself. In this sense, when it is said that the right to transmit information regarding relevant events or persons has preeminence over the right to privacy and honor, in case of collision, it is necessary to conclude that in this confrontation of rights, that of freedom of information, as a general rule, must prevail whenever the transmitted information is truthful and refers to public matters of general interest due to the subjects they refer to or the persons involved in them, thus contributing to the legitimate formation of public opinion. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">In this case, the content of the right to free information reaches its maximum level of justifying efficacy vis-à-vis the</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">right to honor, which is weakened, proportionally, as an external limit to the freedoms of expression and information</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">(judgment STC 107/1988). </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">It should be clarified that it is not legally possible to require that everything published be true or exact, or as</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">the Spanish Constitutional Court has indicated, if truth were imposed as a condition for the recognition of the right, the only guarantee of legal certainty would be silence (STC 28/96), but it also cannot protect the journalist who has acted with contempt for the truth or falsity of what was communicated. What is protected</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">is information rightly obtained and disseminated 'even if it turns out to be inaccurate, provided that the duty to verify its truthfulness through the appropriate inquiries proper to a diligent professional has been observed.'</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">(STC 178\93). Likewise</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">it protects neutral reportage, understood as 'those cases in which a media outlet merely reports declarations of third parties, even when these turn out to be contrary to the rights to honor, personal and family privacy, and one's own image (STC 22|93), provided that good faith exists, meaning that the person responsible for the dissemination was not aware of its inaccuracy or lack of truthfulness, because from that moment onwards, if not corrected, one would be acting in bad faith, affecting other relevant guarantees for the system of freedom […]'" </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">(the underlining is not part of the original text). Regarding the doctrine of the "preferred position" of freedom of communication with respect to the protection of other fundamental rights such as the right to honor, it must be</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">indicated that undoubtedly, the trial court granted preference to freedom of expression over the right to honor of [Name6] [[Name3]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">], as is established in principle as what corresponds according to the Constitutional Chamber in the reference precedent. However, in the reasoning set forth in the judgment in question, no consideration was given to the aspects that, according to our Constitutional Court, must be assessed to determine whether the "preferred position" is applicable or not in a given case, specifically, that the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">court did not express the reasoning based on which it determined that said doctrine was fully applicable in this matter. Thus, in the contested judgment, no analysis was conducted to rule out that the statements or information disseminated by the defendant [Name12]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">on his "Facebook" profile do not constitute </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">falsehoods, rumors, or insidious remarks</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">hidden behind the apparent exercise of a fundamental right under the guise of a supposed neutral narration of events completely lacking in truthfulness.</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\"> In this regard, a comprehensive review of the judgment reveals that the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">court merely considered that in this matter it was not necessary to establish whether the information disseminated by the defendant was truthful or not, since it was his "opinion" regarding the events included in the publication in question, and that, as indicated </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">supra</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, the criminal court also failed to establish the reasons—or the evidence—upon which it considered the statements expressed by [Name12]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">against the plaintiff as "facts," or why it classified said statements as a mere opinion. All of this contravenes the precepts defined by the Constitutional Chamber and demonstrates the erroneous legal basis of the acquittal judgment issued in this case. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">vii.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">In the rationale of the Constitutional Chamber precedent under study, emphasis is placed on the fact that one cannot require a person exercising their freedom of expression or press to verify in advance the truthfulness of what they publish, as this would constitute a situation that could degenerate into prior censorship as a form of limiting such fundamental rights. However, the same Constitutional Chamber likewise reiterates that it is not possible to invoke freedom of expression to disseminate situations that are known to be false or regarding which no effort was made by the publisher to try to verify any objective aspect that would rule out their falsity, nor to</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">disregard the need to assess the specific case to disprove bad faith as the real objective of the publication. In this regard, the reference precedent takes up what the Inter-American Court of Human Rights has indicated on the topic of prior censorship, and analyzes</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">the content of the judgment issued by the Supreme Court of Justice of the United States in the case </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">New York Times vs. Sullivan</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, considerations that undoubtedly must be kept in mind and assessed in the resolution of the present case. In this regard, the Constitutional Chamber considered the following: </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">"(…) Evidently, as indicated, State protection cannot be provided, as the Inter-American Court of Human Rights has stated, through the right to censor information beforehand, which would be clearly unconstitutional (Art. 28); rather, it refers to its subsequent control, in the event that there was an intention to inflict harm or one acted with full knowledge that false news was being disseminated or conducted oneself with manifest negligence in the search for its truth or falsity, and thereby the honor and reputation of a person were affected. The Chamber shares the opinion of the Inter-American Court of Human Rights (Advisory Opinion 5/85) in the sense that: 33. ... It would not be licit to invoke society's right to be truthfully informed to justify </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">a regime of prior censorship</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">supposedly intended to eliminate information that would be false according to the censor</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">.</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\"> Nor would it be admissible, based on the right to disseminate information and ideas, to constitute public or private monopolies over the media to try to mold public opinion according to a single point of view. Similarly, it recognizes the jurisprudence set forth in the case New York Times vs. Sullivan of 1964, in which it is noted that the protection the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, from which the government and the courts must allow a debate to develop that is 'uninhibited, robust, and wide-open,' which may include caustic, vehement, and sometimes sharp, unpleasant attacks towards the government and public officials. Erroneous statements are inevitable in a free debate and must be protected to give freedom of expression the breathing space</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">it needs to survive. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">The rules must prevent a public official from</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">suing a media outlet or an individual for damages caused by a false defamation relating to their official conduct, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This caveat is essential to the</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">State's obligation to protect the reputation and honor of individuals, and furthermore, within its obligation to ensure that the misuse or abuse of this freedom is not used to violate equally essential ends of the democratic system, among which the system of fundamental rights is included</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\"> […]" </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">(the underlining is not part of the original text). The content of the segment of the precedent set forth above was not assessed in any way by the trial court in order to establish whether, in the present case, with the publication made by [Name7]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;&#xa0;&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">there was a misuse of freedom of expression, since the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">court, without any substantial basis, set aside considering whether the dissemination of the statements against [Name6] had any degree of objectivity or even truthfulness, nor did it</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">assess whether the text published on [Name12]'s "Facebook" profile was done with </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">"knowledge that it was false or with reckless disregard of whether it was false or not," </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">as defined by our Constitutional Chamber from the analysis of what was resolved in the case </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">New York Times vs. Sullivan.</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\"> In conclusion, two fundamental aspects are determined from all the foregoing: </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">a.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">Ruling No. 2006-05977 of the Constitutional Chamber develops an extensive interpretation and analysis of the way in which the collision between the right to freedom of expression and the right to honor should be understood</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, as well as the constitutionally corresponding limits to the exercise of freedom of expression and communication, which undoubtedly constitutes a necessary legal input for the correct resolution of the present case; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">b.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">Despite the fact that in the judgment on the merits, the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">court references and assesses a segment of the aforementioned constitutional precedent, it does not apply it in a comprehensive and adequate manner in the legal analysis of the acts that were alleged as defamatory by [Name10] against [Name7]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, which implies not only a disregard for what is prescribed by the Constitutional Chamber for the analysis of a case such as the one being elucidated in this matter. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">2.-Third Chamber of the Supreme Court of Justice. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">In the judgment under appeal, the trial court invoked the jurisprudential content of Resolution No. 2002-01050, of 8:50 a.m. on October 25, 2002, of our Criminal Cassation Chamber. The study of such pronouncement with respect to the substantive issue addressed in the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">sub judice </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">case allows us to establish that in this precedent</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">a series of legal aspects of utmost relevance are analyzed and developed to determine how the issue relating to the exercise of freedom of expression </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">versus </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">the protection of the right to honor should be addressed from a criminal standpoint, in order to define in which cases there is a legitimate exercise of the fundamental right to express and communicate ideas, and in what scenarios there is an abusive exercise of such constitutional guarantee that constitutes a violation of the legally protected interest "honor" safeguarded under criminal law, that is, in the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">sub litem</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, with respect to the crime of defamation provided for in Article 146 of the Penal Code that was alleged against [Name7]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">. It is necessary to note that a comprehensive review of the appealed judgment allows us to establish that the trial judges did not comprehensively analyze the pronouncement of the Cassation Chamber that they cited in the basis of the contested judgment, since they did not assess its content with the rigor required by Articles 142 and 184 of the Code of Criminal Procedure, in order to adequately support the acquittal issued in this case. To support this pronouncement, we proceed to define and assess the main aspects established by the Third Chamber of the Supreme Court of Justice regarding the substantive issue under discussion in the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">sub judice</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, which are the following: </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">i.-</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\"> The resolution under study specifically deals with the exercise of freedom of communication by those engaged in journalism, regarding the protection of the right to honor of individuals from a criminal perspective. This particularity must be</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">appreciated in order to note the difference that exists with respect to the acts judged in this matter; however, aspects that are applicable for the adequate legal analysis and solution of the present matter derive from the resolution of the referenced Criminal Cassation Chamber. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">ii.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">Just as this Court of Appeals has established and as developed in section A) of this resolution, the Third Chamber of the Supreme Court of Justice considers that a case of criminal relevance in which a collision exists between the fundamental rights to honor and freedom of communication, expression, or press cannot be decided solely by considering criminal norms; rather, it is necessary to assess constitutional and conventional norms in order to adequately analyze and resolve the case. In this regard, the ruling under reference stipulates the following: </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">"[…] The conflict between the right to honor and the freedoms of information and press is one of the most difficult to resolve, given that</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">one is dealing with fundamental rights of the person, and this requires defining very well when one of them has primacy over the others. The problem is not resolved by taking into account only what is provided in the Penal Code, but rather one must start</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">directly from the Constitution and international human rights regulations to</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">understand the scope of punitive legislation […]". </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">The opinion</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">expressed by the Third Chamber is what follows and justifies in this pronouncement the enumeration of the legal framework whose regulations are linked to the substantive conflict being resolved in this matter, and which, in turn, is what is assessed to demonstrate the erroneous legal basis of the judgment on the merits. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold\">iii.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">The Criminal Cassation Chamber establishes that in the event of a conflict or collision between the right to honor and freedom of expression, the first of these fundamental rights yields to the second, except in cases where an abusive use is made of the right to freedom of communication—</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">because it exceeds or goes beyond the scope of protection it contemplates</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">—</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt\">, a scenario in which the criminal provisions that protect the right to honor as a criminally relevant legal interest are applicable. Thus, the Third Chamber considered the following: </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">"[…] </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">As is readily apparent, one is in the presence of legal interests deserving of equal protection by the legal system</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">. By virtue of what has just been indicated, the problem to be addressed in this case is when the right to honor prevails over the indicated freedoms. In accordance with constitutional and international humanitarian provisions, </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">this conflict between fundamental rights can only be resolved in favor of the right to honor when an abusive exercise of the freedoms of information and press is verified</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">. The foregoing is because the Costa Rican legal system contemplates, as a general rule (enshrined in Article 22 of the Civil Code), that no protection is given to the abuse of rights or the antisocial use thereof. This is</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\">precisely because if a right is abused, it means that the scope of protection it contemplates has been exceeded or overstepped, such that said excess is not covered by it and lacks protection. Thus, </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">if no abuse whatsoever is incurred, but rather the freedoms of information and press are legitimately exercised, then there is no possibility whatsoever of criminally sanctioning the communicator, as</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">they would not have committed any crime against the honor</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic\"> […]".</span> From the foregoing, it is determined that, in cases where there is an excess in the performance of human conduct related to the underlying criminal matter, whether through the abuse of freedom of communication or expression leading to an antisocial use thereof, such excess is not covered by the content of the fundamental right, and for that reason, it lacks protection, and instead, criminal protection of the right to honor arises. The foregoing fully applies in the scenario where public officials are involved, since it is not possible to discriminate or define areas of exclusion that permit or justify an antisocial and abusive exercise of freedom of expression or communication, solely because the affected person holds a public office, whatever that office may be, including that of the […], since the position being challenged does not adhere to the criteria of rationality and proportionality that must be considered for the protection and application of fundamental rights. Thus, a constitutionally enshrined right such as the right to honor cannot be disregarded, a right fully retained by those who exercise public functions, albeit nuanced and tempered by the duty or obligation to endure greater tolerance in aspects related to questioning, criticism, opinions, control, and oversight —undoubtedly related to the right to honor— which derives from the exercise of their function and their special condition, and which is based on the duties of transparency and accountability constitutionally and legally stipulated. Therefore, the thesis by which the *a quo* defines a minimal and practically null scope of criminal protection for the right to honor of whoever holds the […], by virtue of exercising such office, is forced and legally unfounded, since what actually derives from their reasoning is that the duty of tolerance indicated *supra* is erroneously equated with the *de facto* emptying of the legal interest of honor of whoever holds said office, and such a position would permit, without possibilities for exclusion, the abusive and antisocial exercise of freedom of expression and communication, which —as indicated *supra*— far from guaranteeing and reinforcing the democratic model that governs us, would imply the impairment of the right to receive truthful information for the formation of adequate public opinion, for the suitable oversight of public function, and, obviously, of the exercise of public powers by all citizens.

**iv.-** In the ruling of the Cassation Chamber under study, the principle of accountability to which all public officials are subject is legally defined and framed, by virtue of which they are subject to broad control and scrutiny by official or formal bodies established for that purpose —for example, the Contraloría General de la República— and by informal sectors —the press, mass media, citizens in general— which have great weight and importance in a democratic regime such as the one governing our country. Likewise, the Third Chamber stipulates which acts of those exercising public function are subject to such scrutiny, namely, in general terms, those that are of public interest and correspond to the public facet of the life of those holding an office of that nature. Such parameters make it possible to establish the criminal-legal scope of the duty of tolerance, in which areas of the life or existence of whoever holds a public office they have the obligation to endure greater scrutiny and control, it being understood that in this sense and regarding the relationship between the right to honor *versus* freedom of expression, the Cassation Chamber establishes that the right to honor of the public official prevails and must be criminally protected when there is an excess in the exercise of freedom of communication or expression, even by those engaged in journalistic activity. The points set forth above were not appreciated in any way in the judgment on the merits, despite being essential for the correct legal analysis of the facts denounced as defamatory in the present case. In the content of the resolution being examined, regarding the aspects previously set forth, the following is stipulated: *“[…] The events of interest here —namely, the video recording of [Nombre6]’s vehicle, the information broadcast by Noti-Catorce, and the response given by [Nombre29] to said newscast’s reports— occurred between October and December 1999. At that time, the Political Constitution provided in its Article 11 the following: ‘Public officials are mere depositaries of authority and cannot arrogate powers that the law does not grant them. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability for their acts is public.’ (It should be noted that after the constitutional reform carried out through Law No. 8003 of June 8, 2000, published in the Official Gazette La Gaceta No. 126 of June 30, 2000, said article of the Constitution was modified and a provision was added in the sense that public officials must fulfill the duties imposed on them by law; in addition, the principle of accountability was formally instituted, aspects which this Chamber considers —as will be seen throughout this Considerando— could be extracted from the previous wording together with provisions of the Ley General de la Administración Pública, although certainly the reform makes it easier to appreciate the constitutional rank of said principle). As can be observed, the Fundamental Law (as applicable to the specific case) clearly establishes that public servants are subject to the legal system; that is what derives from them being classified as mere ‘depositaries of authority’; in other words, they are not above the Law. In this regard, it follows from the constitutional provision under discussion (a precept that is revitalized with the aforementioned reform of the year 2000) that public officials are bound by permissive norms, as well as by mandatory and prohibitive ones, adding furthermore that they can only do what the law expressly authorizes them to do. That is to say, in other words, every public official (whether popularly elected, appointed by another or by a collegiate body, or awarded the position through a competitive examination; whether owner, substitute, or interim; appointed indefinitely or for a term; whether a position of trust or enjoying job stability; whether a career official or not; etc.) is exposed, from the moment they assume office, to the oversight of their acts in the performance of their duties. This is because everything that person does on the occasion of the public position they hold is of interest to the generality of inhabitants of the Republic, since the aim is to ensure that they act, as a servant, in strict conformity with the legal system. This constant supervision of their acts is one of the consequences entailed by being a public servant, so that whoever assumes an office of this nature implicitly accepts that their performance will be publicly examined. By virtue of their investiture, the official is subject to the principle of legality, according to which they are only authorized to do what the law —in a broad sense and in accordance with the normative hierarchy— expressly permits them, everything else being prohibited. That is to say, holding a public function entails for the person a subjection to controls, which have been conceived to verify that the exercise of the powers deriving from the position is correct, and to prevent the failure to fulfill the duties inherent to the office. Now, within these controls are counted not only the institutionalized ones (such as those proper to the Public Administration, as well as judicial ones), but in a democratic State —the Constitution defines Costa Rica as such in its Article 1— it is also necessary to consider the role of communicators. If every human being has the right to be informed, if there is furthermore the freedom to communicate thoughts and opinions, including publishing them, and if it is considered that communicators have as their profession the gathering of data, analyzing them, and based on them informing others about topics that interest them, then it is evident that the practice of journalism is a perfect manifestation of the freedoms of information and of the press. In this regard, it is irrefutable that the mass media, journalists, and other communicators have the right to inform —making public the data they handle— the inhabitants. That is the premise that must prevail in a democratic society. The foregoing requires certain clarifications when dealing with a matter of public interest related to the performance of a state servant. The first is that a matter of public interest is everything that, in a reasonably presumable manner, coincidentally attracts the individual interest of the citizens (Article 113, subsection 1) of the Ley General de la Administración Pública); note that speaking of ‘citizens’ makes it evident that these are topics related to the conduct of the State (in a broad sense, that is, the Government of the Republic —described in Article 9 of the Constitution— and the other public entities) and the management of its resources, aspects which can be validly presumed to interest the generality of a country’s inhabitants, who are the ones who contribute to defraying the State’s expenses. The second is that it is normal, in matters of public interest, for a state official to be involved, although it is also possible (an aspect to be seen at the end of this Considerando) that there are subjects not invested as public servants who carry out a task that is indeed public, so they would also be subject to the oversight of their actions in the exercise of that public function. Thus, in matters of public interest, the freedoms of information and of the press that protect communicators are so important, for constituting one of the means of controlling public management in a democratic State, that if confronted with the right to honor that those who perform a public function also hold as persons, the latter may yield to the former, only concerning the public facet of their conduct. In accordance with this approach, only when abuse is incurred by the communicator when informing, will it be possible to place the right to honor of the official before the freedoms of information and the press that protect the communicator, and before the right to be informed that assists every person. There are a great number of norms that support this position. For example, note that Article 26 of the Constitution guarantees the country's inhabitants the right to assemble peacefully and unarmed to examine the public conduct of officials. This is important; it is evident that the framers of the Constitution were aware that there are public and private aspects in the behavior of State servants, with only the former being susceptible to open examination and discussion by society. Those public acts of officials are precisely those that have been established here as related to the fulfillment of their office; the private ones —and therefore not susceptible to being publicly debated— are those pertaining to personal and family intimacy not connected with the exercise of their function. If aspects of the public performance of state servants can be publicly debated at a meeting, it is then undeniable that it must be possible to inform about their acts so that they may be examined by the inhabitants of the national territory. Furthermore, it must be remembered that under Article 28 of the Constitution, no one can be even disturbed for the expression of their opinions, nor for acts that do not violate the law. As a corollary of the foregoing, it should be observed that Article 29 of the Constitution expressly provides for the possibility that every person may communicate (that they direct to another) their thoughts, verbally or in writing, and even publish them (make them public knowledge) without prior censorship, so that they will only be responsible if they abuse these rights. In this regard, it turns out that the exercise of the activity of communicators, which is indispensable to guarantee the right to be informed that assists every person, allows freely informing about aspects related to the performance of public function, as this is a matter of evident public interest […]”.* It should be added to what was set forth *supra*, that the Third Chamber, when defining the criminal protection of the right to honor corresponding to the particular situation of public officials, does not make any discrimination regarding the specific type of office a particular person holds, whether by popular election or whether their appointment corresponds to a public competitive examination, etc. The foregoing demonstrates that the thesis held by the *a quo*, and based on which they dismiss the impairment of the right to honor of [Nombre6] [[Nombre3]], does not adhere to the precepts established by the Criminal Cassation Chamber regarding the protection of said fundamental right that must be guaranteed to those who exercise public function, regardless of the type of office they hold, including those appointed by popular election, among which, of course, is that of the […]. In this sense, a comprehensive examination of the ruling makes it possible to establish that the criminal court does not set forth weighty legal arguments that justify departing from the jurisprudential precepts defined by the Third Chamber regarding the subject matter of the trial, it being that the only thing that derives from the intellectual basis of the contested sentence is what the trial court judges define based on their particular reading of Costa Rican reality and “the ideology” which, they expressly state, they derive from that aspect, determining from such reasoning an exceptional and specific margin of criminal protection for the right to honor that they particularly consider corresponds to whoever holds the […], a criterion which, as has been established throughout this pronouncement, is not intellectually or legally grounded as legally required, according to the provisions of Articles 39 and 41 of the Political Constitution, and in numerals 1, 142, 184, and 363 of the Código Procesal Penal. Another aspect that the Criminal Cassation Chamber specifies as legally relevant, to define in which cases the right to honor of public officials must be criminally protected with respect to the abusive exercise of freedom of communication and expression, pertains to the ways in which the dissemination or exposure of comments, opinions, or thoughts that have sufficient substance to violate the honor of the public official may occur, and for this reason, the appropriateness of criminal protection of their honor and dignity. In this sense, it is clear that the Third Chamber does not restrict the scenarios of criminal protection of the right to honor of public officials to the meager margins and subjectively defined scenarios set by the *a quo* in the judgment on the merits, that is, based on their exceptional concept of “absolute exceptionality” or regime of exception for criminal protection, which the trial court considers corresponds to the honor of whoever exercises the […], namely, direct insults or the imputation of criminal acts as the only possible interpretations of “the species” subject to publication. In this regard, the Criminal Cassation Chamber establishes that the honor and dignity of a public official can be affected by the way ideas are expressed, the manner in which publication is made, when there is dissemination of false data knowing them to be false, when no attempt is made to obtain the version of the involved official in order to provide balanced information, etc. In this sense, the Third Chamber stipulated the following: *“[…] Only when there is abuse of the freedoms of information and of the press (as could be the case when false data are disclosed knowing them to be false, no attempt is made to obtain the official’s version to offer balanced information, the servant is denied their rights to rectification and/or reply, matters are purely private or sensitive information not related to the office the person holds, it is presented as certain to the public that the servant’s conduct is criminal without a judicial sentence to that effect, when the sole intention is to offend someone —an aspect that must be examined case by case and in which various factors could be relevant, such as the context in which information is disclosed, the way photographs or images are handled, the manner in which the news or comments surrounding it are presented, or similar situations) can the communicator be held responsible, since abusing a right (a situation that must be verified in each specific case) implies exceeding the scope of its protection. Such abuse is not protected by the legal system (Article 29 of the Constitution related to Article 22 of the Civil Code), so that communicator who engages in abusive conduct will have to answer for their acts (which could even potentially entail the liability of the media outlet that disseminated the information). […]”.* Thus, things being as they are, it is determined that the criminal court did not adequately appreciate or assess the jurisprudential precept in question —despite having expressly mentioned it in its ruling— in order to support the basis upon which it analyzed the denounced facts and dismissed them as harmful to the honor of [CED1], which proves the erroneous legal foundation of the approach outlined by the *a quo* and, consequently, the lack of legal basis for its decision to acquit the accused [Nombre7].

**v.-** Another point touched upon in the resolution of the Cassation Chamber under study, which is relevant for the adequate legal analysis of the *sub judice*, relates to public interest, which is defined as a parameter to be considered to delimit the degree of criminal protection to be afforded to the right to honor of a public official with respect to the exercise of freedom of expression and communication. In this sense, the following is indicated: *“[…] It is clear that the coexistence of these two provisions in the same normative text reveals that they are complementary. In that sense, the freedoms of information and of the press related to matters of public interest would displace the protection of honor and dignity concerning public officials; note at once that this rule would not apply to persons who do not hold such status. This is because in these scenarios (when dealing with a case of public significance related to state servants), the issue is not the privacy of a person, but rather the way they perform in the exercise of a public office, an aspect that —in the face of the conflict of the legal interests in question, namely the right to honor and the freedoms of information and of the press— is the most important from the point of view of the national community. If what was disseminated is correct and indeed corresponds to a matter of public interest, then there is no possibility whatsoever for the official to claim that their honor has been injured (in any case, if what the news is about is some inappropriate act, the one who would have injured their honor would be the servant themselves and not the communicator, so the responsibility of the former could not be transferred to the latter). Clearly, if the information is false or not related to a matter of public interest, then one could eventually be facing one of the scenarios of abusive conduct mentioned supra (which could even constitute a crime) that do entail the declaration of the communicator’s liability. In this regard, the two international provisions under discussion (Articles 11 and 13 of the Convención Americana sobre Derechos Humanos), viewed together, reveal that in matters of public interest relating to the way servants perform their duties, the right to honor yields to the freedoms of information and of the press, and to the right to be informed. To understand that it does not displace it would be tantamount to creating a very broad sphere of topics in which said freedoms could not be exercised, which would be an attack against the democratic regime contemplated in the Costa Rican Constitution. In addition to the foregoing, it should be noted that Articles 17 and 19 of the Pacto Internacional de Derechos Civiles y Políticos also address the problem that concerns us. The first of these establishes that no one shall be subjected to arbitrary or unlawful interference with their privacy, nor to unlawful attacks on their honor or reputation. This wording is important to highlight because —examined a contrario sensu— it shows that honor can be legally affected, which reinforces the thesis that there are cases (such as those of interest here) in which despite the existence of an impairment of said legal interest, no one can be held liable for it. This Chamber considers that the foregoing occurs precisely in cases where information is published on matters of public interest related to questionable actions by public officials (or even by persons who perform a public function), scenarios in which the honor of the persons involved is evidently affected (as a consequence and not as an intention). In those scenarios where what is disseminated will inevitably affect a public servant, in which furthermore there must not have been a sole intent to offend, the freedoms of information and of the press must prevail over the right to honor, since the communicator acts in compliance with their right to inform and does not become liable for the consequent impairment of the honor of the officials (which in any case, as already stated, would have its cause in their own acts and not in what is published) related to the news.* Of course – it is worth reiterating – that if the information is not of public interest, if the sole intent is to offend someone, or if the information reported is false, then the communicator (and eventually the media outlet) does become liable for the abuse committed. In summary, both in the Political Constitution and in the international Human Rights provisions applicable in Nombre2042, there are regulations that allow us to affirm that public officials (not private individuals, except in cases where they perform a public function) are subject to public scrutiny of their actions in the exercise of their office, so that the freedom to disseminate information about their acts in relation to matters of public interest displaces their right to honor, meaning that no communicator can be held criminally liable for that type of information, unless they acted abusively. This is because, in accordance with the provisions of Article 25 of the Penal Code, one who legitimately exercises a right does not commit a crime. To the foregoing, it must be added that there are also provisions of legal rank that reinforce the thesis argued here. What is established in Articles 113 and 114 of the General Law of Public Administration is of special importance. The first of these provides: "1. The public servant shall perform their duties in a manner that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered. 2. The public interest shall prevail over the interest of the Public Administration when they are in conflict. 3. In assessing the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, to which mere convenience can in no case be preferred." For its part, the second of the mentioned provisions stipulates: "1. The public servant shall be a servant of the administered, in general, and in particular of each individual or administered with whom they relate by virtue of the function they perform; each administered must be considered in the individual case as a representative of the collectivity on which the official depends and for whose interests they must watch. 2. Without prejudice to what other laws establish for the servant, any act, fact, or omission that through their fault or negligence causes unjustified or arbitrary obstacles or hindrances to the administered shall be considered, especially, irregular performance of their function." As can be seen, the legislator grants great importance to the satisfaction of the public interest as the guiding axis of administrative activity, so much so that it formulates the principle of objectivity of the public function as acting for the sake of satisfying said interest. Furthermore, the duty of accountability on the part of public servants is clearly evident, who must consider themselves – in each specific case – servants of the person with whom they relate by virtue of the function they perform (it should be noted that these provisions have existed since 1978, so that if they were linked to the previous wording of Article 11 of the Constitution, the enshrinement in the Costa Rican legal system of the principle of accountability was evident, even before the constitutional reform of the year 2000 alluded to previously). This further enhances the public nature of the actions of officials regarding the fulfillment of the attributions inherent to the position they hold. In this context, it is unthinkable – unless the democratic principle established in the Political Constitution is ignored – to criminally sanction a person who acts in accordance with their right to divulge information related to the actions of state officials in matters of public interest, unless they have incurred some abuse (such as those set out above) when making the information public. […]" (The highlighting in bold is not part of the original text). Based on the foregoing, it is timely to indicate that a comprehensive examination of the judgment on the merits reveals that the lower-court judges did not carry out any consideration regarding the factual and legal reasons by which they concluded that the content of the text disseminated on the "Facebook" profile of the accused [Name7] corresponds to a situation characteristic of or linked, directly or indirectly, to the exercise of the […], or that the information published that [Name6] [[Name3]] held at that time. Likewise, in the appealed judgment, a broad and sufficient analysis is also not observed that would allow for establishing whether the content of the publication disseminated by said accused is correct – or at least supported by certain objective and verifiable data –, or whether it refers to an action carried out by [[Name3]] as a […] that constitutes a questionable action in the performance of said public office. The foregoing, in order to rule out that the publication that is the object of the present complaint is not in reality a mere malicious speculation or a falsehood that is not linked to or derived from an action carried out by [[Name3]] during their term of office. Such an intellectual exercise must necessarily be carried out in the sub judice, to accurately determine whether the content of such publication corresponds to a matter of public interest or not, since it is in this scenario that the Third Chamber defines that there is no possibility whatsoever on the part of the person exercising the public function to claim that their right to honor or decorum has been injured, a criterion that this appellate chamber shares and that should have been assessed with greater rigor by the a quo to comply with the parameters of substantiation legally required for the efficacy and validity of the criminal judgment. In conclusion, the Criminal Cassation Chamber determines in the pronouncement under study, that the right to honor of those who exercise public functions yields to the exercise of freedom of expression by reason of the duty of accountability and due to the very condition of being a public official – a higher level of tolerance – when it comes to matters of public interest or questionable actions of state servants in the performance of their duties or in matters related to such public tasks, regardless of the position they hold, which has its limit and justifies the protection or criminal safeguarding of the right to honor of state servants, in cases where an abusive use of the freedom of expression or communication is made that exceeds the scope of protection of said fundamental right. Such scenarios were not assessed or reasoned in a broad, precise, and sufficient manner by the a quo in the judgment on the merits, by virtue of its subjective criterion of restricting the scenarios that it defined ad hoc as appropriate for the applicability of the criminal protection of the right to honor of the person who holds the office of […]. This reasoning is not sufficient to disregard and ignore the criteria of interpretation and application that, based on a deep, broad, and comprehensive analysis of the norms linked to the substantive issue, have been established by our Criminal Cassation Chamber, criteria about which it must be indicated that they follow the jurisprudential guidelines stipulated by the Constitutional Chamber, in the precedent analyzed supra in this resolution.

**3.- Inter-American Court of Human Rights.** In the decision subject to challenge, the criminal court invokes and cites some segments contained in two precedents of the Inter-American Court of Human Rights, namely, the one issued in the case of [Name18] vs Nombre2042 on July 2, 2014, as well as the one issued in the case of [Name16] vs [Name17] on May 2, 2008, judgments in which topics were addressed and criteria were issued regarding the exercise and protection of the right to freedom of expression and communication regulated in Article 13 of the American Convention on Human Rights.

**3.1. Judgment of the case [Name18] vs Nombre2042.** Regarding the analysis that the a quo carried out in the judgment on the merits concerning said precedent issued in the Inter-American System of Human Rights, as well as regarding its relevance for the solution of the sub judice, it is timely to indicate the following: **i.-** Firstly, it must be indicated that the challenger [Name15] is correct in that the a quo errs in citing and assessing the referenced pronouncement. This is because the criminal court erroneously and without any justification, refers to and assesses in the grounds of the appealed decision the particular vote established in the "reasoned concurring vote of Judge [Name19]" (In this sense, the paragraphs identified as 26 and 27 in the textual citation included in the judgment on the merits visible on folios 356 and 357 of the main file), as if the individual considerations of said judge were part of the decision that the Inter-American Court of Human Rights – as a collegiate jurisdictional body – issued regarding the case supra indicated, which is evidently incorrect and reveals the weakness of the legal reasoning of the challenged judgment. The foregoing, because the lower-court judges granted a legal value and weight to a minority vote that does not correspond to it, by invoking and assessing its content as if it were part of the grounds that the majority of the members of the Inter-American Court considered and established to issue the judgment of the case [Name18] vs Costa Rica, given that they did not even make any clarification regarding whether they endorsed the individual thesis of Judge [Name30]. Thus, the judgment on the merits has a defect in its legal substantiation regarding the parameters and scenarios that the a quo assessed to support its criterion, regarding the definition of a restrictive and specific scope for the protection of the right to honor of the person who holds the public office of the […], based on which they ruled out the existence of a punishable act in the sub judice and decided to acquit [Name7] of all penalty and liability. **ii.-** It is important to indicate that in the case of [Name31], two very important aspects were present that differ from those discussed in the present case, namely that [Name18] is a journalist and it was in the exercise of that profession that the complaint was filed against him and, secondly, that his action consisted of reproducing, in four journalistic articles he wrote, the content of reports made by European newspapers in which reference was made to alleged illicit actions of a person who was part of the Costa Rican diplomatic service. Such aspects are important to consider in order to dimension the scope of what was decided by the Inter-American Court in the case [Name18] vs Nombre2042 and to modulate its content to the objective and subjective circumstances of the case being judged, an intellectual analysis that the a quo omitted to carry out in the judgment on the merits. **iii.-** The comprehensive examination of the challenged decision allows for establishing that the lower-court judges made reference to the content of the judgment of the case [Name18] and assessed it, to establish that the person who holds the office of the […] has the highest level of tolerance with respect to their right to honor, in consideration of the preference held by the exercise of freedom of expression, a margin of tolerance that the a quo considered is not comparable to that of the rest of the public officials, specifically, by virtue of the hierarchical rank corresponding to the person who holds the […]. Notwithstanding the foregoing, from the examination of the analysis carried out by the lower-court judges regarding the jurisprudence of the referenced Inter-American Court, sufficient elements of judgment cannot be inferred that, when compared with the provisions in the judgment of the case [Name18], allow for arriving at the position held by the lower court and assessed to issue the acquittal decision being challenged. In this sense, the reading and study of the judgment issued in the referenced case allows for establishing that the Inter-American Court of Human Rights does not carry out any discrimination regarding the margins of protection of the right to honor corresponding to the person who exercises the public function, with respect to the exercise of freedom of expression regardless of the position – type or hierarchy – that the person occupies. Specifically, the Inter-American Court establishes that in the situation under study, a higher level of tolerance is required from the person exercising the public function, in order not to improperly restrict the right to freedom of communication and expression, whose respect and effectiveness it establishes as absolutely necessary for the consolidation and dynamics of a democratic society. Likewise, the Inter-American Court establishes that while there is a higher level of tolerance for public officials regarding the protection of their right to honor or decorum, by virtue of the duties of transparency of governmental activities and probity to which they are subject – and with the objective of guaranteeing the validity and development of a democratic society – the exercise of freedom of expression is not absolute and has limits that must be observed, which cannot be applied as prior censorship, but rather from subsequent liabilities expressly established by law, and for the purpose of guaranteeing respect for the rights of others or their reputation. In this regard, the decision in question establishes: "[...] 120. It is important to highlight that the right to freedom of expression is not an absolute right; it can be subject to restrictions, as indicated in Article 13 of the Convention in its paragraphs 4 and 5. Likewise, the American Convention, in its Article 13.2, foresees the possibility of establishing restrictions to freedom of expression, which are manifested through the application of subsequent liabilities for the abusive exercise of this right, which must in no way limit, beyond what is strictly necessary, the full scope of freedom of expression and become a direct or indirect mechanism of prior censorship. In order to determine subsequent liabilities, it is necessary that three requirements be met, namely: 1) they must be expressly established by law; 2) they must be intended to protect either the rights or reputation of others, or the protection of national security, public order, or public health or morals; and 3) they must be necessary in a democratic society (...) 123. In this way, the restriction must be proportionate to the interest that justifies it and must adjust closely to the achievement of that objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression [...]." **iv.-** From the foregoing, it is determined that the Inter-American Court recognizes that the right to freedom of expression is not absolute, and that for this reason it can have limits or restrictions that should not be a priori, but can only be subsequent and proportionate to the interest that justifies such limitations, and in accordance with what is absolutely necessary for the achievement of that objective, so as to interfere to the least degree possible in the exercise of freedom of expression. Such a stance of the Inter-American Court, assessed with respect to what our Political Constitution and the regulations supra analyzed in this pronouncement establish, allows for concluding that the protection of the right to honor of public officials in cases of abusive exercise of freedom of expression and thought is proportionate to the interest of the criminal legal system in safeguarding against willful, malicious, and offensive attacks on the honor and decorum of those who exercise the public function under the apparent exercise of the free expression of ideas or thoughts, or, as the case may be, of the freedom of communication, it being the case in turn that such exceptional and a posteriori limitation is proportionate and interferes to a minimal degree with freedom of expression, just as the Inter-American Court prescribes. This is because, according to our constitutional, conventional, and legal normative framework, and as established by the Constitutional and Third Chambers of our country in the precedents analyzed supra, the restriction of freedom of expression and information only applies in the case of excesses and abuses in the exercise of said fundamental right that exceed the proper content of its protection. Such irregularity not only leads to the violation of the right to honor of the offended person, but additionally violates the social component of the right to communication and expression, in that it implies the violation of the right that society has to have ideas, thoughts, or information shared that are adjusted to reality, in such a way that the correct formation of public opinion and the due control of the exercise of the public function are sought and achieved. The fulfillment of these objectives is what makes it possible to achieve the strengthening of the institutional and democratic framework of society, as an inherent effect of the correct exercise of freedom of expression, which is not achieved, and may even yield a contrary result, if malicious attacks and abusive expressions against the decorum and honor of public officials are endorsed without any limit, which in no way constitutes a task of oversight and control of the public sphere, but simply a form of affecting public activity through the unjust discrediting of their honor, which undoubtedly affects the credibility of those who exercise state activity. This situation would be extremely serious in the particular case of the person who exercises the office of the […], since not only their personal honor would be improperly affected, but also the investiture and respect for the function they perform, which generates problems of public distrust, loss of faith in public institutions and state activity, which is not suitable for the development of a society based on a democratic model.

Thus, from the precedent under study as well as from what is stipulated by the Constitutional Chamber and the Third Chamber, the right to honor of a person exercising state activity – such as those holding political office – yields before the exercise of freedom of expression, by virtue of having to endure, by reason of that condition, a greater degree of tolerance, both by reason of that condition and by reason of the protection of the principles of transparency, probity, and accountability, it being the case that strong, uncomfortable, and annoying criticisms made regarding situations that are of public interest and are directly or indirectly linked to the actions carried out by state servants in the performance of their duties are admissible, which has as a – subsequent – limit the abusive and irregular exercise of freedom of expression or communication, which does not conform to and exceeds the scope of protection of that fundamental right. A comprehensive examination of the judgment on the merits shows that the *a quo* did not carry out an adequate and careful factual and legal analysis of the normative content of the provisions that in our legal system govern the matter under discussion, nor did it carry out a sufficient intellectual and rational exercise to disapply the precedents that have been issued on the legal point under judgment, it being the case that the trial judges chose to create an *ad hoc* criterion for the solution of the case – previously and repeatedly noted in this ruling – which they supported on their particular appreciation of the contemporary Costa Rican political-institutional and social reality, as well as on the definition of an equally particular ideology, aspects based on which they conceived and particularized – without greater objective support – a scope of criminal protection that is specific and disproportionately restrictive of the right to honor of the person holding the […].

**v.-** It is necessary to point out that in the judgment issued in the *[Name18]* vs *Name2042* case by the Inter-American Court – extensively transcribed, but nevertheless, not as extensively or rigorously assessed in the judgment by the trial court – it is expressly established that "politicians" have a higher level of tolerance in the right to honor *versus* freedom of expression relationship. Notwithstanding the foregoing, the Inter-American Court establishes that despite the particular situation of those who exercise state functions as previously stated, their right to honor and decorum must indeed be protected, it being that in that sense, the *[Name18]* ruling stipulates the following: *“[…] 127. Democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials for their public management, a reason for which there must exist a reduced margin for any restriction on political debate or debate on matters of public interest. 128. In this context, it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature should enjoy, in the terms of Article 13.2 of the Convention, a margin of openness to a broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. This does not mean, in any way, that the honor of public officials or public persons should not be legally protected, but rather that it should be protected in a manner consistent with the principles of democratic pluralism […]”.* In this regard, it is necessary to indicate that, despite the fact that in the judgment on the merits several segments of what was resolved in the *[Name18]* case are cited, it does not integrally assess the jurisprudential precepts indicated by the Inter-American Court in the referenced ruling, it being that without greater justification, the criminal court disregards the scope of protection of the right to honor that the Inter-American Court establishes is proportional to the condition of public official and to the higher level of tolerance to which they are subjected by reason of that condition. In this same sense, the *a quo* does not appreciate in its substantive reasoning that the Inter-American Court, regarding the protection of the right to honor that corresponds to those who hold public office, does not specify or determine that there are different degrees of protection of that fundamental right depending on the hierarchy or the type of state office that the person holds. Thus, it is clear that the criminal court did not adequately assess such precedent of the Inter-American Human Rights System, by establishing *ad hoc* criteria that are disproportionately restrictive with respect to the criminal protection of the right to honor that they considered particularly corresponds to the person exercising the […], of the […], it being that such a posture implies and translates in reality into the almost absolute emptying of the content of the constitutional and legal protection that in our legal system corresponds to said fundamental right, which is improper. In this regard, it is important to point out that the same trial judges established in their ruling that, from the publication made by the accused [Name12], some meanings derive that can indeed be considered offensive to the [Name6] [[Name3] ], but that nevertheless, upon considering that they are not univocal or the only ones emanating from the content of the disseminated text, since according to the *a quo* other meanings arise – without defining in the ruling what the other possible derivations are – that have nothing to do with offensive situations, the right to honor of the [[Name3] ] was not violated. To reach such a conclusion, the criminal court sets forth the specific criterion that it defined, according to what was set forth *supra* for restricting the scope of criminal protection that it considered corresponds to the […], of the […], i.e., that only direct offenses and the expression of ideas or opinions whose sole meaning is the imputation of a criminal act are punishable as injurious to the honor and decorum of the person holding said public office. Such argumentation does not derive from the legal guidelines that have been defined in the jurisprudential precedents studied in this pronouncement – and cited in the challenged ruling – regarding the interpretation and application of the rules that govern the factual and legal situation of a case such as the one discussed in the *subjudice*, even by the binding jurisprudence of the Constitutional Chamber, all of which reveals a serious weakness in the intellectual and legal foundation of the ruling under challenge.

**3.2. Judgment in the *[Name16] vs [Name17]* case.** **i.-** In the appealed ruling, two segments of the judgment issued by the Inter-American Court of Human Rights in the *[Name16] vs. [Name17]* case are cited, it being that in that sense the trial judges established the following: *“[…] Now then, regarding this point, the Inter-American Court of Human Rights has said that the activities of public servants: ‘...leave the domain of the private sphere to be inserted into the sphere of public debate. This threshold (…) is based on the public interest of the activities they carry out.’ (Case [Name16] vs. [Name17], May 2, 2008, paragraph 86). Note that the highest continental body of human rights establishes that in the Americas, public officials are more exposed to criticism, that this is inherent to the [position] they voluntarily accepted, and that the activities they carry out are of public interest. Now then, it is worth noting that these statements of the Inter-American Court have been produced in the context of cases where high-ranking public servants are involved, but not of the highest rank as is the case in this complaint, the […]. […] These assessments are important because if we affirm with the Inter-American Court ‘…that in a democratic society, public officials are more exposed to the scrutiny and criticism of the public.’ (Case [Name24] vs. [Name17], idem), even greater is the exposure of the highest-ranking head of the public function and, correlatively, even greater [must be] the public criticism […]”.* (Cf. folios 346 and 347. The transcription is literal). In this sense, it must be established that the *a quo* does not fully, nor correctly, assess the content of the resolution issued in the *[Name16] vs. [Name17]* case, since with reference to that precedent, the trial judges determine that the scope of protection of the right to honor of the person holding the […] must be differentiated with respect to other public officials who do not have such investiture or hierarchy. This, because the *a quo* considered that in the *[Name16] case* a greater degree of tolerance on the part of state servants is established and, consequently, of their own accord they consider that the degree of tolerance is greater according to the public office held, a conclusion the criminal court reaches despite the fact that in that precedent no such differentiation is made. Likewise, the trial judges conclude *motu proprio* that the person holding the […] is subject to a specific, more restrictive parameter of protection of the right to honor with respect to the rest of the public officials, a differentiation they deemed necessary to make by virtue of the fact that in the *[Name16] vs. [Name17]* case, the particular situation of the person holding that type of public office was not resolved. Such interpretation and analysis of the precedent in question is not logical, and in reality, what it reveals is that the *a quo*'s thesis is in no way derived from what was stipulated by the Inter-American Court of Human Rights in the referenced case, but rather is a specific criterion that the trial court defines based on its particular appreciation of what it deemed to be the ideology desired by the majority of Costa Ricans regarding the management of public offices, particularizing such popular desire for the case of the […].

**ii.-** In the same sense, it is important to point out that from the integral analysis of what is established in the precedents of the Constitutional Chamber and the Third Chamber, as well as what is indicated by the Inter-American Court, it is not derived nor can it be considered that the totality of the acts of the private life of those who exercise a public office are part of or can be included in the greater scope of tolerance to which, with respect to their right to honor, they are subjected by their condition as public officials. This, because the greater margin of tolerance of the right to honor of state servants with respect to the exercise of freedom of expression deals with their actions that are of public interest and that are directly, or at least indirectly, related to the exercise of the activities proper to their office, to which must be added that it is necessary to analyze each specific case to define the proportionality of the margin of tolerance that should be granted in order to guarantee the validity of the fundamental rights to honor and freedom of expression, all of which was not duly appreciated by the judges in the judgment on the merits. Specifically, regarding the points previously analyzed, the ruling in the case of [Name32] stipulates the following: *“[…] 51. Regarding these facts, the parties presented various arguments in which a conflict underlies between the right to freedom of expression on matters of public interest and the protection of the honor of public officials. The Court recognizes that both freedom of expression and the right to honor, embraced by the Convention, are of utmost importance. It is necessary to guarantee the exercise of both. In this sense, the prevalence of one in a given case will depend on the weighing that is done through a proportionality test. The solution of the conflict that arises between certain rights requires the examination of each case, according to its characteristics and circumstances, to appreciate the existence and intensity of the elements on which said test is based (…) 53. Regarding the content of freedom of thought and expression, the Court has indicated that those who are under the protection of the Convention have the right to seek, receive, and disseminate ideas and information of all kinds, as well as the right to receive and know the information and ideas disseminated by others. It is for this reason that freedom of expression has an individual dimension and a social dimension: the latter requires, on the one hand, that no one be arbitrarily impaired or prevented from expressing their own thoughts and represents, therefore, a right of each individual; but it also implies, on the other hand, a collective right to receive any information and to know the expression of others’ thoughts. 54. However, freedom of expression is not an absolute right. Article 13.2 of the Convention, which prohibits prior censorship, also provides for the possibility of demanding subsequent responsibilities for the abusive exercise of this right. These restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship. 55. For its part, Article 11 of the Convention establishes that every person has the right to respect for their honor and to the recognition of their dignity. This implies limits to the interference of individuals and the State. Therefore, it is legitimate for whoever considers their honor affected to resort to the judicial means that the State provides for its protection. 56. The need to protect the rights to honor and reputation, as well as other rights that could be affected by an abusive exercise of freedom of expression, requires the due observance of the limits set in this regard by the Convention itself. These must respond to a strict proportionality. 57. Given the importance of freedom of expression in a democratic society and the high responsibility that this entails for those who professionally carry out social communication tasks, the State must not only minimize the restrictions on the circulation of information but also balance, to the greatest extent possible, the participation of the different information in the public debate, promoting informational pluralism. Consequently, equity must govern the flow of information. In these terms can be explained the protection of the human rights of those confronting the power of the media and the attempt to ensure structural conditions that allow the equitable expression of ideas (…) 71. As established in paragraph 55 supra, judges, like any other person, are protected by the protection afforded by Article 11 of the Convention, which enshrines the right to honor. Moreover, Article 13.2.a) of the Convention establishes that the ‘reputation of others’ can be a reason to establish subsequent responsibilities in the exercise of freedom of expression. Consequently, the protection of the honor and reputation of every person is a legitimate aim in accordance with the Convention. Likewise, the criminal instrument is suitable because it serves the purpose of safeguarding, through the threat of penalty, the legal right that is sought to be protected, that is, it could be capable of contributing to the achievement of that objective. However, the Court warns that this does not mean that, in the specific case under analysis, the criminal avenue is necessary and proportional, as will be seen infra (…) 79. On the other hand, in the context of freedom of information, the Court considers that there is a duty of the journalist to reasonably verify, although not necessarily exhaustively, the facts on which their opinions are based. That is to say, it is valid to demand fairness and diligence in the confrontation of sources and the search for information. This implies the right of individuals not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and contrast them with other relevant data (…) 82. The representatives agreed with the Commission and argued that ‘the facts about which Mr. [Name16] reported are of public interest,’ taking into account that the investigation referred ‘to a paradigmatic case of repression’ and that the ‘investigation carried out by the journalist is part of [the] review that Argentine society must carry out and of the discussion about the causes for which the military government deployed its actions without having encountered obstacles in the J[udicial] P[ower].’ They added that Mr. [Name16] ‘did not use any language that could be considered abusive’ nor did he use ‘excessive, much less outrageous words’; that he referred to the judge ‘solely and exclusively on the occasion of his functional performance and did not delve into any aspect of his life or personality that was not related to his work as a public official’; that in the sections of the book where statements of fact are made ‘everything he maintained matches reality’ and that ‘the paragraphs that formed part of the criminal trial’ contain ‘critical value judgments about the judicial power of that era,’ a reason for which ‘they are not susceptible to being true or false, nor can they justify, by themselves, a restriction on freedom of expression, as long as it concerns the right of every person to freely opine on matters of public interest and on the functional performance of a judge in a matter of the greatest public relevance.’ 83. In this last step of the analysis, it is considered whether the restriction is strictly proportional, such that the sacrifice inherent in it does not turn out to be exaggerated or disproportionate to the advantages obtained through such limitation. The Court has adopted this method by indicating that: for restrictions to be compatible with the Convention, they must be justified according to collective objectives that, due to their importance, clearly outweigh the social need for the full enjoyment of the right that Article 13 of the Convention guarantees and must not limit the right proclaimed in said article more than is strictly necessary. That is, the restriction must be proportional to the interest that justifies it and must be closely tailored to the achievement of that legitimate objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression. 84. For the case at hand, the restriction would have to achieve an important satisfaction of the right to reputation without making the right to free criticism against the actions of public officials nugatory. To carry out this weighing, i) the degree of affectation of one of the interests at stake must be analyzed, determining if the intensity of said affectation was serious, intermediate, or moderate; ii) the importance of the satisfaction of the contrary interest, and iii) whether the satisfaction of the latter justifies the restriction of the other. In some cases, the scales will tip toward freedom of expression and in others toward safeguarding the right to honor (…) 86. Regarding the right to honor, expressions concerning the suitability of a person for the performance of a public office or the acts carried out by public officials in the performance of their duties enjoy greater protection, so as to foster democratic debate. The Court has indicated that in a democratic society, public officials are more exposed to the scrutiny and criticism of the public. This different protection threshold is explained because they have voluntarily exposed themselves to a more demanding scrutiny. Their activities leave the domain of the private sphere to be inserted into the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they carry out, as happens when a judge investigates a massacre in the context of a military dictatorship, as occurred in the present case […]”.* From the foregoing, it is determined how the trial court carried out a biased and partial analysis of the precedent issued by the Inter-American Court in the *[Name16] vs.* [Nombre17], </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">given that it limited its considerations to a minimal segment of that resolution, which it forcibly adjusted to the [ular] based on the analysis of the facts of the complaint, that is, the exclusive differentiation of the protection of the right to honor that the trial judges defined as corresponding to the person who exercises the […], which shows that they neither analyzed nor gave the legally appropriate value to the content of the resolution of the case </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">[Nombre16] </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">for the correct solution of the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">sub judice, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">which does not support or serve as a basis to justify in any way the [des] with which they dismissed the violation of the right to honor of [Nombre6] [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">] by virtue of the facts alleged against [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">, all of which implies a lack of legal reasoning (fundamentación jurídica) in the judgment. By reason of all the foregoing, it is concluded that the jurisprudential precedents analyzed </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">in this pronouncement are extremely important for the resolution of this matter. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">Likewise, it is established that such precedents were not fully and correctly appreciated by the criminal court in the judgment on the merits, given that none of these support the [se] in the [con] on the basis of which the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">almost absolutely limited the protection of the right to honor of the person who holds the […] in the relationship of said fundamental right with the exercise of freedom of expression and communication, which, although it must support a greater margin of tolerance in the case of public officials compared to the rest of the community, such limitation cannot imply the emptying of the fundamental right to honor and decorum of any person, even of the person who exercises public function regardless of the hierarchy of the [tente]. [A que ostente]. Thus, there is no doubt that in a democratic society such as the one instituted in the organic component of our Political Constitution, it is necessary to</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">guarantee the exercise and effectiveness of freedom of expression by giving it preference, even over the protection of the right to honor of State servants. In this way, it is appropriate to protect a broad margin for reporting, opinion, investigation, questioning, and strong and bothersome criticism from the social collective, both from those who are directly actors and linked to the development of freedom of the press and communication, with respect to the scrutiny and oversight of activities related to the exercise of public function by those who are its mere depositaries, which allows for maintaining democratic pluralism, overseeing the correct exercise of public function, and avoiding undue restrictions on freedom of expression in order to prevent a conducive environment or fertile ground for the emergence of authoritarian political systems. Notwithstanding the foregoing, as the Costa Rican Constitutional Chamber and Criminal Cassation Chamber have already clearly and precisely indicated, [a] the Court</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">as the Inter-American Court of Human Rights, freedom of expression and communication is not absolute, as it has restrictions that must be applied </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">a posteriori</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101"> in order to avoid prior censorship, but which imply responsibility for the violation of other fundamental rights by those who exercise it abusively and disproportionately, as happens in the case of the constitutionally protected right to honor, even of public officials.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> In this regard, it is important to highlight that none of the aforementioned jurisdictional entities has established any discrimination or differentiation regarding the right or scope of protection of the honor and decorum of public servants by virtue of the specific [fico] or [o] hierarchy they hold, which [emana] only emanates from the position defined </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">ad hoc </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">by the trial court to analyze the merits of the event that is the object of judgment in the present case. In this regard, it must be established that the trial court's position is not duly reasoned (fundamentada)—from a legal perspective—as it conforms to a very particular way of reasoning and defining an ideological parameter to create a very subjective thesis regarding the scope of protection of the right to honor that they estimate corresponds exclusively to the person who exercises the […], a position that lacks an objective and rigorous legal and jurisprudential basis. In this sense, throughout the development of this pronouncement, it has been demonstrated that the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">neither rigorously applied nor sufficiently analyzed the legal framework that regulates the subject under discussion, nor did it fully and sufficiently assess the jurisprudential precedents it cites in its ruling, which have been previously analyzed in this resolution. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">b.3. Social networks and their importance in the exercise of freedom of expression and communication, regarding the protection of the right to honor. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">In the present case, the publication complained of as defamatory by [Nombre [Nombre10]] against [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">was carried out in one of the most modern and, without a doubt, most effective means of communication, that is, on a social network on the Internet, specifically, "Facebook". In order to analyze and define the criminal-legal importance of the existence of such socio-virtual groups with respect to the protection of the right to honor, it must be pointed out that one of the main characteristics of social networks in our contemporary reality is the amplifying effect on the spectrum of dissemination of ideas, comments, photographs, videos, news, texts, etc., that are shared and published by any of the members that make up the "virtual community", towards the entirety of it, or to a group of its members that make up their environment or virtual group on the social network. In the specific case of "Facebook", for example, the virtual community is composed of all those who have an account or profile, which allows them to have their own page—or profile—on the Internet and within the social network, thereby being part of that community, and in that way they can be in contact with all the other members of "Facebook" and share all the information and content of their profile. Likewise, whoever has a Facebook account can restrict access to a certain number of users to their profile, so that they share communication with that group, just as they can limit access to a part of the content of their profile, for example, their "wall", photos, some publications, friends, etc. Similarly, the user can limit the dissemination of what they publish on their "Facebook" page, whether to a group of members with whom they are virtually linked, what is known as the "friends group", or even to some of those belonging to that group or another of which they are a part. Thus, the power of dissemination and communication that "Facebook" has is clear, given that information of all kinds can be shared "online" or communication can occur via "chats" or conversations at any time, and anywhere in the world where any member of the virtual community is, whether nationally or even globally. The foregoing reveals the great importance that social networks have in the formation of public opinion today, through the expression of ideas, thoughts, and criticisms, and in the dissemination of information of any type, to the point that the same traditional mass media, such as radio, television, and the press, feed on the content and participate in the traffic of information that circulates on the Internet through social networks; hence the importance that such forms of communication currently have for the protection of the right to honor with respect to the exercise of freedom of expression. Another extremely important characteristic of social networks, not only "Facebook" but also another significant number of such groups that exist in cyberspace, such as "Twitter", "Instagram", "LinkedIn", etc., is the ease of access for the majority of the social collective to the different virtual communities that exist and develop on the Internet and, consequently, to all the information and the wide range of content that is transmitted, divulged, shared, or disseminated by the members of such social networks—for example, through the publication of "posts", photographs, videos, comments, etc.—given that nowadays the different events, points of view, news information—among others—of social, political, economic, scientific, etc. reality are published and reproduced practically "online" or in real time. Thus, any event can become very important on the network, and its dissemination will occur in a very short time and among a large number of people who have access to or are part of the virtual environment. In this last aspect, one must keep in mind the great advances in current technology, which has come to produce electronic devices that practically allow a very large number of people to be "online"—or connected—at all times, such as through "smartphones", "tablets", portable personal computers, etc., devices that are becoming more economically accessible every day for the vast majority of the population of our country and many countries of the world. In the present case, the study of the body of evidence produced at trial reveals that the publication made by the accused [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">generated a large number of comments and assessments regarding its content by a large number of "Facebook" users, participations within which there is a significant amount expressing direct offenses against [Nombre6] [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">], who at that time was the […] (In this regard, see folios 23 to 37 of the main file), a situation that demonstrates the supreme impact and significance that social networks have in the dissemination of ideas and the formation of public opinion today, a dissemination of information that is even faster than that achieved by traditional media today. [sas, es] Thus, it is clear that conduct carried out on the Internet has great criminal-legal relevance today, and for this reason it has been necessary to create specific legislation in this regard, such as the framework of Computer Crimes introduced into the Penal Code by Ley N° 9048 of July 10, 2012. Similarly, there are rules in ordinary criminal legislation that regulate and are applicable to conduct carried out through computer means, as occurs in the case of crimes against honor, classified in articles 145, 146, and 147 of the Penal Code. Based on all the foregoing, it is concluded that in the present case it is feasible and necessary to analyze in depth and with the rigor demanded by the duty of legal reasoning (fundamentación jurídica) of the criminal judgment, whether the publication made by the accused [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">on his public "Facebook" profile generated an injury to the honor of [Nombre6] [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">], for which it is required and important to appreciate the particularities that, according to the foregoing, social networks have in our current reality, just as the aspects concerning the relationship between the right to honor of public officials </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">versus </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">the exercise of freedom of expression must be considered, in a democratic society, and in accordance with the limits that this latter fundamental right has as a result of its abusive and disproportionate exercise, as considered throughout this pronouncement. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">C.- Specific defects in the appealed judgment that constitute the defect of lack of reasoning (falta de fundamentación).</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101"> In the preceding sections of this pronouncement, and based on the comprehensive examination of the ruling by this court of appeals (cámara de apelaciones), reasons of fact and law have been established and set forth that demonstrate and confirm that the judgment on the merits violates the duty of legal reasoning (fundamentación jurídica) required for its validity and effectiveness, in accordance with the provisions of articles 39 and 41 of the Political Constitution, as in what is regulated in articles 1, 142, 184, and 363 of the Code of Criminal Procedure. Thus, and as a complement to what has been previously stated, it is appropriate to point out certain aspects of the ruling that similarly reveal its erroneous legal reasoning, as claimed by Lic. [Nombre15]. Thus, the following is noted: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">Although it is true that public officials have a higher level of tolerance with respect to the exercise of freedom of expression regarding the protection of their right to honor, because they voluntarily submitted themselves to greater public scrutiny, which derives from the principles of transparency and accountability, such a particularity is not coupled with the absolute emptying of the right to honor and decorum that must be protected for those who exercise state function, given that the [se] in [ta] defined in this sense by the trial court entails, in practical terms, the emptying of said fundamental right, since practically no conduct could affect the right to honor of whoever is the […]. Such aspects were not duly assessed by the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a quo</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">, given that it set aside any objective consideration regarding the constitutional, conventional, and legal regulations that are linked to the substantive issue, just as it omitted to fully and objectively assess the jurisprudential precedents that, regarding the point under litigation, have been previously issued by the Costa Rican Constitutional Chamber and Criminal Cassation Chamber, and also by the Inter-American Court of Human Rights. This is because the trial judges limited themselves to supporting the [se] in the [con] on the basis of which they decided to acquit the accused [Nombre12], based on the definition and appreciation of the ideology they considered corresponds to the majority of Costa Rican society regarding the subject under discussion, reasoning from which the trial court set a [y exclu] </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">ad </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">hoc and exclusive parameter to delimit the scope of protection of honor that it deemed proper for the person who holds the position of […]. Such a position is subjective and, in accordance with the principle of legality, exceeds the proper functions of jurisdictional activity, that is, to interpret and apply the law, since it is not appropriate for a criminal court to define </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">motu proprio </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">an ideology that, according to its particular appreciation, corresponds to the social majorities, and in this way, assess ideological assumptions to define parameters for the protection of a fundamental and constitutionally recognized right such as the honor of state servants, and what is even more sensitive and inappropriate, to establish </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">ad hoc </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">and exclusive criteria for the protection of this right of the citizen who holds the […], which, far from guaranteeing the principle of equality established in article 33 of the Political Constitution, implies discriminatory treatment and the lack of protection of the essence of the referenced human right by virtue of a particular situation that does not justify its absolute suppression. Thus, the criminal court does not appreciate the regulatory framework that is linked to and regulates the substantive issue regarding the guarantee of freedom of expression and communication with respect to the protection of the right to honor and decorum of those who exercise public function, which demonstrates the weakness of the reasoning on which the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">bases the decision subject to appeal. Likewise, the trial judges do not set forth sufficient legal and objective reasons to justify their decision not to follow the jurisprudential criteria previously issued on the way in which the relationship between the right to honor </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">versus </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">the exercise of freedom of expression in the case of public officials must be legally addressed, given that they renounce carrying out a comprehensive analysis of the jurisprudential precedents that they only cite and reproduce in a biased manner in their ruling, and instead, limit their substantive reasoning to the consideration of a subjective thesis, which according to their particular appreciation, creates a jurisprudential line regarding the scope of protection that exclusively corresponds to the person who holds the […], an analysis that is legally incorrect. This is because it is not appropriate to define the scopes of protection of a fundamental right based on ideological assumptions that, even though they could coincide with the position of the majorities, might not coincide with the will of the constituent, an aspect that is not proper to elucidate through diffuse control of constitutionality, but only through the direct and concentrated control corresponding to the Constitutional Chamber, a situation that evidences the overstepping of its powers that the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">carried out to establish the [se] in the [con] on the basis of which it anchored its substantive decision.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101"> ii.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">As has been extensively analyzed in this pronouncement, it is not possible to achieve adequate protection of freedom of expression in a democratic society if limitations are established that operate as prior censorship and discourage the exercise of this fundamental right, something typical of authoritarian regimes that do not correspond to the scheme contemplated by our Political Constitution. Thus, it is not appropriate to generically and previously demand that what will be published must be true or previously verified—proven—since such a position implies establishing limitations that may result in the imposition of prior censorship of opinions, questions, and criticisms of matters of public interest, as would happen with the acts carried out by state officials in the exercise of their powers or in relation to them, an assumption that is undoubtedly of public interest and subject to greater control and oversight by all citizens, which, as indicated, derives from the principles of transparency and accountability of state servants. Notwithstanding the foregoing, as established by the regulations set forth </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">, and stipulated in the jurisprudential precedents that have previously been the object of analysis, it is indeed appropriate, without violating freedom of expression and communication, for there to be </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a posteriori </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">controls or for subsequent responsibilities to be demanded of those who exercise such fundamental rights abusively and disproportionately. Thus, in each specific case, it must be established whether the exercise of freedom of expression is not a screen or curtain used to disseminate false, speculative, or insidious facts whose real objective is to affect the honor of a public official, which is an assumption not covered by the scope of the protection or sphere of protection that corresponds to freedom of expression and communication, even when referring to a person who holds a public office regardless of their hierarchy. This is because neither the Constitutional Chamber, the Third Chamber, nor the Inter-American Court of Human Rights establishes any difference in the margin of protection of the right to honor corresponding to those who exercise public function, whether their election is by popular vote or of any other type, as was noted </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">. [sas, no] Thus, the [se] in the [con] on the basis of which the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">renounced hearing the arguments and thesis of the defense of [Nombre6] [Nombre443 [Nombre10]], insofar as in the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101">sub judice </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">it is necessary to define whether the content of the publication made by [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#010101">is false and speculative, and that it was disseminated with the knowledge of its suitability to affect the honor of the person who held the position of the […], is not appropriate.</span> In that sense, the trial judges limited themselves to establishing that because it involved the [[Nombre3]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">] it was not necessary to establish whether what was disseminated by the defendant is true or false, since he simply expressed his idea, opinion, or personal thought about the “facts” he published on his “Facebook” profile. sas, se</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">the matters, it is determined that the reasoning of the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">is unfounded, since it set aside the scope of protection of the right to honor that corresponds to public officials, established even by our Constitutional Chamber, whose jurisprudence is binding </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">“erga omnes”. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">Likewise, it omitted to carry out a legal analysis or rigorous assessment regarding the content of the “story” disseminated on the “Facebook” profile of [Nombre12] , limiting its reasoning, in that sense, to indicating that it was not necessary to establish whether such content was true or not, since it concerns an opinion, and opinions do not need to be proven, which is incorrect according to what was </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">supra </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">stated in that regard. In this sense, it should be added that the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">also fails to set forth the reasoning that legally allows it to classify the publication in question as “a mere or simple opinion”</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">, despite the fact that it stems from the assertion of a series of situations that, in principle, is closer to an imputation than an opinion about “the facts” that are part of the publication.</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\"> In addition to the above, the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">does not establish in the grounds of the judgment on the merits, which evidence it assessed and in what way it managed to grant the character of “facts”—as it establishes in its reasoning—to the events that the defendant cites in his publication, and regarding which it limited itself to indicating that they came to his knowledge, and based on that situation, he gave his opinion and disseminated it on his public “Facebook” profile. In the same vein, the appealed judgment does not establish the aspects the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">assessed to accurately establish that the “facts” disseminated and criticized by the defendant [Nombre12] are of public interest by virtue of being related to the activity—verifiable or objectively presumable—of the public functions of the [Nombre6] [[Nombre3]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">] in the exercise of their …]. Nomb as […]. ene that , it follows that the trial court did not adequately assess the point under analysis, in order to define whether the “facts” brought to light of public opinion by [Nombre12]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">are evidently false or merely speculative, this with the purpose of establishing the legal aptitude of those facts to be the object of criticism, by virtue of corresponding to the exercise of the public function of the [Nombre6], or failing that, whether the exposure of the content of the publication in question, without attending to or disregarding the quality or reality of the disseminated information, constitutes in itself an action that pursues and evidences a defamatory purpose to the detriment of the [Nombre6] [[Nombre3]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">], who emphatically denied in her statement at the hearing that the facts aired by [Nombre12]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">were true, an aspect that it is reiterated the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\"> did not assess with the depth and rigor legally required. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101\">iii.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">In relation to the foregoing, the comprehensive examination of the judgment reveals that the criminal court does not define or substantiate with precision, in what way it accurately concludes that in the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">subjudice </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">we are in the presence of simple thoughts, ideas, or questionings disseminated by the defendant [Nombre12] , and not in the presence of an offense nuanced with the right to honor of [[Nombre3]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">]. Thus, the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">did not assess whether through the content and the form in which the exposure of the “facts” in question, unsubstantiated, under the appearance and affirmation of being true or certain, and written in a way that could lead to the conclusion that there was influence peddling or incorrect conduct by the [Nombre6] to enrich herself by virtue of the exercise of public function, one could be in the presence of a story apt, suitable, and sufficient to affect the right to honor of the [Nombre6]. Such situation occurs because the trial court analyzed the events complained of, solely and exclusively, based on its do ad ho defined </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">ad hoc </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">to establish the scope of protection of the right to honor that the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">estimated corresponds to whoever exercises the […], a criterion which, as extensively set forth throughout this pronouncement, is not duly substantiated since it does not conform to the interpretation and application of the norms </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">supra </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">analyzed that regulate the protection corresponding to the right to honor </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">versus </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">the protection and exercise of freedom of expression in the case of those who exercise public function. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101\">iv.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">The reasoning of a criminal judgment cannot lie in the definition of an ideology derived from what a body of the ordinary criminal jurisdiction considers to be the stance of “the majorities,” but rather must be limited to the application and interpretation of the law, ombre03</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">as ar los c appreciating the binding jurisprudential criteria, os emana as those emanating from higher judicial authorities that, without limiting the principle of judicial independence, are applicable to the specific case. In that sense, it is timely to add that the human nature of whoever holds the position of judge of the Republic cannot be ignored, u relaci like their relationship with the social environment,</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\"> which entails them having a specific ideology that could indirectly carry some weight when interpreting and applying the legal norm, nevertheless, it is not acceptable that the basis of a judicial decision has a direct and manifestly ideological foundation, derived from a particular perception of social reality. In the case at hand, this latter situation is what truly defines the scope of protection of the right to honor that the trial judges specified as corresponding to whoever holds the […], by considering that such legal interest can only be affected when the offense is direct or expressly attributes the commission of a crime to whoever holds such o. Tal a public office. Such appreciation, as already indicated, is not only unfounded, but also disregards the precepts that the Constitutional Chamber and the criteria that the Third Chamber and the Inter-American Court of Human Rights have defined regarding the scope and limits of the right to honor of public officials </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">versus</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\"> the exercise of freedom of expression in a democratic State, which are very clear in establishing that a higher level of tolerance does exist and must be recognized, but in turn, they stress that the excesses and abuses of freedom of communication are not protected, which in reality seek to disguise, through the supposed exercise of such fundamental right, the exposure of false facts that are injurious and defamatory, knowing that such action can affect the right to honor of the public official. The foregoing, far from guaranteeing the validity of democratic society, rather causes it harm, by violating the social component of the right to freedom of expression to receive pertinent and adequate information for the correct formation of public opinion, and thereby guarantee the correct course of public function such that it is not affected by unjust attacks, which affect the institutionality, governability, and credibility of those who hold public power, which is more sensitive and delicate in the cases of those who exercise the Supreme Powers of the Republic. </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#010101\">v.- </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">The court conducts a segmented and not comprehensive analysis of the entirety of the text that was complained of as defamatory, an approach that does not correspond to what the Third Chamber has established is appropriate in that sense according to what was </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">supra </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">stated, since arse en</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">in each specific case, not only the content of the disseminated information must be appreciated, but also rse la f the form in which it is disseminated—wording, vocabulary, placement of photographs, etc.—must be assessed to establish whether the publication is suitable or not to achieve a defamatory result. Thus, the analysis of the list of proven facts of the judgment on the merits (cfr. folios 323 and 324 of the main file), allows establishing that the judges considered it proven that in the content of the publication in question it is presented as true that the [Nombre6] acquired a farm valued at the sum of two and a half million dollars, ue la mi as well as that she is the owner of wind power generation, and that based on such assertions the defendant [Nombre12]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">makes a comparison with the case of a person—a renowned soccer player—who at that time was being criminally investigated, regarding whom he indicates that upon “discovering lukewarm water” and with five days of study at INCAE became a millionaire and owner of yachts, airplanes, and a life of luxury. Likewise, the defendant expressly points out that </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">“[…] I compare the wealth of the Lady with this player, whose entrepreneurship and vision for business we applaud, that ease of paying millions of dollars, without us mortals finding an explanation in our daily life where money takes a lifetime of effort and work to earn (…) these instant riches astonish us and we find no logical explanations. Now, could it be that they read the Book of Secrets and discovered the short path to wealth. In any case, we congratulate the [Name [Nombre10]] who is preparing her exit from public office being a millionaire and possessor of material riches that for any of the citizens takes a lifetime and for public officials and soccer players seems like only five days of handling a ball</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\"> […]” </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">(cfr. folio 324, the transcription is literal). From the foregoing, it is inferred that, in the present case, it is necessary to analyze in an integral and not segmented manner as the trial court did, the content and the form in which the publication disseminated by [Nombre12] was made, in order to define whether it was disclosed in the pure exercise of the defendant's right to freedom of expression, in an ironic, heavy, and annoying manner, or if, on the contrary, the text disseminated on the “Facebook” profile of [Nombre12]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">corresponds to the abusive and disproportionate exercise of such fundamental right. This analysis was not carried out by the </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">a quo, </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">because it did not appreciate the content of the publication in question in an integral manner, and in turn, by virtue of having analyzed the text in question solely based on its</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">solo la that only direct offenses and the imputation of criminal acts as the only possible meaning of a publication can violate the right to honor of whoever exercises the […]. Added to the foregoing, the trial court considered that the [Nombre6] deemed her honor affected based on subjective appreciations she derived from “the story” published by [Nombre12] , which </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">the a quo</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\"> considered are not the only possible ones to derive from it—without providing further reasoning in this sense, as has already been pointed out—all of which it assessed to conclude that the facts complained of in the present case are not defamatory. Based on all of the foregoing, it is concluded that the factual, intellective, and legal analysis carried out in the judgment on the merits does not conform to the normative precepts established in Articles 39 and 41 of the Political Constitution, n lo est as in what is stipulated in Articles 1, 142, 184, and 363 of the Code of Criminal Procedure, which implies the defect of erroneous legal reasoning of the ruling claimed by the representative of the [Nombre6] [[Nombre3]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">]. Consequently, the appeal filed by Attorney [Nombre5]</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">is granted, and the appealed ruling is entirely annulled. The case is ordered remanded to the court of origin so that, with a different composition, it may resolve what is appropriate in law.</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:12pt; color:#010101\"> </span></p><p style=\"margin-top:0pt; margin-bottom:9.85pt; text-align:center; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">POR TANTO:</span></p><p style=\"margin-top:0pt; margin-bottom:9.85pt; line-height:150%\"><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Se rechaza la prueba ofrecida en la audiencia oral por el representante de la parte querellada. The evidence offered at the oral hearing by the representative of the defendant is rejected. Se declara con lugar el recurso de apelación de sentencia penal incoado por el licenciado [Nombre5]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">, en virtud de lo cual se anula en su totalidad el fallo impugnado y el juicio que le precedió, y se ordena la realización de un nuevo juicio ante el mismo tribunal penal con distinta integración, para que proceda a resolver lo que en Derecho corresponde. The appeal of the criminal judgment filed by Attorney [Nombre5]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">is granted, by virtue of which the appealed ruling and the trial that preceded it are annulled in their entirety, and a new trial is ordered before the same criminal court with a different composition, so that it may proceed to resolve what is appropriate in Law.</span> NOTIFY.- Edwin Esteban Jiménez González Mario Alberto Porras Villalta [Nombre4] Judges of the Criminal Sentencing Appeals Tribunal File: 13-000052-0016-PE (14) Defendant: [Nombre33].

Victim: [[Nombre3]] Offense: Defamation Nombre22 "III.- Regarding the evidence offered by Dr. [Nombre1] in the oral hearing held during the processing of this appeal. At the oral hearing held in the processing of this matter, Dr. [Nombre2] offered the following evidence: i.- certified photocopy of the digital version of a magazine in which mention is made of the complainant and civil plaintiff [[Nombre3]] (folios 453 and 454); ii.- Six certified photocopies obtained from the website http//es.wikipedia.org/wiki/Forbes (folios 455 to 461). We proceed to resolve the request and offering of evidence raised by the representative of the appealing and civil defendant party, for which the following aspects must be considered: a.- In the procedural criminal law that governs the criminal sentencing appeals phase, no rule is contemplated that establishes the possibility of offering, nor that it is appropriate, to accept evidence for better resolution or new evidence in an absolute and unlimited manner on appeal, as may occur in other stages of the criminal process. b.- The evidentiary activity in the criminal sentencing appeals phase is directly linked to the effective protection of the right to appeal the criminal judgment, so the legislator established that the evidence that can be admitted in the processing of such an challenge must be defined in order to guarantee the comprehensive examination of the judgment by the appellate court. The foregoing, because what is sought with said means of challenge is broad control and a comprehensive examination of the appealed judgment, as well as the trial that preceded it, such that the evidentiary activity on appeal must be developed cautiously and in strict adherence to the proper scope of the right to appeal, so as not to distort or disregard the importance and legal-procedural relevance of the oral and public trial. Hence, the appeals phase, with respect to the offering and acceptance of evidence, must be consistent with and respectful of the single-instance oral and public trial scheme that governs our criminal procedural system. For the foregoing, what must be assessed in each case is whether the evidence offered and accepted is useful and pertinent to review and control, in a broad and comprehensive manner, the criminal sentence handed down by the criminal court, as well as the trial that preceded it. d.- It is by virtue of the foregoing that Article 464 of the Código Procesal Penal, whose regulations govern evidentiary activity in the appeals phase, establishes that what is appropriate in said procedural venue is the examination of the trial records and, exceptionally, the reproduction of some evidentiary means due to weaknesses in the records or, as applicable, the reception of new evidence that is useful and pertinent for the resolution of the appeal in order to comprehensively examine the judgment. Under such criteria, the legislator regulated that new evidence is admissible in the appeals phase only in the following circumstances: i.- evidence offered in due time but arbitrarily rejected; ii.- evidence that appears as novel after the sentence; and iii.- evidence that, although previously existing, could not effectively have been offered by the interested party at the time. e.- Likewise, in order to ensure that the appellate court had an adequate and sufficient legal-procedural instrument to achieve a comprehensive examination of the judgment, as a result of the criminal sentencing appeal, the legislator established in Article 462 paragraph 3) of the Código Procesal Penal that the court may order to bring, on its own motion, evidence it deems necessary, useful, and pertinent for the verification of the alleged grievances. Thus, it is concluded that the documentation described above does not fall within the prerequisites for new evidence regulated for the processing and resolution of the criminal sentencing appeal, nor are such pieces of evidence useful and pertinent to resolve the aspects discussed in the subjudice, since the information derived from the printouts described supra pertains to areas of the personal life of the complainant and civil plaintiff [Name [Nombre4]] that are in no way linked to the facts that are the subject of controversy in the sub litem.

**"THIRD GROUND OF APPEAL**. [...] B.- Legally relevant aspects for the resolution of the case in accordance with the Law. This case has two particularities that must necessarily be assessed with care and rigor for the correct legal resolution of the litigation at hand, which are: **1.-** that the complainant [Name [Name1]] held the position of [...] on the date on which [Name2] –the defendant– published on his "Facebook" profile the text accused of being defamatory; **2.-** that the facts under judgment are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals their importance for the social and individual development of each of the inhabitants of our country, namely: **i.-** the right to honor and; **ii.-** the right to free expression. In attention to and under the prism of these two essential pillars of the *sublitem*, the legally relevant and necessary aspects for the resolution of the case in accordance with the Law must be defined. Thus, we proceed to individualize such assumptions. **b.1.- Normative legal framework.** First, it is necessary to establish the normative framework that is linked to the facts being judged and that must be appreciated and applied for their correct understanding. In this way, the regulations that are part of the block of constitutionality that are related and that regulate the subject matter in question must first be defined, which are the following: **i.- Article 11 of the Political Constitution;** Its regulations govern a principle that is essential for the proper application of criminal law –and undoubtedly for the specific case– such as the principle of legality.

That constitutional precept stipulates the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) Public officials are mere trustees of authority. They are obliged to fulfill the duties the law imposes on them and cannot arrogate powers not granted to them therein. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability for their acts is public. The Public Administration, in a broad sense, shall be subject to a procedure of results evaluation and accountability (rendición de cuentas), with the consequent personal liability for officials in the fulfillment of their duties. The law shall indicate the means for this control of results and accountability to operate as a system covering all public institutions. (Thus amended by Ley N° 8003 of June 8, 2000) (…)". </span><span style="font-family:Arial; font-size:12pt; color:#010101">Another aspect of an essential nature for the resolution of the case, and which derives from Article 11 of the Constitution, is the duty of accountability of public officials as well as the requirement of personal liability in the fulfillment of their duties. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- Article 41 of the Political Constitution. </span><span style="font-family:Arial; font-size:12pt; color:#010101">This precept establishes the right to honor at a constitutional level, that is, it is granted the status of a fundamental right, hence the relevance this norm has for resolving the merits of the dispute heard in this case. Said article establishes: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) Resorting to the laws, everyone must find reparation for the injuries or damages they have received to their person, property, or moral interests. Justice must be provided promptly, fully, without denial, and in strict conformity with the laws (…)".</span><span style="font-family:Arial; font-size:12pt; color:#010101"> </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iii.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">Another article of our Political Constitution whose regulations are applicable and important for the resolution of the present case is that established in its provision 28, which regulates the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) No one may be disturbed or persecuted for expressing their opinions or for any act that does not violate the law. Private actions that do not harm public morals or order, or that do not harm a third party, are beyond the reach of the law (…)".</span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iv.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">Furthermore, we have Article 29 of our Magna Carta in which freedom of expression, information, and press are protected as fundamental rights, which are undoubtedly directly linked to the event complained of in the present criminal case. Literally, said norm regulates the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) Everyone may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be liable for the abuses they commit in the exercise of this right, in the cases and in the manner established by law (…)"</span><span style="font-family:Arial; font-size:12pt; color:#010101">. Likewise, it is necessary to specify the regulation of Conventional Law that is linked to and must be assessed in the resolution of the present case, which is the following: </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.- Article 11 of the American Convention on Human Rights. </span><span style="font-family:Arial; font-size:12pt; color:#010101">This norm expressly recognizes the protection of a person's honor and dignity as a human right. Thus, the following is provided: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…)</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101"> Protection of Honor and Dignity.</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">1. Everyone has the right to have his honor respected and his dignity recognized. </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation (…)"</span><span style="font-family:Arial; font-size:12pt; color:#010101">. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">Also, as part of the "conventionality block" governing our legal system, </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 19 of the International Covenant on Civil and Political Rights</span><span style="font-family:Arial; font-size:12pt; color:#010101"> expressly recognizes the right to freedom of expression and information, such rights being regulated as follows: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals (…)".</span><span style="font-family:Arial; font-size:12pt; color:#010101"> </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iii.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">In the same vein, </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 13 of the American Convention on Human Rights</span><span style="font-family:Arial; font-size:12pt; color:#010101"> stipulates the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) 1. Everyone has the right to freedom of thought and expression.</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101"> This right includes 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 through any 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 and be necessary to ensure: a)</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101"> respect for the rights or reputations of others; or </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">b) 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 other means tending to impede the communication and circulation of ideas and opinions (…)". </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iv.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">A norm related to those previously set forth and which is relevant for the decision of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">sub judice</span><span style="font-family:Arial; font-size:12pt; color:#010101">, is that provided in Article 19 of the Universal Declaration of Human Rights, which establishes the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (…)".</span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101"> </span><span style="font-family:Arial; font-size:12pt; color:#010101">Moreover, within the legal sphere of our legal system, a series of regulations are contemplated that are of vital importance for resolving the present complaint in accordance with the Law, which are the following: </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.-</span><span style="font-family:Arial; font-size:12pt; color:#010101"> </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 146 of the Criminal Code</span><span style="font-family:Arial; font-size:12pt; color:#010101"> criminalizes the offense of defamation, which is precisely the punishable act complained of as committed by the accused [Name2]</span><span style="font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;</span><span style="font-family:Arial; font-size:12pt; color:#010101">. Said article establishes: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) Defamation. Whoever dishonors another or disseminates matters capable of affecting their reputation shall be punished with twenty to sixty days' fine (…)". </span><span style="font-family:Arial; font-size:12pt; color:#010101">Thus, it is clear that the fundamental right to honor is at stake in the resolution of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">sub judice</span><span style="font-family:Arial; font-size:12pt; color:#010101">, with the particularity that the rigorous appreciation of the right to freedom of expression, protected in the higher legal norms set forth </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra</span><span style="font-family:Arial; font-size:12pt; color:#010101">, is also important for this purpose; </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">The regulations provided in </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 25 of the Criminal Code</span><span style="font-family:Arial; font-size:12pt; color:#010101"> are directly linked to the subject matter under discussion, specifically, regarding the legitimate exercise of the right to freedom of expression. Its regulation provides the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) Compliance with the law. Whoever acts in compliance with a legal duty or in the legitimate exercise of a right does not commit a crime (…)". </span><span style="font-family:Arial; font-size:12pt; color:#010101">This ground for justification is of utmost importance for the purpose of defining, in a case such as the one being resolved, whether or not criminal liability exists for the dissemination of facts complained of as injurious to honor. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iii.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">Also legally relevant in the present case is the normative content of </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">Article 22 of the Civil Code</span><span style="font-family:Arial; font-size:12pt; color:#010101">, since this</span><span style="font-family:Arial; font-size:12pt; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; color:#010101"> expressly regulates the prohibition of the abuse of a right, a provision that is linked to freedom of expression according to the norms that recognize and protect such fundamental right in the legal instruments that make up the constitutionality block, as set forth </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">supra</span><span style="font-family:Arial; font-size:12pt; color:#010101">. Said article provides the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) The law does not protect the abuse of a right or its antisocial exercise. Any act or omission in a contract that, due to the intention of its author, its object, or the circumstances in which it is carried out, manifestly exceeds the normal limits of the exercise of a right, causing damage to a third party or to the counterparty, shall give rise to the corresponding compensation and to the adoption of judicial or administrative measures that prevent the persistence of the abuse (…)". </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">iv.-</span><span style="font-family:Arial; font-size:12pt; color:#010101">Furthermore, by virtue of the special personal condition of the complainant [[Name3]</span><span style="font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt; color:#010101">], it must be appreciated that the General Law of Public Administration regulates provisions related to the substantive issue, which are relevant for resolving the case. In the first instance, Article 11 of said law regulates the principle of legality as the essential guiding principle for the actions of public officials, stipulating the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) The Public Administration shall act subject to the legal system and may only carry out those acts or provide those public services authorized by said system, according to the hierarchical scale of its sources. An act shall be considered authorized when expressly regulated by a written norm, at least as to its motive or content, even if in an imprecise manner (…)". </span><span style="font-family:Arial; font-size:12pt; color:#010101">For its part, Article 113 of the General Law of Public Administration provides the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) 1. The public servant must perform their functions in a manner that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered persons. 2. The public interest shall prevail over the interest of the Public Administration when they may be in conflict. 3. In appraising the public interest, the values of legal certainty and justice for the community and the individual shall be considered first, to which mere convenience may in no case be preferred (…)". </span><span style="font-family:Arial; font-size:12pt; color:#010101">Another relevant legal norm is Article 114 of the General Law of Public Administration, which establishes: </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">"(…) 1. The public servant shall be a servant of the administered persons, in general, and in particular of each individual or administered person who interacts with them by virtue of the function they perform; each administered person must be considered in the individual case as a representative of the community on which the official depends and for whose interests they must watch. 2. Without prejudice to what other laws establish for the servant, any act, fact, or omission that through their fault or negligence causes unjustified or arbitrary hindrances or obstacles to the administered persons shall be especially considered irregular performance of their function (…)". </span><span style="font-family:Arial; font-size:12pt; color:#010101">The set forth normative framework contains the provisions that must be considered and applied in the resolution of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">sub judice</span><span style="font-family:Arial; font-size:12pt; color:#010101">, which, as previously noted, presents two particularities of great legal relevance that must necessarily be assessed to issue the decision that corresponds in accordance with the Law, these being: that the complainant [[Name3]</span><span style="font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt; color:#010101">] held the position of […] at the time when [Name2]</span><span style="font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-size:12pt; color:#010101; -aw-import:spaces">&#xa0;</span><span style="font-family:Arial; font-size:12pt; color:#010101"> published on their personal "Facebook" account the text complained of as defamatory in the present case; and that the facts subject to judgment are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals their importance for the social and individual development of each of the inhabitants of our country, namely: </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">i.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">the right to honor; and </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">ii.- </span><span style="font-family:Arial; font-size:12pt; color:#010101">the right to free expression. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">Thus, from the study and application of the norms </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">supra </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">noted, it is determined that in the present case there exists what can be described as a kind of "friction" between the fundamental rights to honor and freedom of expression, regarding which it must be expressly indicated that, despite such situation, they are not mutually exclusive. This is because what is determined in this regard, based on the regulations in our legal system, is that both fundamental rights are closely linked to each other, since both the right to honor and freedom of expression are essential for the individual and social development of every person, to which must be added that freedom of expression has an essential quality from a political-institutional and social point of view, as the protection and respect of such right are absolutely necessary to guarantee the structuring, validity, and development of a society based on a Democratic State, as framed in our Political Constitution.</span><span style="font-family:Arial; font-size:12pt; text-decoration:underline; color:#010101"> </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">This being the case, the provisions contained in the referenced normative instruments allow us to establish that it is not possible to think or consider that one of these human rights is of a higher rank or that it should be applied to the absolute detriment of the other, since what corresponds, for the purpose of guaranteeing and protecting both human rights duly, in accordance with the precepts of our legal system, is their equal application, and in the event of a collision between the two –by virtue of their special link– what corresponds is to assess the objective and subjective circumstances of each specific case, in order to rationally and proportionally modulate the value that corresponds to granting the right to honor with respect to freedom of expression in a given matter of criminal legal relevance.</span><span style="font-family:Arial; font-size:12pt; color:#010101"> It is important to complement the previous idea, so that together with the considerations specific to the particular case regarding the "modulation" of the referenced fundamental rights, the scope or ambit of each of these fundamental precepts must also be appreciated and carefully defined. This, with the objective of determining if, in a specific case, the right to free expression was exceeded or "left" its legitimate scope of protection. The foregoing is important because, normally, the right to honor will be affected by manifestations, opinions, or criticisms from third parties, but that affectation –by itself– should not be the sole parameter to consider, since it must also be appreciated and defined to what extent honor and decorum –in the case of public officials– must tolerate such criticisms, so it is not only sufficient to "modulate" the specific scope of protection of one or another human right, but also, limits and scope of such rights must be set. The foregoing is based on the objective and comprehensive study and analysis of the norms set forth, an analysis that leads to the conclusion that freedom of expression cannot be limited or restricted </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a priori,</span><span style="font-family:Arial; font-size:12pt; color:#010101"> which would imply that such restrictions translate into </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; color:#010101">prior censorship</span><span style="font-family:Arial; font-size:12pt; color:#010101"> that would denature and signify, in turn, the emptying of the content and effectiveness of freedom of expression, which is absolutely harmful to the proper development and validity of a Democratic State of Law. From the regulations set forth, as well as from the legal nature and purposes of freedom of expression, what is pertinent is that the limits on its exercise be given </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">a posteriori,</span><span style="font-family:Arial; font-size:12pt; color:#010101"> if and only if, in cases where there has been an abusive use of freedom of expression that exceeds its normative content, and that implies, in turn, the violation of other fundamental rights, as can occur with respect to the right to honor, with which it has already been indicated that the right to free expression is closely linked. In this way, it is not appropriate to establish as an absolute rule that the right to freedom of expression will prevail in every case and without any limit over the right to honor, with the legally appropriate course being to consider and define in each specific case the weight or value that corresponds to one or the other, in order to adequately guarantee, according to constitutional parameters, the validity and effective protection of both fundamental rights under their balance and adequate recognition. What has been set forth above is of utmost legal relevance for the</span><span style="font-family:Arial; font-size:12pt; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; color:#010101"> resolution of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic; color:#010101">sub judice</span><span style="font-family:Arial; font-size:12pt; color:#010101"> in accordance with the Law and to guarantee one of the fundamental pillars of criminal due process, which is the right to a fair sentence subject to legality, as established in the renowned resolution N° 1739-92 of the Constitutional Chamber of the Supreme Court of Justice. Specifically, by virtue of the fact that, as has been previously established, the complainant [Name [Name1]] held the position of […] at the time the events subject to judgment occurred. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">This situation introduces another essential topic in the analysis of the </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">sub judice, </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">namely, the condition of a public official and the obligation that, by virtue of such status, exists towards the administered persons in general, so that by reason of the provisions of the principles of legality and</span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">&#xa0;</span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101"> accountability, anyone holding the position of public official has greater responsibility in the exercise of the powers inherent in their investiture, as well as being subject to greater scrutiny and oversight in the exercise of public function, a parameter that ultimately gives a special nuance to the fundamental right to freedom of expression </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">versus</span><span style="font-family:Arial; font-size:12pt; color:#010101"> </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; text-decoration:underline; color:#010101">the right to honor.</span><span style="font-family:Arial; font-size:12pt; color:#010101"> Thus, it is clear that by reason of the principle of accountability derived from Articles 11 of the Political Constitution, as well as from Articles 11, 113, and 114 of the General Law of Public Administration, whoever is a public official and holds a position of such nature, whether by popular election or of any other type, by virtue of their condition as a public official and for having voluntarily opted for the management of a position of that category, is obliged to endure a greater level of tolerance in the scrutiny and oversight of the exercise of their position, as well as in carrying out their actions –including those of a personal nature– that are directly or indirectly linked to, affect, or have an impact on the management of their public function. By reason of the foregoing, there is no doubt that whoever holds a position such as the one the complainant [Name [Name1]] held at the date of the facts, i.e., that of […] –and in general anyone who occupies or exercises public function–, has the duty to submit to –and accept– greater control in the exercise of their functions, not only by the organs or formal mechanisms created for such purpose, such as, for example, the Comptroller General of the Republic, but also –and to a highly important degree– by informal control and oversight mechanisms, such as the press media and public opinion in general. Thus, it is guaranteed that the administration of the State's assets and resources –which in reality belong to all the country's inhabitants who have delegated them for their proper governance to the public officials– is carried out in accordance with the purposes and with the efficiency demanded by law, by those who hold some public office.

In turn, the effective protection and validity of the democratic State are safeguarded, in which prior restrictions—or restrictions of any other type—on freedom of expression as a means of social control and domination are in no way admissible, given that, rather, in a democratic framework such as the one governing our country, freedom of expression must be guaranteed as a form of control over the exercise of public power. In this way, and specifically, whoever holds the office of the […], is subject to a greater level of tolerance in the scrutiny of their functions, which undoubtedly encompasses aspects pertaining to the exercise of freedom of expression with respect to the right to honor of the […] or the […], so that the person holding the office is subject to criticisms, questions, opinions, or statements that are directed at or based on the exercise of their public function or that are directly or indirectly linked to their status as a public official and the powers they perform. Notwithstanding the foregoing, and it is necessary to establish from the outset, the interpretation of the rules set forth *supra* carried out by the criminal trial court in the judgment on the merits is not legally admissible. This is because such a criterion derives from a subjective interpretation of the Costa Rican socio-political reality by the trial judges, a position according to which they define an ideological basis for their decision, which, as they expressly indicate in the ruling, supports the essential criterion or parameter on which they resolve the merits of this matter, that is, that the judges assess or consider that whoever occupies the […] must endure or tolerate even greater limitations on their right to honor compared to the rest of the public officials, regarding the exercise of freedom of expression, so that only direct offenses to such fundamental right or the reference to facts that expressly constitute a crime, would be the scenarios in which the unlawful violation of the right to honor of the […] or […] could occur, a criterion with which they dismiss the harm to the right to honor in the accusation of the […] and complainant, [Name [Name1]]. In this sense, the study and interpretation that corresponds according to Law of the previously defined normative framework does not allow one to establish that it is expressly or tacitly regulated that the level of tolerance of the person holding the office of the […] is different from that of the rest of the public officials who are members of the Supreme Branches of the Republic, or of any other public office of a lower rank than those previously indicated. Thus, the differentiation carried out by the *a quo*—distinguishing where the norm does not—regarding the point under analysis, is neither objective nor legally supported, but rather derives from their opinion or subjective position regarding what the trial judges deem to be the answer to the questions they pose themselves in their ruling, these being: *“[…] what type of State and society does the majority of Costa Ricans want? Is a strong State wanted where the honor of public servants has greater legal protection than freedom of expression? Or is a Constitutional State wanted where there exists fair protection between the honor of public officials and the freedom of expression of other Costa Ricans […]”* (cf. folio 360 of the main file). The limitations and relationship existing between the right to freedom of expression and the right to honor of Costa Rican public officials are not defined based on the interpretation or subjective individualization of the ideology of what, in this regard, is considered to be what the majorities of our country want, as erroneously carried out by the *a quo* in the judgment on the merits. The legal relationship between the right to honor and freedom of expression, in order to adequately guarantee the principles of legality, transparency, and accountability of public officials, for the validity and correct development of the democratic model established by our Magna Carta, must be defined based on the application of the normative framework set forth *supra*, from which the following is determined: **i.-** Public officials are subject to the principles of legality and accountability in their capacity as trustees of the public function. **ii.-** The strict application of such principles implies that public officials have a greater level of tolerance in the scrutiny and oversight of the exercise of their offices, for the purpose of guaranteeing the adequate management of the public resources of all administered persons, as well as to guarantee the full development of the democratic principle and the safeguarding of the Democratic State established by our Political Constitution. **iii.-** The constitutional, conventional, and legal regulations set forth *supra* determine that public officials, despite the duty of tolerance to which they are subjected by virtue of their status, do possess and are holders of the right to honor, which must be protected and guaranteed under the strict application of the principle of accountability and transparency inherent to a Democratic State of Law, which give a special nuance and a greater threshold of tolerance in the relationship of honor *versus* freedom of expression of public officials, a threshold that legally cannot translate into the *de facto* emptying or disregard of the protection of the honor of those who exercise the public function, which obviously includes the office of […]. Thus, while the person holding said office must endure criticisms, questions, or opinions, which may even be strong, harsh, and uncomfortable, they maintain their right to honor, such that it cannot be violated under the curtain or the screen of the legitimate exercise of a right (Article 25 of the Criminal Code), that is, freedom of expression, when in reality what exists is an abusive and illegitimate exercise of such fundamental right that implies a violation of the decorum and dignity of the person, which not only affects them in their individual sphere, but also, by virtue of their special condition, affects them with respect to the exercise of the public function and administration. Such abusive use of the right to honor can be carried out in many ways, as has been expressly stipulated in the constitutional, conventional, and in the case law of our Chamber III of the Supreme Court of Justice—to which reference will be made in a subsequent section—and not only through direct offenses or express criminal imputations against a […] or […], as the trial judges estimated in the judgment on the merits without objective and legal support. That being the case, to guarantee the protection and effective application of the regulations set forth *supra* that govern the fundamental rights to honor and freedom of expression in a case such as the one being elucidated in the *subjudice*, without an illegitimate impairment of one of such rights to the detriment of the other, and thus achieving the safeguarding and effectiveness of both, forms *a priori* or exhaustive must not be assessed or defined as typical or necessary for the offense to the honor of a certain public official, that is, in the present matter, that of whoever occupies the […], but rather what is appropriate is to appreciate or assess in **each specific case** the accusation or complaint that is reported as offensive to the honor of the public official, from two perspectives; **1.-** that the text or content of the published material is made, expressed, or posed in a form or manner that leads to an objectively verifiable harm or impairment of the honor, decorum, or dignity of the public official, by virtue of the abusive exercise of freedom of expression. That is to say, the main issue is the offensive content of the publication, but nevertheless, as indicated by the Third Chamber in the resolution studied *supra*, it is important to assess the form in which the ideas are expressed, captured, or the publication is carried out; **2.-** that from “the accusation” that is complained of or reputed as harmful to honor, the existence of common intent (*dolo común*) of the person who performs it can be derived, that is, the knowledge and will that the statement is offensive to honor, that is, to affect the honor or decorum of the public official, a will that departs from and exceeds the exercise of freedom of expression that corresponds to the scrutiny and oversight that public officials must tolerate as part of the duty of transparency and accountability that is attached to the office they hold. In simple terms, it can be pointed out that the minimum that can be required of a person who carries out a publication or dissemination of an expression regarding a person who holds a public office—*a posteriori* in order to avoid any possibility of prior censorship—is that they have at least ascertained the seriousness or real existence of the source, that is, to assess and define at least an objective basis that justifies the question, criticism, complaint, comment, etc., that is disseminated or published. It is clear that depending on each particular case, and in attention to the degree of responsibility, hierarchy, and degree of exposure of the office of a specific public official, the margin of tolerance to criticism, questions, or unfavorable opinions that are carried out in the serious and measured exercise of freedom of expression, as a means of control and formation of public opinion, will be more common and will have to be accepted more regularly, as occurs in the office of the […]. **iv.-** From the regulations set forth, it follows that freedom of expression concerning the right to honor of public officials does not cover or protect the exercise thereof through the indication or disclosure of false facts, mere speculations, or malicious comments whose true purpose is to affect the honor of the public official involved, and not to make effective the legitimate exercise of a right with the objective of informing or generating public opinion regarding situations that are relevant for the correct exercise of the public function. The foregoing does not mean that the person who makes a statement, criticism, or opinion regarding the performance of a public official is obliged to prove the truth of the content of their publication, since such a position could unduly limit freedom of expression as a form of prior censorship. What is appropriate in each specific case—as advanced *supra*—is to analyze, in the first place, the objective basis of the comment, opinion, or publication, and in the second place, that its issuance and dissemination do not have the true purpose of unduly affecting the right to honor of a public official under the appearance or subterfuge of invoking the exercise of freedom of expression. This is because openly accepting any type of negative expression or comment against a public official without any discrimination whatsoever, without sifting such statements under the lens of the greater level of tolerance that corresponds to them, is not admissible. Nor is it acceptable to radically affect their right to honor, by virtue of the definition and appreciation of exhaustive factual assumptions that are neither derived from nor regulated in any way in the legal framework set forth *supra*, as done by the *a quo*. Such a position, far from satisfying, seeking, and allowing the control, scrutiny, and oversight of those who hold public offices, in order to guarantee the duties of transparency and accountability constitutionally established, for the validity and development of the democratic State through the formation of public opinion and the questioning of the various acts that occur in the exercise of power and state administration, generates the “deformation of public opinion,” which leads to the disenchantment and undue loss of confidence in those who exercise public administration and, consequently, to the possible irregular impairment of the correct institutional order. The foregoing not only affects the individual honor of such persons, but also, and what is extremely harmful to a Democratic State, undermines its institutions and its governability, since an environment of distrust and disenchantment is unduly produced among administered persons in general, with respect to those who exercise the public function by their delegation and on their behalf. In this way, freedom of expression and communication in a democratic constitutional framework not only includes the possibility of making statements freely and without prior censorship by the inhabitants of the State, but also contemplates the right to receive and for truthful, serious, objective, and responsible information to be disseminated about the performance of those who hold the public function, in order to guarantee the formation of an adequate public opinion that enriches and enshrines the democratic principle through the protection and correct application of the principles of transparency and accountability, which obviously concern and bind whoever exercises the […]. By reason of all of the foregoing, it is determined that the ideological basis that was subjectively defined by the *a quo*, based on their particular appreciation of the reality of our country, to define parameters that, according to their appreciation, discard the existence of unlawful conduct harmful to honor to the detriment of [Name [Name1]] for the facts that they complained of against the accused [Name2], is a decision that is not supported by nor does it conform to the norms that, in our legal system, regulate the right to honor of public officials with respect to the exercise of freedom of expression. **b.2.- Applicable case law precedents to the substantive issue.** In the judgment on the merits, the trial judges invoke and assess in their reasoning case law precedents from the Constitutional and Third Chambers of the Supreme Court of Justice, as well as from the Inter-American Court of Human Rights. Notwithstanding the foregoing, the comprehensive examination of the ruling reveals that, as claimed by the appellant, the trial court did not comprehensively assess the content of such pronouncements, even though they are very important for deciding the merits of this matter, given that they study and develop the issue relating to the precepts and criteria that must be followed in the criminal-legal approach to the relationship that exists between the fundamental rights to freedom of expression and the right to honor of those who exercise the public function, as well as define other legally relevant aspects for the solution of the case. For this reason, and because the reference case law framework has been appreciated and assessed in order to support this pronouncement, it is necessary to recapitulate and analyze the most important contents of each of the precedents invoked in the judgment on the merits, related to the issue under litigation. **1.- Constitutional Chamber of the Supreme Court of Justice.** The study of the judgment on the merits allows one to establish that the trial judges used, in the basis of their decision to acquit the respondent [Name2], the case law precedent of the Constitutional Chamber No. 2006-05977, of 3:16 p.m. on May 3, 2006, in which a constitutional challenge (*acción de inconstitucionalidad*) filed against the text *"Those responsible for crimes of slander or libel committed through the press shall be punished with a penalty of arrest from one to one hundred twenty days,"* contained in the first paragraph of Article 7 of the Printing Press Law, No. 32 of July 12, 1902, was resolved. In said pronouncement, whose provisions, it must be remembered, are *erga omnes*, the following aspects are highlighted: **i.-** In the precedent under study, the fundamental right to freedom of the press is analyzed, with the Constitutional Chamber indicating in this sense that the case is approached from the perspective of said right in relation to public officials and the dissemination of issues of social relevance—newsworthy facts—this even though the norm is conceived within a broader framework of subjects. In this regard, it should be noted that in the judgment on the merits, the judges did not appreciate in any way that, although the case analyzed in the constitutional precedent of reference has some aspects that are applicable to the present matter—for being related to a certain degree with the facts being judged in the *sublitem*—the issue specifically addressed by the Constitutional Chamber was that of freedom of the press, which differs from what is discussed in this complaint, since “the accusation” that was complained of as harmful to the honor of [[Name3]] was not published in a press medium, nor was it carried out by any person dedicated to such a professional field. This, because [Name2] is not a journalist, to which it must be added that the respondent did not carry out the publication in question as a result of journalistic investigation, nor under the characteristics of dissemination that are customary and typical of communication media of such nature. This situation must be kept in mind to be able to dimension the scope of the pronouncement in question, in order to derive the aspects thereof that are applicable in the solution of the *subjudice*, which was completely set aside by the *a quo* in the assessment that they carried out in the ruling of the constitutional precedent under study. **ii.-** Another aspect that the criminal court did not assess with the legally corresponding weight is the statement made by the Constitutional Chamber regarding the limits that freedom of the press has—which at some point in their reasoning they identify as freedom of expression—with respect to those who exercise the public function and their right to honor. In this sense, it is stipulated, in general terms, that norms establishing restrictions on said fundamental right do not have the purpose of limiting the duty of transparency, but rather that of sanctioning the bad faith and inexcusable negligence of the person who uses freedom of the press as a means to injure the honor of a public official. Literally, regarding the aspects previously noted, the Constitutional Chamber establishes: *“[…] It is not a matter, then, of a norm configured to shield the public function, nor to avoid the necessary transparency that must exist regarding its acts, but rather it intends, in general, to sanction whoever, in bad faith or by inexcusable negligence, uses freedom of the press as a means to injure the honor of persons and the right of citizens to receive adequate and timely information from journalists and media that disseminate information through written means. Issues outside the indicated framework are not addressed, as they are not part of the case, such as other non-journalist subjects or communication media, who express themselves and report on various issues daily to the citizenry through the printing press, which generically encompasses all types of printed matter, printing, editing, and circulation of brochures, magazines, and publications of all kinds […].”* The foregoing reveals the weaknesses in the reasoning and, consequently, in the basis of the decision being challenged. **iii.-** Regarding freedom of expression, the Constitutional Chamber establishes that such fundamental right is an essential pillar of democracy, which this appellate chamber fully assumes and shares, according to what was set forth in the preceding point of this pronouncement. Specifically, in this sense, the Constitutional Chamber stipulates the following: *“[…] **Freedom of expression as an indispensable requirement of democracy.** Freedom of expression is undoubtedly one of the conditions—although not the only one—for democracy to function. This freedom is what allows the creation of public opinion, essential for giving content to various principles of the constitutional State, such as, for example, the right to information, the right of petition, or rights in matters of political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchange of knowledge, ideas, and information, which allows for the generation of consensus and decision-making among the components of diverse social groups, but which also constitutes a channel for the expression of dissensus, which in a democracy are as necessary as agreements. In turn, the exchange of opinions and information that originates from public discussion contributes to forming personal opinion, and both form public opinion, which ultimately manifests itself through the channels of representative democracy […].”* **iv.-** In the precedent under study, the Constitutional Chamber defines the content of freedom of expression, framing it in different facets, a categorization that is of capital importance for the solution of the present case. In this regard, the following is stipulated: *“[…] **Content of freedom of expression**. Freedom of information could be said to have several facets, as recognized by national doctrine (of which the first three are related to what is discussed here): a) freedom of the press in a broad sense, which covers any type of publication, b) freedom of information by non-written means, c) the right of rectification or reply.* Freedom of the press generically encompasses all types of printed matter, printing, publishing, circulation of newspapers, pamphlets, magazines, and publications of all kinds. It is, by its nature, the natural vehicle for the freedom of expression of citizens. </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">It translates into the right of individuals to seek and disseminate information and ideas to an indeterminate number of persons regarding facts that, by their nature, are of general interest because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression.</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\"> In a democracy, its functions are: to inform (facts, newsworthy events), to integrate opinion (stimulating social integration), and to control political power, as it is a permanent guardian of honesty and the correct management of public affairs. Given its symbiotic link with democratic ideology, countless international instruments and practically all the Constitutions of the free world, since the French Declaration of 1789 (art. 11), have recognized it (...) The consequence of freedom of expression is the prohibition of all forms of censorship, in a double sense: on one hand, interlocutors cannot be censored; and on the other, in general, the possible contents of discussion cannot be previously censored: in principle, in a democracy, all topics are debatable. </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">The non-censorability of subjects has a practically universal character, as established by our Constitution, no one can be deprived of the freedom to speak and express themselves as they see fit; the non-censorability of content, while not applicable in a prior manner, does have some limitations, however, these must be such that freedom still has meaning or is not emptied of its content, basically, like all freedom, it must be exercised responsibly, in order to pursue legitimate goals within the system</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\"> […]” </span><span style=\"font-family:Arial; font-size:12pt\">(The underlining is not part of the original text). From the foregoing, two fundamental points are inferred regarding the exercise of freedom of expression, in order to fulfill the proper purposes of a Democratic State, namely: </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">a.- </span><span style=\"font-family:Arial; font-size:12pt\">it is defined as the right of individuals to disseminate ideas to an indeterminate number of persons regarding </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">facts that, by their nature, are of general interest because they are considered newsworthy. </span><span style=\"font-family:Arial; font-size:12pt\">Thus, it is clear that what freedom of expression allows to be disseminated are “facts” that are relevant and have the character of being newsworthy, because they are linked to the exercise of public function. These aspects were not evaluated by the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a quo</span><span style=\"font-family:Arial; font-size:12pt\"> despite using the jurisprudential content of the referenced precedent in its substantive reasoning, as it did not carry out any assessment to define whether, in the present matter, “the species” that was complained of as suitable to affect the right to honor of [[Nombre3]</span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-size:12pt\">] for being defamatory, has the character of a “fact” and, in turn, whether it can be considered of interest to the general public for being newsworthy. In this regard, it must be reiterated, as was established </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">supra </span><span style=\"font-family:Arial; font-size:12pt\">by this appellate court, that from the criminal standpoint, whoever exercises the right to freedom of expression or the press is not obliged to prove the truthfulness of the facts they disseminate; however, it is necessary to verify a certain objective basis that allows for ruling out that what is hidden behind the publication is a falsehood or mere speculation maliciously circulated or disseminated knowing it is suitable to affect the honor of the public official involved, just as the Constitutional Chamber itself stipulates in the jurisprudence being examined. A comprehensive review of the appealed judgment reveals that the trial court of merit did not evaluate, with the rigor required by Articles 142 and 184 of the Code of Criminal Procedure (Código Procesal Penal), the aspects previously noted, despite them being essential for properly categorizing and deciding the facts complained of in the present case. </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">b.- </span><span style=\"font-family:Arial; font-size:12pt\">The Constitutional Chamber expressly establishes that prior limits on the exercise of freedom of expression are not appropriate, since such restrictions could imply a type of prior censorship. Notwithstanding the foregoing, our Constitutional Court establishes that certain limits </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a posteriori </span><span style=\"font-family:Arial; font-size:12pt\">are appropriate, limits that do not suppress the content of the fundamental right, limits justified by the fact that all freedom must be exercised responsibly,</span><span style=\"font-family:Arial; font-size:12pt\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\"> in order to seek and achieve legitimate goals within the system. </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">v.- </span><span style=\"font-family:Arial; font-size:12pt\">Another essential aspect touched upon in the precedent under study relates to the limits that the Constitutional Chamber stipulates correspond to freedom of expression.</span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\"> </span><span style=\"font-family:Arial; font-size:12pt\">In this regard, it is established that not all expressions have the same value, and consequently, they do not enjoy the same constitutional protection. In this respect, it takes up the jurisprudence of the Spanish Constitutional Court, stating the following: </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">“[…] In order to determine which expressions can be limited and to what extent, it is important to take into account that not all expressions can have the same value, nor consequently enjoy the same constitutional protection. Thus, for example, even international jurisprudence, e.g., the Spanish Constitutional Court, has indicated that insults or value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion lack constitutional protection […]”. </span><span style=\"font-family:Arial; font-size:12pt\">From the foregoing, it is inferred that insults lack protection, as do value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion. In this sense, the comprehensive examination of the judgment of merit allows for concluding that the trial judges did not evaluate, under the parameters stipulated by the Constitutional Chamber, the content of the publication that was complained of as defamatory in the present matter, as they did not assess whether the manner in which said statement was drafted and its content were necessary for the expression of the species that was disseminated on the “Facebook” profile of [Nombre2]</span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\">. In this regard, it should be added that the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"font-family:Arial; font-size:12pt\">analyzed the publication in question in a segmented and restrictive manner, based on the criterion that it subjectively defined as the “ideological basis” of its judgment, from which it established the parameters it considered and determined as the only ones that can generate an infringement of the right to honor of the person who holds the […]. Thus, it limited its examination of the case to assessing whether the text in question was directly injurious or unequivocally attributed criminal conduct to the plaintiff, an analysis that evidently does not conform to the parameters defined by our Constitutional Chamber in the referenced precedent, a situation that translates into the erroneous legal reasoning of the appealed judgment. Continuing with the analysis that said Chamber conducts in the jurisprudence under study, regarding the limitations constitutionally corresponding to the right to freedom of expression, it is important to highlight the following points that delimit the legitimate exercise of said fundamental right: </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">“[…] </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">On another level are opinions, that is, personal value judgments that are not formally injurious and unnecessary for what one intends to express, even if they contain what is known as "disturbing or hurtful opinions"; these opinions would be constitutionally protected by freedom of expression and could even have as their content irony, satire, and mockery.</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\"> On another step is information, understood as the truthful narration of facts, which would be protected as a general rule, unless it violates other fundamental rights or constitutionally protected legal interests (for example, honor, privacy, the order and tranquility of the nation, the rights of children and adolescents). On another level would be news, understood as the truthful narration of facts that have public relevance, either because of the facts themselves, or because of the people involved in them; news contributes in an outstanding manner to the creation of free public opinion. </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">On the last level would be falsehoods, rumors, or insidious statements that hide behind a neutral narration of facts and that in reality completely lack truthfulness.</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\"> On the subject of truthfulness, the Human Rights Commission has indicated (Declaration of Principles on Freedom of Expression, adopted by the Inter-American Commission on Human Rights at its 108th regular session in October 2000) that any prior conditioning on aspects such as truthfulness, timeliness, or impartiality of the information is considered prior censorship, but in the opinion of this Court, it must be understood that this refers to the possibility of using such arguments as justifications for </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic\">prior censorship</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\"> of the information, not to impede the right to effective judicial protection against the insults or damages one has received in their person, property, or moral interests, as established by Article 41 of our Constitution when stating: “Occurring to the laws, everyone must find reparation for the injuries or damages they have received in their person, property, or moral interests. Justice must be done promptly, completely, without denial, and in strict accordance with the laws.” It is recognized that the exercise of freedom of the press, understood as part of the right to inform and therefore a form of freedom of expression, must be exercised within basic ethical principles, for “freedom of the press is not synonymous with the right to insult.” </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">This is because another fundamental right exists that justifies the legal system providing a balance that will always be determined by analysis of the specific case. This does not mean that in all cases the honor of persons must prevail, or that they are rights of the same rank. They are rather freedoms that relate to each other within the system of freedom that supports our democratic institutionality</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\"> […]” </span><span style=\"font-family:Arial; font-size:12pt\">(The underlining is not part of the original text). From the foregoing, two very important aspects regarding the right to honor are derived, which were not duly evaluated by the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a quo</span><span style=\"font-family:Arial; font-size:12pt\">, namely: </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">a.- </span><span style=\"font-family:Arial; font-size:12pt\">Personal opinions or value judgments are not exempt </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">per se</span><span style=\"font-family:Arial; font-size:12pt\"> or absolutely from generating an abuse of the right to freedom of expression to the detriment of other fundamental rights. Thus, according to what our Constitutional Court stipulates, to rule out such abusive use of the right to freedom of expression, it must be assessed and defined whether the opinions are formally injurious and unnecessary for disseminating what is intended to be expressed, an analysis that the court of merit omitted to carry out in the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">subjudice</span><span style=\"font-family:Arial; font-size:12pt\">, by virtue of the absolute preponderance it gave to the parameter it subjectively defined to delineate the conducts it exhaustively determined as the only ones that can affect the right to honor in the specific case of the person who holds the […]. It should be added that disturbing, hurtful, ironic, satirical, or mocking opinions, provided they are not formally injurious and unnecessary for expressing what is published, do not exceed freedom of expression according to what the Constitutional Chamber stipulates in the precedent being analyzed. In this regard, it must be noted that in the judgment of merit, the criminal court indicates that what was stated by the defendant [Nombre4] </span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\"> against [[Nombre3]</span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-size:12pt\">], was carried out through a “strong”, “sarcastic” and undoubtedly “annoying” text for said plaintiff, based on the facts that [Nombre4] </span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\"> reported as the basis for his statement or opinion. In this sense, it must be reiterated that in the contested judgment, it is neither established nor can be inferred the logical reasoning or on the basis of what evidentiary means the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"font-family:Arial; font-size:12pt\">accurately conferred the character of “facts” upon the points encompassed in the text published on the “Facebook” profile of [Nombre5] </span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\">, against the [Name [Nombre1]]. Likewise, in the judgment, the trial judges also did not express the reasons why they considered that “the species” disseminated by the defendant was done in a manner that is not formally injurious and unnecessary for communicating what was disseminated on the “Facebook” account of [Nombre4] </span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\">. </span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">b.- </span><span style=\"font-family:Arial; font-size:12pt\">Another defect in the legal reasoning of the judgment, which is verified from its comprehensive review –based on what the Constitutional Chamber prescribed in the pronouncement that the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"font-family:Arial; font-size:12pt\">invoked in its judgment–, is that the trial court of merit did not express any criterion or reason by virtue of which it ruled out in the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">subjudice</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\"> that the statements that were complained of as defamatory do not constitute falsehoods, rumors, or insidious statements that were disseminated under an apparent “neutral narration of facts” on the “Facebook” profile of [Nombre2]</span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\"> –since it was not analyzed– if the publication in question completely lacks truthfulness. In this sense, as argued by the appellant [Nombre6], the criminal court did not fully evaluate the statement of the plaintiff [Nombre [Nombre1]] given at trial, since it only assessed it in order to conclude, in the segmented analysis of the publication in question that it carried out in the judgment, that </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">“the feelings expressed by the plaintiff were mere personal assessments and derivations among many others that could be inferred from the content of the publication complained of as defamatory” </span><span style=\"font-family:Arial; font-size:12pt\">(without the judgment objectively specifying what those “many other derivations” are). In relation to the point being analyzed, it must be indicated that the Constitutional Chamber, in the precedent under study, establishes that accreditation of the truth of what is published cannot be demanded </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a priori</span><span style=\"font-family:Arial; font-size:12pt\">, since such a situation would imply a type of prior censorship and would affect the right to freedom of expression, but in turn, our Constitutional Court considers that in the case where a person decided to exercise said fundamental right knowing that it has limits and can generate responsibilities, it is appropriate and necessary </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a posteriori</span><span style=\"font-family:Arial; font-size:12pt\"> to establish that what was expressed does not consist of falsehoods or rumors that completely lack truthfulness. This assumption, defined as one of the constitutional parameters for limiting freedom of expression, was not adequately evaluated by the criminal court in the judgment of merit.</span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold\">vi.- </span><span style=\"font-family:Arial; font-size:12pt\">One of the most relevant points for the resolution of the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">subjudice</span><span style=\"font-family:Arial; font-size:12pt\">, which is developed in the jurisprudence of the Constitutional Chamber under study, relates to the manner in which the collision that can occur between the right to honor and the exercise of freedom of expression must be resolved, in cases involving a person or persons who exercise public function, and in that sense, the Chamber evaluates the doctrine of the “preferred position” of the right to information. In this regard, the following is stipulated: </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">“[…]</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-size:12pt\"> </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">It is recognized that freedom of expression in its broadest sense is so fundamental that it represents the foundation of the entire political order, that is, it is not just one freedom among others, hence there has emerged -mainly through North American influence- the doctrine of the \"preferred position\" of the right to information in matters of constitutionality review, understood as one that affirms that when the right to freely inform conflicts with other rights, even fundamental rights, it tends to prevail over them, a position that explains why aspects of the right to privacy and honor of public persons must yield to the interest of information. The Spanish Constitutional Court has referred to the preferred position of freedom of expression over other fundamental rights in the following terms: Given its institutional function, when a collision occurs between freedom of information and the right to privacy and honor, the former generally enjoys a preferred position, and the restrictions that may derive from said conflict on freedom of information must be interpreted in such a way that the fundamental content of the right to information is not, given its institutional hierarchy, distorted or incorrectly relativized (judgments 106/1986 and 159/1986). </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">However, it is evident that the preferred position exists insofar as the right is exercised to fulfill its legitimate function in democracy and therefore as an essential part thereof, not to permit falsehoods, rumors, or insidious statements hidden behind the exercise of a fundamental right with the excuse, as indicated, of a supposed neutral narration of facts entirely lacking in truthfulness, which cause violations of freedoms also essential from the point of view of the system of freedom, such as the honor of persons and the right to be adequately and timely informed</span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">. This freedom is so important that it indeed enjoys special protections for its correct exercise, such as freedom of conscience, protection of sources, and the absence of prior censorship, to mention a few, all for the sake of it exercising the social function it is called to fulfill within the democratic framework. In that sense, the appellant is correct in pointing out that freedom of the press, contrary to the right to honor, also has, besides its dimension of individual protection, a social dimension. However, it is forgotten that the other side of freedom of the press, also with an evident social dimension, is precisely the right of persons to receive adequate and timely information (not manipulated), which excludes the possibility of exercising this freedom in a manner contrary to the legitimate goals of the system or that, in turn, harms equally legitimate interests of the same. </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">In that sense, the preferred position is valid as long as it is not used as a mechanism to violate other relevant goals of the system, because it was not conceived for that. Otherwise, manipulation or disinformation of persons or masses would be authorized, an objective as contrary to democracy as censorship itself. In that sense, when it is said that the right to transmit information regarding facts or persons of relevance has preeminence over the right to privacy and honor, in case of collision, it is obligatory to conclude that in this confrontation of rights, the right of freedom of information, as a general rule, must prevail provided the transmitted information is truthful and refers to public affairs that are of general interest due to the matters to which they refer or the persons involved in them, thus contributing, consequently, to the formation of public opinion in a legitimate manner. </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">In this case, the content of the right to free information reaches its maximum level of justifying efficacy against the right to honor, which weakens, proportionally, as an external limit to the freedoms of expression and information</span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic\"> </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">(judgment STC 107/1988). </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">It should be clarified that legally it is not possible to demand that everything published be true or exact, for as the Spanish Constitutional Court has indicated, if truth were imposed as a condition for the recognition of the right, the only guarantee of legal certainty would be silence (STC 28/96), but neither can it protect the journalist who has acted with contempt for the truth or falsity of what was communicated. What it does protect</span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline\"> </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline\">is information rightly obtained and disseminated “even if it turns out to be inaccurate, provided that the duty to verify its truthfulness has been observed through the appropriate investigations typical of a diligent professional”.</span><span style=\"font-family:Arial; font-size:12pt\"> </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">(STC 178\\93). Likewise</span><span style=\"font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic\"> </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">it protects the neutral report, understood as “those cases in which a media outlet merely reports the statements of third parties, even when they turn out to be contrary to the rights of honor, personal and family privacy, and one's own image, (STC 22|93), provided that good faith is present, that is, that the person responsible for the dissemination has not become aware of its inaccuracy or lack of truthfulness, because from that moment, if not corrected, one would be acting in bad faith, affecting other relevant guarantees for the system of freedom […]” </span><span style=\"font-family:Arial; font-size:12pt\">(the underlining is not part of the original text). Regarding the doctrine of the “preferred position” of the freedom of communication with respect to the protection of other fundamental rights such as the right to honor, it must be indicated that undoubtedly, the court of merit granted preference to freedom of expression over the right to honor of the plaintiff [[Nombre3]</span><span style=\"font-family:Arial; font-size:12pt; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-size:12pt\">], just as, in principle, the Constitutional Chamber establishes is what is appropriate in the referenced precedent. Notwithstanding the foregoing, in the reasoning set forth in the judgment in question, no consideration whatsoever was made regarding the aspects that, according to our Constitutional Court, must be assessed to determine if the “preferred position” is applicable or not in a given case, specifically, that the </span><span style=\"font-family:Arial; font-size:12pt; font-style:italic\">a quo </span><span style=\"font-family:Arial; font-size:12pt\">did not express the reasoning based on which it determined that said doctrine was fully applicable in the present matter.

Thus, in the challenged judgment, no analysis whatsoever was conducted to rule out that the statements or information disseminated by the defendant [Name4] on his “Facebook” profile do not constitute falsehoods, rumors, or insidious statements (falsedades, rumores o insidias) hidden behind the apparent exercise of a fundamental right under the guise of a supposedly neutral narration of facts completely lacking in truthfulness. In this regard, a comprehensive review of the ruling reveals that the lower court (a quo) limited itself to considering that in the present matter it was not necessary to establish whether the information disseminated by the defendant was truthful or not, since it was his “opinion” regarding the facts included in the publication in question, given that, as indicated supra, the criminal court also failed to establish the reasons—or the evidence—upon which it considered the affirmations expressed by [Name4] against the plaintiff to be “facts,” or why it classified said affirmations as a mere opinion, all of which contravenes the precepts defined by the Constitutional Chamber and demonstrates the erroneous legal reasoning of the acquittal judgment handed down in this case. vii.- In the reasoning of the Constitutional Chamber precedent under study, emphasis is placed on the fact that one cannot previously require a person exercising their freedom of expression or press to verify in advance the truthfulness of what they publish, as this would be a situation that could degenerate into prior censorship as a way of limiting such fundamental rights; however, the Constitutional Chamber also reiterates that it is not possible to invoke freedom of expression to disseminate situations known to be false or regarding which no effort was made by the person making the publication to try to ascertain any objective aspect that rules out their falsehood, as well as the need to assess the specific case to rebut bad faith as the real objective of the publication. In this sense, the referenced precedent revisits what the Inter-American Court of Human Rights has indicated on the subject of prior censorship, and also analyzes the content of the judgment handed down by the Supreme Court of the United States in the case New York Times vs. Sullivan, considerations that undoubtedly must be kept in mind and assessed in the resolution of this case. In this regard, the Constitutional Chamber considered the following: “(…) Evidently, as indicated, the protection of the State cannot occur, as the Human Rights Court has pointed out, through the right to censor information beforehand, which would be clearly unconstitutional (art. 28), but rather refers to its control a posteriori, in the event that there was an intention to inflict harm or one acted with full knowledge that false news was being disseminated or one conducted oneself with manifest negligence in the search for the truth or falsehood thereof, and the honor and reputation of some person was affected as a result. The Chamber shares the opinion of the Inter-American Court of Human Rights (Advisory Opinion 5/85) in the sense that: 33. ... It would not be lawful to invoke society's right to be informed truthfully in order to base a regime of prior censorship (régimen de censura previa) supposedly intended to eliminate information that would be false in the opinion of the censor. Nor would it be admissible for monopolies, public or private, over the media to be constituted on the basis of the right to disseminate information and ideas in an attempt to mold public opinion according to a single point of view. It likewise recognizes the jurisprudence established in the 1964 case New York Times vs. Sullivan, which points out that the protection the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, from which the government and the courts must allow an 'uninhibited, robust, and open' debate to develop, which may include caustic, vehement expressions and sometimes severe, unpleasant attacks toward the government and public officials. Erroneous statements are inevitable in a free debate, and must be protected to give freedom of expression air to breathe and survive. The rules must prevent a public official from being able to sue a media outlet or an individual for damages caused by a false defamation relating to their official conduct, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This exception that is made is indispensable in light of the State's obligation to protect the reputation and honor of persons and, moreover, within its obligation to ensure that the misuse or diversion of this freedom is not used to violate equally essential goals of the democratic system, among which the system of fundamental rights is included […]” (the underlining is not part of the original text). The content of the segment of the precedent set forth above was not assessed in any way by the trial court for the purpose of establishing whether, in the present case, the publication made by [Name2] constituted a misuse of freedom of expression, since the lower court (a quo), without much reasoning, set aside consideration of whether the dissemination of the affirmations against the plaintiff had any degree of objectivity or even truthfulness, nor did it assess whether the text published on [Name4]’s “Facebook” profile was made with “knowledge that it was false or with reckless disregard of whether it was false or not,” as our Constitutional Chamber defines it based on the analysis of the resolution in the case New York Times vs. Sullivan. In conclusion, two fundamental aspects are determined from all the foregoing: a.- The pronouncement No. 2006-05977 of the Constitutional Chamber develops an extensive interpretation and analysis of the manner in which the collision between the right to freedom of expression and the right to honor should be understood, as well as the limits that constitutionally correspond to the exercise of the freedom of expression and communication, which undoubtedly constitutes a necessary legal input for the correct resolution of this case; b.- Although in the judgment on the merits the lower court (a quo) references and assesses a segment of the aforementioned constitutional precedent, it does not apply it completely and adequately in the legal analysis of the facts that were charged as defamatory by [Name [Name1]] against [Name2], which implies not only disregard for what is prescribed by the Constitutional Chamber for the analysis of a case such as the one being elucidated in this species. 2.-Third Chamber of the Supreme Court of Justice. In the judgment under challenge, the trial court invoked the jurisprudential content of resolution No. 2002-01050, of 8:50 a.m. on October 25, 2002, from our Criminal Cassation Chamber. The study of that pronouncement with respect to the substantive issue being heard in the sub judice (subjudice) allows establishing that in said precedent, a series of legal aspects are analyzed and developed that are of the utmost relevance for determining the way in which to approach, from a criminal perspective, the issue relating to the exercise of freedom of expression versus the protection of the right to honor, in order to define in which cases there is a legitimate exercise of the fundamental right to express and communicate ideas, and in which assumptions there is an abusive exercise of that constitutional guarantee that signifies the violation of the criminally protected legal interest of “honor,” that is, in the sub litem (sublitem), with respect to the crime of defamation provided for in Article 146 of the Penal Code that was charged against [Name2]. It is necessary to indicate that a comprehensive review of the appealed ruling allows establishing that the trial judges did not comprehensively analyze the pronouncement of the Cassation Chamber that they cited in the reasoning of the challenged judgment, since they did not appreciate its content with the rigor demanded by Articles 142 and 184 of the Code of Criminal Procedure, for the purpose of adequately supporting the acquittal handed down in this case. In order to support the present pronouncement, the main aspects established by the Third Chamber of the Supreme Court of Justice regarding the substantive issue that is the subject of discussion in the sub judice (subjudice) are defined and assessed, these being the following: i.- The resolution under study specifically deals with the exercise of the freedom of communication of those engaged in journalism, regarding the protection of the right to honor of persons from a criminal perspective. This particularity must be appreciated in order to mark the difference that exists with respect to the facts judged in this species; however, aspects derived from the referenced Criminal Cassation Chamber resolution are indeed applicable for the proper legal analysis and resolution of the present matter. ii.- Just as this appellate chamber has established and has been developed in Section A) of this resolution, the Third Chamber of the Supreme Court of Justice considers that a case of criminal relevance in which there is a collision between the fundamental rights to honor and freedom of communication, expression, or press cannot be decided by considering only criminal law norms, but rather it is necessary to assess constitutional and conventional norms in order to adequately analyze and resolve the case. In this sense, the referenced vote stipulates the following: “[…] The conflict between the right to honor and the freedoms of information and press is one of the most difficult to resolve, since one is dealing with fundamental rights of the person and this forces a very clear definition of when one of them takes precedence over the others. The problem is not resolved by taking into account only the provisions of the Penal Code, but must be approached directly from the Constitution and from international human rights regulations in order to thus understand the scope of punitive legislation […]”. The criterion expressed by the Third Chamber is what follows and justifies in this pronouncement that the legal framework whose regulations are linked to the substantive conflict resolved in this species has been enumerated, and which, in turn, is what is appreciated to demonstrate the erroneous legal reasoning of the judgment on the merits. iii.- The Criminal Cassation Chamber establishes that in the event of conflict or collision between the right to honor and freedom of expression, the first of such fundamental rights yields to the second, except in cases where an abusive use is made of the right to freedom of communication – because it exceeds or goes beyond the scope of protection that it contemplates - an assumption in which the criminal provisions that protect the right to honor as a criminally relevant legal interest are applicable. Thus, the Third Chamber considered the following: “[…] As is plainly evident, we are in the presence of legal interests deserving of equal protection by the legal system. By virtue of what has just been indicated, the problem that must be addressed in this case is that of when the right to honor prevails over the indicated freedoms. In accordance with constitutional and international humanitarian provisions, that conflict between fundamental rights can only be resolved in favor of the right to honor when an abusive exercise of the freedoms of information and press is verified. The foregoing is due to the fact that the Costa Rican legal system contemplates, as a general rule (enshrined in Article 22 of the Civil Code), not protecting the abuse of a right nor the antisocial use thereof. This is due precisely to the fact that if a right is abused, this implies that the scope of protection it contemplates has been exceeded or overstepped, so that said excess is not covered by it and lacks protection. Thus, if no abuse whatsoever is incurred, but rather the freedoms of information and press are legitimately exercised, then there is no possibility whatsoever of criminally penalizing the communicator, since no crime against honor would have been committed […]”. From the foregoing, it is determined that, in cases where there is an excess in the performance of human conduct related to the substantive criminal issue, whether through the abuse of the freedom of communication or expression and an antisocial use thereof is reached, such excess is not covered by the content of the fundamental right, and for that reason it lacks protection, and instead the criminal protection of the right to honor arises. The foregoing fully applies in the assumption where persons who are public officials are involved, since it is not possible to discriminate or define areas of exclusion that allow or justify an antisocial and abusive exercise of the freedom of expression or communication, for the sole fact that the affected person holds a public office, whatever that office may be, even that of the […], since the position being questioned does not adhere to the criteria of rationality and proportionality that must be appreciated for the protection and application of fundamental rights. Thus, a constitutionally enshrined right, such as the right to honor, cannot be disregarded, which is fully retained by those who exercise public function, albeit nuanced and tempered by the duty or obligation to tolerate greater scrutiny in aspects related to questions, criticisms, opinions, control, and oversight –undoubtedly related to the right to honor– derived from the exercise of their function and their special condition, and which is based on the duties of transparency and accountability constitutionally and legally stipulated. For this reason, the criterion by which the lower court (a quo) defines a minimal and practically null scope of criminal protection of the right to honor of the person who holds the position of […], by virtue of exercising such office, is forced and legally unfounded, since what actually derives from its reasoning is that it mistakenly equates the aforementioned duty of tolerance with the de facto (de facto) emptying of the legal interest of honor of the person who holds that office, as such a position would allow, without possibilities of exclusion, the abusive and antisocial exercise of freedom of expression and communication, which—as indicated supra—far from guaranteeing and reinforcing the democratic model that governs us, would imply the affectation of the right to receive truthful information for the formation of adequate public opinion, as well as for the suitable oversight of public function and, obviously, of the exercise of public powers by all administered persons. iv.- The resolution of the Cassation Chamber being studied legally defines and frames the principle of accountability to which all public officials are subject, by virtue of which they are subjected to broad control and scrutiny by official or formal bodies established for such purpose—for example, the Comptroller General of the Republic—and by informal sectors—the press, collective media, the administered in general—which carry great weight and importance in a democratic regime such as the one governing our country. Likewise, the Third Chamber stipulates which acts of those exercising public function are subject to such type of scrutiny, that is, in general terms, those that are of public interest and correspond to the public facet of the lives of those who hold a position of such nature. Such parameters allow establishing the criminal-legal scope of the duty of tolerance, as well as in which areas of the life or existence of a person exercising a public office they have the obligation to endure greater scrutiny and control, such that in this sense and regarding the relationship between the right to honor versus freedom of expression, the Cassation Chamber establishes that the public official’s right to honor prevails and must be criminally protected when there is an excess in the exercise of freedom of communication or expression, including by those who engage in journalistic activity. The points set forth above were not appreciated in any way in the judgment on the merits, despite being essential for the correct legal analysis of the facts charged as defamatory in this case. In the content of the resolution being examined regarding the aspects previously set forth, the following is stipulated: “[…] The events of interest here—that is, the video recording of the plaintiff’s vehicle, as well as the information disseminated by Noti-Catorce and the response given by [Name7] to the reports of said newscast—occurred between October and December 1999. At that time, the Political Constitution provided in its Article 11 the following: ‘Public officials are simple depositaries of authority and cannot arrogate to themselves powers that the law does not grant them. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal responsibility for their acts is public.’ (It should be noted that after the constitutional reform carried out through Law No. 8003 of June 8, 2000, published in the Official Gazette La Gaceta No. 126 of June 30, 2000, said article of the Constitution was modified and a provision was added to the effect that public officials must fulfill the duties that the law imposes on them; in addition, the principle of accountability was formally established, aspects that this Chamber considers—as will be seen throughout this Considering—could be extracted from the previous wording together with provisions of the General Law of Public Administration, although certainly the reform makes it easier to appreciate the constitutional rank of said principle). As can be observed, the Fundamental Law (as it is applicable to the specific case) clearly establishes that public servants are subject to the legal system; that is what derives from qualifying them as simple ‘depositaries of authority’; in other words, they are not above the Law. In that context, it follows from the constitutional provision under comment (a precept revitalized by the aforementioned 2000 reform) that public officials are bound by both permissive, prescriptive, and prohibitive norms, adding furthermore that they can only do that which the law expressly authorizes them to do. Thus, in Costa Rica, every public official (whether popularly elected, designated by another person or a collegiate body, or having won the position through a competitive process; whether owner, substitute, or interim; whether appointed indefinitely or for a term; whether holding a confidence position or enjoying job stability; whether a career official or not; etc.) is exposed, from the moment they assume office, to the oversight of their acts in the performance of the position. This is because everything that person does on the occasion of the public post they hold is of interest to the generality of the inhabitants of the Republic, since the matter at hand is to ensure that they act, as a servant, in strict conformity with the legal system. This constant supervision of their acts is one of the consequences entailed by being a public servant, so that whoever assumes a position of this nature implicitly accepts that their performance will be publicly examined. By virtue of their investiture, the official is subject to the principle of legality, according to which they are only authorized to do what the law—in a broad sense and in accordance with the normative hierarchy—expressly permits them to do, everything else being prohibited. Thus, holding a public office entails for the person a subjection to controls, which have been conceived to verify that the exercise of the powers deriving from the position is correct, as well as to prevent the breach of duties inherent to the office. Now, within these controls are counted not only the institutionalized ones (such as those specific to the Public Administration, as well as judicial ones), but in a democratic State—the Constitution defines Costa Rica as such in its Article 1—it is also necessary to consider the role of communicators. If every human being has the right to be informed, if there exists furthermore the freedom to communicate thoughts and opinions, even publishing them, and if it is considered that communicators have as their profession to gather data, analyze them, and based on them inform others about subjects that interest them, then it is evident that the practice of journalism is a perfect manifestation of the freedoms of information and press. In that context, it is irrefutable that the mass media, journalists, and other communicators have the right to inform—making public the data they handle—the inhabitants. That is the premise that must prevail in a democratic society. The foregoing requires certain clarifications when facing a matter of public interest related to the performance of a state servant.

The first point is that a <span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">matter of public interest (asunto de interés público)</span><span style="font-family:Arial; font-size:12pt"> </span><span style="font-family:Arial; font-size:12pt; font-style:italic">is anything that reasonably and presumably attracts the coinciding individual interest of the administered (article 113, subsection 1) of the General Public Administration Act (Ley General de la Administración Pública)); note that speaking of "administered" highlights that these are issues related to the conduct of the State (in a broad sense, that is, the Government of the Republic – described in Article 9 of the Constitution – and other public entities) and the management of its resources, aspects which can be validly presumed to interest the general population of a country, as they are the ones who contribute to defraying State expenses. The second point is that normally, regarding matters of public interest (asuntos de interés público), the intervention of a state official is involved, although it is also possible (an aspect that will be seen at the end of this Considerando) that there are individuals not vested as public servants who carry out a task that is indeed public, for which reason they would also be subject to the scrutiny of their actions in the exercise of that public function. Thus, </span><span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">regarding matters of public interest (asuntos de interés público), the freedoms of information and of the press that protect communicators are so important, because they constitute one of the means of controlling public administration in a democratic State, that if confronted with the right to honor that those who perform a public function also hold as individuals, the latter may yield to the former, only with respect to the public facet of their conduct. According to that approach, only when a communicator commits an abuse when informing, will it be possible to place the official's right to honor before the freedoms of information and the press that protect the communicator, as well as before the right to be informed that assists every person</span><span style="font-family:Arial; font-size:12pt; font-style:italic">. There are a great number of norms that support this position. For example, note that Article 26 of the Constitution guarantees the country's inhabitants the right to assemble peacefully and without arms to examine the public conduct of officials. This is important, as it is evident that the constituent power was aware that there are public and private aspects in the behavior of State servants, with only the former being susceptible to open examination and discussion by society. Those public acts of officials are precisely those that have been established here as relating to the fulfillment of their duties; the private ones – and therefore not susceptible to public debate – are those pertaining to personal and family intimacy that are unconnected to the exercise of their function. If aspects of the public actions of state servants can be publicly debated in a meeting, it is then undeniable that it must be possible to inform about their acts so that they may be examined by the inhabitants of the national territory. Furthermore, it must be remembered that under the terms of Article 28 of the Constitution, no one may be even disturbed for the manifestation of their opinions, nor for acts that do not infringe the law. As a corollary to the foregoing, it must be observed that Article 29 of the Constitution expressly provides for the possibility that every person communicate (direct to another) their thoughts, by word or in writing, and even publish them (make them publicly known) without prior censorship, such that they will only be liable if they abuse these rights. In this light, it turns out that the exercise of the activity of communicators, which is indispensable for guaranteeing the right to be informed that assists every person, permits freely informing about aspects related to the exercise of a public function, as this is a matter of evident public interest (interés público) […]”. </span><span style="font-family:Arial; font-size:12pt">It should be added to the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">supra</span><span style="font-family:Arial; font-size:12pt">-mentioned that the Third Chamber, when defining the criminal protection of the right to honor that corresponds to the particular situation of public officials, does not make any discrimination regarding the specific type of position a particular person holds, be it by popular election or whose appointment corresponds to a public competition, etc. The foregoing demonstrates that the thesis sustained by the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo, </span><span style="font-family:Arial; font-size:12pt">and on which it bases its dismissal of the harm to the right to honor of the complainant [[Nombre3]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt">], does not adhere to the precepts established by the Criminal Cassation Chamber (Sala de Casación Penal) regarding the protection of said fundamental right that must be guaranteed to those who exercise a public function, regardless of the type of position they hold, including those designated by popular election, within which, of course, is that of the […]. In this regard, the comprehensive examination of the ruling allows for the establishment that the criminal court does not set forth weighty legal arguments that justify departing from the jurisprudential precepts defined by the Third Chamber (Sala Tercera) regarding the subject matter under judgment, given that the only thing derived from the intellectual foundation of the challenged judgment is the criterion defined by the trial court judges based on their particular reading of Costa Rican reality and “the ideology” that, expressly, they indicate they derive from that aspect, determining from such argumentation an exceptional and specific margin of criminal protection for the right to honor that they particularly estimate corresponds to whoever holds the position of […], a criterion which, as has been established throughout this pronouncement, is neither intellectually nor legally founded as legally required, in accordance with the provisions of Articles 39 and 41 of the Political Constitution (Constitución Política), and numerals 1, 142, 184, and 363 of the Criminal Procedure Code (Código Procesal Penal). Another aspect that the Criminal Cassation Chamber (Sala de Casación Penal) specifies as legally relevant, for defining in which cases the right to honor of public officials must be criminally protected against the abusive exercise of the freedom of communication and expression, is that pertaining to the ways in which the dissemination or exposure of comments, opinions, or thoughts can occur that have sufficient magnitude to violate the honor of the public official, and for that reason, the appropriateness of the criminal protection of their honor and decorum. In this sense, it is clear that the Third Chamber (Sala Tercera) does not restrict the cases of criminal protection for the right to honor of public officials to the exiguous margins and cases subjectively defined by the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="font-family:Arial; font-size:12pt">in the judgment on the merits</span><span style="font-family:Arial; font-size:12pt; font-style:italic">, </span><span style="font-family:Arial; font-size:12pt">that is, based on its criterion of “absolute exceptionality” or an exceptional regime of criminal protection, which the trial court estimates corresponds to the honor of whoever exercises the position of […], namely, direct insults or the imputation of criminal acts as the only possible interpretations of “the species” being published. In this regard, the Criminal Cassation Chamber (Sala de Casación Penal) establishes that the honor and decorum of a public official can be affected by the manner in which ideas are expressed, the mode in which the publication occurs, when false data is knowingly disclosed, when an attempt is not made to obtain the version of the involved official in order to provide balanced information, etc. In this sense, the Third Chamber (Sala Tercera) stipulated the following: </span><span style="font-family:Arial; font-size:12pt; font-style:italic">“[…] </span><span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">Only when the freedoms of information and of the press are abused (as could be the case if false data is disclosed knowing it to be so, if no attempt is made to obtain the official's version to offer balanced information, if the servant is denied their rights of rectification and/or response, if it concerns merely private matters or sensitive information unrelated to the position the person holds, if it is presented as certain to the public that the servant's conduct is criminal without a judicial sentence to that effect, if the sole intention is to offend a person – an aspect that must be examined on a case-by-case basis and in which several factors could be relevant, such as the context in which some information is disclosed, the way photographs or images are handled, the way the news or the comments regarding it are presented, or similar situations) can the communicator be held liable, since abusing a right (a situation that must be verified in each specific case) implies exceeding the scope of its protection. That abuse is not protected by the legal system (Article 29 of the Constitution in relation to Article 22 of the Civil Code), therefore, that communicator who engages in abusive conduct must answer for their acts (which could even eventually entail the liability of the medium that disseminated the information)</span><span style="font-family:Arial; font-size:12pt; font-style:italic">. […]”. </span><span style="font-family:Arial; font-size:12pt">Thus, it is determined that the criminal court did not adequately appreciate or assess the jurisprudential precept in question – despite having expressly mentioned it in its ruling –</span><span style="font-family:Arial; font-size:12pt">&#xa0;</span><span style="font-family:Arial; font-size:12pt"> for the purpose of supporting the criterion based on which it analyzed the facts of the complaint (querellados) and dismissed them as harmful to the honor of the [CED1</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt">], which proves the erroneous legal foundation of the criterion outlined by the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo</span><span style="font-family:Arial; font-size:12pt"> and, consequently, the lack of legal basis for its decision to acquit the defendant [Nombre2]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0;</span><span style="font-family:Arial; font-size:12pt">. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold">v.- </span><span style="font-family:Arial; font-size:12pt">Another point touched upon in the resolution of the Cassation Chamber (Sala de Casación) under study, which is relevant for the adequate legal analysis of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">subjudice, </span><span style="font-family:Arial; font-size:12pt">is that concerning public interest (interés público), which is defined as a parameter that must be considered to delimit the degree of criminal protection that must be given to the right to honor of a public official with respect to the exercise of freedom of expression and communication. In this sense, the following is stated: </span><span style="font-family:Arial; font-size:12pt; font-style:italic">“[…] Of course, the coexistence of those two provisions in the same normative text reveals that they are complementary. In that sense, </span><span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">the freedoms of information and of the press related to matters of public interest (asuntos de interés público) would displace the protection of honor and dignity regarding public officials; note at once that this rule would not apply to persons who do not hold such a character</span><span style="font-family:Arial; font-size:12pt; font-style:italic">. This is because in these cases (when one is dealing with a case of public significance related to state servants) it is not about the intimacy of a person, but about the manner in which they perform in the exercise of a public office, an aspect that – given the conflict of the legal interests in question, namely the right to honor and the freedoms of information and of the press – is the most important from the point of view of the national community. If what is disseminated is correct and indeed corresponds to a matter of public interest (interés público), then there is no possibility whatsoever on the part of the official to claim that their honor has been injured (in any case, if what the news concerns is some inappropriate act, who would have injured their honor would be the servant themselves and not the communicator, so the liability of the former could not be transferred to the latter). </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic">Of course, if the information is false or is not related to a matter of public interest (interés público), then one could eventually be facing one of the cases of abusive conduct mentioned supra (which could even constitute a crime) that do entail a declaration of liability for the communicator</span><span style="font-family:Arial; font-size:12pt; font-style:italic">. In this light, the two international provisions under discussion (Articles 11 and 13 of the American Convention on Human Rights), seen together, reveal that regarding matters of public interest (interés público) relating to the way servants perform their duties, the right to honor yields before the freedoms of information and of the press, as well as before the right to be informed. To understand that it does not displace it would be tantamount to creating a very broad sphere of topics in which the referenced freedoms could not be exercised, which would be an attack against the democratic regime contemplated in the Costa Rican Constitution. Added to the above, it must be indicated that in Articles 17 and 19 of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">International Covenant on Civil and Political Rights (Pacto Internacional de Derechos Civiles y Políticos)</span><span style="font-family:Arial; font-size:12pt"> </span><span style="font-family:Arial; font-size:12pt; font-style:italic">the problem that concerns us is also addressed. The first of them establishes that no one shall be subjected to arbitrary or unlawful interference with their privacy, nor to unlawful attacks on their honor or reputation. This wording is important to highlight because – examined a contrario sensu – it demonstrates that honor can be legally affected, which reinforces the thesis that there are cases (such as those of interest here) in which, despite an effect on said legal interest, no one can be held liable for it. This Chamber (Sala) considers that the foregoing occurs precisely in cases where information on matters of public interest (interés público) related to questionable actions by public officials (or even by persons who perform a public function) is published, cases in which the honor of the involved persons is evidently affected (as a consequence and not as an intention). In those cases in which what is disseminated will inevitably affect some public servant, and in which a single desire to offend is not present, the freedoms of information and of the press must prevail over the right to honor, since the communicator acts in compliance with their right to inform and does not become liable for the consequent effect on the honor of the officials (which in any case, as already stated, would have its cause in their own acts and not in what is published) related to the news. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic">Of course – it is worth reiterating – that if the information is not of public interest (interés público), the intent is solely to offend someone, or what is reported is false, then the communicator (and eventually the media outlet) does become liable for the abuse committed.</span><span style="font-family:Arial; font-size:12pt; font-style:italic"> </span><span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">In summary, both in the Political Constitution (Constitución Política) and in the international Human Rights provisions applicable in Costa Rica, there are norms that permit affirming that public officials (but not private individuals, except in cases where they perform a public function) are subject to public scrutiny of their actions in the exercise of their office, so that the freedom to disseminate information about their acts in relation to matters of public interest (interés público) displaces their right to honor, such that no communicator can be criminally liable for that type of information, unless they had acted abusively</span><span style="font-family:Arial; font-size:12pt; font-style:italic">. This is because, in accordance with the provisions of Article 25 of the Penal Code (Código Penal), whoever legitimately exercises a right does not commit a crime. To the foregoing, it must be added that there are also provisions of legal rank that reinforce the criterion upheld here. What is established in Articles 113 and 114 of the General Public Administration Act (Ley General de la Administración Pública) is of special importance. The first of them provides: “1. The public servant must perform their duties in such a way as to primarily satisfy the public interest (interés público), which shall be considered as the expression of the coinciding individual interests of the administered. 2. The public interest (interés público) shall prevail over the interest of the Public Administration when they may be in conflict. 3. In the appraisal of the public interest (interés público), the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, to which mere convenience can in no case be placed before.” For its part, the second of the mentioned numerals stipulates: “1. The public servant shall be a servant of the administered, in general, and in particular of each individual or administered who relates to them by virtue of the function they perform; each administered must be considered, in the individual case, as a representative of the collectivity on which the official depends and for whose interests they must watch. 2. Without prejudice to what other laws establish for the servant, consider, in particular, irregular performance of their function any act, fact, or omission that through their fault or negligence causes unjustified or arbitrary hindrances or obstacles to the administered.” As can be seen, the legislator grants great importance to the satisfaction of the public interest (interés público) as the guiding principle of administrative activity, so much so that it formulates the principle of objectivity of public function as acting for the sake of satisfying said interest. Furthermore, the duty of accountability on the part of public servants is evident, who must consider themselves – in each specific case – servants of the person with whom they relate by virtue of the office they hold (it is worth noting that these provisions have existed since 1978, so if they were linked to the previous wording of Article 11 of the Constitution, the enshrinement in the Costa Rican legal system of the principle of accountability was evident, even before the constitutional reform of the year 2000 previously alluded to). This further highlights the public character of the action of officials regarding the fulfillment of the duties inherent to the position they occupy. </span><span style="font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">In this light, it is unthinkable – unless the democratic principle established in the Political Constitution (Constitución Política) is disregarded – to impose criminal sanctions on a person who acts in accordance with their right to disseminate information related to the actions of state officials in matters of public interest (interés público), unless they had incurred some abuse (such as those set out above) when making the information public</span><span style="font-family:Arial; font-size:12pt; font-style:italic">. […]” </span><span style="font-family:Arial; font-size:12pt">(The highlighting in </span><span style="font-family:Arial; font-size:12pt; font-style:italic">boldface </span><span style="font-family:Arial; font-size:12pt">is not part of the original text) </span><span style="font-family:Arial; font-size:12pt; font-style:italic">. </span><span style="font-family:Arial; font-size:12pt">Based on the foregoing, it is opportune to indicate that the comprehensive examination of the judgment on the merits reveals that the trial court judges did not carry out any consideration regarding the reasons of fact and law for which they concluded that the content of the text disseminated on the “Facebook” profile of the defendant [Nombre2]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0;</span><span style="font-family:Arial; font-size:12pt">corresponds to a situation proper to, or directly or indirectly linked with, the exercise of the […], a public office that the complainant [[Nombre3]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt">] held at that time. Likewise, in the appealed judgment, a broad and sufficient analysis is not observed that would allow for establishing whether the content of the publication disseminated by said defendant is correct – or at least supported by certain objective and verifiable data –, or whether it refers to an action carried out by [Name [Nombre1]] as […] that constitutes a questionable act in the performance of said public office. The foregoing, for the purpose of ruling out that the publication subject to this complaint (querella) is not, in reality, a mere malicious speculation or a falsehood that is not linked to or derived from an action carried out by [[Nombre3]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt">] during their tenure. Such an intellectual exercise must necessarily be carried out in the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">subjudice, </span><span style="font-family:Arial; font-size:12pt">in order to accurately determine whether the content of such publication corresponds to a matter of public interest (interés público) or not, since it is in this case that the Third Chamber (Sala Tercera) defines that there is no possibility whatsoever on the part of the person exercising the public function to claim that their right to honor or decorum has been injured, a criterion that this appellate chamber (cámara de apelaciones) shares and which should have been assessed with greater rigor by the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="font-family:Arial; font-size:12pt">to comply with the parameters of reasoning that are legally required for the efficacy and validity of the criminal judgment. In conclusion, the Criminal Cassation Chamber (Sala de Casación Penal) determines in the pronouncement under study that the right to honor of those who exercise a public function yields before the exercise of freedom of expression by reason of the duty of accountability and by the very condition of being a public official – a greater level of tolerance – when it concerns matters of public interest (interés público) or questionable actions by state servants in the performance of their duties or in matters related to such public tasks, regardless of the office they hold, which has its limit and justifies the protection or criminal safeguard of the right to honor of state servants in cases where an abusive use is made of the freedom of expression or communication that exceeds the scope of protection of said fundamental right. Such cases were not assessed or reasoned in a broad, precise, and sufficient manner by the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="font-family:Arial; font-size:12pt">in the judgment on the merits, by virtue of their subjective criterion of restricting the cases they defined </span><span style="font-family:Arial; font-size:12pt; font-style:italic">ad hoc,</span><span style="font-family:Arial; font-size:12pt"> as proper for the appropriateness of the criminal protection of the right to honor of whoever holds the office of […]. That reasoning is not sufficient to disregard or ignore the criteria of interpretation and application that, based on a profound, broad, and comprehensive analysis of the norms linked to the substantive subject, have been established by our Criminal Cassation Chamber (Sala de Casación Penal), criteria regarding which it must be indicated that they follow the jurisprudential guidelines stipulated by the Constitutional Chamber (Sala Constitucional), in the precedent analyzed </span><span style="font-family:Arial; font-size:12pt; font-style:italic">supra </span><span style="font-family:Arial; font-size:12pt">in this resolution. </span><span style="font-family:Arial; font-size:12pt; font-weight:bold">3.- Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos). </span><span style="font-family:Arial; font-size:12pt">In the ruling under appeal, the criminal court invokes and cites some segments contained in two precedents of the </span><span style="font-family:Arial; font-size:12pt">Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos), these being, the one handed down in the case of </span><span style="font-family:Arial; font-size:12pt; font-style:italic">[Nombre8]</span><span style="font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt; font-style:italic">vs Costa Rica </span><span style="font-family:Arial; font-size:12pt">on July 2, 2014, as well as the one issued in the case of </span><span style="font-family:Arial; font-size:12pt; font-style:italic">[Nombre9] vs [Nombre10]</span><span style="font-family:Arial; font-size:12pt"> on May 2, 2008, judgments in which topics were touched upon and criteria issued relative to the exercise and protection of the right to freedom of expression and communication regulated in Article 13 of the American Convention on Human Rights.</span><span style="font-family:Arial; font-size:12pt; font-style:italic"> </span><span style="font-family:Arial; font-size:12pt; font-weight:bold">3.1. Judgment of the case </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic">[Nombre8]</span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic">vs Costa Rica. </span><span style="font-family:Arial; font-size:12pt">Regarding the analysis of this precedent handed down in the Inter-American Human Rights System, which was carried out by the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="font-family:Arial; font-size:12pt">in the judgment on the merits, as well as its relevance for the resolution of the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">subjudice,</span><span style="font-family:Arial; font-size:12pt"> it is opportune to indicate the following: </span><span style="font-family:Arial; font-size:12pt; font-weight:bold">i.-</span><span style="font-family:Arial; font-size:12pt"> Firstly, it must be indicated that the appellant [Nombre6]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt">is correct in that the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="font-family:Arial; font-size:12pt">errs in citing and assessing the referenced pronouncement. This is because the criminal court, erroneously and without any justification, refers to and assesses in the foundation of the appealed ruling the particular criterion established in the “reasoned concurring vote of Judge [Nombre11]</span><span style="font-family:Arial; font-size:12pt; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-size:12pt">” (In this sense, the paragraphs identified as 26 and 27 in the textual citation included in the judgment on the merits visible on folios 356 and 357 of the main file), as if the individual considerations of said judge were part of the decision that the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos) – as a collegiate jurisdictional body – handed down regarding the </span><span style="font-family:Arial; font-size:12pt; font-style:italic">supra </span><span style="font-family:Arial; font-size:12pt">indicated case, which is evidently incorrect and reveals the weakness of the legal reasoning of the challenged judgment.</span> The foregoing, because the trial judges granted a legal value and weight to a dissenting vote that does not correspond, by invoking and assessing its content as if it were part of the grounds that the majority of the members of the Inter-American Court considered and established to issue the judgment in the case of *[Nombre8] vs Costa Rica*, when it did not even make any clarification that it endorsed the individual thesis of Judge [Nombre12]. Thus, the trial judgment has a defect in its legal reasoning regarding the parameters and assumptions that the *a quo* assessed to support its criterion, concerning the definition of a restrictive and specific scope for the protection of the right to honor of the person who holds the public office of the […], a criterion on the basis of which it dismissed the existence of a punishable act in the *subjudice* and decided to acquit [Nombre2] of all penalty and responsibility.

**ii.-** It is important to indicate that in the case of [Nombre13], two very important aspects were present that differ from those discussed in this case, namely that [Nombre8] is a journalist and it was in the exercise of that profession that he was sued, and secondly, that his action consisted of reproducing, in four journalistic articles he wrote, the content of reports made by European newspapers that referred to alleged illicit actions of a person who was part of the Costa Rican diplomatic service. Such aspects are important to consider in order to dimension the scope of what was resolved by the Inter-American Court in the case of *[Nombre8] vs Costa Rica* and to modulate its content to the objective and subjective circumstances of the case being judged, an intellectual analysis that the *a quo* omitted to carry out in the trial judgment.

**iii.-** The comprehensive examination of the appealed decision allows us to establish that the trial judges referred to the content of the judgment in the case of *[Nombre8]* and assessed it, to establish their criterion that the person who holds the office of the […] has the maximum level of tolerance regarding their right to honor, in view of the preference given to the exercise of freedom of expression, a margin of tolerance that the *a quo* considered is not comparable to that of the rest of public officials, specifically, by virtue of the hierarchical rank corresponding to the person who occupies the […]. Notwithstanding the foregoing, from the examination of the analysis carried out by the trial judges regarding the referenced jurisprudence of the Inter-American Court, sufficient elements of judgment are not inferred that, when compared with the provisions of the judgment in the case of *[Nombre8]*, allow reaching the criterion held by the trial court and assessed to issue the acquittal decision that is the subject of challenge. In this sense, the reading and study of the judgment issued in the referenced case allows us to establish that the Inter-American Court of Human Rights does not carry out any discrimination regarding the margins of protection of the right to honor corresponding to those who exercise public function, with respect to the exercise of freedom of expression regardless of the post—type or hierarchy—that the person occupies. Specifically, the Inter-American Court establishes that in the situation under study, a higher level of tolerance is required of those who exercise public function, in order not to unduly restrict the right to freedom of communication and expression, whose respect and effectiveness it establishes as absolutely necessary for the consolidation and dynamics of a democratic society. Likewise, the Inter-American Court establishes that although there is a higher level of tolerance for public officials regarding the protection of their right to honor or decorum, by virtue of the duties of transparency of governmental activities and probity to which they are subject—and with the objective of guaranteeing the validity and development of a democratic society—the exercise of freedom of expression is not absolute and has limits that must be observed, which cannot be applied as prior censorship, but rather based on subsequent liabilities expressly established by law, and for the purpose of guaranteeing respect for the rights of others or their reputation. In this regard, the decision in question establishes: *“[…] 120. It is important to highlight that the right to freedom of expression is not an absolute right; it can be subject to restrictions, as indicated in Article 13, paragraphs 4 and 5 of the Convention. Likewise, the American Convention, in its Article 13.2, provides for the possibility of establishing restrictions on freedom of expression, which are manifested through the application of subsequent liabilities for the abusive exercise of this right, which must not in any way limit, beyond what is strictly necessary, the full scope of freedom of expression and become a direct or indirect mechanism of prior censorship. In order to determine subsequent liabilities, three requirements must be met, namely: 1) they must be expressly established by law; 2) they must be aimed at protecting either the rights or reputation of others, or the protection of national security, public order, or public health or morals; and 3) they must be necessary in a democratic society (…) 123. Thus, the restriction must be proportional to the interest that justifies it and closely tailored to the achievement of that objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression [...]”.* **iv.-** From the foregoing, it is determined that the Inter-American Court recognizes that the right to freedom of expression is not absolute, and that for this reason it may have limits or restrictions that must not occur *a priori*, but rather can only be subsequent and proportional to the interest that justifies such limitations, and in accordance with what is absolutely necessary to achieve that objective, so as to interfere to the least possible degree in the exercise of freedom of expression. Such a stance by the Inter-American Court, assessed in relation to what is established by our Political Constitution and the *supra* legislation analyzed in this pronouncement, allows us to conclude that the protection of the right to honor of public officials in cases of the abusive exercise of freedom of expression and thought, is proportional to the interest of the criminal-legal system to safeguard malicious, ill-intentioned, and offensive attacks on the honor and decorum of those who exercise public function under the apparent exercise of the free expression of ideas or thoughts, or, as the case may be, of freedom of communication, in turn meaning that such exceptional and *a posteriori* limitation is proportional and interferes to a minimum degree with freedom of expression, just as the Inter-American Court prescribes. This is because, according to our constitutional, conventional, and legal normative framework, and as the Constitutional Chamber and the Third Chamber of our country have established in the precedents analyzed *supra*, the restriction of freedom of expression and information only proceeds in the case of excesses and abuses in the exercise of said fundamental right that exceed the proper content of its protection. Such irregularity not only entails the affectation of the right to honor of the offended person, but also violates the social component of the right to communication and expression, as it implies the violation of the right of society to have ideas, thoughts, or information shared that are consistent with reality, in such a way that the correct formation of public opinion and the due control of the exercise of public function is sought and achieved. The fulfillment of these objectives is what allows the strengthening of the institutional and democratic framework of society, as an effect inherent to the correct exercise of freedom of expression, which is not achieved, and may even produce a contrary result, if malicious attacks and abusive expressions against the decorum and honor of public officials are endorsed without any limit, which in no way constitutes an oversight and control function over the public sphere, but simply a way to affect public activity by unjustly discrediting their honor, which undoubtedly affects the credibility of those who exercise state activity. This situation would be extremely serious in the specific case of the person who exercises the role of the […], since it would improperly affect not only their personal honor, but also the investiture and respect for the position they hold, which generates problems of public distrust, loss of faith in public institutions and state activity, which is not suitable for the development of a society based on a democratic model. Thus, from the precedent under study and from what is stipulated by the Constitutional Chamber and the Third Chamber, the right to honor of those who exercise state activity—such as those who hold political positions—cedes before the exercise of freedom of expression, by virtue of having to endure, due to that condition, a greater degree of tolerance, as well as due to the protection of the principles of transparency, probity, and accountability, it even being the case that strong, uncomfortable, and bothersome criticisms made regarding situations that are of public interest and are directly or indirectly linked to the actions that state servants perform in the discharge of their function are admissible, which has as a—subsequent—limit the abusive and irregular exercise of freedom of expression or communication, which does not conform to and exceeds the scope of protection of such fundamental right. The comprehensive examination of the trial judgment shows that the *a quo* did not carry out an adequate and careful factual and legal analysis of the normative content of the provisions that govern the matter under discussion in our legal system, nor did it perform a sufficient intellectual and rational exercise to set aside the precedents that have been issued on the legal point subject to judgment, and the trial judges chose to create an *ad hoc* criterion for the solution of the case—previously and repeatedly indicated in this pronouncement—which they based on their particular assessment of the contemporary Costa Rican political-institutional and social reality, as well as on the definition of an equally particular ideology, aspects on the basis of which they conceived and particularized—without greater objective support—a specific and disproportionately restrictive scope of criminal protection for the right to honor of the person who occupies the […].

**v.-** It is necessary to note that in the judgment issued in the case of *[Nombre8] vs Costa Rica* by the Inter-American Court—extensively transcribed, but nevertheless, not so extensively or rigorously assessed in the judgment by the trial court—it is expressly established that “politicians” have a higher level of tolerance in the relationship between the right to honor *versus* freedom of expression. Notwithstanding the foregoing, the Inter-American Court establishes that despite the particular situation of those who exercise state function as set forth above, their right to honor and decorum must indeed be protected, and in that sense, the *[Nombre8]* decision stipulates the following: *“[…] 127. Democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials over their public management, for which reason there must be a reduced margin for any restriction on political debate or debate on matters of public interest. 128. In this context it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature must enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. This does not mean, in any way, that the honor of public officials or public persons must not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism [...]”.* In this respect, it is necessary to indicate that, even though several segments of what was resolved in the *[Nombre8]* case are cited in the trial judgment, the jurisprudential precepts indicated by the Inter-American Court in the referenced decision are not comprehensively assessed, and without greater justification, the criminal court disregards the scope of protection of the right to honor that the Inter-American Court establishes is proportional to the condition of public official and to the higher level of tolerance to which they are subject because of that condition. In this same sense, the *a quo* does not appreciate in its substantive reasoning that the Inter-American Court, regarding the protection of the right to honor corresponding to those who exercise public positions, does not specify or determine that there are different degrees of protection of such fundamental right depending on the hierarchy or the type of state position the person occupies. Thus, it is clear that the criminal court did not adequately assess such a precedent of the Inter-American System of Human Rights, by establishing *ad hoc* and disproportionately restrictive criteria regarding the criminal protection of the right to honor that it considered particularly corresponds to the person who exercises the office of the […], with such a stance implying and actually translating into the almost absolute emptying of the content of the constitutional and legal protection that said fundamental right is entitled to in our legal system, which is improper. In this regard, it is important to point out that the trial judges themselves established in their decision that, from the publication made by the accused [Nombre4], some meanings are derived that can indeed be considered offensive to the complainant [[Nombre3]], but that nevertheless, since it is deemed that they are not unambiguous or the only ones emanating from the content of the disseminated text, given that according to the *a quo*, other meanings arise—without defining in the decision what other possible derivations there are—that have nothing to do with offensive situations, the right to honor of the [[Nombre3]] was not violated. To reach such a conclusion, the criminal court sets forth the criterion it defined, in accordance with what was stated *supra*, to restrict the scope of criminal protection it considered corresponds to the office of the […], that is, that only direct offenses and the expression of ideas or opinions whose sole meaning is the imputation of a criminal act are punishable as injurious to the honor and decorum of the person who occupies said public office. Such reasoning does not derive from the legal guidelines that have been defined in the jurisprudential precedents studied in this pronouncement—and cited in the challenged decision—regarding the interpretation and application of the rules that govern the factual and legal situation of a case like the one discussed in the *subjudice*, including the binding jurisprudence of the Constitutional Chamber, all of which reveals a serious weakness in the intellectual and legal reasoning of the decision subject to challenge.

**3.2. Judgment of the case *[Nombre9] vs [Nombre10]*. i.-** In the appealed decision, two segments of the judgment issued by the Inter-American Court of Human Rights in the case of *[Nombre9] vs. [Nombre10]* are cited, and in that sense, the trial judges established the following: *“[…] Now, regarding this point, the Inter-American Court of Human Rights has said that the activities of public servants: ‘...leave the domain of the private sphere to insert themselves into the sphere of public debate. This threshold (…) is based on the public interest of the activities they perform.’ (Case [Nombre9] vs. [Nombre10], May 2, 2008, paragraph 86). Note that the highest continental organ for human rights establishes that in the Americas, public officials are more exposed to criticism, that this is inherent to the position they voluntarily accepted, and that the activities they perform are of public interest. Now, it must be noted that these affirmations of the Inter-American Court have been produced in the context of cases involving high-ranking public servants, but not of the highest rank as is the case in this complaint, the […]. […] These valuations are important because if we affirm with the Inter-American Court ‘...that in a democratic society public officials are more exposed to scrutiny and public criticism.’ (Case [Nombre14] vs. [Nombre10], idem), the exposure of the highest authority of the public function is even greater and, correlatively, public criticism must be even greater [...]”* (Cfr. pages 346 and 347. The transcription is literal). In this sense, it must be established that the *a quo* does not comprehensively, nor correctly, assess the content of the resolution issued in the case of *[Nombre9] vs. [Nombre10]*, since referring to this precedent, the trial judges determine that the scope of protection of the right to honor of the person who occupies the […] must be differentiated with respect to other public officials who do not have such investiture or hierarchy. This, because the *a quo* considered that in the *case of [Nombre9]*, a greater degree of tolerance is established for state servants and, consequently, on their own they consider that the degree of tolerance must be greater according to the public office held, a conclusion the criminal court reaches despite the fact that no such differentiation is made in this precedent. Likewise, the trial judges conclude *motu proprio* that the person who holds the position of the […] corresponds to a specific, more restrictive parameter of protection of the right to honor with respect to the rest of public officials, a differentiation they deemed necessary to make by virtue of the fact that the case of *[Nombre9] vs. [Nombre10]* did not resolve the particular situation of the person who holds that type of public office. Such interpretation and analysis of the precedent in question is not logical, and in reality reveals that the thesis of the *a quo* is in no way derived from what is stipulated by the Inter-American Court of Human Rights in the referenced case, but rather is a criterion that the trial court defines based on its particular assessment of what it deemed to be the ideology desired by the majority of Costa Ricans regarding the management of public offices, particularizing this popular desire for the case of the […].

**ii.-** In the same sense, it is important to point out that, from the integral analysis of what is established in the precedents of the Constitutional Chamber and the Third Chamber, as well as from what is indicated by the Inter-American Court, it is not derived nor can it be considered that all acts of the private life of those who hold a public office are part of or can be included in the greater scope of tolerance to which they are subject regarding their right to honor due to their condition as public officials. This is because the greater margin of tolerance of the right to honor of state servants with respect to the exercise of freedom of expression concerns their actions that are of public interest and that are related directly, or at least indirectly, to the exercise of the activities inherent to the position, to which it must be added that it is necessary to analyze each specific case to define the proportionality of the margin of tolerance that should be protected in order to guarantee the validity of the fundamental rights to honor and freedom of expression, all of which was not duly appreciated by the judges in the trial judgment. Specifically, regarding the points previously analyzed, in the judgment of the case of [Nombre15], the following is stipulated: *“[…] 51. Regarding these events, the parties presented various arguments in which a conflict underlies between the right to freedom of expression on matters of public interest and the protection of the honor of public officials. The Court recognizes that both freedom of expression and the right to honor, recognized by the Convention, are of utmost importance. It is necessary to guarantee the exercise of both. In this sense, the prevalence of one in a specific case will depend on the balancing carried out through a proportionality test.* The resolution of the conflict that arises between certain rights requires the examination of each case, according to its characteristics and circumstances, to assess the existence and intensity of the elements on which that judgment is based (…) 53. Regarding the content of freedom of thought and expression, the Court has indicated that those under the protection of the Convention have the right to seek, receive, and impart ideas and information of all kinds, as well as the right to receive and know the information and ideas disseminated by others. That is why freedom of expression has an individual dimension and a social dimension: the latter requires, on the one hand, that no one be arbitrarily diminished or prevented from expressing their own thoughts and represents, therefore, a right of each individual; but it also implies, on the other hand, a collective right to receive any information and to know the expression of the thoughts of others. 54. However, freedom of expression is not an absolute right. Article 13.2 of the Convention, which prohibits prior censorship, also provides for the possibility of demanding subsequent liabilities for the abusive exercise of this right. These restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship. 55. For its part, Article 11 of the Convention establishes that everyone has the right to have their honor respected and their dignity recognized. This implies limits on interference by individuals and the State. Therefore, it is legitimate for anyone who considers their honor affected to resort to the judicial means that the State provides for its protection. 56. The need to protect the rights to honor and reputation, as well as other rights that could be affected by an abusive exercise of freedom of expression, requires due observance of the limits set in this regard by the Convention itself. These must respond to a criterion of strict proportionality. 57. Given the importance of freedom of expression in a democratic society and the high responsibility this entails for those who professionally engage in social communication work, the State must not only minimize restrictions on the circulation of information but also balance, to the greatest extent possible, the participation of different information in public debate, promoting informative pluralism. Consequently, equity must govern the flow of information. In these terms, the protection of the human rights of those facing the power of the media and the attempt to ensure structural conditions that allow the equitable expression of ideas can be explained (…) 71. As established in paragraph 55 supra, judges, like any other person, are protected by the protection afforded to them by Article 11 of the Convention, which enshrines the right to honor. On the other hand, Article 13.2(a) of the Convention establishes that the "reputation of others" may be grounds for imposing subsequent liabilities in the exercise of freedom of expression. Consequently, the protection of the honor and reputation of every person is a legitimate aim consistent with the Convention. Likewise, criminal law is suitable because it serves the purpose of safeguarding, through the threat of punishment, the legal interest to be protected, that is, it could be capable of contributing to the achievement of that objective. However, the Court warns that this does not mean that, in the specific case under analysis, the criminal route is necessary and proportional, as will be seen infra (…) 79. On the other hand, within the framework of freedom of information, the Court considers that there is a duty of the journalist to verify in a reasonable, though not necessarily exhaustive, manner the facts on which they base their opinions. That is, it is valid to demand equity and diligence in the confrontation of sources and the search for information. This implies the right of individuals not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and contrast them with other relevant data (…) 82. The representatives agreed with the Commission and alleged that "the facts reported on by Mr. [Name9] are of public interest," taking into account that the investigation referred "to a paradigmatic case of repression" and that the "investigation carried out by the journalist is part of [the] review that Argentine society must carry out and of the discussion about the causes for which the military government deployed its actions without having encountered obstacles in the [J]udicial [P]ower." They added that Mr. [Name9] "did not use any language that could be considered abusive" nor used "excessive, much less outrageous, words"; that he referred to the judge "solely and exclusively on the occasion of his functional performance and did not delve into any aspect of his life or personality unrelated to his work as a public official"; that in the sections of the book where statements of fact are made, "everything he held conforms to reality"; and that "the paragraphs that formed part of the criminal trial" contain "critical value judgments about the judicial power of that era," which is why "they are not susceptible to being true or false, nor can they justify, by themselves, a restriction on freedom of expression, as it concerns the right of every person to freely opine on matters of public interest and on the functional performance of a judge in a matter of the greatest public relevance." 83. In this final step of the analysis, it is considered whether the restriction is strictly proportional, such that the sacrifice inherent in it is not exaggerated or disproportionate compared to the advantages obtained through such limitation. The Court has adopted this method by stating that: for restrictions to be compatible with the Convention, they must be justified by collective objectives that, by their importance, clearly preponderate over the social need for the full enjoyment of the right guaranteed by Article 13 of the Convention and must not limit, more than strictly necessary, the right proclaimed in said article. That is, the restriction must be proportional to the interest that justifies it and closely adjusted to the achievement of that legitimate objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression. 84. For the case at hand, the restriction would have to achieve a significant satisfaction of the right to reputation without rendering nugatory the right to free criticism of the actions of public officials. To carry out this balancing, one must analyze i) the degree of affectation of one of the interests at stake, determining whether the intensity of said affectation was severe, intermediate, or moderate; ii) the importance of the satisfaction of the opposing interest, and iii) whether the satisfaction of the latter justifies the restriction of the former. In some cases, the balance will tip towards freedom of expression and in others towards safeguarding the right to honor (…) 86. Regarding the right to honor, expressions concerning the suitability of a person for the performance of a public office or the acts performed by public officials in the course of their duties enjoy greater protection, so as to foster democratic debate. The Court has indicated that in a democratic society, public officials are more exposed to public scrutiny and criticism. This different threshold of protection is explained because they have voluntarily exposed themselves to more demanding scrutiny. Their activities leave the domain of the private sphere to enter the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they carry out, as occurs when a judge investigates a massacre in the context of a military dictatorship, as happened in the present case [...]". From the foregoing, it is determined how the trial court carried out a biased and partial analysis of the precedent handed down by the Inter-American Court in the case of [Name9] vs. [Name10], given that it limited its considerations to a minimal segment of such ruling, which it forcibly adjusted to the particular criterion based on which it analyzed the facts of the complaint, that is, the exclusive differentiation of the protection of the right to honor that the lower court judges defined as corresponding to whoever exercises the [...], which shows that they neither analyzed nor gave the legally appropriate weight to the content of the ruling in the [Name9] case for the correct resolution of the sub judice matter, which neither protects nor serves as a basis to justify in any way the criterion by which they dismissed the violation of the right to honor of the complainant [First name [Name1]] by virtue of the acts charged against [Name2], all of which implies the lack of legal reasoning of the judgment. By reason of all the foregoing, it is concluded that the jurisprudential precedents analyzed supra in this ruling are extremely important for the resolution of this matter. Likewise, it is established that such precedents were not fully and correctly appreciated by the criminal court in the judgment on the merits, given that none of these supports the criterion based on which the a quo limited in an almost absolute manner the protection of the right to honor of whoever occupies the position of [...] in the relationship between that fundamental right and the exercise of freedom of expression and communication, which, while a greater margin of tolerance must be endured in the case of public officials compared to the rest of the community, such limitation cannot imply the emptying of the fundamental right to honor and decorum of any person, including those exercising public function regardless of the hierarchy of the position they hold. Thus, there is no doubt that in a democratic society such as that instituted in the organic component of our Political Constitution, the exercise and effectiveness of freedom of expression must be guaranteed, giving it preference, even, over the protection of the right to honor of State servants. In this way, it is appropriate to protect a broad margin for denunciation, opinion, investigation, questioning, strong and annoying criticism from the social collective, as well as from those who are directly actors and linked to the development of freedom of press and communication, with respect to the scrutiny and oversight of activities related to the exercise of public function by those who are its mere depositaries, which allows for maintaining democratic pluralism, overseeing the correct exercise of public function, and preventing undue restrictions on freedom of expression in order to avoid a conducive environment or fertile ground for the emergence of authoritarian political systems. Notwithstanding the foregoing, as the Costa Rican Constitutional Chamber and Criminal Cassation Chamber, as well as the Inter-American Court of Human Rights, have already clearly and precisely indicated, freedom of expression and communication is not absolute, as it has restrictions that must be applied a posteriori in order to avoid prior censorship, but which imply responsibility for the violation of other fundamental rights by those who exercise it in an abusive and disproportionate manner, as occurs in the case of the constitutionally protected right to honor, even of public officials. In this sense, it is important to highlight that none of the aforementioned jurisdictional entities have established any discrimination or differentiation regarding the right or scope of protection of honor and decorum of public servants, by virtue of the specific position or hierarchy they hold, a criterion that only emanates from the position defined ad hoc by the trial court to analyze the merits of the event being adjudicated in this case. In this regard, it must be established that the position of the lower court is not duly reasoned—from a legal perspective—since it attends to a very particular way of reasoning and defining an ideological parameter, to create a highly subjective thesis regarding the scope of protection of the right to honor that they consider corresponds, exclusively, to whoever exercises the position of [...], a position that lacks objective and rigorous legal and jurisprudential support. In this sense, throughout the development of this ruling, it has been demonstrated that the a quo did not apply rigorously nor sufficiently analyze the legal framework that regulates the subject under discussion, nor did it fully and sufficiently assess the jurisprudential precedents it cites in its judgment, and which have been previously analyzed in this resolution. b.3. Social networks and their importance in the exercise of freedom of expression and communication, regarding the protection of the right to honor. In the present case, the publication that is complained of as defamatory by [First name [Name1]] against [Name2] was carried out in one of the most modern and, without a doubt, most effective means of communication, that is, on an Internet social network, specifically, "Facebook". In order to analyze and define the criminal-legal importance that the existence of such socio-virtual groups has, regarding the protection of the right to honor, it must be noted that one of the main characteristics of social networks in our contemporary reality is the amplifying effect of the spectrum of dissemination of ideas, comments, photographs, videos, news, texts, etc., that are shared and published by any of the members that make up the "virtual community", to its entirety, or to a group of its members that make up their environment or virtual group on the social network. In the specific case of "Facebook", for example, the virtual community is composed of all those who have an account or profile, which allows them to have their own page—or profile—on the Internet and within the social network, thereby being part of that community, and in this way can be in contact with all other members of "Facebook" and share all the information and content of their profile. Likewise, anyone who has a Facebook account can restrict access to a certain number of users to their profile, so that they share communication with that group, and can limit access to a part of the content of their profile, for example, their "wall", photos, some publications, friends, etc. Similarly, the user can limit the dissemination of what they publish on their "Facebook" page, either to a group of members with whom they are virtually linked, or what is known as the "friends group", or even to some of those belonging to that group or another of which they are a part. Thus, the power of dissemination and communication that "Facebook" has is clear, given that information of all kinds can be shared "online" or communicated through "chats" or conversations at any time, and anywhere in the world where any member of the virtual community is located, whether nationally or even globally. The foregoing reveals the great importance that social networks have in the formation of public opinion today, through the expression of ideas, thoughts, and criticisms, as well as in the dissemination of information of any kind, to the point that traditional mass media, such as radio, television, and the press, nourish themselves from the content and participate in the traffic of information that circulates on the Internet through social networks, hence the importance that such forms of communication currently hold for the protection of the right to honor regarding the exercise of freedom of expression. Another extremely important characteristic of social networks, not only "Facebook" but also a significant number of other such groups that exist in cyberspace, such as "Twitter", "Instagram", "LinkedIn", etc., is the ease of access for most of the social conglomerate to the different virtual communities that exist and develop on the Internet and, consequently, to all the information and the wide range of content that is transmitted, divulged, shared, or disseminated by the members of such social networks—for example, through the publication of "posts", photographs, videos, comments, etc.—given that today, various events, points of view, news information—among others—of social, political, economic, scientific reality, etc., are published and reproduced practically "online" or in real time. Thus, any event can become highly important on the network, and its dissemination will occur in a very short space of time and among a large number of people who have access to or are part of the virtual environment. In this last aspect, one must bear in mind the great advances of current technology, which has come to produce electronic devices that practically allow a vast number of people to be "online" at all times, such as through "smartphones", "tablets", portable personal computers, etc., devices that are becoming more economically accessible every day for the vast majority of the population of our country and many countries of the world. In the present case, the study of the body of evidence produced at trial shows that the publication made by the accused [Name2] generated a large number of comments and assessments regarding its content, from a large number of "Facebook" users, discussions within which there is a significant amount that expresses direct offenses against the complainant [[Name3]], who at that time was the [...]. (In this sense, see folios 23 to 37 of the main file), a situation that demonstrates the supreme impact and transcendence that social networks have in the dissemination of ideas and the formation of public opinion today, a dissemination of information that is even faster than what traditional media achieve nowadays. This being the case, it is clear that conduct carried out on the Internet has great criminal-legal relevance today, which is why it has been necessary to create specific legislation in this regard, such as the framework of Computer Crimes introduced into the Penal Code by Law No. 9048 of July 10, 2012. Similarly, there are norms in ordinary criminal legislation that regulate and are applicable to conduct carried out through computer means, as is the case with crimes against honor, as defined in Articles 145, 146, and 147 of the Penal Code. Based on all of the foregoing, it is concluded that in the present case it is feasible and necessary to analyze in depth and with the rigorousness required by the duty of legal reasoning of a criminal judgment, whether the publication made by the accused [Name16] Baldí on his public "Facebook" profile generated an injury to the honor of the complainant [[Name3]], for which it is required and important to appreciate the particularities that, according to what has been previously stated, social networks have in our current reality, as well as to consider the aspects concerning the relationship between the right to honor of public officials versus the exercise of freedom of expression, in a democratic society, and in accordance with the limits that this latter fundamental right has as a result of its abusive and disproportionate exercise, as considered throughout this ruling. C.- Specific defects of the appealed judgment that constitute the defect of lack of reasoning. In the preceding sections of this ruling and based on the comprehensive examination of the judgment by this appellate chamber, reasons of fact and law have been established and set forth that evidence and confirm that the judgment on the merits violates the duty of legal reasoning required for its validity and efficacy, in accordance with the provisions of Articles 39 and 41 of the Political Constitution, as well as what is regulated in Articles 1, 142, 184, and 363 of the Criminal Procedure Code. Thus, and as a complement to what has been previously stated, it is appropriate to specify certain aspects of the judgment that similarly reveal its erroneous legal reasoning, as claimed by Attorney [Name6]. Thus, the following is noted: i.- Although it is true that public officials have a higher level of tolerance with respect to the exercise of freedom of expression regarding the protection of their right to honor, because they voluntarily subjected themselves to greater public scrutiny, which derives from the principles of transparency and accountability, such particularity is not coupled with the absolute emptying of the right to honor and decorum that must be protected for those who exercise State function, given that the criterion defined in that sense by the trial court leads, in practical terms, to the emptying of said fundamental right, since practically no conduct could affect the right to honor of whoever is [...]. Such aspects were not duly assessed by the a quo, given that it set aside all objective consideration regarding the constitutional, conventional, and legal norms that are linked to the substantive issue, and omitted to fully and objectively assess the jurisprudential precedents that on the point under litigation have been previously handed down by the Costa Rican Constitutional Chamber and Criminal Cassation Chamber, and also by the Inter-American Court of Human Rights. This is because the lower court judges limited themselves to supporting the criterion based on which they decided to acquit the accused [Name4], starting from the definition and appreciation of the ideology they considered corresponds to the majority of Costa Rican society regarding the topic under discussion, a reasoning from which the trial court established an ad hoc and exclusive criterion to delimit the scope of protection for honor that it deemed proper for whoever occupies the position of [...]. Such a position is subjective and, in accordance with the principle of legality, exceeds the proper functions of jurisdictional activity, that is, that of interpreting and applying the law, since it is not appropriate for a criminal court to define motu proprio an ideology that, according to its particular appreciation, corresponds to social majorities, and in that way, to assess ideological assumptions to define parameters for the protection of a fundamental and constitutionally recognized right such as the honor of State servants, and what is even more sensitive and inappropriate, to establish ad hoc and exclusive criteria for the protection of such right of the citizen who holds the position of [...], which, far from guaranteeing the principle of equality established in Article 33 of the Political Constitution, implies discriminatory treatment and the lack of protection of the essence of the human right in question, by virtue of a particular situation that does not justify its absolute suppression.

Thus, the criminal court does not appreciate the regulatory framework that is linked to and regulates the substantive issue regarding the guarantee of freedom of expression and communication with respect to the protection of the right to honor and decorum of those who exercise public office, which evidences the weakness of the reasoning on which the a quo bases the decision subject to challenge. Likewise, the trial judges do not set forth sufficient legal and objective reasons that justify their decision not to follow the previously rendered jurisprudential criteria on how the relationship between the right to honor versus the exercise of freedom of expression must be legally addressed in the case of public officials, as they abandon carrying out a comprehensive analysis of the jurisprudential precedents that they only cite and biasedly reproduce in their ruling, and instead, limit their substantive reasoning to the consideration of a subjective thesis, which according to their particular appreciation creates a jurisprudential line regarding the scope of protection that exclusively corresponds to whoever holds the […], an analysis that is legally incorrect. This, because it is not appropriate to define the scopes of protection of a fundamental right based on ideological assumptions that, even though they could coincide with the majority’s position, might not coincide with the intent of the constituent, an aspect not suitable to be elucidated through diffuse constitutional review (control difuso de constitucionalidad), but only through the direct and concentrated review that corresponds to the Sala Constitucional, a situation that evidences the excess of their powers that the a quo carried out to establish the criterion on which they based their substantive decision.

**ii.-** As has been extensively analyzed in this pronouncement, it is not possible to achieve adequate protection of freedom of expression in a democratic society if limitations are established that operate as prior censorship and that discourage the exercise of such a fundamental right, which is characteristic of authoritarian regimes that do not correspond to the scheme contemplated by our Constitución Política. Thus, it is not appropriate to generically and previously demand that what will be published must be true or previously verified—proven—since such a position implies establishing limitations that may result in the imposition of prior censorship of opinions, questions, and criticisms of situations that are of public interest, as would happen with acts performed by state officials in the exercise of or in relation to their competencies, an assumption that is undoubtedly of public interest and subject to greater control and oversight by all administered persons (administrados), which, as indicated, derives from the principles of transparency and accountability of state servants. Notwithstanding the foregoing, as established by the supra stated regulations and stipulated in the jurisprudential precedents that have been previously analyzed, it is indeed appropriate, without violating freedom of expression and communication, for a posteriori controls to occur or for subsequent liabilities (responsabilidades ulteriores) to be demanded from those who exercise such fundamental rights abusively and disproportionately. Thus, in each specific case, it must be established whether the exercise of freedom of expression is not a screen or curtain used to disseminate false, speculative, or insidious facts whose real objective is to affect the honor of a public official, which is an assumption not covered by the scope of the protection or area of protection corresponding to freedom of expression and communication, even when referring to whoever holds public office regardless of their hierarchy. This, because neither the Sala Constitucional, the Sala Tercera, nor the Corte Interamericana de Derechos Humanos establishes any difference regarding the margin of protection of the right to honor that corresponds to those who exercise public office, whether their position is by popular election or of any other type, as was pointed out supra. This being the case, the criterion based on which the a quo refused to hear the arguments and thesis of the plaintiff [Name [Name1]]’s defense is not appropriate, regarding that in the subjudice it is necessary to define whether the content of the publication made by [Name2] is false and speculative, and that it was disseminated with the knowledge of its suitability to affect the honor of whoever held the […]. In this regard, the trial judges merely established that because it concerned the [CED1 ], it was not necessary to establish whether what was disseminated by the defendant is true or false, since they simply expressed their idea, opinion, or personal thought about the “facts” that they published on their “Facebook” profile. Thus, it is determined that the reasoning of the a quo is unfounded, given that it left aside the scopes of protection of the right to honor that corresponds to public officials, established even by our Sala Constitucional, whose jurisprudence is binding “erga omnes.” Similarly, it omitted carrying out a legal analysis or rigorous assessment regarding the content of the “piece” disseminated on [Name4]’s “Facebook” profile, limiting its reasoning, in this sense, to indicating that it was not necessary to establish whether such content was true or not, since it is an opinion, and opinions do not need to be verified, which is incorrect according to what was supra stated in this regard. It should be added in this regard that the a quo also fails to set forth the legally-based reasoning that allows it to qualify the publication in question as “a mere or simple opinion,” even though the same starts from the affirmation of a series of situations that, in principle, is closer to an accusation (imputación) than an opinion about the “facts” that are part of the publication. To the above must be added that the a quo does not establish in the basis of the judgment on the merits, what evidence they assessed and in what way they managed to grant the character of “facts”—as established in their reasoning—to the events cited by the defendant in their publication, and with respect to which they merely indicated that they came to their knowledge, and based on such situation, they gave their opinion and disseminated it on their public “Facebook” profile. In the same sense, the challenged judgment does not establish the aspects that the a quo assessed to accurately establish that the “facts” disseminated and criticized by the defendant [Name4] are of public interest by virtue of being related to the activity—ascertainable or objectively presumable—of the public duties of the plaintiff [[Name3] ] in the exercise of their position as […]. Thus, it is apparent that the trial court did not adequately assess the point under analysis, in order to define whether the “facts” brought to light of public opinion by [Name4] are evidently false or merely speculative, this with the purpose of establishing the legal aptitude of those to be the object of criticism, by virtue of corresponding to the plaintiff’s exercise of public office, or failing that, whether the exposure of the content of the publication in question, without attending to or disregarding the quality or reality of the disseminated information, constitutes in itself an action that pursues and demonstrates a defamatory purpose to the detriment of the plaintiff [[Name3] ], who emphatically denied in their statement during the trial that the facts aired by [Name4] were true, an aspect that, it is reiterated, the a quo did not assess with the depth and rigor that is legally required.

**iii.-** In relation to the foregoing, the comprehensive examination of the judgment reveals that the criminal court does not precisely define or substantiate how it accurately concludes that in the subjudice we are in the presence of simple thoughts, ideas, or questions disseminated by the defendant [Name4], and not in the presence of an offense nuanced with the right to honor of [[Name3] ]. Thus, the a quo did not assess whether, through the content and the form in which the unverified “facts” in question were exposed, under the appearance and affirmation of being true or certain, and written in a way that could lead to the conclusion that there was influence peddling (tráfico de influencias) or improper conduct by the plaintiff to enrich themselves by virtue of exercising public office, we might be in the presence of a piece apt, suitable, and sufficient to affect the plaintiff’s right to honor. Such a situation arises because the trial court analyzed the events complained of, solely and exclusively, based on its criterion defined ad hoc to establish the scope of protection of the right to honor that the a quo deemed corresponds to whoever exercises the […], a criterion that, in accordance with what was extensively set forth throughout this pronouncement, is not duly substantiated since it does not conform to the interpretation and application of the supra analyzed norms that regulate the protection corresponding to the right to honor versus the protection and exercise of freedom of expression in the case of those who exercise public office.

**iv.-** The substantiation of a criminal judgment cannot reside in the definition of an ideology derived from what an organ of the ordinary criminal jurisdiction considers to be the position of “the majority,” but must confine itself to the application and interpretation of the law, and must appreciate binding jurisprudential criteria, as well as those emanating from higher judicial authorities that, without limiting the principle of judicial independence, are applicable to the specific case. In this sense, it is opportune to add that the human nature of whoever holds the position of judge of the Republic cannot be ignored, nor their relationship with the social environment, which entails having a specific ideology that could indirectly carry some weight when interpreting and applying the legal norm; however, it is not acceptable for the support of a judicial decision to have a directly and manifestly ideological basis, derived from a particular perception of social reality. In the matter at hand, this latter situation is what actually defines the scopes of protection of the right to honor that the trial judges specified as corresponding to whoever holds the […], by considering that such legal right can only be affected when the offense is direct or expressly ascribes the commission of a crime to whoever occupies such public office. Such an appreciation, as already indicated, is not only unfounded but also ignores the precepts that the Sala Constitucional and the criteria that the Sala Tercera and the Corte Interamericana de Derechos Humanos have defined regarding the scopes and limits of the right to honor of public officials versus the exercise of freedom of expression in a democratic state, which are very clear in establishing that a higher level of tolerance does exist and must be recognized, but in turn, they emphasize that the excesses and abuses of freedom of communication are not protectable, which in reality seek to disguise, through the supposed exercise of such fundamental right, the exposure of false facts that turn out to be insulting and defamatory, knowingly that such action can affect the right to honor of the public official. The foregoing, far from guaranteeing the validity of the democratic society, rather causes it harm, by violating the social component of the right to freedom of expression to receive pertinent and adequate information for the correct formation of public opinion, and in that way guarantee the correct course of public office so that it is not affected by unjust attacks that might affect the institutionality (institucionalidad), governability, and credibility of those who hold public power, which is more sensitive and delicate in the cases of those who exercise the Supreme Powers of the Republic.

**v.-** The court carries out a segmented and non-comprehensive analysis of the entirety of the text that was complained of as defamatory, an approach that does not correspond to what the Sala Tercera has established is appropriate in this sense according to the supra stated, given that in each specific case it is necessary to appreciate not only the content of the disseminated information, but also the form in which it is disseminated—writing, vocabulary, placement of photographs, etc.—must be assessed to establish whether the publication is suitable or not to achieve a defamatory result. Thus, the analysis of the body of proven facts in the judgment on the merits (cf. folios 323 and 324 of the main dossier), allows establishing that the judges took as proven that in the content of the publication in question is presented as true that the plaintiff acquired a property valued at the sum of two and a half million dollars, as well as that the same is the owner of wind generation, and that starting from such affirmations the defendant [Name4] makes a comparison with the case of a person—a well-known soccer player—who at that time was under criminal investigation, regarding whom they indicate that by “discovering hot water” and with five days of study at INCAE they became a millionaire and owner of yachts, airplanes, and a life of luxury. Likewise, the defendant expressly indicates that “[…] I compare the wealth of the Lady with this player, to whom we applaud their entrepreneurship and vision for business, that ease in paying millions of dollars, without us mortals finding an explanation in our daily life where money takes a whole life of effort and work to earn (…) these instant riches astonish us and we find no logical explanations. Now, could it be that they read the Book of Secrets and discovered the short path to wealth. In any case we congratulate the [Name [Name1]] who prepares her exit from public office being a millionaire and possessor of material riches that for any citizen takes a lifetime and for public officials and soccer players seems only five days of kicking a ball […]” (cf. folio 324, the transcription is literal). From the foregoing, it is inferred that, in the present case, it is necessary to analyze in a holistic and not segmented manner, as the trial court did, the content and the form in which the publication disseminated by [Name4] was made, in order to define whether the same was disclosed in the pure exercise of the defendant's right to freedom of expression, in an ironic, heavy-handed, and annoying way, or if, on the contrary, the text disseminated on [Name4]’s “Facebook” profile corresponds to the abusive and disproportionate exercise of such fundamental right. This analysis was not carried out by the a quo, because they did not appreciate the content of the publication in question in a comprehensive manner, and in turn, by virtue of having analyzed the text in question solely based on its criterion that only direct offenses and the accusation of criminal acts, as the sole possible meaning of a publication, can violate the right to honor of whoever exercises the […]. Added to the foregoing, the trial court considered that the plaintiff deemed her honor affected based on subjective appreciations that she derived from “the piece” published by [Name4], which the a quo considered are not the only ones possible to derive from it—without giving greater substantiation in this sense, as has already been noted—all of which they appreciated to conclude that the facts complained of in the present case are not defamatory. Based on all the foregoing, it is concluded that the factual, intellective, and legal analysis carried out in the judgment on the merits does not conform to the normative precepts established in Articles 39 and 41 of the Constitución Política, as well as what is stipulated in Articles 1, 142, 184, and 363 of the Código Procesal Penal, which implies the defect of erroneous legal substantiation (errónea fundamentación jurídica) of the ruling claimed by the representative of the plaintiff [Name [Name1]]. Consequently, the appeal filed by Licentiate [Name17] is granted, and the appealed ruling is entirely vacated. The remand of the case is ordered before the court of origin so that, with a different composition, it may resolve what is legally appropriate.” Goicoechea, at sixteen hours five minutes on the thirteenth of February two thousand fifteen.- APPEAL (RECURSO DE APELACIÓN) filed in this case brought against [Name1], date of birth January 10, 1958, male, marital status married to [Name2], place of residence San Antonio de Belén Costa Rica, city of origin Zarcero, employment listed as Faculty of Law of the University of Name2042 and Baldí Hot Springs Resort & Spa, for the crime of DEFAMATION (DIFAMACIÓN), to the detriment of [[Name3] ]. The judge Edwin Esteban Jiménez González, and the co-judges Mario Alberto Porras Villalta and [Name4] participate in the decision on the appeal. The attorney [Name5] appeared before this court, in his capacity as special representative of the [Name6] party and civil plaintiff.

WHEREAS (RESULTANDO):

I.- That by judgment number 625-2014, at eight hours thirty minutes, on the twenty-first of July two thousand fourteen, the Criminal Trial Court (Tribunal Penal) of the First Judicial Circuit of San José, resolved: "THEREFORE (POR TANTO): In accordance with the foregoing, Articles 28, 29, and 41 of the Political Constitution; 1, 8, and 11 of the Universal Declaration of Human Rights; v and xviii of the American Declaration of the Rights and Duties of Man; 1, 13, and 14 of the American Convention on Human Rights; 19 of the International Covenant on Civil and Political Rights; 30, 31, 145, 146, 147, 149, and 151 of the Criminal Code; 1 to 15, 34 to 41, 72 to 74, 141, 142, 143, 265 to 270, 360 to 368, 103 of the Code of Criminal Procedure, current rules on civil reparation from the 1941 Criminal Code, 1048 of the Civil Code; 221 to 234 of the Civil Procedure Code, by unanimous vote, it is resolved: [Name7] is acquitted of a crime of DEFAMATION (DIFAMACION) to the detriment of [[Name3] ]. The civil action for damages (acción civil resarcitoria) brought by [[Name3] ] AGAINST [Name8] is dismissed. It is resolved without special order as to costs. The costs of the proceedings are to be borne by the State." (sic.,) II.- That the attorney [Name5], acting as special representative of the [Name6] party and civil plaintiff, filed an appeal (recurso de apelación) against the aforementioned ruling.

III.- That having conducted the respective deliberation in accordance with the provisions of Article 465 of the Code of Criminal Procedure, the Court considered the issues raised in the appeal (recurso de apelación).

IV.- That the pertinent legal requirements have been observed in the proceedings.

Drafted by the Appellate Judge of Criminal Sentences [Name9]; and, WHEREAS (CONSIDERANDO):

I.- During the processing of this appeal from a criminal judgment (recurso de apelación de sentencia penal), an oral hearing was held at 9:30 hours on November 6, 2014. The Court of Appeal of Criminal Sentences of the II Judicial Circuit of San José was composed of Judge [Name4], and Judges Edwin Esteban Jiménez González and Mario Alberto Porras Villalta. At the hearing, the [Name6] and civil plaintiff [Name443 [Name10]] was represented by attorney [Name5], and the private prosecutor's target and civil defendant, [Name11] [Name12], was represented by Dr. [Name13]. These legal professionals presented oral arguments they deemed pertinent for the defense of the interests of their respective clients (cf. folio 452). Likewise, in said procedural act, various documents were offered as evidence by Dr. [Name14], specifically those visible on folios 453 through 461 of the case file, with the decision regarding said offer being deferred until the issuance of this resolution. The specific actions taken during the hearing were digitally recorded and are being evaluated by this appellate chamber (cámara de alzada) for the resolution of this appeal from a criminal judgment (recurso de apelación de sentencia penal).

II.- a) By means of a brief filed on August 13, 2014, attorney [Name5] (cf. folios 379 to 416), in his capacity as special representative of the [Name6] and civil plaintiff, [[Name3] ], filed an appeal (recurso de apelación) against judgment No. 625-2014 issued by the Criminal Trial Court (Tribunal Penal) of the I Judicial Circuit of San José at 8:30 hours on July 21, 2014, on the grounds that it acquitted [Name7] of all punishment and responsibility for the crime of defamation (difamación) that was privately prosecuted against him as committed to the detriment of [[Name3] ], and also dismissed the civil action for damages (acción civil resarcitoria) brought in this criminal proceeding. He bases his challenge on the normative content of Article 8.2(h) of the American Convention on Human Rights, as well as on what is stipulated in numerals 448 and 458 through 466 of the Code of Criminal Procedure. From the study of the case file, it is gathered that said appeal was filed in a timely manner, according to the legal deadline, and in accordance with the requirements necessary for the challenge to allow the adequate and correct understanding of the objections raised by the appellant for the purpose of the comprehensive review of the contested judgment, as established by Article 8.2(h) of the American Convention on Human Rights and provided in Articles 458, 459, 460, and 462 of the Code of Criminal Procedure. b) In the brief visible on folios 421 through 437 of the main file, Dr. [Name13], in his capacity as representative of the private prosecutor's target and civil defendant party, responded to the hearing granted to him regarding the appeal from a criminal judgment (recurso de apelación de sentencia penal) filed by attorney [Name5]. In said brief, the lawyer [Name14] presents the arguments upon which he bases his request that the challenge raised in the sub judice be dismissed, which are evaluated for the purpose of issuing this ruling.

III.- Regarding the evidence offered by Dr. [Name13] at the oral hearing held during the processing of this appeal (recurso de apelación). At the oral hearing held during the processing of this matter, Dr. [Name14] offered the following evidence: i.- a certified photocopy of the digital version of a magazine in which mention is made of the [Name6] and civil plaintiff [[Name3] ] (folios 453 and 454); ii.- Six certified photocopies obtained from the electronic address http//es.wikipedia.org/wiki/Forbes (folios 455 to 461). The ruling on the request and offering of evidence raised by the representative of the private prosecutor's target and civil defendant party proceeds as follows, for which the following aspects must be considered: a.- In the adjective criminal law governing the criminal judgment appeal phase, there is no provision establishing the possibility of offering, nor that it is appropriate to accept, evidence for better decision-making or absolutely and unlimitedly new evidence at the appellate level (alzada), as may occur in other stages of the criminal process. b.- Evidentiary activity in the criminal judgment appeal phase is directly linked to the effective protection of the right to appeal a criminal judgment (fallo penal), which is why the legislator established that the evidence that can be admitted during a challenge of this kind must be defined in order to guarantee the comprehensive review of the judgment by the appellate court (órgano jurisdiccional de alzada). This is because what is sought with said means of challenge is broad control and comprehensive examination of the contested judgment, as well as the trial that preceded it, meaning that evidentiary activity on appeal must be carried out cautiously and in strict adherence to the proper scope of the right to appeal, so as not to distort or disregard the importance and legal-procedural relevance of the oral and public trial. Hence, the appeal phase, with respect to the offering and admission of evidence, must be compatible with and respectful of the single-instance oral and public trial scheme that governs our criminal procedural system. Therefore, what is appropriate to evaluate in each case is whether the offered and accepted evidence is useful and pertinent for reviewing and controlling in a broad and comprehensive manner the criminal judgment (sentencia penal) issued by the criminal trial court, as well as the trial that preceded it. d.- It is by virtue of the foregoing that Article 464 of the Code of Criminal Procedure, whose regulations govern evidentiary activity in the appeal phase, establishes that what is appropriate at this procedural level is the examination of the trial records and, exceptionally, the reproduction of some evidentiary item due to deficiencies in the records or, where appropriate, the admission of new evidence that is useful and pertinent for resolving the appeal in order to conduct a comprehensive review of the judgment. Under these criteria, the legislator regulated that new evidence is permissible in the appeal phase only in the following cases: i.- evidence offered in a timely manner but arbitrarily rejected; ii.- evidence that appears as new after the judgment; and iii.- evidence that, although previously existing, the interested party was not effectively able to offer at the time. e.- Likewise, in order to ensure that the appellate court (tribunal de alzada) had an adequate and sufficient legal-procedural instrument to achieve a comprehensive review of the judgment, as a product of the criminal judgment appeal (recurso de apelación de sentencia), the legislator established in Article 462, paragraph 3) of the Code of Criminal Procedure that the court may order the production of evidence it deems necessary, useful, and pertinent for verifying the alleged grievances. This being the case, it is concluded that the documentation described above does not fall within the requirements for new evidence regulated for the processing and resolution of an appeal from a criminal judgment (recurso de apelación de sentencia penal), nor are such pieces of evidence useful and pertinent for resolving the issues discussed in the sub judice, since the information derived from the aforementioned printouts relates to aspects of the personal life of the [Name6] and civil plaintiff [[Name3] ] that are in no way linked to the facts that are the subject of controversy in the sub litem.

Therefore, the evidence offered by Dr. [Nombre14] at the oral hearing held in this case is rejected.

**IV.-** By virtue of the relationship between the three grounds of the appeal filed by attorney [Nombre5], they are analyzed and resolved jointly as set forth below. **FIRST GROUND:** Attorney [Nombre15] alleges a lack of reasoning regarding the theory developed by the trial court on the application of the crime of defamation when the affected party is a [...], according to which such illegality only occurs when the statements are direct, express, unequivocal, and injurious. He points out that the point being challenged is essential for the resolution of the case, since the lower court judges developed, on their own initiative, a theory on the application of the crime of defamation for the specific case in which the victim of the criminal action is a [...]. In this regard, he argues that the *a quo* requires the expressions to be "expressly" injurious, thereby violating the normative content of Article 142 of the Code of Criminal Procedure (Código Procesal Penal), since such a statement is not supported by clear and precise reasoning, Nombre02 nor does it respect the strict application of the rules of sound criticism regarding evidentiary elements of decisive value, all of which in turn implies a violation of Article 363 of said procedural code. The appellant points out that based on the argument set forth above, the judges segmented each of the paragraphs of the publication they consider defamatory, thereby concluding that *“[…] regarding the statement that the [Nombre [Nombre10]] acquired a property for the sum of two and a half million dollars, this contains no offense, nor the unequivocal attribution of a crime. The judges point out that this phrase does not expressly state that the acquisition is the product of the commission of a crime. Here the judges indicate that it is a particular opinion of the injured party to assert that her honor was harmed because with her income she could not buy a property of that value. The judges insist that the defendant does not expressly say that the purchase was the product of a crime. The judges assert that this is only a possibility and then, without indicating what they consist of or where they derive it from, the ruling states that a multiplicity of inferences concur. They subsequently point out other hypotheses such as acquisition through lawful sources like inheritance, donation, or lottery. Continuing with the judges' analysis of the text challenged as defamatory, regarding the accused's statement that [Nombre [Nombre10]] is the owner of a wind generation company, there is also no phrase that damages honor. The drafters of the ruling say it is again an assessment by the [Nombre6], without having previously weighed the statement of the [Nombre6] and that of the accused. In the same sense, they determine that there was no direct harm to honor regarding the reported illegal and sudden enrichment at the end of the term in the [Nombre6]'s assets […]”* (cf. folios 381 and 382). In this regard, the appellant accuses the judges of not considering or giving any value, in the basis of their decision, to the falsehood of the accusations, a logical defect regarding which he indicates he raises a separate objection. Furthermore, he points out that it is clear that the *a quo* reads each fact based on the theory it developed in the ruling, dismissing that the publication in question constitutes a direct offense against his client. He indicates that the judgment on the merits invokes the resolution issued by the Inter-American Court of Human Rights in the case *[Nombre16] vs. [Nombre17]* regarding the margin of tolerance corresponding to a [...], however, he alleges that the *a quo* did not carry out further consideration regarding what he argued in the debate with respect to the scope of that threshold of tolerance. In this sense, he indicates that the ruling established that whoever holds said Nombre01 public office may only bring criminal action when a direct offense has been imputed to them, a statement that lacks foundation. He adds that the Nombre04 that the figure of the [...] Nombre05 is obliged to tolerate all public complaints, criticisms, and complaints filed against their management was also not supported, and that the *a quo* did not set forth the considerations it took into account to establish a difference between the protection of the right to honor of ordinary persons with respect to one who holds the aforementioned Nombre01 public office. The appellant concludes that the position of requiring a direct offense for a [...] Nombre06 to access the criminal protection of their right to honor is merely a subjective opinion that has no dogmatic or jurisprudential reference whatsoever, to which must be added that such Nombre04 outlined by the *a quo* lacks logical and sufficient reasoning. In this regard, the appellant accuses the criminal court in its ruling of referring to the decision issued in the case *[Nombre18] vs. Nombre2042* by the Inter-American Court of Human Rights, however, it fails to specify that the reproduced citation corresponds to the concurring opinion of Judge [Nombre19], which does not equate to the Nombre04 of the majority vote of said jurisdictional body. He adds that the judgment in question cites paragraphs 127, 128, and 129 of the Inter-American Court resolution in question, and that the requirement of a direct offense to protect the right to honor of a [...] is not inferred from their content, a criterion he describes as arbitrary *“[…] not only because it does not refer to autonomous or sufficient arguments in its support to validate it, but because, in terms of its effects, the unsubstantiated reasoning of the Trial Court produces an emptying of the content and protection of the [...]'s honor. This is particularly important in the specific case because the judges also omit any pronouncement on the falsehood or otherwise of the accusations made by the defendant [Nombre20] against the injured party [Nombre [Nombre10]], when she then held the Nombre01 of […] […]”* (Nombre07. folios 383 and 384). He requests that this ground of appeal be granted, the sentence and the debate that preceded it be annulled, and both be reinstated before a different composition of the trial court. **SECOND GROUND.** The appellant alleges the lack of reasoning in the judgment with respect to the arguments that allow the concurrence of the exercise of the right to criticize to be excluded in the specific case. This is because he considers that the defendant [Nombre12] relied on the assertion of falsehoods that he decided to publish. He accuses a lack of reasoning, for the *a quo* having considered that in this case the defendant acted in the exercise of a right to criticize, without taking into account or dismissing the arguments raised in that regard by the [Nombre6] and civil party during the trial, arguments according to which it is established that in this case no such right to criticize existed, since the defendant acted with full knowledge of the falsehood of the story he disseminated. He adds that the trial court ignored numerous resolutions of the Inter-American Court of Human Rights, the Constitutional Chamber (Sala Constitucional) and the Third Chamber (Sala Tercera) of the Supreme Court of Justice of our country, Nombre02 as well as those of the Costa Rican Criminal Sentence Appeals Courts, whose content excludes the exercise of the right to freedom of expression and criticism of public officials when it is based on statements that are false, thereby violating the provisions of Article 142 in relation to those of Article 184, both of the Code of Criminal Procedure, regarding the duty to provide reasoning for the judgment. Attorney [Nombre15] establishes that one of the central arguments on which the "Theory of the Case" of the [Nombre6] and civil party centered was to explain to the trial court the reasons why the prerequisites justifying the application of the figure of the legitimate exercise of a right do not concur in this instance, which he emphasizes was set forth from the beginning of the adversarial proceedings, so that the *a quo* would pay attention to this aspect, an argument which, he points out, was likewise reiterated and extensively developed during the closing arguments phase of the debate. In this regard, the appellant points out that during the adversarial proceedings he argued that in the *subjudice* case, there was an excess in the margins of freedom of expression by the defendant [Nombre12], by virtue of having uttered and disseminated a series of falsehoods, which excludes the applicability of the exercise of the right to criticize a public official. Notwithstanding the foregoing, the text of the ruling did not issue any Nombre04 regarding the thesis defended by the [Nombre6], thereby generating defenselessness and violating the trial court's duty to resolve all aspects argued in the adversarial proceedings, which, he alleges, violates the precepts established in this regard by the Inter-American Court of Human Rights in the judgment issued in the case *[Nombre21] and others* on August 5, 2008. Specifically, attorney [Nombre5] points out that in the trial's closing arguments, he argued that the account given by the defendant [Nombre12] was not credible, since he himself acknowledged that his assertions disseminated on his “Facebook” profile were false, Nombre08 he stated that he had not verified them before carrying out their indiscriminate dissemination. He points out that the claims he made during the debate on the point under analysis could only be known by someone who attended the trial, since anyone merely reading the judgment will find no reference to the arguments he raised to dismiss the existence of the legitimate exercise of a right by the defendant, all of which was improperly omitted from consideration in the appealed ruling, thereby violating the right to be heard and to obtain a timely judicial response due to the failure to observe the duty to provide reasoning for the criminal judgment in the present case. He alleges that the essential issue that the trial court failed to assess was that in this instance, there was no right to criticize the [CED1 ], since the published comment referred to false facts, which no public official is obliged to tolerate, not even one holding the highest representation of the State, as was the case here with the [Nombre6] and civil party [Nombre443 [Nombre10]]. He points out that during the debate, the reasons why the [Nombre6] postulated before the trial judges that in this particular case, the right to criticize was not exercised, but rather that what occurred was an irresponsible assertion of falsehoods, were established, which he considers was entirely omitted from assessment in the ruling under appeal. He adds that in *“[…] the concluding exposition it was also argued that Mrs. [Nombre443 [Nombre10]] indicated that the publication contained false facts, that it was disseminated from the Facebook page of the accused [Nombre22], and transcended that virtual community, to the point that she was accosted by the deputy presiding over the Legislative Assembly's Public Income and Expenditure Commission, who demanded explanations about the disseminated text, her response being that they were falsehoods regarding which they would take the pertinent legal actions […]”* (cf. folio 393). On the other hand, the appellant attorney points out that during the trial, he argued before the criminal court that the Inter-American Court of Human Rights establishes criteria of legality, necessity, and suitability to delimit the protection of honor Nombre09 vis-à-vis freedom of expression, and that this jurisdictional body has stipulated that the protection of the latter is not applicable when falsehoods are asserted, Nombre02 just as it has established that freedom of expression has limits and when they are transgressed, liability may be demanded for the abusive exercise of such prerogative. In this regard, the appellant alleges that in the judgment on the merits, the lower court judges did not analyze whether, in light of "inter-American" precedents, the accused [Nombre7] incurred in falsehoods in this specific case, despite this being an extreme that was widely debated in the adversarial proceedings, Nombre02 just as they disregarded the jurisprudential precedent No. 1050-2002 of the Criminal Cassation Chamber (Sala de Casación Penal), which establishes that the abuse of a right excludes the legitimacy of the use of freedom of expression. He indicates that the *a quo* did not reason regarding the previously mentioned arguments of the complaint, Nombre02 just as it carried out a partial citation of resolution No. [Telf2] of the Constitutional Chamber, using it in what suited its developed position, but disregarding the assessment of the aspects encompassed at the end of the citation of said ruling, a segment of said resolution in which reference is made to the fact that falsehoods, rumors, or insidious statements that lack veracity are not part of the exercise of freedom of expression. Attorney [Nombre15] points out that *“[…] It is unheard of that the Court pointed out that the object of the trial was not whether at the end of her term Mrs. [Nombre10 [Nombre10]] had acquired the property or whether she had any participation in wind generation companies (cf. folio 365). This is absurd because precisely what was indicated in the complaint is that since the content of the publication was false, there was no right to indiscriminately disseminate a falsehood. Now, from a comprehensive reading of the judgment, it is deduced that the Court ASSUMES that the defendant exercised that right, but it cannot be interpreted, a contrario sensu, that by having resolved in this way, it immediately excludes any other interpretation, such as the one proposed at trial by the [Nombre6] and civil party (…) As a decisive complement to the grievance, it must be considered that it was essential for the Court to clarify whether or not it was facing a text in which falsehoods were asserted. Instead of resolving this question, the judges opted for a single interpretation of the text, without taking into account that the offended party categorically denied each of the assertions made therein and classified them as false (lack of reasoning for her statement), and that the accused himself insisted in his deposition that he took no measure to verify the source of the text, that he assumed it and disseminated it without verifying whether it was true or not, and insisted during the trial that Mrs. [Nombre10 [Nombre10]] was corrupt […]”* (cf. folios 403 and 404). The appellant concludes that the seriousness of the grievance he raises is confirmed by hypothetically including his arguments presented at trial that were left unassessed in the judgment, since if such aspects had been analyzed, he estimates that the *a quo* would have been forced to establish that the defendant's action constituted the crime of defamation, Nombre02 and that the application of the defense of legitimate exercise of the right to free expression was not applicable. He requests that this ground be granted, the sentence and the debate that preceded it be annulled, and the reinstatement of both be ordered.

**THIRD GROUND**. Attorney [Nombre5] claims that the judgment lacks reasoning because the trial court used precedents from the Inter-American Court of Human Rights in its reasoning that are not applicable and lack relation to the facts complained of against the accused [Nombre7], which contravenes the provisions of Article 41 of the Political Constitution, Nombre02 as well as the provisions of Articles 2, 6, and 142 of the Code of Criminal Procedure. He argues that *“[…] the central thesis of the sentencing court resided in arguing that in the case of public officials, with greater emphasis on those who were elected by popular vote, as occurs in the case of the [Nombre6], a greater threshold of tolerance must be shown to the criticisms and questioning of citizens. It is this reasoning that serves the lower court judges to subsequently conclude that the statements made by the accused, through a social network, should have been tolerated by my client. However, the a quo relied on two resolutions of the Inter-American Court of Human Rights – which, by the way, is not a continental court, as the judges imprecisely state, but a regional one – whose factual circumstances differ substantially from the case brought by Mrs. [Nombre [Nombre10]]. In the rulings referred to by the trial court, although the scope of freedom of expression and its collision with other fundamental rights were analyzed, the facts corresponded to situations very different from those submitted to the knowledge of the judicial authorities in this process. Hence, the doctrine that was incorporated into the appealed ruling was inapplicable, which makes it a clearly unfounded decision […]”* (cf. folios 406 and 407).

In his argument, the appellant summarizes and sets out the content of the ruling in the case *[Nombre16] vs. [Nombre17]* issued by the Inter-American Court of Human Rights on May 2, 2008. In this regard, he points out that the crucial difference between that case and that of the [Nombre6] and civil plaintiff [Nombre10 [Nombre10]], lies in the fact that what occurred in the former was a value judgment or opinion on the work of a judge, not an imputation of unlawful or at least ethically suspect conduct, as happened against his client. The appellant indicates that in “[…] relation to Mrs. [Nombre [Nombre10]], no value judgment was made nor was a critical opinion shared about her status, at that time, as head of State. What was done was to attribute to her unlawful or ethically reprehensible conduct. The conclusion derived from the vote under study is that a public official has the obligation, as part of the debate in a democratic society, to receive attacks and negative and severe value judgments. However, that rigor in examining the performance of a Nombre01 of the State, especially a high Nombre01 such as that exercised by Mrs. [Nombre10 [Nombre10]], does not cover the imputation of false, criminal, or immoral acts. This aspect. Which was not included in the Court’s judgment, was marginalized by the criminal instance judges to assert that the defendant’s statements were in accordance with what was set forth by the regional court, when clearly it is not Nombre02 […]” (cf. page 409). On the other hand, Mr. [Nombre15] sets out and summarizes the resolution issued by the Inter-American Court of Human Rights on July 2, 2004, in the case *[Nombre18] vs. Costa Rica*. He points out that said process brought against our country has notable differences from the criminal case processed against [Nombre7], which determines that there exists a defect of lack of reasoning in the judgment. In this regard, the appellant alleges that “[…] the regional Court concluded that no crime had been committed because the journalist who, in any case, has a public interest in informing merely reproduced information that was being generated in European media. Perhaps the crucial point is that both regional processes, which while drawing them together also distance them from the factual circumstances of the case against [Nombre12], revolve around statements or publications directed against acts of public officials in the exercise of their duties. In this case, value judgments were not made, nor was information published from any source about the [[Nombre3] ]. What was done were statements that questioned, based on conduct supposedly engaged in by the defendant, her moral integrity […]” (cf. pages 411 and 412). The appellant cites in his argument the judgment of the European Court of Human Rights issued on March 15, 2011, in the case of *[Nombre23] v. Spain*. In this sense, he points out that the most relevant aspect of that precedent, with regard to the case being judged here, is that “[…] the European judges established a line of examination when assessing what was expressed by [Nombre23]. According to the Court of Human Rights, what was stated by the Basque leader did not attack the personal life of the head of State or his honor: “…the statements in dispute do not question the private life of the king or his personal honor (…) they did not imply a gratuitous personal attack against his person [….]” (cf. page 413. The transcription is literal). Thus, he alleges that in the case of the accused [Nombre12] there was indeed a questioning of the personal honor of the [Nombre6] or, what is the same in the terms defined by the European Court of Human Rights, a gratuitous attack against her person. This, because a series of statements were published through a social network about the surprising and inexplicable enrichment of the [[Nombre3] ], all while she held said office. Therefore, the appellant considers that this factual picture differs from what was analyzed by the Inter-American Court of Human Rights in the two votes considered by the instance judges in the judgment on the merits. He adds that no information was shared about any investigation being carried out against his client, no value judgment of her management was made, as what was done was to attribute a specific conduct to her, to which Nombre03 must be added that according to common experience it is unthinkable that a person who has dedicated herself to public service like the [Nombre6] and civil plaintiff [[Nombre3] ], would have the financial capacity to lawfully obtain a property like the one that [Nombre12] claimed his client owned. The salaries of public officials “[…] under no circumstances permitted achieving a “millionaire’s life” according to the words of the accused; hence the statement by Mr. [Nombre12] accounts for the unlawful enrichment (enriquecimiento ilícito) of someone who for almost two decades was a public official […]” (cf. page 414). He points out that in the *sub judice* case, it was a matter of a businessman who published false and insulting information against his client, which stands in stark contrast to the discussion on the right to freedom of expression resolved in the precedents of the Inter-American Court of Human Rights that the *a quo* improperly considered in the judgment on the merits. The appellant raises the following question in his pleading: “[…] For what reason did harmful statements about honor, suggesting that a […] Nombre11 became rich during her term, constitute the exercise of freedom of expression? This was the question the *a quo* should have answered. That answer was not set forth in the judgment under appeal […]” (cf. page 415). He accuses that the grievance consists of the fact that to issue the acquittal judgment in favor of the defendant [Nombre12], the trial court invoked and assessed resolutions from the inter-American human rights system that bear no factual relationship to the facts under litigation, which implies the breach of the principle of derivation and sufficient reason and, consequently, the lack of reasoning in the judgment. **The claims are admissible.** From the comprehensive examination of the ruling, Nombre02 as well as from the pleadings raised by Mr. [Nombre5], it is established that the challenges lodged against the acquittal judgment issued in favor of the accused [Nombre7] are admissible. This, because the judgment on the merits was not reasoned as legally required and as demanded by articles 39 and 41 of the Political Constitution, Nombre02 as well as numerals 1, 142, 180, 181, and 363 of the Code of Criminal Procedure. The broad study of the descriptive, factual, intellectual, and legal basis of the judgment on the merits leads to the conclusion that the *a quo* did not support its decision to acquit the defendant [Nombre7] of all punishment and responsibility for the crime of libel that was charged against him, in accordance with the strict application of the rules of sound criticism, nor in accordance with the proper application of the criminally relevant legal norms for the resolution of the present case. This conclusion rests on three essential axes of legal reasoning, which are set out below. **A.- Analysis of the main contents and grounds of the judgment under appeal.** In order to have clarity regarding the scope of the judgment on the merits, it is necessary to specify and analyze the most important aspects based on which the instance judges acquitted the defendant [Nombre12]. Thus, the following is presented: **i.-** The criminal court establishes that, based on the judgment under appeal, a novel jurisprudential line is being erected –as alleged by the appellant–, which will regulate the relationship of whoever holds the Nombre01 of [...] with respect to citizens, regarding the boundary between the right to honor and freedom of expression. **ii.-** The *a quo* indicates that with the purpose of “educating” the population regarding the use and abuse of social networks –mainly “Facebook”– it will define the legal nature of such networks. In this sense, the instance judges point out that “Facebook,” and social networks in general, are means of communication equal to any other of those already known, since from the moment third parties have access to the account or profile of a specific person, what is published is disseminated and is available to several people. Thus, they conclude that it is clear that people cannot publish any statement through such a communication channel, Nombre08 social networks are not excluded from the regulation provided in our legal system, so that anyone who abuses their freedom of expression through that means is exposed to criminal punishment, as if they insult or offend another, or in their case falsely attribute the commission of a crime, the person can be criminally prosecuted for the crimes of slander, calumny, or libel. **iii.-** The trial court indicates that the analysis of the conduct charged against [Nombre12], in order to define whether or not he abused his freedom of expression to the detriment of the honor of the [[Nombre3] ], transcends the barriers of Criminal Law, since the discussion Nombre03 must be carried out in the field of Constitutional Law. Therefore, the instance judges consider that the principle of equality must first be assessed, according to which all persons are equal before the law, it being necessary to appreciate in every case that equality of treatment Nombre03 must be given to those who hold the same condition, position, or situation. *A contrario sensu*, if there are persons who are not in a similar condition, position, or situation, they cannot be given the same treatment. In the ruling, it is established that the points set out above are fundamental for the correct resolution of the case, since the [Nombre6] [[Nombre3] ] was the […] at the time of the events in question, a condition distinct from that of the rest of the people, and it was in that condition that [Nombre12] referred to the [Nombre6] on his “Facebook” profile. By reason of the foregoing, the *a quo* considered in the ruling that, to determine the scope of the right to honor of [[Nombre3] ], the office (investidura) of […] that the [Nombre6] held at that time must be taken into account, because it deems that for this reason the content of her honor is not the same as that of the rest of the public officials, Nombre02 nor that of other Costa Ricans. In this sense, the criminal court indicates that all public officials are more exposed to criticism by the fact of having voluntarily assumed a Nombre01 of such nature, so that by agreeing to greater exposure inherent to the position, they must also accept greater criticism compared to what must be tolerated by those who do not exercise public service. In this regard, the instance judges cite a precedent of the Inter-American Court of Human Rights issued on May 2, 2008, in the case *[Nombre16] vs [Nombre17]*, in which, according to their appreciation, said Inter-American Court considered that “[…] the activities of public servants move from the domain of the private sphere to insert themselves into the sphere of public debate. This threshold (…) is based on the public interest of the activities they perform […]” (cf. page 346 of the main file). In this sense, the *quo* concludes the following: “[…] Note that the highest continental body for human rights establishes that in America public officials are more exposed to criticism, that this is inherent to the Nombre01 they voluntarily accepted, and that the activities they perform are of public interest. Now, Nombre03 it must be noted that these statements by the Inter-American Court have been produced within the framework of cases involving high-ranking public servants, but not of the highest rank as it is in this complaint, the [...]. It is clear that the public Nombre01 of greatest hierarchy in our country is the [...], it is a popularly elected position, it implies the hierarchy of the Executive Branch, whoever holds this Nombre01 exercises the national and international representation of the Costa Rican State, and is the person who directs the main institutions of the central government, within which are included, for example, the Ministry of Security, the Ministry of Health, and the Ministry of Finance. These assessments are important because if we affirm with the Inter-American Court “…that in a democratic society public officials are more exposed to scrutiny and criticism by the public.” (Case [Nombre24] vs. [Nombre17], idem), even greater is the exposure of the highest authority of the public service and correspondingly, even greater Nombre03 must be the public criticism. Note that the Court is interpreting in accordance with the principle of proportionality the jurisprudential line of the Inter-American Court, Nombre08 if greater criticism and exposure is inherent to a public official than to persons who do not exercise a public service, the graduality inherent to a fair, proportional, and reasonable judicial assessment determines that within the category “public official,” the level of tolerance to criticism Nombre03 must be greater according to the official’s hierarchy. That is to say, if premise number one dictates that a public official Nombre03 must tolerate more criticism compared to those who are not public officials, as premise number two it can be affirmed that within the category “public servant,” the level of tolerance will be greater as the official’s hierarchy is also greater. This premise is justified for the following reasons. A public servant appointed by the usual administrative procedures –the civil service regime, for example– is not the same as a public servant appointed in national elections; the latter servant has a direct mandate from the Sovereign and has a Nombre01 of greater responsibility; nor is a public servant who does not make decisions the same as a public servant who does make decisions; a public servant who directs or presides over a public institution is not the same as a public servant who works in the same institution but in a lower-ranking position. Therefore, the court cannot ignore the office (investidura) of the [Nombre6] party, Nombre08 at the date the events occurred Mrs. [Nombre10 [Nombre10]] was the [...], therefore, although she was a public official like thousands of other people, she exercised the highest-ranking Nombre01 in the public sector, held the representation of the Costa Rican State, directed the policies of all public institutions under her mandate, and, therefore, was in a special condition that the Court cannot ignore. The aspiration for justice obliges us to assess each case according to its own characteristics, Nombre08 only Nombre02 can an equitable decision be made that truly responds to the assessment of the facts, the evidence, and the personal conditions of the litigants; this is proportional and adjusted justice; the opposite would be generic, impersonal justice and, therefore, would not be justice. Along these lines, the Court faces the decision to define the content of the right to honor of whoever holds the Nombre01 of [...], Nombre09 the freedom of expression of citizens [...]” (cf. pages 346 to 349. The transcription is literal). **iv.-** In its substantive reasoning, the *a quo* transcribes the content of the publication made on the “Facebook” profile of [Nombre7], that is: “[…] “[…] MILLIONAIRE” “… I am visiting the Nicoya Peninsula, and on these paradisiacal beaches I ask about a beautiful farm. The local responds that our […] Nombre12 bought it for two and a half million dollars...”. Talking with some businessmen about the million-dollar acquisition by the [...], they tell me that the thing does not end there, but that she is the owner of wind power generation —the kind made with wind—, Nombre02 that we have a […] Nombre13 finishing her term has become quite an entrepreneur...”. “It reminds me of the “Cinderella” case but that was a fictional story from a fairy tale, then the case of [Nombre [Nombre25]] comes to mind who in five days of study at INCAE discovered warm water and became a millionaire owner of yachts, planes, a life of luxury, and fine dressing. From Hatillo to Valle del Sol in an instant just by touching the ball. Now the leap is from Desamparados to Escazú. If that parallelism of touching the ball leaves much gain without any effort, more than the fun of participating in the game, Nombre02 that I compare the instant wealth of the Lady with this player, whose entrepreneurial spirit and business vision we applaud, that ease to pay millions of dollars, without us mortals finding an explanation in our daily life where money takes a whole life of effort and work to make…”. “… These instant riches astonish us and we find no logical explanations. Now, could it be that they read the Book of Secrets and discovered the shortcut to wealth. In any case, we congratulate the [Nombre [Nombre10]] who prepares her exit from public service being a millionaire and possessor of material riches that costs any citizen a lifetime and public officials and footballers seems only five days of touching the ball […]” (cf. pages 348 and 349). In this sense, in the judgment on the merits the *a quo* indicates that the [Nombre6] [[Nombre3] ] considered that the text is defamatory because, from her perspective, it contains offensive and false statements that accuse her of unlawful enrichment (enriquecimiento ilícito), since her salary for the Nombre01 of [Nombre443 [Nombre10]] that she held at that time did not permit the purchase of a two and a half million dollar farm, and furthermore the [Nombre6] considered that her honesty was attacked, Nombre08 Costa Ricans could presume as true, facts that are not. At this point in the ruling, the trial court refers to the content of the statement given at trial by [[Nombre3] ], it being the case that it appreciates that the [Nombre6] emphatically rejected her participation in wind energy generation, Nombre02 as well as denied being the owner of a property in Guanacaste worth two and a half million dollars.

Subsequently, the trial court judges assessed what the respondent [Name12] stated at trial as follows: *“[…] Regarding the accusation, at trial the defendant [Name7] —in summary— accepted that on his “Facebook” account he made the cited publication, which was not drafted by him, that he does not know who drafted it, that he took it from the same social network, “copied and pasted” it onto his own account, making it public because he thought it was important for others to know about it. He said he never intended to harm the honor of Mrs. [Name6] and defined himself as an activist who has been responsible for denouncing actions of the government of Mrs. [[Name3] ] that he considered incorrect or illegal, for which he even filed respective complaints before the Public Prosecutor’s Office, the final result of which he is unaware of. He alleged that by publishing the [Identificacion1], he was exercising his right to expression, to inform and be informed. Based on his statement at trial, the issue of authorship of the publication ceases to be relevant, since [Name12] admits having made the content of the text his own and also published it through his Facebook account. Furthermore, as demonstrated by the notarial certification provided by [Name6], the cited account is publicly accessible to any user of this social network. The Court also considers it proven that when the text was disseminated, its content reached an indeterminate number of people, many of whom reacted by expressing their opinions and perceptions on the matter, included in the libel of the complaint, as well as in the notarial certification which corresponds to a printout of [Name12]’s “Facebook” account, specifically the comments on his publication […]”* (cf. page 360). After taking it as established that the publication in question was made by the respondent [Name12] and that it was disseminated to an indeterminate number of third parties, the trial court judges proceed to refer to freedom of expression as the normative basis for the formation of a free public opinion, characteristic of a thinking, analytical people critical of reality. Likewise, they point out that a democratic State respectful of the Political Constitution must facilitate its inhabitants’ effective participation in public debates, giving a broad, but not permissive, content to freedom of expression, so as to allow it to fulfill, in turn, a function of controlling political power and the handling of public affairs. In this regard, the ruling cites what the judges state is a precedent of the Constitutional Chamber of the Supreme Court of Justice referring to the right of expression, although no data is provided to identify such pronouncement. Subsequently, the trial criminal court establishes that the respondent distributed the text in question to an indefinite number of people, thereby informing of two facts—the purchase of the property and the participation in the wind energy company by [Name6]—, as well as offering his opinion in that regard, which indicates that [Name443 [Name10]] stated affected his honor, and, without conducting a thorough assessment of the aforementioned points, the *a quo* proceeds to establish that freedom of expression and the right to information are not unrestricted, as the latter find a limit in the honor of individuals regulated in Article 41 of the Political Constitution, whose content the judges consider must be read in conjunction with the provisions of Article 33 of our Magna Carta, which recognizes the value of human dignity, to which they indicate must be added the criminal protection of the right to honor through the crimes of insult (injurias), slander (calumnias), and defamation (difamación) contemplated in the Criminal Code. Thus, the trial court judges conclude that every person has the right to honor, understood as the esteem, opinion, or consideration that others have of them. The *a quo* establishes that any manifestation that affects a person’s honor is, in principle, capable of being considered a crime, and that freedom of expression does not cover certain types of expressions and does not justify them, namely those that, despite having the form of thoughts, ideas, or opinions, turn out to be phrases unnecessary to express what is going to be said and, furthermore, those that are directly insulting or that expressly and unequivocally attribute the commission of a crime. In this sense, the trial court invokes the content of resolution No. [Telf2] of the Constitutional Chamber of the Supreme Court of Justice, a pronouncement in which the scope of the right to freedom of expression is demarcated. Subsequently, the judges indicate that, according to doctrine and jurisprudence, honor has two aspects: the subjective, which corresponds to the concept that a given individual has of himself, his self-esteem or self-respect, and; the objective, which is the image that the subject projects to others, therefore it is composed of the way in which others perceive that image. Based on the foregoing, the *a quo* establishes in its analysis that an expression or manifestation constitutes a crime of defamation (difamación) or any other against honor, when the offense affects said legal interest from the objective perspective, and it must be a literal, express offense or one that is axiomatically understood as an insult. Based on the foregoing, the trial court judges indicate that in the specific case they choose to assess and take into consideration the investiture held by [Name6] [[Name3] ] on the date on which [Name7] made the publication in question on his “Facebook” account, *“[…] this with the purpose of outlining a jurisprudential line regarding the content of the right to honor of public servants in general, and of whoever holds the […] in particular. Only in this way, as will be seen, can it be established which manifestations are covered by the normative justification provided by freedom of expression, and thus resolve the case submitted for study by this jurisdictional body. For the date of the events, [Name6] [Name10 [Name10]] held the […], and was therefore a public servant. But the statement cannot stop there. [Name6] [Name [Name10]] held the public office of the highest hierarchy, it was a popularly elected office that gave [Name [Name10]] not only more administrative responsibilities of the State, but also the maximum exposure to public scrutiny of all her actions. And this is so and in the Court’s opinion, every public official, especially those of higher hierarchy, and categorically the one of the highest hierarchy, namely the […] […], are subject to a major duty of transparency, which “implies access to public information and the broad, permanent, and impartial dissemination of public decisions. Only in this way is the Principle of Maximum Disclosure fulfilled, which establishes the presumption that all information is accessible, subject to a restricted system of exceptions” (Tiffer [Name26]. The constitutionality of the crimes of insults (injurias) and defamation (difamación) regarding the criticism of public officials), and also coming into play, in the same hierarchical proportion mentioned, is the obligation of accountability, this latter duty enshrined in numeral 11 of the Political Constitution, which obliged [[Name3] ] to tolerate all public denunciations, criticisms, and complaints that were filed regarding her person and her administration; indeed regarding her person because when exercising the highest-ranking office in the Executive Branch, that investiture transcends private life precisely due to the principles of transparency and accountability. According to the doctrine of transparency. Public activity must be and appear as a “Glass House” […]”* (cf. pages 354 and 355. The transcription is literal). By reason of the foregoing, the trial court judges reiterate that a higher threshold of tolerance applied to [Name6] [[Name3] ] than to other public servants, regarding thoughts, ideas, or questions about her conduct, since she voluntarily placed herself in public service, for which an impeccable public and private conduct corresponds to her. In its argument, the trial court reiterates that, in accordance with the principles of proportionality and equality, the greater the public office held, the greater the tolerance by reason of the duties of accountability and transparency to which the public official is subject, and in this regard certain paragraphs of the resolution issued by the Inter-American Court of Human Rights in the case *[Name18] vs. Costa Rica* are cited. In the analysis proposed by the *a quo* in the judgment on the merits, it carries out a reasoning that it defines as the “ideological basis” of its ruling, indicating in this regard the following: *“[…] In the first recital (considerando) of this judgment it was stated that this was a very important case. To what was said then the Court adds the following considerations that intend to constitute the ideological basis that sustains this ruling. In this judgment the Court faces the difficult decision of interpreting social reality to establish, based on it, what type of State and society constitutes the aspiration of the majority of Costa Ricans. In attempting to do so, the Court will not simply impose its position, but rather we will try to base it on a reasonable reading of the reality of recent years. Premise number one: in 2005 and as a rapid response to criminal complaints that involved […] and high officials of State institutions, the Law Against Corruption and Illicit Enrichment was enacted. This legislation created new crimes such as influence peddling, reformed existing ones, such as embezzlement (peculado) and misappropriation (malversación), with the purpose of sending a clear and forceful message to society: from the heart of the Legislative Assembly, the representative body of the popular will, corruption by public servants was rejected. This legislative voice constitutes the first historical-normative premise that the Court uses, to affirm that from a normative point of view, in the last decade a process of transformation of current law began, which today is invigorated with other laws that have strengthened the State’s fight not only against illicit enrichment in general, but also against organized crime that infiltrates the public function. In this way, from the legislative sphere there is a call for transparency in the public function. Premise number two: always, with the purpose of giving full force to the duty of transparency in the public function, during the last decade the strengthening of State control bodies has been evident. The Ethics Ombudsman’s Office (Procuraduría de la Ética) was created so that “the State’s lawyer” not only deals with the strict legality of public actions, but also to incorporate into the debate the ethical and moral duty that is also an expression of transparency. Also, the Comptroller General of the Republic (Contraloría General de la República) has had greater prominence, through rigorous control of the financial reality of public officials. Highlighted here is the duty that some public officials have to submit a sworn declaration of their assets, besides which, for the Court the most important thing is that in the last decade the coverage scope of this obligation has increased. Indeed, over the years we have witnessed that more and more public offices are added to the list of servants who must submit the declaration of their assets – of their assets and liabilities –, and that the declaration increasingly aims to be more detailed and comprehensive of the financial reality of the servants, by including, for example, shares in corporations (sociedades anónimas) and de facto usufructs. Incidentally, this Court is a clear example of this whirlwind, as two years ago the Judges of the Republic – fortunately – also submit a sworn declaration before the Comptroller General of the Republic. Note that with this second premise the Court wishes to illustrate that the national reality is evident: it has been sought to give effective content to the duty of accountability, always with the purpose of guaranteeing transparency in the functions of those of us who voluntarily serve the country in the public function. Premise number three: citizen denunciation and public denunciation that have been led by the media are also a reality that the Court wishes to make visible in this ruling. In the last decade the Courts of Justice have processed a large number of citizen complaints against public officials. That is, the citizenry assimilated the importance of transparency in the public function, and has assumed a leading role in the criminal investigation of conducts by public servants. Without the result of these processes, or their specific citation, being of interest now, the truth is that the Court interprets a reality that all people have been able to know in recent years. To this dynamic of citizen complaints, the active role of the media has joined, which have also undergone a process of change, fundamental in the consideration of this jurisdictional body. In the last decade the majority of the media left aside exclusively informative journalistic work, to introduce alongside it an investigative function. This is evident, now the press does not merely limit itself to informing, but rather investigates, seeks the news. In that search it has found fertile ground in the public function, as a large number of public servants have been investigated, with the purpose of exposing and denouncing possible criminal acts. In the Court’s opinion it is not a valid argument to affirm that this new journalistic paradigm is due to the interest of generating higher audience percentages; reasonable as they are for the interest that the denunciation of possible crimes committed by public servants awakens in public opinion; the important thing is that these percentages increase precisely because people’s interest in this type of investigative journalism obeys the collective’s interest in transparency and accountability of those who exercise the public function. These premises that the Court has elaborated are suitable to affirm that there is a social reality in Costa Rica and that constitutes the ideological basis of this ruling. In this judgment the Court must express its legal reasons, based on the answer to a fundamental question: what type of State and society does the majority of Costa Ricans want? Do we want a strong State where the honor of public servants has greater legal protection than freedom of expression? or Do we want a Constitutional State where there is a fair proportion between the honor of public officials and the freedom of expression of other Costa Ricans? Based on the premises set forth by the Court, we consider that a fair decision consistent with social reality and with constitutional parameters, is one where, without leaving unprotected the honor of the person who exercises the […], greater protection is afforded to the freedom of expression of Costa Ricans […]”* (cf. pages 358 to 360 of the main file. The transcription is literal). From what the *a quo* sets forth as the “ideological basis” of its judgment—which it extracts from its particular reading of the socio-political reality of our country—it concretizes the essential aspect or pillar on which it bases its ruling, individualizing a parameter—which is what it considers corresponds to the philosophical platform it develops in its reasoning— based on which it filters the expressions made by the respondent in the publication that [Name6] [Name [Name10]] considered harmful to her honor, and which lead it to consider that the content of the text disseminated on [Name12]’s “Facebook” profile does not affect the honor of said [Name6]. Thus, such parameter is defined by the *a quo* in the following way: *“[…], whoever holds the […] will be the victim of a crime against their honor, solely and exclusively when a person issues a manifestation, idea, thought, or opinion that is expressly and unequivocally insulting, defamatory, or slanderous, even if it is linguistically irritating, annoying, suggestive, and even sarcastic. In other words, all manifestations that, although annoying or irritating for the honor of whoever is […], are justified as long as they are not openly insulting or defamatory per se, and as long as the attribution of a crime is not the only reasonable inference that can be extracted from the manifestation. With this panorama, a very careful reading of the facts of the complaint must now be made, firstly to know if the threshold of objective classification (tipicidad objetiva) is reached – that is, the express and sole defamation (difamación) or slander (calumnia) – and secondly to establish if the text contains a critical opinion or expression of thought that exceeds the limit of what a [...] must tolerate […]”* (cf. page 360 of the summary). In this way and under such parameter, the trial court conducts an analysis of the facts that make up the complaint discussed in the *subjudice*, concluding that they contain no explicit insult or word that unquestionably constitutes an offense nor the specific and unequivocal attribution of a criminal act to [Name6] [[Name3] ]. Thus, when analyzing the content of point four of the complaint, the trial court considers that the respondent [Name12] suggested as “a possibility,” that [Name6] may have acquired a farm irregularly, in the amount of 2.5 million dollars, and the judges considered that it is valid to interpret that [[Name3] ], with her income, could not acquire such an expensive real estate property. Despite such statement, the *a quo* points out that this is only one of the possible inferences derivable from the text in question, therefore concluding that there is no express and unequivocally suitable imputation to affect the objective honor of [Name6]. The trial court concludes that the objective element of Article 146 of the Criminal Code does not exist, since it considered that the existence of “suitable species” (especies idóneas) as a synonym for insult or offense was not confirmed. On the other hand, when examining point five of the complaint, the criminal court, following the same *supra* indicated parameter, considers that [Name6] [[Name3] ] makes her own inference which is also not the only one deduced from the text complained of, thereby ruling out the existence of any crime in [Name12]’s action. In relation to fact six of the complaint, the *a quo* establishes that [[Name3] ] considered that, in its content, there is a denigrating statement to her detriment, because the respondent linked her to a former football player who at that time was being investigated by the Public Prosecutor’s Office. In this regard, the trial court judges considered that the textual reading of the phrases encompassed in the *supra* stated point of the complaint do not contain any *“derogatory qualifying adjective”* towards [[Name3] ], nor directly and unequivocally imputes any crime to her. In this sense, it is established in the judgment on the merits that *“[…] The inference made in the complaint is again a conclusion, a personal appreciation, respectable and valid, in accordance with logic but not literal nor unique. See that [Name [Name25]], a well-known former football player, who at the time of [Name12]’s publication was linked in the media to an investigation for money laundering (legitimación de capitales) – does not have a conviction against him that points to him as the author or participant of a crime, so it is also not valid to conjecture that [[Name3] ]’s conduct is equated with that of a criminal, as the [Name6] erroneously does. Undoubtedly [Name12] suggests that just as [Name [Name25]] may have become illicitly enriched as he is a person under criminal investigation, [[Name3] ] could also have become enriched in the same way; however, this is not the only reasonable inference extracted from the text complained of.”* If that were the only conclusion, the unequivocal suggestion of [Nombre12], the Court's conclusion would be different; however, the defendant also suggests other possible scenarios and, in doing so, does not formally commit a crime but rather harshly questions something that he believes should be clarified by the then [Nombre [Nombre10]]; in sum, his conduct is not only not typical of any crime, but is justified in the legitimate use of his freedom of expression […]” (cf. folio 363. The transcription is literal). Regarding the seventh point of the complaint, the trial court considered that [Nombre [Nombre10]] deemed it offensive because, in her view, it was said against her that she was the holder of a “windfall and illegal fortune.” According to the trial judgment, the segment in question states the following: “[…] These instantaneous riches amaze us and we find no logical explanations. Now then, perhaps they read the Book of Secrets and discovered the short path to wealth. In any case, we congratulate the [Nombre [Nombre10]] who is preparing her departure from public service as a millionaire and holder of material wealth that for any citizen costs a lifetime and for public officials and soccer players seems only five days of touching the ball […]” (cf. folio 363). In the analysis of the text described above, the a quo, under the lens of its supra indicated parameter, considered that in that segment there is no word or sentence whatsoever that constitutes an insult, opprobrium, or ignominy, nor does it point to [Nombre [Nombre10]] as the owner, recipient, or creator of an illegal fortune. Thus, the criminal court concludes that it is another personal process of understanding by the [Nombre6], since the statement in question allows for a “diverse apprehension” from that derived by [Nombre [Nombre10]], which it qualifies as sarcastic on the part of the defendant [Nombre12] since it makes reference to the “Book of Secrets” and expresses a congratulation to the [Nombre6]. In that sense, literally in the challenged resolution the judges considered the following: “[…] It is undeniable that the publication of the defendant [Nombre12] is written in an ironic, sarcastic, and scathing tone and its reading, integrated with prior knowledge and prejudices, can be shocking, so it is understandable the annoyance that, according to what she narrated at trial, it has caused the [Nombre6] [Nombre [Nombre10]]. However, neither the literal sense of the words used by [Nombre12], nor their context contain defamations, nor is the commission of a crime the only reasonable inference from the insinuations that the defendant sketched in his publication. As analyzed, the text does not insult or offend the decorum of [Nombre [Nombre10]]; the suggestion that she committed a crime could be inferred but that suggestion is not the only one made by the defendant, and from there the Court infers that there was no injury to the honor of [Nombre [Nombre10]], who as [Nombre [Nombre10]] consequently had to tolerate those suggestions, yes, all of them, and not appropriate a single one to seek the conviction requested in the debate's conclusions […]”.

**v.-** Another aspect that is developed in the judgment and is significant in the solution of the subjudice concerns the trial court's consideration that [Nombre7] had no obligation to prove that [Nombre [Nombre10]] had bought the property in question, nor that she indeed had participation in electricity generation companies from wind sources. This was outlined by the a quo based on two reasons: “[…] the first is that neither one thing nor the other are, per se, defamatory statements, much less slanderous, and, secondly, because from the integral reading of the defendant text, the Court infers that there is a direct relationship between those two events that the defendant exposes, and his opinion regarding them; that is, [Nombre12] reported two facts with the sole purpose of giving his opinion on them. Therefore, if the Court were to give merit to the claim of [[Nombre3] ] and require that [Nombre12] should have had to prove the two facts to obtain an acquittal, it would nullify the free expression to which the person who at that moment exercised the […] is entitled, and by that condition [Nombre12] first reported two facts that caught his attention to the public of the [Nombre6], and based on that he exposed his opinion […]” (cf. folio 364 of the summary. The transcription is literal). Regarding the reasoning set forth above, based on which the trial court downplayed the truth or falsity of the facts encompassed in the publication disseminated by [Nombre12], the trial judges considered that the defendant text is not the best example of serious and supported information, nor the exposition of an elaborated thought or a deep criticism from [Nombre7]. Notwithstanding the foregoing, they considered that the content of the text in question is indeed characteristic of what the Political Constitution empowers all citizens with in the exercise of the right of expression to the person who exercises the position of […], and by that “voluntarily accepted condition,” is compelled to tolerate, provided that she is not expressly offended, nor is the commission of a crime the only suggestion reasonably derived from a comment, opinion, or publication made by a citizen. By reason of the foregoing, the a quo concluded that the action taken by [Nombre7] is atypical, since the judgment considered that it does not contain a “suitable species” to affect the honor of the [Nombre6], therefore it is also impossible to arrive at the corroboration of the subjective element. The trial court adds that the defendant acted under the protection of a fundamental right such as freedom of expression, since, despite using a strong, sarcastic, and undoubtedly annoying text to express his opinion based on the facts he took as a basis for his manifestation, it does not unequivocally arise from the text he published that the [Nombre6] committed a crime, but rather several possibilities emerged, which determines that the conduct of [Nombre12] is not unlawful by virtue of the special condition of […] the [ the [Nombre6] [[Nombre3] ], a situation that meant a very broad margin of transparency to fulfill and accounts to render, all of which the a quo assessed to rule out in the case the excessive exercise of the right of expression. Finally, the court closes its analysis to acquit [Nombre7], pointing out the following: “[…] The national author [Nombre27], in the article cited above states that when a collision is detected between the individual right to honor of a public official and the collective right of expression, prevalence should be given to the latter, in application of the principle of minimum criminal law, a statement that the Court shares and in the task of establishing this line between the abuse of the right of expression and its correct use, has considered that the text at hand falls within the line of what is considered not to be abuse. As things stand, [Nombre7] is acquitted of all penalty and responsibility for the crime of DEFAMATION to the detriment of [[Nombre3] ]. This ruling is issued without special condemnation in costs. The expenses of the process, are borne by the State […]” (cf. folio 367). The examination and description of the aspects that were assessed in the trial judgment to acquit [Nombre7], allows for clarity and full understanding of the deficiencies of the ruling, which imply the defect of lack of reasoning that is claimed and that is upheld in this pronouncement. Following, essential legal aspects will be set forth for the correct solution of the present case, and then the defects in the reasoning of the trial court that violate the regulations established in articles 39 and 41 of the Political Constitution, as well as those stipulated in articles 1, 142, and 184 of the Criminal Procedure Code, will be specified.

**B.- Legally relevant aspects for the solution of the case in accordance with Law.** The present case has two particularities that necessarily must be assessed with care and rigor for the correct legal solution of the litigation at hand, these being: **1.-** that the [Nombre6] [Nombre [Nombre10]] held the position of […] on the date that [Nombre7] –defendant- published on his “Facebook” profile the text accused as defamatory; **2.-** that the facts subject to judgment are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals their importance for the social and individual development of each of the inhabitants of our country, these being: **i.-** the right to honor and; **ii.-** the right to free expression. In attention to and under the prism of these two essential pillars of the sublitem, the legally relevant and necessary aspects for the solution of the case in accordance with Law must be defined. Thus, we proceed to individualize such assumptions.

**b.1.- Normative legal framework.** In the first place, it is necessary to establish the normative framework that is linked to the facts being judged and that must be assessed and applied for their correct consideration. In this way, the regulations that are part of the constitutional block related to and regulating the subject matter in question must first be defined, being the following: **i.- Article 11 of the Political Constitution;** Its regulation establishes a principle that is essential for the proper application of criminal law –and undoubtedly for the specific case- such as the principle of legality. In said constitutional precept, the following is stipulated: “(…) Public officials are simple depositaries of authority. They are obligated to fulfill the duties that the law imposes on them and cannot arrogate faculties not granted therein. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal responsibility for their acts is public. The Public Administration in a broad sense shall be subject to a procedure of results evaluation and accountability, with the consequent personal responsibility for the officials in the fulfillment of their duties. The law shall indicate the means for this control of results and accountability to operate as a system covering all public institutions. (Thus amended by Law No. 8003 of June 8, 2000) (…)”. Another aspect of an essential character for the solution of the case, and which derives from article 11 of the Constitution, is the duty of accountability of public officials as well as the requirement of personal responsibility in the fulfillment of their duties.

**ii.- Article 41 of the Political Constitution.** In this precept, the right to honor is established with constitutional rank, that is, it is granted the status of a fundamental right, hence the relevance that this norm has for resolving the substance of the litigation known in this case. Said article establishes: “(…) Resorting to the laws, everyone must find reparation for the injuries or damages they have received in their person, property, or moral interests. Justice must be done promptly, completely, without denial, and in strict conformity with the laws (…)”.

**iii.-** Another article of our Political Constitution whose regulation is applicable and important for the solution of the present case is the one established in its numeral 28, in which the following is regulated: “(…) No one may be disturbed or persecuted for the manifestation of their opinions or for any act that does not infringe the law. Private actions that do not harm public morals or order, or that do not prejudice a third party, are outside the action of the law (…)”.

**iv.-** On the other hand, we have article 29 of our Magna Carta in which freedom of expression, information, and press are protected as fundamental rights, which are undoubtedly directly linked to the event complained of in this criminal case. Literally, this norm regulates the following: “(…) Everyone may communicate their thoughts by word or in writing, and publish them without prior censorship; but they will be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law (…)”. Similarly, it is necessary to specify the regulation of Conventional Law that is linked and must be assessed in the solution of the present case, this being the following:

**i.- Article 11 of the American Convention on Human Rights.** This norm expressly recognizes the protection of honor and dignity of the person as a human right. Thus, the following is provided: “(…) Protection of Honor and Dignity. 1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation (…)”.

**ii.-** Also, as part of the “conventional block” that governs in our legal system, **article 19 of the International Covenant on Civil and Political Rights** expressly recognizes the right to freedom of expression and information, with such rights being regulated as follows: “(…) 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals (…)”.

**iii.-** In the same vein, **article 13 of the American Convention on Human Rights** stipulates the following: “(…) 1. Everyone has the right to freedom of thought and expression. This right includes 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 through any other media of his 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 and be necessary to ensure: a) respect for the rights or reputations of others; or b) the protection of national security, public order, or public health or morals. 3.

The right to expression cannot be restricted through indirect means or methods, such as the abuse of official or private controls over newsprint, radio frequencies, or equipment and devices used in the dissemination of information, or by any other means intended to impede the communication and circulation of ideas and opinions (…)”. **iv.-** A rule related to those previously set forth and which is relevant to the decision of the *subjudice*, is the provision in Article 19 of the Universal Declaration of Human Rights, which establishes the following: “(…) Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (…)”. On the other hand, within the legal framework of our legal system, a series of regulations of vital importance for the resolution of this complaint in accordance with the Law is contemplated, which are the following: **i.-** **Article 146 of the Penal Code** criminalizes the offense of defamation, which is precisely the punishable act that was complained of as committed by the accused [Name7]. Said article establishes: “(…) Defamation. Anyone who dishonors another or disseminates allegations suitable for affecting their reputation shall be punished with a fine of twenty to sixty days (…)”. Thus, it is clear that the fundamental right to honor is at stake in the resolution of the *subjudice*, with the particularity that the rigorous assessment of the right to freedom of expression protected in the higher legal rules set forth *supra* is also important for this purpose; **ii.-** The regulations contained in **Article 25 of the Penal Code** are directly linked to the subject matter under discussion, specifically regarding the legitimate exercise of the right to freedom of expression. Its regulation provides the following: “(…) Compliance with the law. No one commits a crime who acts in compliance with a legal duty or in the legitimate exercise of a right (…)”. This cause of justification is extremely important in order to define, in a case such as the one being resolved, whether criminal liability exists or not for the dissemination of facts complained of as harmful to honor. **iii.-** Also legally relevant in the present case is the normative content of **Article 22 of the Civil Code**, since this expressly regulates the prohibition of the abuse of a right, a provision that is linked to freedom of expression according to the rules that recognize and protect such fundamental right in the legal instruments that make up the block of constitutionality, as set forth *supra*. Said article provides the following: “(…) The law does not protect the abuse of a right or the antisocial exercise thereof. Any act or omission in a contract, which by the intention of its author, by its object, or by the circumstances in which it is carried out, manifestly exceeds the normal limits of the exercise of a right, with damage to a third party or to the counterparty, shall give rise to the corresponding indemnification and the adoption of judicial or administrative measures that prevent the persistence of the abuse (…)”. **iv.-** On the other hand, by virtue of the special personal condition of [Name6] [[Name3] ], it must be appreciated that the General Public Administration Law regulates provisions related to the substantive issue, which are relevant for the resolution of the case. Firstly, Article 11 of the cited law regulates the principle of legality as an essential guiding principle of the actions of public officials, stipulating the following: “(…) The Public Administration shall act subject to the legal system and may only carry out those acts or provide those public services that said system authorizes, according to the hierarchical scale of its sources. An act expressly regulated by a written rule shall be considered authorized, at least regarding its motive or content, even if in an imprecise form (…)”. For its part, Article 113 of the General Public Administration Law provides the following: “(…) 1. The public servant must perform their functions in a manner that primarily satisfies the public interest, which shall be considered the expression of the coinciding individual interests of the administered parties. 2. The public interest shall prevail over the interest of the Public Administration when these are in conflict. 3. In the assessment of the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, to which mere convenience can in no case be placed before (…)”. Another relevant legal rule is Article 114 of the General Public Administration Law, which establishes: “(…) 1. The public servant shall be a servant of the administered parties, in general, and in particular of each individual or administered party who interacts with them by virtue of the function they perform; each administered party must be considered in the individual case as a representative of the community on which the official depends and for whose interests they must watch over. 2. Without prejudice to what other laws establish for the servant, any act, deed, or omission that due to their fault or negligence causes unjustified or arbitrary hindrances or obstacles to the administered parties shall be considered, in particular, irregular performance of their function (…)”. The regulatory framework set forth contains the provisions that must be considered and applied in the resolution of the *subjudice*, which, as previously noted, presents two particularities of great legal relevance that must necessarily be assessed to issue the decision that corresponds in accordance with the Law, these being: that [Name6] [[Name10]] held the position of […] at the time when [Name7] published on their personal “Facebook” account the text that was complained of as defamatory in the present cause; and that the facts subject to judgment are directly linked to two rights of constitutional rank, whose protection in the criminal sphere reveals their importance for the social and individual development of each of the inhabitants of our country, namely: **i.-** the right to honor; and **ii.-** the right to free expression. **Thus, from the study and application of the rules pointed out *supra*, it is determined that in the present case there exists what can be described as a kind of “friction” between the fundamental rights to honor and freedom of expression, about which it must be expressly stated that despite such a situation they are not mutually exclusive.** This is because what is determined in this sense, based on what is regulated in our legal system, is that both fundamental rights are closely linked to one another, since both the right to honor and freedom of expression are essential for the individual and social development of every person, to which must be added that freedom of expression has an essential quality from a political-institutional and social point of view, which is that the protection and respect for such right are absolutely necessary to guarantee the structuring, validity, and development of a society based on a Democratic State, as framed in our Political Constitution. **As things stand, the provisions contained in the reference normative instruments allow us to establish that it is not possible to think or consider that one of these human rights is of a higher rank or that it should be applied to the absolute detriment of the other, since what is appropriate in order to guarantee and protect both human rights, duly, in accordance with the precepts of our legal system, is their equal application, and in the event of a collision between the two –by virtue of their special linkage– what is appropriate is to assess the objective and subjective circumstances of each specific case, in order to rationally and proportionally modulate the value that corresponds to granting the right to honor with respect to freedom of expression in a given matter of criminal legal relevance.** It is important to complement the preceding idea, so that in addition to the considerations specific to the particular case regarding the “modulation” of the fundamental rights of reference, the scope or ambit of each of such fundamental precepts must also be appreciated and carefully defined. This is with the objective of determining if in a specific case the right to free expression was exceeded or “stepped outside” its legitimate scope of protection. The foregoing is important because, normally, the right to honor will be affected by manifestations, opinions, or criticisms from third parties, but that affectation –by itself– cannot be the sole parameter to consider, since it must also be appreciated and defined to what extent honor and decorum –in the case of public officials– must tolerate such criticisms, so that it is not only enough to “modulate” the specific scope of protection of one or another human right, but also, limits and scopes of such rights must be established. The foregoing is supported by the objective and comprehensive study and analysis of the stated regulations, an analysis that leads to the conclusion that freedom of expression cannot be limited or restricted *a priori*, which would imply that such restrictions translate into **prior censorship** that would denature and, in turn, signify the emptying of the content and effectiveness of freedom of expression, which is absolutely harmful for the adequate development and validity of a Democratic State of Law. From the stated regulations, as well as from the legal nature and purposes of freedom of expression, what is pertinent is that the limits to its exercise occur *a posteriori*, if and only if, in cases where there has been an abusive use of freedom of expression that exceeds its normative content, and that implies, in turn, the violation of other fundamental rights, as can occur with respect to the right to honor, with which it has already been indicated that the right to free expression is closely linked. In this way, it is not appropriate to establish as an absolute rule that the right to freedom of expression will prevail in every case and without any limit over the right to honor, and what is legally appropriate is to consider and define in each specific case, what weight or value corresponds to one or the other, in order to adequately guarantee and in accordance with constitutional parameters, the validity and effective protection of both fundamental rights under their proper balance and recognition. The foregoing is of utmost legal relevance for the solution of the *subjudice* in accordance with the Law and to guarantee one of the fundamental pillars of criminal due process, such as the right to a just sentence subject to legality, as established in the renowned Resolution No. 1739-92 of the Constitutional Chamber of the Supreme Court of Justice. Specifically, by virtue of the fact that, as has been previously established, [Name6] [[Name10]] occupied the […] at the time the facts subject to judgment occurred. **This situation introduces another essential theme in the analysis of the *subjudice*, namely, the condition of being a public official and the obligation that, by virtue of such status, exists towards the administered parties in general, so that by reason of the precepts of the principles of legality and accountability, anyone who holds a public office has greater responsibility in the exercise of the competencies inherent to their investiture, as well as being subject to greater scrutiny and oversight in the exercise of the public function, a parameter that ultimately gives a special nuance to the fundamental right to freedom of expression *versus* the right to honor.** Thus, it is clear that by reason of the principle of accountability derived from Articles 11 of the Political Constitution, as well as from Articles 11, 113, and 114 of the General Public Administration Law, whoever is a public official and holds a position of such nature, whether by popular election or of any other type, by virtue of their condition as a public official and for having voluntarily opted for the management of a position of that category, is obliged to bear a greater level of tolerance in the scrutiny and oversight of the exercise of their position, as well as in the carrying out of their actions –even those of a personal nature– that directly or indirectly link to, affect, or have an incidence on the management of their public function. By reason of the foregoing, there is no doubt that whoever holds a position like the one that [Name6] [[Name10]] occupied at the date of the facts, that is, that of the […] –and in general anyone who occupies or exercises public function–, has the duty to submit –and accept– greater control in the exercise of their functions, not only by the bodies or formal mechanisms created for that purpose, such as the Comptroller General of the Republic, but also –and to a very important degree– by informal means of control and oversight, such as the press and public opinion in general. Thus, it is guaranteed that the administration of the State's assets and resources –which actually belong to all the inhabitants of the country and have been delegated for their proper governance to public officials– is carried out in accordance with the purposes and with the efficiency required by law, by those who exercise a public office. In turn, the effective safeguarding and validity of the democratic State is protected, in which prior restrictions –or of any other type– on freedom of expression as a means of control and social domination are in no way permissible, and rather, in a democratic scheme like the one that governs in our country, freedom of expression must be guaranteed as a form of control over the exercise of public power. In this way, and specifically, whoever exercises the office of the […] is subject to a greater level of tolerance in the scrutiny of their functions, which undoubtedly encompasses the aspects pertaining to the exercise of freedom of expression with respect to the right to honor of the […] or the […], so that whoever holds the position is subject to criticisms, questioning, opinions, or manifestations that are directed at or based on the exercise of their public function or that are directly or indirectly linked to their condition as a public official and the competencies they perform. Notwithstanding the foregoing, and it is necessary to establish this from the outset, the interpretation that the criminal court carries out of the rules set forth *supra* in the judgment on the merits is not legally appropriate. This is because such interpretation derives from a subjective interpretation of the Costa Rican political-social reality by the trial judges, a position according to which they define an ideological basis for their decision, which, as they expressly state in the ruling, supports the essential parameter based on which they resolve the merits of the present case, that being, that the judges appreciate or consider that whoever occupies the […] must bear or tolerate even greater limitations on their right to honor with respect to the rest of the public officials, regarding the exercise of freedom of expression, so that only direct offenses to such fundamental right or reference to facts that expressly constitute a crime would be the scenarios where the illicit violation of the right to honor of the […] could occur, thereby dismissing the affectation of the right to honor in the specific case of [Name6] [[Name10]]. In this sense, the study and interpretation that corresponds in accordance with the Law of the previously defined regulatory framework does not allow us to establish that it is expressly or tacitly regulated that the level of tolerance of whoever holds the office of the […] of the […] is different from that of the rest of the public officials who are members of the Supreme Powers of the Republic, or of any other public office of a lower rank than those previously indicated. Thus, the differentiation carried out by the *a quo* –distinguishing where the rule does not– regarding the point under analysis, is not objective or legally supported, but rather derives from their opinion or subjective position regarding what the trial judges estimate is the answer to the questions they pose to themselves in their ruling, these being: “[…] what type of State and of society does the majority of Costa Ricans want? Do they want a strong State where the honor of public servants has greater legal protection than freedom of expression? or Do they want a Constitutional State where there is fair protection between the honor of public officials and the freedom of expression of the other Costa Ricans […]” (cf. folio 360 of the main file). The limits and the existing relationship between the right to freedom of expression with respect to the right to honor of Costa Rican public officials are not defined based on the subjective interpretation or individualization of the ideology of what, in that sense, is considered that the majorities in our country want, as the *a quo* mistakenly does in the judgment on the merits. The legal relationship between the right to honor and freedom of expression, in order to adequately guarantee the principles of legality, transparency, and accountability of public officials, for the validity and correct development of the democratic model established by our Magna Carta, must be defined based on the application of the regulatory framework set forth *supra*, from which the following is determined: **i.-** Public officials are subject to the principles of legality and accountability in their capacity as depositaries of the public function. **ii.-** The strict application of these principles implies that public officials have a greater level of tolerance in the scrutiny and oversight of the exercise of their positions, in order to guarantee the proper management of the public resources of all administered parties, as well as to guarantee the full development of the democratic principle and the safeguarding of the Democratic State established by our Political Constitution.

iii.- The constitutional, conventional, and legal provisions cited above establish that public officials, despite the duty of tolerance to which they are subject by virtue of their status, do possess and are holders of the right to honor, which must be protected and guaranteed under the strict application of the principles of accountability and transparency inherent in a Democratic State of Law. These principles give a special nuance and a higher threshold of tolerance in the relationship between honor versus freedom of expression for public officials, which legally cannot translate into the de facto emptying or disregard of the protection of honor for those who exercise public functions, which, obviously, includes the […]. Thus, while the person who holds said office must tolerate criticism, questioning, or opinions, which may even be harsh, caustic, and uncomfortable, they maintain their right to honor, such that it cannot be violated under the guise or screen of the legitimate exercise of a right (Article 25 of the Penal Code), namely freedom of expression, when what actually exists is an abusive and illegitimate exercise of that fundamental right that entails a violation of the decorum and dignity of the person, which not only affects them in their individual sphere but also, by virtue of their special condition, affects them with respect to the exercise of public function and administration. Such abusive use of the right to honor can be carried out in many ways, as has been expressly stipulated in constitutional, conventional jurisprudence, and that of our Third Chamber of the Supreme Court of Justice—to which reference will be made in a subsequent section—and not only through direct offenses or express criminal accusations against a […] Nombre19[…], as the trial judges, without an objective and legal basis, considered in the judgment on the merits. Therefore, in order to guarantee the protection and effective application of the aforementioned provisions governing the fundamental rights to honor and freedom of expression in a case such as the one being adjudicated in this sub judice matter, without causing an illegitimate impairment of one of these rights to the detriment of the other, and to achieve the safeguarding and effectiveness of both, forms should not be assessed or defined a priori or exhaustively as typical or necessary for offending the honor of a specific public official, in this present matter, that of whoever occupies the […]. Rather, the proper course is to assess or evaluate in each specific case the subject matter that is accused or complained of as offensive to the honor of the public official, from two perspectives: 1.- that the text or content of the published material is made, expressed, or posed in a form or manner that leads to an objectively verifiable affectation or impairment of the honor, decorum, or dignity of the public official, by virtue of the abusive exercise of freedom of expression. That is, the primary factor is the offensive content of the publication; however, as indicated by the Third Chamber in the ruling studied above, it is important to assess the form in which ideas are expressed, shaped, or the publication is carried out; 2.- that from the "subject matter" that is complained of or deemed harmful to honor, the existence of common intent (dolo común) on the part of the person performing it can be derived. That is, the knowledge and will that the statement is offensive to honor, i.e., to affect the honor or decorum of the public official, a will that departs from and exceeds the exercise of freedom of expression corresponding to the scrutiny and oversight that public officials must tolerate as part of the duty of transparency and accountability that is attached to the position they hold. In simple terms, it can be pointed out that the minimum that can be required of a person who carries out a publication or dissemination of an expression regarding a person who holds a public office—a posteriori in order to avoid any possibility of prior censorship—is that they have at least verified the seriousness or real existence of the source. That is, to assess and define at least an objective basis that justifies the questioning, criticism, denunciation, comment, etc., that is disseminated or published. It is clear that depending on each particular case, and in attention to the degree of responsibility, hierarchy, and level of exposure of a specific public official, a margin of tolerance for criticism, questioning, or unfavorable opinions carried out in the serious and measured exercise of freedom of expression, as a means of control and formation of public opinion, will be more common and must be accepted with greater regularity, as occurs in the […]. iv. of the […]. iv.- From the provisions set forth, it is inferred that freedom of expression in relation to the right to honor of public officials does not cover or protect its exercise through the pointing out or dissemination of false facts, simple speculations, or malicious comments whose true purpose is to affect the honor of the public official involved, and not to make effective the legitimate exercise of a right with the objective of informing or generating public opinion regarding situations that are relevant to the correct exercise of public function. The foregoing does not mean that a person who makes a statement, criticism, or opinion regarding the actions of a public official is obliged to prove the truth of the content of their publication, since such a stance could unduly limit freedom of expression as a form of prior censorship. What is appropriate in each specific case—as advanced above—is to analyze, first, the objective basis of the comment, opinion, or publication, and second, that its issuance and dissemination do not have the true purpose of unduly affecting the right to honor of a public official under the appearance or subterfuge of invoking the exercise of freedom of expression. This is because openly and indiscriminately accepting any type of negative expression or comment against a public official, without sifting such statements through the optic of the higher level of tolerance that applies to them, is not appropriate. Nor is it acceptable to radically affect their right to honor by virtue of the definition and assessment of exhaustive factual assumptions that are neither derived from nor regulated in the legal framework set forth above in any way, as the lower court (a quo) does. Such a stance, far from satisfying, procuring, and permitting the control, scrutiny, and oversight of those who hold public office, in order to guarantee the duties of transparency and accountability constitutionally established for the validity and development of the democratic State through the formation of public opinion and the questioning of the various acts that occur in the exercise of state power and administration, generates the "deformation of public opinion," which leads to undue disillusionment and loss of trust in those who exercise public administration and, consequently, to the potential irregular affectation of the correct institutional order. The foregoing not only affects the individual honor of such persons but also—and what is extremely harmful to a Democratic State—impairs the institutionality and governability thereof, as it unduly produces an environment of distrust and disillusionment among the governed in general, with respect to those who exercise public function by their delegation and in their representation. In this way, freedom of expression and communication in a democratic constitutional framework not only includes the possibility of making statements freely and without prior censorship by the inhabitants of the State but also contemplates the right to receive and have disseminated truthful, serious, objective, and responsible information about the actions of those who hold public office, in order to guarantee the formation of adequate public opinion that enriches and enshrines the democratic principle through the protection and correct application of the principles of transparency and accountability, which, obviously, concern and bind whoever exercises the […]. By reason of all the foregoing, it is determined that the ideological basis subjectively defined by the lower court (a quo), based on its particular assessment of the reality of our country, to define parameters that, according to its assessment, dismiss the existence of unlawful acts harmful to honor to the detriment of [Nombre443 [Nombre10]] for the facts it alleged against the defendant [Nombre7], is a decision that is not supported by nor conforms to the norms that in our legal system regulate the right to honor of public officials in relation to the exercise of freedom of expression.

b.2.- Applicable jurisprudential precedents on the substantive issue. In the judgment on the merits, the trial judges invoke and assess in their reasoning jurisprudential precedents from the Constitutional and Third Chambers of the Supreme Court of Justice, as well as from the Inter-American Court of Human Rights. Notwithstanding the foregoing, a comprehensive review of the ruling reveals that, as the appellant claims, the trial court did not fully assess the content of such pronouncements, even though they are very important for deciding the substance of the present matter, since in them the issue related to the precepts and criteria that must be followed in the criminal-legal approach to the relationship between the fundamental rights of freedom of expression and the right to honor of those who exercise public function is studied and developed, as well as defining other legally relevant aspects for the solution of the case. For this reason, and by virtue of the fact that the referenced jurisprudential framework has been assessed and evaluated in order to support the present pronouncement, it is necessary to recapitulate and analyze the most important contents of each of the precedents invoked in the judgment on the merits, related to the subject matter of the litigation.

1.- Constitutional Chamber of the Supreme Court of Justice. The study of the judgment on the merits allows us to establish that the trial judges used, in the foundation of their decision to acquit the defendant [Nombre7], the jurisprudential precedent of the Constitutional Chamber No. 2006-05977, of 3:16 p.m. on May 3, 2006, in which a constitutional challenge filed against the text "Those responsible for the crimes of slander or libel committed through the press shall be punished with a penalty of arrest from one to one hundred twenty days," contained in the first paragraph of Article 7 of the Press Law, No. 32 of July 12, 1902, was resolved. In said pronouncement, whose provisions must be remembered are erga omnes, the following aspects are highlighted:

i.- In the precedent under study, the fundamental right to freedom of the press is analyzed. The Constitutional Chamber indicates in this regard that the case is approached from the perspective of said right in relation to public officials and the dissemination of topics of social relevance—news events—even though the norm is conceived within a broader framework of subjects. In this regard, it should be noted that in the judgment on the merits, the judges did not appreciate in any way that, although the case analyzed in the referenced constitutional precedent has some aspects that are applicable to the present matter—being related to a certain degree to the facts being judged in the sub litem matter—the topic specifically addressed by the Constitutional Chamber was freedom of the press, which differs from what is being discussed in this complaint, since "the subject matter" that was complained of as harmful to the honor of [[Nombre3]] was not published in a press medium, nor was it carried out by any person dedicated to such a professional field. This is because [Nombre7] is not a journalist, to which must be added that the defendant also did not make the publication in question as a result of journalistic investigation, nor under the characteristics of dissemination that are customary and typical of communication media of such a nature. This situation must be kept in mind to gauge the scope of the pronouncement in question, in order to derive the aspects thereof that are indeed applicable in the solution of this sub judice matter, something that was completely ignored by the lower court (a quo) in the assessment it carried out in the ruling on the constitutional precedent being studied.

ii.- Another aspect that the criminal court did not assess with the legally corresponding weight is the statement made by the Constitutional Chamber regarding the limits of freedom of the press—which at some point in its reasoning it identifies as freedom of expression—with respect to those who exercise public function and their right to honor. In this sense, it is stipulated, in general terms, that the norms establishing restrictions on said fundamental right do not have the purpose of limiting the duty of transparency, but rather that of sanctioning bad faith and inexcusable negligence by someone who uses freedom of the press as a means to harm the honor of a public official. Literally, on the aspects previously noted, the Constitutional Chamber establishes: “[…] It is not, then, about a norm configured to shield public function, nor to prevent the necessary transparency that must exist over its acts, but rather it generally intends to sanction whoever, in bad faith or due to inexcusable negligence, uses freedom of the press as a means to harm the honor of persons and the right of citizens to receive adequate and timely information from journalists and media that disseminate information through written means. Topics outside the indicated framework, such as other non-journalist subjects or communication media, who express themselves and inform citizens daily on different topics through the press that generically encompasses all types of printed matter, printing, editing, circulation of pamphlets, magazines, and publications of all kinds, are not addressed as they are not part of the case […].” The foregoing reveals the weaknesses in the reasoning and, consequently, in the foundation of the decision being challenged.

iii.- Regarding freedom of expression, the Constitutional Chamber establishes that said fundamental right is an essential pillar of democracy, which this appellate chamber fully assumes and shares, as stated in the preceding point of this pronouncement. Specifically, in this sense, the Constitutional Chamber stipulates the following: “[…] Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—although not the only one—for democracy to function. This freedom is what allows the creation of public opinion, essential for giving content to various principles of the constitutional State, such as, for example, the right to information, the right to petition, or the rights regarding political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility that all persons participate in public discussions constitutes the necessary presupposition for constructing a social dynamic of exchange of knowledge, ideas, and information, which allows the generation of consensus and decision-making among the components of diverse social groups, but which also constitutes a channel for the expression of dissensus, which in democracy are as necessary as agreements. For its part, the exchange of opinions and information that originates from public discussion contributes to forming personal opinion; both make up public opinion, which ultimately manifests itself through the channels of representative democracy […].” iv.- In the precedent under study, the Constitutional Chamber defines the content of freedom of expression, framing it in different facets, a categorization that is of capital importance for the solution of the present case. In this regard, the following is stipulated: “[…] Content of freedom of expression. Freedom of information could be said to have several facets, as recognized by national doctrine (of which the first three are related to what is discussed here): a) freedom of the press in a broad sense, which covers any type of publication, b) freedom of information by non-written means, c) the right of rectification or reply. Freedom of the press generically encompasses all types of printed matter, printing, editing, circulation of newspapers, pamphlets, magazines, and publications of all kinds. It is, by its nature, the natural vehicle of the freedom of expression of citizens. It translates into the right of the governed to seek and disseminate information and ideas to an indeterminate number of people about facts that by their nature are of interest to the general public for being considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. Its functions in democracy are: to inform (facts, newsworthy events), to integrate opinion (stimulating social integration), and to control political power, as it is a permanent guardian of honesty and correct management of public affairs. Given its symbiotic link with democratic ideology, an endless number of international instruments and practically all the Constitutions of the free world, since the French Declaration of 1789 (art.11), have recognized it (…) Freedom of expression has as a consequence the prohibition of all forms of censorship, in a double sense: on the one hand, interlocutors cannot be censored; and on the other hand, the possible content of the discussion cannot, in general, be previously censored either: in principle, in a democracy, all topics are discussable. The non-censorability of subjects has a practically universal character, as established by our Constitution; no one can be deprived of the freedom to speak and express themselves as they see fit. The non-censorability of content, while not occurring in a prior manner, does find some limitations; however, these must be such that freedom continues to have meaning or is not emptied of its content. Basically, like any freedom, it must be exercised with responsibility, ultimately to pursue legitimate ends within the system […].” (The underlining is not part of the original text). From the foregoing, two fundamental points are inferred regarding the exercise of freedom of expression, in order to fulfill the proper purposes of a Democratic State, namely:

a.- It is defined as the right of the governed to disseminate ideas to an indeterminate number of people about facts that by their nature are of interest to the general public for being considered newsworthy. Thus, it is clear that what freedom of expression allows to be disseminated are "facts" that are relevant and have the character of newsworthy, for being linked to the exercise of public function.

These aspects were not assessed by the <span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> despite using in its substantive reasoning the jurisprudential content of the</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt"> referenced precedent, given that it did not carry out any assessment to define whether in the present matter, “the statement” that was complained of as being suitable to affect the right to honor of [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">] because it was defamatory, has the character of a “fact” and, in turn, whether it can be considered of interest to the general public because it is newsworthy in nature. In this regard, it is worth reiterating as was established </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">supra </span><span style="line-height:150%; font-family:Arial; font-size:12pt">by this appellate court, that from a criminal law standpoint, a person exercising the right to freedom of expression or press is not obligated to demonstrate the truthfulness of the facts they disseminate; however, it is necessary to verify a certain objective basis that allows excluding the possibility that what is hidden behind the publication is a falsehood or mere speculation that is maliciously circulated or disseminated with knowledge that it is capable of affecting the honor of the public official involved, just as the Constitutional Chamber (Sala Constitucional) itself stipulates in the jurisprudence being examined. A comprehensive review of the appealed decision reveals that the trial court (tribunal de mérito) did not assess, with the rigor required by Articles 142 and 184 of the Criminal Procedure Code (Código Procesal Penal), the aforementioned aspects, despite them being essential to properly categorize and decide the facts complained of in this case. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold">b.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt">The Constitutional Chamber (Sala Constitucional) expressly establishes that prior restrictions on the exercise of freedom of expression are not admissible, since such types of restrictions could imply a form of prior censorship. Notwithstanding the above, our Constitutional Chamber (Tribunal Constitucional) establishes that certain </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a posteriori </span><span style="line-height:150%; font-family:Arial; font-size:12pt">limits are admissible, limits that do not suppress the core content of the fundamental right, limits justified by the fact that all freedom must be exercised responsibly, in order to seek and achieve legitimate ends within the system. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold">v.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt">Another essential aspect touched upon in the precedent under study relates to the limits that the Constitutional Chamber (Sala Constitucional) stipulates correspond to freedom of expression.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">In this sense, it is established that not all expressions have the same value, and consequently, they do not enjoy the same constitutional protection. In this regard, it takes up the jurisprudence of the Spanish Constitutional Court (Tribunal Constitucional español), stating the following: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“[…] To determine which expressions can be limited and to what extent, it is important to consider that not all expressions can have the same value nor enjoy, consequently, the same constitutional protection. For example, even international jurisprudence, e.g., the Spanish Constitutional Court (Tribunal Constitucional español), has indicated that insults or value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion lack constitutional protection […]”. </span><span style="line-height:150%; font-family:Arial; font-size:12pt">From the foregoing, it follows that insults, such as value judgments that are formally injurious and unnecessary for the expression of an idea, thought, or opinion, lack protection. In this regard, a comprehensive review of the trial court's decision (fallo de mérito) allows the conclusion that the trial court judges did not assess, under the parameters stipulated by the Constitutional Chamber (Sala Constitucional), the content of the publication complained of as defamatory in this case, given that they did not assess whether the manner in which said statement was drafted and its content were necessary for the expression of the statement that was disseminated on the “Facebook” profile of [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">. In this regard, it should be added that the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt">analyzed the publication in question in a segmented and restrictive manner, based on the subjective way it defined the “ideological basis” of its decision, from which it established the parameters it considered and determined as the only ones that can generate an infringement of the right to honor of the person who holds the […]. It limited its examination of the case to assessing whether the text in question was directly injurious or undoubtedly attributed criminal conduct to [Nombre6], an analysis that clearly does not conform to the parameters defined by our Constitutional Chamber (Sala Constitucional) in the referenced precedent, a situation that translates into the erroneous legal basis of the appealed judgment. Continuing with the analysis that said Chamber carries out in the jurisprudence under study regarding the limitations constitutionally applicable to the right to freedom of expression, it is important to highlight the following points that delimit the legitimate exercise of said fundamental right: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“[…] </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">On another level are opinions, that is, personal value judgments that are not formally injurious and unnecessary for what one seeks to express, even if they contain what are known as 'disturbing or hurtful opinions'; these opinions would be constitutionally protected by freedom of expression and could even have irony, satire, and mockery as their content.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> On another step would be information, understood as the truthful narration of facts, which would be protected as a general rule, unless it violates other fundamental rights or constitutionally protected legal interests (bienes jurídicos) (for example, honor, privacy, public order and tranquility of the nation, the rights of children and adolescents). On yet another level would be news, understood as the truthful narration of facts that have public relevance, either because of the facts themselves or because of the persons involved in them; news contributes prominently to the creation of free public opinion. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">On the last step would be found falsehoods, rumors, or insinuations that hide behind a neutral narration of facts and that in reality completely lack truthfulness.</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> On the subject of truthfulness, the Human Rights Commission (Comisión de Derechos Humanos) has indicated (Declaration of Principles on Freedom of Expression, adopted by the Inter-American Commission on Human Rights (Comisión Interamericana de Derechos Humanos) at its 108th regular session in October 2000) that any prior conditioning of aspects such as truthfulness, timeliness, or impartiality of the information is considered prior censorship, but this Court understands that this refers to the possibility of using such arguments as justifications for </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic">prior censorship</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> of information, not to impede the right to effective judicial protection for insults or damages that they may have received to their person, property, or moral interests, as established by Article 41 of our Constitution (Constitución) when stating: ‘Occurring to the laws, everyone must find redress for the insults or damages they have received to their person, property, or moral interests. Justice must be administered promptly, completely, without denial, and in strict accordance with the laws.’ It is recognized that the exercise of press freedom, understood as part of the right to inform and therefore a form of freedom of expression, must be exercised within elementary ethical principles, ‘freedom of the press is not synonymous with the right to insult’. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">This is because there is another fundamental right that justifies the legal system providing a balance that will always be determined by an analysis of the specific case. This does not mean that in all cases the honor of individuals must prevail, or that these are rights of the same rank. Rather, they are freedoms that relate to each other within the system of freedom that supports our democratic institutionality</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> […]” </span><span style="line-height:150%; font-family:Arial; font-size:12pt">(The underlining is not part of the original text). From the foregoing, two very important aspects are derived regarding the right to honor, which were not duly assessed by the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo, </span><span style="line-height:150%; font-family:Arial; font-size:12pt">namely: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold">a.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt">Opinions or personal value judgments are not exempt </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">per se</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> or absolutely from generating an abuse of the right to freedom of expression to the detriment of other fundamental rights. Thus, in accordance with what our Constitutional Chamber (Tribunal Constitucional) provides, to rule out such abusive use of the right to freedom of expression, it must be assessed and defined whether the opinions are formally injurious and unnecessary for disseminating what one seeks to express, an analysis that the trial court (tribunal de mérito) omitted to carry out in the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">sub judice </span><span style="line-height:150%; font-family:Arial; font-size:12pt">matter, by virtue of the absolute preponderance it gave to the parameter that it subjectively defined to delimit the conducts that it exhaustively determined as the only ones that can affect the right to honor in the specific case of the person who holds the […]. It should be added that disturbing, hurtful, ironic, satirical, or mocking opinions, provided they are not formally insulting and unnecessary for expressing what is published, do not exceed freedom of expression as stipulated by the Constitutional Chamber (Sala Constitucional) in the precedent under analysis. In this regard, it must be indicated that in the trial court's decision (fallo de mérito), the criminal court points out that what was stated by the defendant [Nombre12]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">against [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">] was carried out through a “strong,” “sarcastic” text, and without a doubt “annoying” for said [Nombre6], based on the facts that [Nombre12]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">reported as the basis for his statement or opinion. In this sense, it must be reiterated that in the contested judgment, it is neither established nor derivable the logical reasoning, nor based on what evidentiary means the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt">accurately conferred the character of “facts” to the points encompassed in the text published on the “Facebook” profile of [Nombre28], against [Nombre10]. Similarly, in the decision, the trial court judges also did not express the reasons why they considered that “the statement” disseminated by the defendant was done in a manner that is not formally injurious and unnecessary for communicating what was disseminated on the “Facebook” account of [Nombre12]. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold">b.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt">Another defect in the legal basis of the judgment, which is verified from its comprehensive review—based on what is prescribed by the Constitutional Chamber (Sala Constitucional) in the pronouncement that the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt">invoked in its decision—is that the trial court (tribunal de mérito) did not express any reason or reasons by virtue of which it ruled out in the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">sub judice</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">matter that the statements that were complained of as defamatory do not constitute falsehoods, rumors, or insinuations that were disseminated under an apparent “neutral narration of facts” on the “Facebook” profile of [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">—since it did not analyze whether the publication in question completely lacks truthfulness. In this regard, as alleged by the appellant [Nombre15], the criminal court did not fully assess the declaration of [Nombre6] [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">] given at trial, since it only considered it in order to conclude, in the segmented analysis of the publication in question that it carried out in the decision, that </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“the feelings expressed by [Nombre6] were mere personal assessments and derivations among many others that could be inferred from the content of the publication complained of as defamatory” </span><span style="line-height:150%; font-family:Arial; font-size:12pt">(without the decision objectively specifying what those “many other derivations” are). In relation to the point under analysis, it must be indicated that the Constitutional Chamber (Sala Constitucional), in the precedent under study, establishes that it cannot be intended to prove the truth of what is published </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a priori</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, since such a situation would imply a form of prior censorship and would affect the right to freedom of expression, but in turn, our Constitutional Chamber (Tribunal Constitucional) considers that in the event a person decided to exercise said fundamental right with full knowledge that it has limits and may generate responsibilities, it is admissible and necessary </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a posteriori</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> to establish that what was expressed is not a matter of falsehoods or rumors that completely lack truthfulness. This premise, defined as one of the constitutional parameters to limit freedom of expression, was not adequately assessed by the criminal court in the trial court's judgment (sentencia de mérito).</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold">vi.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt">One of the most relevant points for resolving the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">sub judice </span><span style="line-height:150%; font-family:Arial; font-size:12pt">matter, which is developed in the jurisprudence of the Constitutional Chamber (Sala Constitucional) under study, relates to the manner in which to resolve the collision that may arise between the right to honor and the exercise of freedom of expression, in cases involving a person or persons exercising public functions, given that in this sense the Chamber assesses the doctrine of the “preferred position” (posición preferente) of the right to information. In this regard, the following is stipulated: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“[…]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">It is recognized that freedom of expression in its broadest sense is so fundamental that it represents the foundation of the entire political order, that is, it is not just another freedom, hence the doctrine of the 'preferred position' (posición preferente) of the right to information in matters of constitutionality control has emerged—mainly through North American influence—understood as that which affirms that when the right to freely inform conflicts with other rights, even if they are fundamental rights, it tends to prevail over them, a position that explains why aspects of the right to privacy and honor of public persons must yield to the interest of information. The Spanish Constitutional Court (Tribunal Constitucional español) has referred to the preferred position of freedom of expression over other fundamental rights in the following terms: Given its institutional function, when a collision of freedom of information with the right to privacy and honor occurs, the former generally enjoys a preferred position, and the restrictions that may derive from said conflict to freedom of information must be interpreted in such a way that the fundamental content of the right to information is not, given its institutional hierarchy, distorted or incorrectly relativized (judgments 106/1986 and 159/1986). </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">However, it is evident that the preferred position exists insofar as the right is exercised to fulfill its legitimate function in democracy and therefore as an essential part thereof, not to allow falsehoods, rumors, or insinuations that hide behind the exercise of a fundamental right under the excuse, as indicated, of a supposed neutral narration of facts completely lacking in truthfulness, which cause violations of liberties also essential from the standpoint of the system of freedom, such as the honor of individuals and the right to be adequately and timely informed</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">. This freedom is so important that it effectively enjoys special protections for the sake of its correct exercise, such as freedom of conscience, protection of sources, and no prior censorship, to name a few, all for the sake of fulfilling the social function it is called upon to fulfill within the democratic framework. In that sense, the appellant is correct when he points out that press freedom, contrary to the right to honor, has, in addition to its individual protection dimension, a social dimension. However, it is forgotten that the other side of press freedom, also with an evident social dimension, is precisely the right of individuals to receive adequate and timely information (not manipulated), which excludes the possibility of exercising this freedom in a manner contrary to legitimate ends of the system or that, in turn, injures equally legitimate interests thereof. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">In that sense, the preferred position is valid as long as it is not used as a mechanism to violate other relevant ends of the system, because it was not conceived for that purpose. Otherwise, it would authorize manipulation or misinformation of individuals or the masses, an objective as contrary to democracy as censorship itself. In this sense, when it is said that the right to transmit information regarding relevant facts or persons has preeminence over the right to privacy and honor in the event of a collision, it is mandatory to conclude that in that confrontation of rights, freedom of information, as a general rule, must prevail provided the transmitted information is truthful and refers to public affairs of general interest due to the matters they refer to or the persons who intervene in them, consequently contributing to the formation of public opinion in a legitimate manner. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">In this case, the content of the right to free information reaches its maximum level of justifying efficacy against</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">the right to honor, which is weakened, proportionally, as an external limit of the freedoms of expression and information</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">(judgment STC 107/1988). </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">It is worth clarifying that legally it is not possible to demand that everything published be true or exact, or as the Spanish Constitutional Court (Tribunal Constitucional español) has indicated, if truth were imposed as a condition for the recognition of the right, the only guarantee of legal certainty would be silence (STC 28/96), but neither can it protect the journalist who has acted with contempt for the truth or falsity of what was communicated. What it does protect</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">is information correctly obtained and disseminated 'even if it turns out to be inaccurate, provided that the duty to verify its truthfulness through the appropriate inquiries proper to a diligent professional has been observed'.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">(STC 178\\93). Likewise</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">it protects neutral reporting, understood as 'those cases in which a media outlet merely reports statements of third parties, even when they turn out to be contrary to the rights to honor, personal and family privacy, and one's own image, (STC 22|93), provided that good faith is present, that is, that the person responsible for the dissemination did not become aware of its inaccuracy or lack of truthfulness, because from that moment on, if it is not corrected, one would be acting in bad faith, to the detriment of other relevant guarantees for the system of freedom […]'” </span><span style="line-height:150%; font-family:Arial; font-size:12pt">(the underlining is not part of the original text). Regarding the doctrine of the “preferred position” (posición preferente) of freedom of communication with respect to the protection of other fundamental rights such as the right to honor, it must be indicated that without a doubt, the trial court (tribunal de mérito) granted preference to freedom of expression over the right to honor of [Nombre6] [[Nombre3]</span><span style="line-height:150%; font-family:Arial; font-size:12pt; -aw-import:spaces"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt">], as is established, in principle, as corresponding by the Constitutional Chamber (Sala Constitucional) in the referenced precedent. Notwithstanding the above, in the reasoning set forth in the decision in question (fallo de marras), no consideration whatsoever was made regarding the aspects that, according to our Constitutional Chamber (Tribunal Constitucional), must be assessed to determine whether the “preferred position” (posición preferente) is applicable or not in a specific case, specifically, that the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo </span><span style="line-height:150%; font-family:Arial; font-size:12pt">did not express the reasoning based on which it determined that said doctrine was fully applicable in this matter.</span> Thus, in the appealed judgment, no analysis whatsoever was carried out to rule out that the statements or information disseminated by the defendant [Name12] on his "Facebook" profile do not constitute falsehoods, rumors, or insinuations (falsedades, rumores o insidias) hidden behind the apparent exercise of a fundamental right under the guise of a supposedly neutral narration of facts completely lacking in truthfulness. In this sense, a comprehensive examination of the ruling reveals that the lower court (a quo) merely considered that in this matter it was not necessary to establish whether the information disseminated by the defendant was truthful or not, since it was his "opinion" regarding the facts included in the publication in question, given that, as indicated above (supra), the criminal court also failed to establish the reasons—or the evidence—on the basis of which it considered the statements expressed by [Name12] against the complainant as "facts," or why it classified said statements as a mere opinion, all of which contravenes the precepts defined by the Constitutional Chamber (Sala Constitucional) and demonstrates the erroneous legal foundation of the acquittal judgment issued in this case. vii.- In the reasoning of the precedent of the Constitutional Chamber under study, emphasis is placed on the fact that someone exercising their freedom of expression or press cannot be previously required to verify in advance the truthfulness of what they publish, since this would be a situation that could degenerate into prior censorship as a way of limiting such fundamental rights. However, the same Constitutional Chamber equally reiterates that it is not possible to invoke freedom of expression to disseminate situations known to be false or regarding which no effort was made by the publisher to try to verify any objective aspect that would rule out their falsehood, as well as the need to assess the specific case to disprove bad faith as the real objective of the publication. In this regard, the referenced precedent revisits what the Inter-American Court of Human Rights has indicated on the subject of prior censorship, and analyzes the content of the judgment issued by the Supreme Court of the United States in the case New York Times vs. Nombre57321, considerations that undoubtedly must be kept in mind and assessed in the resolution of this case. In this respect, the Constitutional Chamber considered the following: "(…) Evidently, as indicated, the protection of the State cannot be provided, as the Human Rights Court has indicated, through the right to previously censor information, which would be clearly unconstitutional (Art. 28), but rather refers to its control a posteriori, in the event that there was an intention to inflict harm or one acted with full knowledge that false news was being disseminated or conducted oneself with manifest negligence in the search for the truth or falsity thereof, and the honor and reputation of some person was affected thereby. The Chamber shares the opinion of the Inter-American Court of Human Rights (Advisory Opinion 5/85) in the sense that: 33. ... It would not be lawful to invoke society's right to be truthfully informed to justify a regime of prior censorship supposedly aimed at eliminating information that would be false in the judgment of the censor. Just as it would not be admissible, on the basis of the right to disseminate information and ideas, to establish public or private monopolies over the media to attempt to shape public opinion according to a single point of view. Similarly, it recognizes the jurisprudence established in the 1964 case New York Times vs. Nombre57321, in which it is noted that the protection the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and acknowledges that a certain degree of abuse is inseparable from the proper use of that freedom, from which the government and the courts must allow an 'uninhibited, robust, and open' debate to develop, which may include caustic, vehement, and sometimes severe, unpleasant attacks towards the government and public officials. Erroneous statements are inevitable in free debate, and must be protected to leave freedom of expression breathing room to survive. The rules must prevent a public official from suing a media outlet or a private individual for damages caused by a false defamation relating to their official conduct, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This caveat made is essential to the State's obligation to protect the reputation and honor of persons and, moreover, within its obligation to ensure that the misuse or deviation of this freedom is not used to violate equally essential ends of the democratic system, among which the system of fundamental rights is included […]" (the underlining is not part of the original text). The content of the above-exposed segment of the precedent was in no way assessed by the trial court, in order to establish whether, in the present case, the publication made by [Name7] misused freedom of expression, since the lower court (a quo), without greater foundation, set aside considering whether the dissemination of the statements against [Name6] had any degree of objectivity or even truthfulness, nor did it assess whether the text published on [Name12]'s "Facebook" profile was done with "knowledge that it was false or with reckless disregard of whether it was false or not," just as our Constitutional Chamber defines it based on the analysis of what was resolved in the case New York Times vs. Nombre57321. In conclusion, from all of the foregoing, two fundamental aspects are determined: a.- Ruling No. 2006-05977 of the Constitutional Chamber develops an extensive interpretation and analysis of how to understand the collision between the right to freedom of expression and the right to honor, as well as the limits that constitutionally correspond to the exercise of freedom of expression and communication, which undoubtedly constitutes a necessary legal input for the correct resolution of this case; b.- Despite the fact that in the judgment on the merits, the lower court (a quo) references and assesses a segment of the aforementioned constitutional precedent, it does not apply it fully and adequately in the legal analysis of the facts that were complained of as defamatory by the [Name10] against [Name7], which implies not only a disregard for the provisions set forth by the Constitutional Chamber for the analysis of a case such as the one being elucidated in the species. 2.-Third Chamber of the Supreme Court of Justice. In the judgment subject to appeal, the court of first instance invoked the jurisprudential content of Resolution No. 2002-01050, at 8:50 a.m. on October 25, 2002, of our Criminal Cassation Chamber. The study of such pronouncement regarding the substantive issue heard in this sub judice allows establishing that in said precedent, a series of legal aspects are analyzed and developed that are of utmost relevance to determine the manner in which the subject relating to the exercise of freedom of expression versus the protection of the right to honor should be addressed criminally, in order to define in which cases there is a legitimate exercise of the fundamental right to express and communicate ideas, and in which cases there is an abusive exercise of such constitutional guarantee that signifies the violation of the criminally protected legal interest "honor," that is, in the sub litem, regarding the crime of defamation provided for in Article 146 of the Criminal Code that was charged against [Name7]. It is necessary to indicate that a comprehensive examination of the appealed ruling allows establishing that the judges of the instance did not integrally analyze the pronouncement of the Cassation Chamber that they cited in the foundation of the appealed judgment, since they did not appreciate its content with the rigor demanded by Articles 142 and 184 of the Criminal Procedure Code, in order to adequately support the acquittal ordered in this case. In order to support this pronouncement, we proceed to define and assess the main aspects established by the Third Chamber of the Supreme Court of Justice regarding the substantive issue that is the subject of discussion in this sub judice, these being the following: i.- The resolution under study deals specifically with the exercise of freedom of communication by those dedicated to journalism, in relation to the protection of the right to honor of persons from a criminal perspective. This particularity must be appreciated in order to mark the difference that exists with respect to the facts judged in the species; however, from the referenced resolution of the Criminal Cassation Chamber, aspects emerge that are indeed applicable for the adequate legal analysis and resolution of this matter. ii.- Just as this appeals chamber has established and has been developed in section A) of this resolution, the Third Chamber of the Supreme Court of Justice considers that a case of criminal relevance in which there is a collision between the fundamental rights to honor and freedom of communication, expression, or press, cannot be decided by attending solely to criminal norms, but rather it is necessary to assess constitutional and conventional norms in order to analyze and adequately resolve the case. In this sense, the vote of reference stipulates the following: "[…] The conflict between the right to honor and the freedoms of information and press is one of the most difficult to resolve, since one is dealing with fundamental rights of the person and this requires defining very well when one of them takes precedence over the others. The problem is not resolved by taking into account only what is provided in the Criminal Code, but rather one must proceed directly from the Constitution and international human rights regulations to understand the scope of punitive legislation […]". The reasoning expressed by the Third Chamber is what is followed and justifies in this pronouncement that the legal framework whose regulations are linked to the substantive conflict resolved in the species has been listed, and that, in turn, is what is appreciated to demonstrate the erroneous legal foundation of the judgment on the merits. iii.- The Criminal Cassation Chamber establishes that in the event of conflict or collision between the right to honor and freedom of expression, the first of such fundamental rights yields to the second, except in cases where an abusive use of the right to freedom of communication is made—because it exceeds or goes beyond the scope of protection it contemplates—in which case the criminal provisions that protect the right to honor as a criminally relevant legal interest are indeed applicable. Thus, the Third Chamber considered the following: "[…] As is plainly seen, one is in the presence of legal interests deserving of equal protection by the legal system. By virtue of what has just been indicated, the problem to be addressed in this case is that of when the right to honor prevails over the indicated freedoms. In accordance with the constitutional and international humanitarian provisions, that conflict between fundamental rights can only be resolved in favor of the right to honor when an abusive exercise of the freedoms of information and press is verified. The foregoing follows because the Costa Rican legal system contemplates as a general rule (enshrined in Article 22 of the Civil Code) not protecting the abuse of right nor the antisocial use thereof. This is precisely because if one abuses a right, this implies that the scope of protection it contemplates has been exceeded or gone beyond, such that said excess is not covered by it and lacks protection. Thus, if no abuse whatsoever is incurred, but rather the freedoms of information and press are legitimately exercised, then there is no possibility whatsoever of criminally sanctioning the communicator, since they would not have committed any crime against honor […]". From the foregoing, it is determined that, in cases where there is an excess in the performance of human conduct related to the substantive criminal matter, be it through the abuse of freedom of communication or expression and an antisocial use thereof is reached, such excess is not covered by the content of the fundamental right, meaning that for this reason it lacks protection and, rather, the criminal protection of the right to honor arises. The foregoing applies fully in cases where persons who are public officials are involved, since it is not possible to discriminate or define areas of exclusion that allow or justify an antisocial and abusive exercise of freedom of expression or communication, solely because the affected person holds public office, whatever that office may be, including that of the […], since the position being questioned does not meet the criteria of rationality and proportionality that must be appreciated for the protection and application of fundamental rights. Thus, one cannot disregard a constitutionally enshrined right such as the right to honor, which is fully retained by those who exercise public function, albeit nuanced and tempered by the duty or obligation to tolerate a greater degree of scrutiny in aspects related to questions, criticisms, opinions, control, and oversight—undoubtedly related to the right to honor—that derive from the exercise of their function and their special condition, and that is based on the duties of transparency and accountability constitutionally and legally stipulated. Therefore, the limit through which the lower court (a quo) defines a minimum and practically null scope of criminal protection for the right to honor of the person who holds the […], by virtue of exercising such office, is forced and legally unfounded, since what actually derives from its reasoning is that it erroneously equates the duty of tolerance indicated above (supra) with the de facto emptying of the legal interest of honor of the person who holds said office, such that this position would allow, without possibilities of exclusion, the abusive and antisocial exercise of freedom of expression and communication, which—as indicated above (supra)—far from guaranteeing and reinforcing the democratic model that governs us, would imply an impact on the right to receive truthful information for the formation of adequate public opinion, as well as for the suitable oversight of public function and, obviously, of the exercise of public powers by all administered persons. iv.- In the ruling of the Cassation Chamber under study, the principle of accountability to which all public officials are subject is defined and legally framed, by virtue of which they are subjected to broad control and scrutiny by official or formal bodies established for this purpose—for example, the Office of the Comptroller General of the Republic (Contraloría General de la República)—and by informal sectors—the press, mass media, administered persons in general—which have great weight and importance in a democratic regime like the one governing our country. Likewise, the Third Chamber stipulates which acts of those exercising public function are subject to this type of scrutiny, that is, in general terms, those that are of public interest and correspond to the public facet of the life of those who hold an office of such nature. These parameters allow establishing the criminal-legal scope of the duty of tolerance, such as in which areas of the life or existence of someone exercising public office, they have the obligation to tolerate greater scrutiny and control. In this sense, and regarding the relationship between the right to honor versus freedom of expression, the Cassation Chamber establishes that the right to honor of the public official prevails and must be criminally protected when an excess occurs in the exercise of freedom of communication or expression, even by those exercising journalistic activity. The points set forth above were in no way appreciated in the judgment on the merits, despite being essential for the correct legal analysis of the facts complained of as defamatory in this case. In the content of the ruling examined, as it relates to the aspects previously set forth, the following is stipulated: "[…] The events of interest here—that is, the video recording of the vehicle of the [Name6], the information disseminated by Noti-Catorce, and the response given by [Name29] to the reports of said news program—occurred between October and December 1999. At that time, the Political Constitution provided in its Article 11 the following: 'Public officials are simple depositaries of authority and may not arrogate faculties the law does not grant them. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability for their acts is public.' (It should be noted that following the constitutional reform carried out through Law No. 8003 of June 8, 2000, published in the Official Gazette La Gaceta No. 126 of June 30, 2000, said article of the Constitution was modified and a provision was added to the effect that public officials must fulfill the duties the law imposes on them; furthermore, the principle of accountability was formally established, aspects that this Chamber considers—as will be seen throughout this Considering—could be extracted from the previous wording combined with provisions of the General Law of Public Administration, although certainly the reform makes it easier to appreciate the constitutional rank of said principle). As can be observed, the Fundamental Law (as applicable to the specific case) clearly establishes that public servants are subject to the legal system, which is what derives from them being classified as mere 'depositaries of authority'; in other words, they are not above the Law. In this vein, it is clear from the constitutional provision under discussion (a precept revitalized by the aforementioned reform of 2000) that public officials are bound by permissive, prescriptive, and prohibitive norms, adding further that they can only do what the law expressly authorizes them to do. Things being so, in Nombre2042 every public official (whether popularly elected, appointed by another or a collegiate body, or having obtained the position through competitive examination; whether full, substitute, or interim; appointed indefinitely or for a term; in a position of trust or enjoying job stability; a career official or not; etc.) is exposed, from the moment they assume office, to the oversight of their acts in the performance of the office. This follows because everything that person does on the occasion of the public position they hold is of interest to the generality of the inhabitants of the Republic, since the objective is to ensure they act, as a servant, in strict conformity with the legal system. This constant supervision of their acts is one of the consequences that being a public servant entails, such that whoever assumes a position of this nature implicitly accepts that their performance be publicly examined. By virtue of the investiture, the official is subject to the principle of legality, according to which they are only authorized to do what the law—in a broad sense and in accordance with the normative hierarchy—expressly permits, with everything else being prohibited.

…things, performing a public function entails for the person a subjection to controls, which have been conceived to verify that the exercise of the powers derived from the position is correct, as well as to prevent the breach of the duties inherent to the office. That said, within these controls are counted not only the institutionalized ones (such as those of the Public Administration itself, as well as the judicial ones), but in a democratic State –the Constitution defines Nombre2042 as such in its article 1– it is also necessary to consider the role of communicators. If every human being has the right to be informed, if there is also freedom to communicate thoughts and opinions, even by publishing them, and if it is considered that communicators have as their profession the gathering of data, analyzing it, and based on it informing others about topics of interest to them, then it is evident that the practice of journalism is a perfect manifestation of the freedoms of information and of the press. In that context, it is irrefutable that the mass media, journalists, and other communicators have the right to inform –by making public the data they handle– the inhabitants. That is the premise that must prevail in a democratic society. The foregoing requires certain clarifications when dealing with a matter of public interest related to the actions of a state servant. The first is that a matter of public interest is everything that in a reasonably presumable manner coincidentally attracts the individual interest of the administered persons (article 113, subsection 1) of the General Law of Public Administration); note that by speaking of “administered persons” it is made evident that these are topics related to the conduct of the State (in a broad sense, that is, the Government of the Republic –described in article 9 of the Constitution– and the other public entities) and the management of its resources, aspects which can be validly presumed to interest the generality of a country’s inhabitants, who are the ones who contribute to defraying the State’s expenses. The second is that normally, in the case of matters of public interest, the intervention of a state official occurs, although it is also possible (an aspect that will be seen at the end of this Considerando) that there are subjects not invested as public servants who carry out a task that is indeed public, and thus they would also be subject to the scrutiny of their actions in the exercise of that public function. Thus, in the case of matters of public interest, the freedoms of information and of the press that protect communicators are so important, because they constitute one of the means of control of public management in a democratic State, that if they are confronted with the right to honor that those who fulfill a public function also hold as persons, the latter may yield to the former, only with regard to the public facet of their conduct. In accordance with that approach, only when abuse is incurred by the communicator when informing will it be possible to place the right to honor of the official before the freedoms of information and press that protect the communicator, as well as before the right to be informed that assists every person. There are a great many rules that support this position. For example, note that article 26 of the Constitution guarantees the country’s inhabitants the right to assemble peacefully and without arms to examine the public conduct of officials. This is important, as it is obvious that the constituent legislator was aware that there are public and private aspects to the behavior of State servants, with only the former being susceptible to open examination and discussion by society. Those public acts of the officials are precisely those that have been established here as related to the fulfillment of their office; the private ones –and therefore not susceptible to being publicly debated– are those pertaining to personal and family privacy not connected with the exercise of the function. If one can publicly debate, in a meeting, aspects of the public actions of state servants, then it is undeniable that one must be able to inform about their acts so that they may be examined by the inhabitants of the national territory. Furthermore, it should be remembered that in accordance with article 28 of the Constitution, no one may even be disturbed for the expression of their opinions, nor for acts that do not violate the law. As a corollary to the foregoing, it should be observed that article 29 of the Constitution expressly provides for the possibility that every person may communicate (address to another) their thoughts, by word or in writing, and even publish them (make them publicly known) without prior censorship, so that they will only be responsible if they abuse these rights. In that context, it turns out that the exercise of the activity of communicators, which is indispensable for guaranteeing the right to be informed that assists every person, permits freely informing about aspects related to the exercise of the public function, as this is a matter of evident public interest […].” It should be added to the foregoing that the Third Chamber, when defining the criminal protection of the right to honor pertaining to the particular situation of public officials, does not make any discrimination regarding the type of specific position a given person holds, whether it be by popular election or whose appointment corresponds to a public competition, etc. The foregoing demonstrates that the thesis held by the lower court (a quo), and based on which it discards the affectation of the right to honor of [Name6] [[Name3]], does not adhere to the precepts established by the Criminal Cassation Chamber regarding the protection of said fundamental right that must be guaranteed to those who exercise a public function, regardless of the type of position they hold, even including those designated by popular election, within which, of course, is that of the […]. In that sense, a comprehensive examination of the ruling allows us to establish that the criminal court does not set forth weighty legal arguments that justify departing from the jurisprudential precepts defined by the Third Chamber on the matter subject to judgment, with the only thing deriving from the intellectual foundation of the contested sentence being what the trial judges define based on their particular reading of the Costa Rican reality and “the ideology” which, they expressly indicate, they derive from such aspect, determining from such reasoning a margin of exceptional and specific criminal protection of the right to honor that they particularly estimate corresponds to whoever occupies the […], a criterion that, as has been established throughout this pronouncement, is not intellectually or legally grounded as legally required, in accordance with the provisions of articles 39 and 41 of the Political Constitution, and in numerals 1, 142, 184, and 363 of the Code of Criminal Procedure. Another aspect that the Criminal Cassation Chamber specifies as legally relevant, in order to define in which cases the right to honor of public officials should be criminally protected with respect to the abusive exercise of the freedom of communication and expression, is that pertaining to the ways in which the dissemination or exposure of comments, opinions, or thoughts that have sufficient entity to violate the honor of the public official can occur, and for such reason the propriety of the criminal protection of their honor and decorum. In this sense, it is clear that the Third Chamber does not restrict the cases of criminal protection of the right to honor of public officials to the meager margins and cases subjectively defined by the lower court (a quo) in the judgment on the merits, that is, based on its perception of “absolute exceptionality” or an exceptional regime of criminal protection, which the trial court estimates corresponds to the honor of whoever exercises the function of […], namely, direct insults or the imputation of criminal acts as the only possible interpretations of “the species” subject to publication. In this regard, the Criminal Cassation Chamber establishes that the honor and decorum of a public official can be affected by the way in which ideas are expressed, the mode in which the publication is made, when false data is disseminated knowing it to be false, when an attempt is not made to obtain the version of the official involved in order to provide balanced information, etc. In this sense, the Third Chamber stipulated the following: “[…] Only when the freedoms of information and press are abused (as could be the case if false data is divulged knowing it to be false, if no attempt is made to obtain the official's version to offer balanced information, if the servant is denied their rights of rectification and/or reply, if matters are merely private or sensitive information not related to the position the person holds, if it is taken as certain before the public that the servant's conduct is criminal without a judicial sentence in that sense, if the sole intention is to offend someone –an aspect that must be examined case by case and in which various factors could be relevant, such as the context in which information is divulged, the way photographs or images are handled, the manner in which the news or comments surrounding it are presented, or similar situations) can the communicator be held responsible, because abusing a right (a situation that must be verified in each specific case) implies that the scope of its protection is exceeded. Such abuse is not protected by the legal system (article 29 of the Constitution related to article 22 of the Civil Code), so that communicator who incurs in abusive conduct must answer for their acts (which could even eventually result in the liability of the medium that disseminated the information). […]”. Thus, it is determined that the criminal court did not adequately appreciate or assess the jurisprudential precept in question –despite having expressly mentioned it in its ruling– in order to support the basis upon which it analyzed the facts complained of and dismissed them as harmful to the honor of [CED1], which confirms the erroneous legal basis outlined by the lower court (a quo) and, consequently, the lack of legal basis for its decision to acquit the defendant [Name7].

v.- Another point touched upon in the resolution of the Cassation Chamber under study, which is relevant for the adequate legal analysis of the case at hand (subjudice), is that relating to the public interest, which is defined as a parameter that must be appreciated to delimit the degree of criminal protection that must be given to the right to honor of a public official with respect to the exercise of freedom of expression and communication. In this sense, the following is indicated: “[…] Of course, the coexistence of those two provisions in the same normative text reveals that they are complementary. In that sense, the freedoms of information and of the press related to matters of public interest would displace the protection of honor and dignity as it refers to public officials; be advised at once that this rule would not apply to persons who do not hold such character. This is because in these cases (when dealing with a matter of public transcendence related to state servants) it is not about the intimacy of a person, but about the way they perform in the exercise of a public office, an aspect that –in the face of the conflict of the legal interests in question, namely the right to honor and the freedoms of information and of the press– is the most important from the viewpoint of the national community. If what is disseminated is correct and indeed corresponds to a matter of public interest, then there is no possibility whatsoever for the official to claim that their honor has been harmed (in any case, if the news is about some inappropriate act, the one who would have harmed their honor would be the servant themselves and not the communicator, so the responsibility of the former could not be transferred to the latter). Of course, if the information is false or is not related to a matter of public interest, then it could eventually be one of the cases of abusive conduct mentioned supra (which could even constitute a crime) that do entail a declaration of the communicator's responsibility. In that context, the two international provisions under comment (articles 11 and 13 of the American Convention on Human Rights), viewed together, reveal that in matters of public interest relating to the way servants perform their offices, the right to honor yields before the freedoms of information and of the press, as well as before the right to be informed. To understand that it does not displace it would be akin to creating a very broad sphere of topics in which the referenced freedoms could not be exercised, which would be an attack against the democratic regime contemplated in the Costa Rican Constitution. In addition to the foregoing, it should be indicated that in articles 17 and 19 of the International Covenant on Civil and Political Rights, the problem that concerns us is also addressed. The first of these establishes that no one shall be subjected to arbitrary or unlawful interference with their privacy, nor to unlawful attacks on their honor or reputation. This wording is important to highlight because –examined a contrario sensu– it demonstrates that honor can be legally affected, which reinforces the thesis that there are cases (such as those of interest here) in which despite an affectation of said legal interest, no one can be held responsible for it. This Chamber considers that the foregoing occurs precisely in cases where information is published about matters of public interest related to questionable actions by public officials (or even by persons who fulfill a public function), cases in which the honor of the persons involved is evidently affected (as a consequence and not as an intention). In those cases where what is divulged will inevitably affect some public servant, and in which moreover a sole intent to offend is not present, the freedoms of information and of the press must prevail over the right to honor, since the communicator acts in compliance with their right to inform and does not become responsible for the consequent affectation of the honor of the officials (which in any case, as already stated, would have its cause in their own acts and not in what is published) related to the news. Of course –it is worth reiterating– that if the information is not of public interest, if the sole intent is to offend someone, or if what is reported is false, then the communicator (and eventually the medium) does become responsible for the abuse committed. In summary, both in the Political Constitution and in the international Human Rights provisions applicable in Nombre2042, there are rules that allow us to affirm that public officials (not private individuals, except in the cases where they fulfill a public function) are subject to public examination of their actions in the exercise of their office, and therefore the freedom to disseminate information about their acts in relation to matters of public interest displaces their right to honor, such that no communicator can be criminally responsible for that type of information, unless they had acted abusively. This is because, in accordance with the provisions of article 25 of the Criminal Code, whoever legitimately exercises a right does not commit a crime. To what has already been stated, it should be added that there are also provisions of legal rank that reinforce the position held here. What is established in articles 113 and 114 of the General Law of Public Administration is of special importance. The first of these provides: “1. The public servant must perform their duties in a manner that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered persons. 2. The public interest shall prevail over the interest of the Public Administration when they conflict. 3. In the assessment of the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first of all, to which mere convenience cannot in any case be placed before.” For its part, the second of the mentioned numerals stipulates: “1. The public servant shall be a servant of the administered persons, in general, and in particular of each individual or administered person who relates to them by virtue of the function they perform; each administered person must be considered in the individual case as a representative of the collectivity on which the official depends and for whose interests they must watch over. 2. Without prejudice to what other laws establish for the servant, consider, especially, irregular performance of their function any act, fact, or omission that due to their fault or negligence causes unjustified or arbitrary obstacles or hindrances to the administered persons.” As can be seen, the legislator grants great importance to the satisfaction of the public interest as the guiding principle of administrative activity, so much so that it formulates the principle of objectivity of the public function as acting for the sake of satisfying said interest. In addition, the duty of accountability on the part of public servants is evident, who must consider themselves –in each specific case– servants of the person with whom they relate by virtue of the position they hold (it is worth noting that these provisions have existed since 1978, so that if they were related to the previous wording of article 11 of the Constitution, the enshrinement in the Costa Rican legal system of the principle of accountability was evident, even before the constitutional reform of the year 2000 previously alluded to). This further highlights the public nature of the actions of officials as it pertains to the fulfillment of the duties inherent to the position they occupy. In that context, it is unthinkable –unless the democratic principle established in the Political Constitution is disregarded– to criminally sanction a person who acts in accordance with their right to divulge information related to the actions of state officials in matters of public interest, unless they have incurred some abuse (such as those set forth above) when making the information public. […]” (The highlighting in bold is not part of the original text). Based on the foregoing, it is opportune to indicate that a comprehensive examination of the judgment on the merits reveals that the trial judges did not carry out any consideration as to the reasons of fact and of law why they concluded that the content of the text disseminated on the “Facebook” profile of the defendant [Name7] corresponds to a situation pertaining to or linked, directly or indirectly, to the exercise of the function of […], or that the publication of [Name6] [[Name3]] was related to the position she held at that time. Likewise, in the appealed sentence, a broad and sufficient analysis is not observed that would allow establishing whether the content of the publication disseminated by said defendant is correct –or at least supported by certain objective and verifiable data–, or whether it refers to an action carried out by [Name10] as […] that constitutes a questionable action in the performance of said public office. The foregoing, in order to rule out that the publication that is the subject of the present criminal complaint is not, in reality, a mere malicious speculation or a falsehood that is not linked to or derived from an action carried out by [[Name3]] during their term of office. Such an intellectual exercise must necessarily be highlighted in the case at hand (subjudice) to accurately determine whether the content of such publication corresponds to a matter of public interest or not, since it is in this scenario that the Third Chamber defines that there is no possibility whatsoever on the part of the person exercising the public function to claim that their right to honor or decorum has been harmed, a criterion shared by this appeals chamber and which should have been assessed with greater rigor by the lower court (a quo) to comply with the parameters of legal grounding that are legally required for the efficacy and validity of the criminal sentence. In conclusion, the Criminal Cassation Chamber determines in the pronouncement under study that the right to honor of those who exercise a public function yields before the exercise of freedom of expression by reason of the duty of accountability and due to the very condition of being a public official –a higher level of tolerance– when it concerns matters of public interest or questionable actions of state servants in the performance of their duties or in matters related to such public tasks, regardless of the position they hold, which has its limit and justifies the protection or criminal safeguarding of the right to honor of state servants in cases where an abusive use is made of freedom of expression or communication that exceeds the scope of protection of said fundamental right. Such cases were not assessed or reasoned in a broad, precise, and sufficient manner by the lower court (a quo) in the judgment on the merits, by virtue of its subjective intention of restricting the cases that they defined ad hoc as appropriate for the propriety of the criminal protection of the right to honor of whoever holds the office of the […].

reasoning is not sufficient to disregard and ignore the criteria for interpretation and application that, based on a deep, broad, and comprehensive analysis of the rules linked to the substantive issue, have been established by our Criminal Cassation Chamber, criteria regarding which it must be noted follow the jurisprudential guidelines stipulated by the Constitutional Chamber, in the precedent analyzed above in this resolution. 3.- Inter-American Court of Human Rights. In the ruling under challenge, the criminal court invokes and cites some segments contained in two precedents of the Inter-American Court of Human Rights, namely, the one issued in the case of [Name18] vs Nombre2042 on July 2, 2014, as well as the one issued in the case of [Name16] vs [Name17] on May 2, 2008, judgments in which topics were addressed and criteria were issued regarding the exercise and protection of the right to freedom of expression and communication regulated in Article 13 of the American Convention on Human Rights. 3.1. Judgment of the case [Name18] vs Nombre2042. Regarding the analysis of said precedent issued in the Inter-American Human Rights System, which was carried out by the lower court (a quo) in the judgment on the merits, with respect to its relevance for the resolution of the case at hand (subjudice), it is appropriate to note the following: i.- First, it must be noted that the appellant [Name15] is correct in that the lower court (a quo) errs in citing and assessing the referenced ruling. This is because the criminal court erroneously and without any justification refers to and assesses, in the basis of the appealed judgment, the particular opinion established in the “reasoned concurring vote of Judge [Name19]” (in this sense, the paragraphs identified as 26 and 27 in the textual quote included in the judgment on the merits visible on folios 356 and 357 of the main file), as if the individual considerations of said judge were part of the decision that the Inter-American Court of Human Rights – as a collegiate jurisdictional body – issued in the above-indicated case, which is evidently incorrect and reveals the weakness of the legal reasoning of the challenged sentence. The foregoing, because the trial judges granted a legal value and weight to a minority vote that does not correspond to it, by invoking and assessing its content as if it were part of the basis that the majority of the members of the Inter-American Court considered and established to issue the judgment in the case of [Name18] vs Costa Rica, and not even clarifying that it endorsed the individual thesis of Judge [Name30]. Thus, the judgment on the merits has a defect in its legal reasoning regarding the parameters and assumptions that the lower court (a quo) assessed to support its criterion, regarding the definition of a restrictive and specific scope for the protection of the right to honor of the person who holds the public office of the […], based on which it dismissed the existence of a punishable act in the case at hand (subjudice) and decided to acquit [Name7] of all penalty and responsibility. ii.- It is important to note that in the case of [Name31], two very important aspects were present that differ from those discussed in the present case, namely that [Name18] is a journalist and it was in the exercise of that profession that he was sued, and secondly, that his action consisted of reproducing, in four journalistic articles he wrote, the content of reports made by European newspapers that referred to alleged illicit actions of a person who was part of the Costa Rican diplomatic service. Such aspects are important to consider in order to dimension the scope of what was resolved by the Inter-American Court in the case of [Name18] vs Nombre2042 and modulate its content to the objective and subjective circumstances of the case being judged, an intellectual analysis that the lower court (a quo) omitted from the judgment on the merits. iii.- The comprehensive examination of the challenged judgment allows us to establish that the trial judges referred to the content of the judgment in the case of [Name18] and assessed it, to establish that a person who holds the […] of the […] at the highest level has the maximum level of tolerance regarding their right to honor, in attention to the preference that the exercise of freedom of expression has, a margin of tolerance that the lower court (a quo) considered is not comparable to that of the rest of public officials, specifically, by virtue of the hierarchical rank corresponding to the person who holds the […]. Notwithstanding the foregoing, from the examination of the analysis carried out by the trial judges regarding the jurisprudence of the Inter-American Court of reference, sufficient evidentiary elements cannot be inferred that, when compared with the provisions of the judgment in the case of [Name18], allow us to arrive at the conclusion sustained by the trial court and assessed to issue the acquittal judgment under challenge. In this sense, the reading and study of the judgment issued in the referenced case allows us to establish that the Inter-American Court of Human Rights does not make any discrimination regarding the margins of protection of the right to honor that corresponds to a person who exercises public office, with respect to the exercise of freedom of expression, regardless of the type or hierarchy of the position the person holds. Specifically, the Inter-American Court establishes that in the situation under study, a higher level of tolerance is required of the person who exercises public office, in order not to unduly restrict the right to freedom of communication and expression, the respect for and effectiveness of which it establishes as absolutely necessary for the consolidation and dynamics of a democratic society. Likewise, the Inter-American Court establishes that although there is a higher level of tolerance for public officials regarding the protection of their right to honor or decorum, by virtue of the duties of transparency of governmental activities and probity to which they are subject - and with the aim of guaranteeing the validity and development of a democratic society -, the exercise of freedom of expression is not absolute and has limits that must be observed, which cannot be applied as a form of prior censorship, but rather based on subsequent responsibilities expressly established by law, and in order to guarantee respect for the rights of others or their reputation. In this regard, the ruling in question establishes: “[…] 120. It is important to emphasize that the right to freedom of expression is not an absolute right; it can be subject to restrictions, as indicated in Article 13 of the Convention in its paragraphs 4 and 5. Likewise, the American Convention, in its Article 13.2, provides for the possibility of establishing restrictions on freedom of expression, which manifest themselves through the application of subsequent responsibilities for the abusive exercise of this right, which must in no way limit, beyond what is strictly necessary, the full scope of freedom of expression and become a direct or indirect mechanism of prior censorship. To determine subsequent responsibilities, three requirements must be met, namely: 1) they must be expressly established by law; 2) they must be aimed at protecting either the rights or the reputation of others, or the protection of national security, public order, or public health or morals; and 3) they must be necessary in a democratic society (…) 123. Thus, the restriction must be proportionate to the interest that justifies it and closely tailored to the achievement of that objective, interfering as little as possible in the effective exercise of the right to freedom of expression [...]”. iv.- From the foregoing, it is determined that the Inter-American Court recognizes that the right to freedom of expression is not absolute, and that for this reason it can have limits or restrictions that must not be applied a priori, but rather can only be subsequent and proportional to the interest that justifies such limitations, and in accordance with what is absolutely necessary for the achievement of that objective, so as to interfere to the least possible degree in the exercise of freedom of expression. Such a stance by the Inter-American Court, assessed with respect to what our Political Constitution and the regulations analyzed above in this pronouncement establish, allows us to conclude that the protection of the right to honor of public officials in cases of abusive exercise of freedom of expression and thought, is proportional to the interest of the criminal legal system to safeguard against intentional, malicious, and offensive attacks on the honor and decorum of those who exercise public office under the apparent exercise of the free expression of ideas or thoughts, or in such case, of freedom of communication, being in turn that such exceptional and a posteriori limitation is proportional and interferes to a minimum degree with freedom of expression, as prescribed by the Inter-American Court. This is because, according to our constitutional, conventional, and legal normative framework, and as the Constitutional and Third Chambers of our country have established in the precedents analyzed above, the restriction of freedom of expression and information only proceeds in the case of excesses and abuses in the exercise of said fundamental right that exceed the content proper to its protection. Such irregularity not only leads to the affectation of the right to honor of the offended person, but also violates the social component of the right to communication and expression, as it implies the violation of society’s right to have ideas, thoughts, or information that are adjusted to reality shared, in such a way that the correct formation of public opinion and due control of the exercise of public office is sought and achieved. The fulfillment of these objectives is what allows for the strengthening of the institutional and democratic framework of society, as a proper effect of the correct exercise of freedom of expression, which is not achieved, and can even obtain a contrary result, if malicious attacks and abusive expressions against the decorum and honor of public officials are endorsed without any limit, which in no way constitutes oversight and control of the public sphere, but simply a way of affecting public activity by unjustly discrediting their honor, which undoubtedly affects the credibility of those who exercise state activity. This situation would be extremely serious in the particular case of the person who exercises the […], since not only their personal honor would be unduly affected, but also the investiture and respect for the role they perform, which generates problems of public distrust, loss of faith in public institutions and state activity, which is not adequate for the development of a society based on a democratic model. Thus, from the precedent under study as well as from what is stipulated by the Constitutional Chamber and the Third Chamber, the right to honor of the person who exercises state activity – as are those who hold political positions – yields before the exercise of freedom of expression, by virtue of having to endure, due to such condition, a higher degree of tolerance, as well as by reason of the protection of the principles of transparency, probity, and accountability, it even being the case that strong, uncomfortable, and annoying criticisms made regarding situations that are of public interest and are directly or indirectly linked to the actions performed by state servants in the performance of their duties are admissible, which has as its – subsequent – limit the abusive and irregular exercise of freedom of expression or communication, which does not conform to and exceeds the scope of protection of such fundamental right. The comprehensive examination of the judgment on the merits shows that the lower court (a quo) did not carry out an adequate and careful factual and legal analysis of the normative content of the provisions that in our legal system govern the matter under discussion, nor did it carry out a sufficient intellectual and rational exercise to set aside the precedents that have been issued on the legal point under judgment, and the trial judges opted to create an ad hoc criterion for the resolution of the case – as previously and repeatedly indicated in this pronouncement – which they based on their particular assessment of the contemporary Costa Rican political-institutional and social reality, as well as on the definition of an equally particular ideology, aspects based on which they conceived and particularized – without greater objective support – a specific and disproportionately restrictive scope of criminal protection for the right to honor of the person who holds the […]. v.- It is necessary to point out that in the judgment issued in the case of [Name18] vs Nombre2042 by the Inter-American Court - extensively transcribed, but however, not as extensively or rigorously assessed in the sentence by the court of merits - it is expressly established that “politicians” have a higher level of tolerance in the relationship right to honor versus freedom of expression. Notwithstanding the foregoing, the Inter-American Court establishes that despite the particular situation of those who exercise state office as previously described, their right to honor and decorum must indeed be protected, and in this sense, the ruling [Name18] stipulates the following: “[…] 127. Democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials for their public management, which is why there must be a reduced margin for any restriction on political debate or on debate about matters of public interest. 128. In this context, it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature should enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. This does not mean, in any way, that the honor of public officials or public persons should not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism [...]”. In this respect, it is necessary to indicate that, although the judgment on the merits cites several segments of what was resolved in the case of [Name18], it does not comprehensively assess the jurisprudential precepts indicated by the Inter-American Court in the ruling of reference, and without greater justification, the criminal court ignores the scope of protection of the right to honor that the Inter-American Court establishes is proportional to the condition of public official and the higher level of tolerance to which they are subject due to such condition. In this same sense, the lower court (a quo) does not assess in its substantive reasoning that the Inter-American Court, regarding the protection of the right to honor that corresponds to those who hold public office, does not specify or determine that there are different degrees of protection of such fundamental right depending on the hierarchy or the type of state position the person holds. Thus, it is clear that the criminal court did not adequately assess such precedent of the Inter-American Human Rights System, by establishing ad hoc and disproportionately restrictive criteria regarding the criminal protection of the right to honor that they considered specifically corresponds to the person who exercises the […], and such a stance implies and translates in reality into the almost absolute emptying of the content of the constitutional and legal protection that in our legal system corresponds to said fundamental right, which is improper. In this regard, it is important to note that the trial judges themselves established in their ruling that, from the publication made by the accused [Name12], some meanings can be derived that can indeed be considered offensive to [Name6] [[Name3]], but that however, by considering that they are not univocal or the only ones emanating from the content of the disseminated text, given that according to the lower court (a quo) other meanings arise – without defining in the ruling what the other possible derivations are – that have nothing to do with offensive situations, the right to honor of [[Name3]] was not violated. To reach this conclusion, the criminal court sets forth the criterion it defined, in accordance with what was set out above to restrict the scope of criminal protection that it considered corresponds to the […], that is, that only direct offenses and the expression of ideas or opinions whose sole meaning is the imputation of a criminal act are punishable as harmful to the honor and decorum of the person who holds said public office. Such argumentation does not derive from the legal guidelines that have been defined in the jurisprudential precedents studied in this pronouncement - and cited in the challenged judgment -, regarding the interpretation and application of the rules that regulate the factual and legal situation of a case like the one discussed in the case at hand (subjudice), even, by the binding jurisprudence of the Constitutional Chamber, all of which reveals a serious weakness in the intellectual and legal basis of the judgment under challenge. 3.2. Judgment of the case [Name16] vs [Name17].

**i.-** In the appealed judgment, two segments of the ruling issued by the Inter-American Court of Human Rights in the case *[Nombre16] vs. [Nombre17]* are cited, and in that regard the lower court judges established the following: *“[…] Now then, on this point the Inter-American Court of Human Rights has said that the activities of public servants: ‘...leave the domain of the private sphere to enter the sphere of public debate. This threshold (…) is based on the public interest of the activities they perform.’ (Case [Nombre16] vs. [Nombre17], May 2, 2008, paragraph 86). Note that the highest continental body for human rights establishes that in the Americas public officials are more exposed to criticism, that this is inherent to the [role] they voluntarily accepted, and that the activities they perform are of public interest. Now then, it should be noted that these statements by the Inter-American Court have been produced in the context of cases involving high-ranking public servants, but not of the highest rank as is the case in this complaint, the […] […] These assessments are important because if we affirm with the Inter-American Court ‘…that in a democratic society public officials are more exposed to public scrutiny and criticism.’ (Case [Nombre24] vs. [Nombre17], idem), even greater is the exposure of the highest authority of the public function and, correspondingly, even greater should be the public criticism […]”* (Cf. folios 346 and 347. The transcription is literal). In this regard, it must be established that the *a quo* court neither fully nor correctly assesses the content of the resolution issued in the case *[Nombre16] vs. [Nombre17]*, since, referring to this precedent, the lower court judges determine that the scope of protection of the right to honor of whoever holds the […] should be differentiated with respect to other public officials who do not have such investiture or hierarchy. This, because the *a quo* court considered that in the *[Nombre16] case* a greater degree of tolerance is established for state servants and, consequently, on its own accord considers that the degree of tolerance must be greater according to the public office held, a conclusion reached by the criminal court despite the fact that such differentiation is not made in that precedent. Likewise, the lower court judges conclude *motu proprio* that whoever holds the […] is subject to a more restrictive specific parameter of protection of the right to honor with respect to other public officials, a differentiation they deemed necessary because the case *[Nombre16] vs. [Nombre17]* did not resolve the particular situation of whoever holds such a public office. Such interpretation and analysis of the precedent in question is not logical, and what it actually reveals is that the thesis of the *a quo* court in no way derives from what was stipulated by the Inter-American Court of Human Rights in the referenced case, but rather it is a purpose defined by the trial court based on its particular appreciation of what it deemed to be the ideology desired by the majority of Costa Ricans regarding the management of public offices, particularizing such popular desire for the case of the […].

**ii.-** In the same vein, it is important to note that, from a comprehensive analysis of what is established in the precedents of the Constitutional Chamber and the Third Chamber, as well as what is indicated by the Inter-American Court, it neither derives nor can be considered that all acts of the private life of those who hold a public office are part of or can be included in the greater scope of tolerance to which, regarding their right to honor, they are subject due to their status as public officials. This is because the greater margin of tolerance of the right to honor of state servants with respect to the exercise of freedom of expression concerns their actions that are of public interest and that are directly or at least indirectly related to the exercise of the activities inherent to the office, to which it must be added that it is necessary to analyze each specific case to define the proportionality of the margin of tolerance that should be protected in order to guarantee the validity of the fundamental rights to honor and freedom of expression, all of which was not duly appreciated by the judges in the judgment on the merits. Specifically, regarding the points previously analyzed, the ruling in the [Nombre32] case stipulates the following: *“[…] 51. Regarding these facts, the parties presented various arguments in which a conflict underlies between the right to freedom of expression on matters of public interest and the protection of the honor of public officials. The Court recognizes that both freedom of expression and the right to honor, enshrined in the Convention, are of the utmost importance. It is necessary to guarantee the exercise of both. In this sense, the prevalence of one in a specific case will depend on the weighing done through a proportionality test. The solution to the conflict that arises between certain rights requires the examination of each case, according to its characteristics and circumstances, to assess the existence and intensity of the elements on which said test is based (…) 53. Regarding the content of freedom of thought and expression, the Court has indicated that those under the protection of the Convention have the right to seek, receive, and impart ideas and information of all kinds, as well as the right to receive and know the information and ideas disseminated by others. It is for this reason that freedom of expression has an individual dimension and a social dimension: the latter requires, on the one hand, that no one be arbitrarily impaired or prevented from expressing their own thoughts and represents, therefore, a right of each individual; but it also implies, on the other hand, a collective right to receive any information and to know the expression of the thoughts of others. 54. However, freedom of expression is not an absolute right. Article 13.2 of the Convention, which prohibits prior censorship, also provides for the possibility of demanding subsequent liability for the abusive exercise of this right. These restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship. 55. For its part, Article 11 of the Convention establishes that everyone has the right to have their honor respected and their dignity recognized. This implies limits to the interferences of individuals and the State. Therefore, it is legitimate for anyone who considers their honor affected to resort to the judicial means that the State provides for its protection. 56. The need to protect the rights to honor and reputation, as well as other rights that could be affected by an abusive exercise of freedom of expression, requires the due observance of the limits set in this regard by the Convention itself. These must respond to a strict proportionality. 57. Given the importance of freedom of expression in a democratic society and the high responsibility this entails for those who professionally engage in social communication work, the State must not only minimize restrictions on the circulation of information but also balance, to the greatest extent possible, the participation of different types of information in public debate, promoting informational pluralism. Consequently, equity must govern the flow of information. In these terms, the protection of the human rights of those who face the power of the media and the attempt to ensure structural conditions that allow the equitable expression of ideas can be explained (…) 71. As established in paragraph 55 above, judges, like any other person, are protected by the safeguard provided by Article 11 of the Convention, which enshrines the right to honor. On the other hand, Article 13.2.a) of the Convention establishes that the ‘reputation of others’ can be grounds for establishing subsequent liability in the exercise of freedom of expression. Consequently, the protection of the honor and reputation of every person is a legitimate purpose in accordance with the Convention. Likewise, the criminal instrument is suitable because it serves the purpose of safeguarding, through the threat of punishment, the legal right that is to be protected, that is, it could be capable of contributing to the realization of said objective. However, the Court warns that this does not mean that, in the specific case being analyzed, the criminal path is necessary and proportional, as will be seen below (…) 79. On the other hand, within the framework of freedom of information, the Court considers that there is a duty for journalists to verify in a reasonable manner, although not necessarily exhaustively, the facts on which they base their opinions. That is, it is valid to demand fairness and diligence in the corroboration of sources and the search for information. This implies the right of people not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and contrast them with other relevant data (…) 82. The representatives agreed with the Commission and argued that ‘the facts about which Mr. [Nombre16] reported are of public interest,’ taking into account that the investigation referred ‘to a paradigmatic case of repression’ and that the ‘investigation carried out by the journalist is part of [the] review that Argentine society is undertaking and of the discussion about the causes for which the military government deployed its actions without having encountered obstacles in the [J]udicial [P]ower.’ They added that Mr. [Nombre16] ‘did not use any language that could be considered abusive’ nor did he use ‘excessive, much less outrageous, words’; that he referred to the judge ‘solely and exclusively on the occasion of his official actions and did not delve into any aspect of his life or personality unrelated to his work as a public official’; that in the sections of the book where factual statements are made ‘everything he stated conforms to reality’ and that ‘the paragraphs that formed part of the criminal trial’ contain ‘critical value judgments about the judicial power of that era,’ which is why ‘they are not susceptible to being true or false, nor can they justify, by themselves, a restriction on freedom of expression, as this concerns the right of every person to freely express opinions on matters of public interest and on the official actions of a judge in a matter of the greatest public relevance.’ 83. In this last step of the analysis, it is considered whether the restriction is strictly proportional, such that the sacrifice inherent to it is not exaggerated or disproportionate to the advantages obtained through such limitation. The Court has adopted this method by indicating that: for restrictions to be compatible with the Convention, they must be justified according to collective objectives that, by their importance, clearly preponderate over the social need for the full enjoyment of the right that Article 13 of the Convention guarantees and not limit more than is strictly necessary the right proclaimed in said article. That is, the restriction must be proportional to the interest that justifies it and closely adjusted to the achievement of that legitimate objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression. 84. For the case at hand, the restriction would have to achieve a significant satisfaction of the right to reputation without rendering null the right to free criticism against the actions of public officials. To carry out this weighing, one must analyze i) the degree of affectation of one of the rights at stake, determining whether the intensity of said affectation was serious, intermediate, or moderate; ii) the importance of satisfying the opposing right, and iii) whether the satisfaction of the latter justifies the restriction of the other. In some cases, the balance will tip towards freedom of expression and in others towards safeguarding the right to honor (…) 86. Regarding the right to honor, expressions concerning the suitability of a person for the performance of a public office or the acts carried out by public officials in the performance of their duties enjoy greater protection, such that democratic debate is fostered. The Court has indicated that in a democratic society public officials are more exposed to public scrutiny and criticism. This different threshold of protection is explained because they have voluntarily exposed themselves to more demanding scrutiny. Their activities leave the domain of the private sphere to enter the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they perform, as occurs when a judge investigates a massacre in the context of a military dictatorship, as happened in the present case […]”*.

From the foregoing, it is determined how the trial court conducted a biased and partial analysis of the precedent issued by the Inter-American Court in the case *[Nombre16] vs. [Nombre17]*, limiting its considerations to a minimal segment of that resolution, which it forcibly adjusted to the particular with which it analyzed the facts of the complaint, that is, the exclusive differentiation of the protection of the right to honor that the lower court judges defined as corresponding to whoever holds the […], which shows that they neither analyzed nor gave the legally corresponding value to the content of the resolution in the *[Nombre16]* case for the correct solution of the *sub judice*, which neither supports nor serves as a basis to justify in any way the manner in which they dismissed the violation of the right to honor of [Nombre6] [[Nombre3]] by virtue of the acts charged against [Nombre7], all of which implies a lack of legal reasoning in the judgment. By reason of all the foregoing, it is concluded that the jurisprudential precedents analyzed *supra* in this pronouncement are extremely important for the solution of this matter. **Likewise, it is established that these precedents were not fully and correctly appreciated by the criminal court in the judgment on the merits, and none of them supports the basis on which the *a quo* court almost absolutely limited the protection of the right to honor of whoever holds the […] in the relationship of said fundamental right with the exercise of freedom of expression and communication, which, although it must support a greater margin of tolerance in the case of public officials compared to the rest of the community, such limitation cannot imply the emptying of the fundamental right to honor and decorum of any person, including whoever exercises the public function regardless of the hierarchy held. Thus, there is no doubt that in a democratic society like the one instituted in the organic component of our Political Constitution, the exercise and effectiveness of freedom of expression must be guaranteed, giving it preference even over the protection of the right to honor of State servants. In this way, it is appropriate to protect a broad margin for denunciation, opinion, investigation, questioning, and strong and annoying criticism from the social collective, as well as from those who are directly actors and are linked to the development of freedom of the press and communication, with respect to the scrutiny and oversight of activities related to the exercise of the public function by those who are its mere depositaries, which allows maintaining democratic pluralism, overseeing the correct exercise of the public function, and avoiding undue restrictions on freedom of expression to prevent an environment conducive or fertile ground for the emergence of authoritarian political systems. Notwithstanding the foregoing, just as the Costa Rican Constitutional Chamber and Criminal Cassation Chamber, as well as the Inter-American Court of Human Rights, have already clearly and precisely indicated, freedom of expression and communication is not absolute, as it has restrictions that must be applied *a posteriori* to avoid prior censorship, but which imply liability for the violation of other fundamental rights by those who exercise it in an abusive and disproportionate manner, as occurs in the case of the constitutionally protected right to honor, even of public officials.** In this sense, it is important to highlight that none of the aforementioned jurisdictional entities has established any discrimination or differentiation regarding the right or scope of protection of the honor and decorum of public servants, by virtue of the specific office or hierarchy they hold, which only emanates from the position defined *ad hoc* by the trial court to analyze the merits of the event that is the subject of judgment in the present case. In this regard, it must be established that the trial court's position is not duly reasoned – from a legal perspective – since it follows a very particular way of reasoning and defining an ideological parameter to create a very subjective thesis regarding the scope of protection of the right to honor that they deem corresponds exclusively to whoever holds the […], a position that lacks an objective and rigorous legal and jurisprudential basis. In this sense, throughout the development of this pronouncement, it has been demonstrated that the *a quo* court neither rigorously applied nor sufficiently analyzed the legal framework regulating the subject under discussion, nor did it fully and sufficiently assess the jurisprudential precedents it cites in its ruling, which have been previously analyzed in this resolution.

**b.3. Social networks and their importance in the exercise of freedom of expression and communication, regarding the protection of the right to honor.** In the present case, the publication complained of as defamatory by [Nombre [Nombre10]] against [Nombre7] was carried out on one of the most modern and, without a doubt, most effective means of communication, that is, on an Internet social network, specifically, “Facebook”. In order to analyze and define the criminal-legal importance of the existence of such socio-virtual groups with respect to the protection of the right to honor, it must be noted that one of the main characteristics of social networks in our contemporary reality is the amplifying effect of the spectrum of dissemination of ideas, comments, photographs, videos, news, texts, etc., that are shared and published by any of the members that make up the “virtual community”, towards the entirety of it, or to a group of its members that make up their environment or virtual group on the social network. In the specific case of “Facebook”, for example, the virtual community is composed of all those who have an account or profile, which allows them to have their own page – or profile – on the Internet and within the social network, thereby being part of that community, and in that way they can be in contact with all the other members of “Facebook” and share all the information and content of their profile. Likewise, whoever has a Facebook account can restrict access to their profile to a certain number of users, so that they share communication with that group, just as they can limit access to a part of the content of their profile, for example their “wall”, photos, some publications, friends, etc. Similarly, the user can limit the dissemination of what they publish on their “Facebook” page, either to a group of members with whom they are virtually linked, or what is known as the “group of friends” or even to some of those who belong to that group or another of which they are a part. Thus, the power of dissemination and communication that “Facebook” has is clear, as it is possible to share information of all kinds “online” or communicate via “chats” or conversations at any time, and anywhere in the world where any of the members of the virtual community may be, whether at the national level or even globally.

The foregoing reveals the great importance that social networks have in the formation of public opinion today, through the expression of ideas, thoughts, and criticisms, as well as in the dissemination of information of any kind, to the point that traditional mass media, such as radio, television, and the press, feed on the content and participate in the flow of information circulating on the Internet through social networks. Hence the importance that such forms of communication currently have for the protection of the right to honor with respect to the exercise of freedom of expression. Another extremely important characteristic of social networks, not only "Facebook" but also a significant number of other such groups existing in cyberspace, such as "Twitter", "Instagram", "LinkedIn", etc., is the ease of access for the majority of the social conglomerate to the various virtual communities that exist and develop on the Internet and, consequently, to all the information and the wide range of content transmitted, disclosed, shared, or disseminated by the members of such social networks—for example, through the publication of "posts," photographs, videos, comments, etc.—with the result that nowadays the different events, points of view, news information—among others—of social, political, economic, scientific, etc., reality are published and reproduced practically "online" or in real time. Thus, any event can become very important on the network, and its dissemination will occur in a very short time and among a large number of people who have access to or are part of the virtual environment. In this last aspect, one must keep in mind the great advances of current technology, which has produced electronic devices that practically allow a vast number of people to be "online"—or en línea—at all times, such as through "smartphones"—teléfonos inteligentes—, "tablets"—tabletas electrónicas—, portable personal computers, etc., devices that are becoming more economically accessible every day for the vast majority of the population of our country and many countries around the world. In the present case, the study of the body of evidence produced in the trial shows that the publication made by the defendant [Name7] generated a large number of comments and assessments regarding its content by a large number of "Facebook" users, participations within which there is a significant number expressing direct offenses against the [Name6] [[Name3]], who was at that time the […] (In this regard, see folios 23 to 37 of the main file), a situation that demonstrates the supreme impact and significance that social networks have in the dissemination of ideas and the formation of public opinion today, a dissemination of information that is even faster than what traditional media achieve nowadays. That being the case, it is clear that conduct carried out on the Internet has great criminal-legal relevance today, and for this reason, it has been necessary to create specific legislation on the matter, such as the framework of Computer Crimes introduced into the Criminal Code through Law No. 9048 of July 10, 2012. Likewise, there are norms in ordinary criminal legislation that regulate and are applicable to conduct carried out through computer media, as occurs in the case of crimes against honor, defined in articles 145, 146, and 147 of the Criminal Code. Based on all the foregoing, it is concluded that in the present case, it is feasible and necessary to analyze in depth and with the rigor demanded by the duty of legal reasoning of a criminal judgment, whether the publication made by the defendant [Name7] on his public "Facebook" profile caused injury to the honor of the [Name6] [[Name3]], for which it is required and important to appreciate the particularities that, according to what was previously stated, social networks have in our current reality, as well as how the aspects concerning the relationship between the right to honor of public officials *versus* the exercise of freedom of expression must be considered, in a democratic society, and in accordance with the limits that this latter fundamental right has as a result of its abusive and disproportionate exercise, as considered throughout this ruling. **C.- Specific defects of the appealed judgment that constitute the defect of lack of reasoning.** In the preceding sections of this ruling and based on the comprehensive examination of the judgment by this chamber of appeals, reasons of fact and law have been established and set forth that demonstrate and confirm that the judgment on the merits breaches the duty of legal reasoning required for its validity and efficacy, in accordance with the provisions of articles 39 and 41 of the Political Constitution, as well as what is regulated in articles 1, 142, 184, and 363 of the Criminal Procedure Code. Thus, and as a complement to what was previously stated, it is appropriate to specify certain aspects of the judgment that likewise reveal its erroneous legal reasoning, as claimed by Attorney [Name15]. Thus, the following is noted: **i.-** While it is true that public officials have a higher level of tolerance with respect to the exercise of freedom of expression regarding the protection of their right to honor, because they voluntarily subjected themselves to greater public scrutiny, which derives from the principles of transparency and accountability, this particularity is not coupled with the absolute emptying of the right to honor and decorum that must be protected for those who exercise state functions, and the definition made in that sense by the court of merit leads, in practical terms, to the emptying of said fundamental right, since practically no conduct could affect the right to honor of whoever is […]. Such aspects were not duly assessed by the *a quo*, since it set aside any objective consideration regarding the constitutional, conventional, and legal norms that are linked to the substantive issue, as well as omitted to comprehensively and objectively assess the jurisprudential precedents that, regarding the point under litigation, were previously issued by the Costa Rican Constitutional Chamber and the Chamber of Criminal Cassation, and also by the Inter-American Court of Human Rights. This is because the judges of the lower court limited themselves to supporting the [reasoning] on which they based their decision to acquit the defendant [Name12], based on the definition and assessment of the ideology that they considered corresponds to the majority of Costa Rican society regarding the issue under discussion, reasoning from which the court of merit set an *ad* hoc and exclusive [parameter] to delimit the scope of protection of honor that it deemed proper for whoever holds the position of […]. Such a position is subjective and, in accordance with the principle of legality, exceeds the proper functions of jurisdictional activity, namely, interpreting and applying the law, since it is not appropriate for a criminal court to define *motu proprio* an ideology that, according to its particular assessment, corresponds to the social majorities, and in that way, assess ideological assumptions to define parameters for the protection of a fundamental and constitutionally recognized right such as the honor of state servants, and what is even more sensitive and inappropriate, to establish *ad hoc* and exclusive criteria for the protection of such right of the citizen who holds the position of […], which, far from guaranteeing the principle of equality established in article 33 of the Political Constitution, implies discriminatory treatment and the lack of protection of the essence of the referenced human right by virtue of a particular situation that does not justify its absolute suppression. Thus, the criminal court does not assess the normative framework that is linked to and that regulates the substantive issue regarding the guarantee of freedom of expression and communication with respect to the protection of the right to honor and decorum of those who exercise public functions, which demonstrates the weakness of the reasoning on which the *a quo* bases the decision under challenge. Likewise, the lower court judges do not set forth sufficient legal and objective reasons that justify their decision not to follow the jurisprudential criteria previously rendered on the manner in which the relationship between the right to honor *versus* the exercise of freedom of expression in the case of public officials must be legally addressed, with the result that they refuse to carry out a comprehensive analysis of the jurisprudential precedents that they only cite and reproduce in a biased manner in their judgment, and instead, limit their substantive reasoning to the consideration of a subjective thesis, which, according to their particular assessment, creates a jurisprudential line regarding the scope of protection that exclusively corresponds to whoever holds the position of […], an analysis that is legally incorrect. This is because it is not appropriate to define the spheres of protection of a fundamental right based on ideological assumptions that, even though they could coincide with the position of the majorities, could not coincide with the will of the constituent power, an aspect that is not proper to elucidate through diffuse control of constitutionality, but only through the direct and concentrated control that corresponds to the Constitutional Chamber, a situation that demonstrates the overstepping of its powers that the *a quo* carried out to establish the [reasoning] on which it fixed its decision on the merits. **ii.-** As has been extensively analyzed in this ruling, it is not possible to achieve adequate protection of freedom of expression in a democratic society if limitations are established that operate as prior censorship and that discourage the exercise of such fundamental right, which is characteristic of authoritarian regimes that do not correspond to the scheme contemplated by our Political Constitution. Thus, it is not appropriate to generically and previously demand that what will be published must be true or previously verified—proven—, since such a position implies establishing limitations that can result in the imposition of prior censorship of opinions, questions, and criticisms of situations of public interest, as would occur with the acts performed by state officials in the exercise of or in relation to their powers, a scenario that is undoubtedly of public interest and is subject to greater control and oversight by all administered persons, which, as indicated, derives from the principles of transparency and accountability of state servants. Notwithstanding the foregoing, as established by the norms set forth *supra*, and stipulated in the jurisprudential precedents that have previously been analyzed, it is indeed appropriate, without violating freedom of expression and communication, for *a posteriori* controls to be applied or for subsequent responsibilities to be demanded from those who exercise such fundamental rights abusively and disproportionately. Thus, in each specific case, it must be established whether the exercise of freedom of expression is not a screen or curtain used to disseminate false, speculative, or insidious facts that have the real objective of affecting the honor of a public official, which is a scenario that is not covered by the scope of protection or sphere of protection corresponding to freedom of expression and communication, even when referring to whoever holds a public [position] regardless of their hierarchy. This is because neither the Constitutional Chamber, the Third Chamber, nor the Inter-American Court of Human Rights establishes any difference regarding the margin of protection of the right to honor corresponding to those who exercise public functions, whether their [role] is by popular election or of any other type, as noted *supra*. That being the case, the [reasoning] on which the *a quo* refused to hear the arguments and theses of the defense of the [Name6] [Name443 [Name10]] is not appropriate, to the effect that in the *subjudice* it is necessary to define whether the content of the publication made by [Name7] is false and speculative, and that it was disseminated with knowledge of its suitability to affect the honor of whoever held the position of […]. In this regard, the lower court judges limited themselves to establishing that because it involved the [[Name3]], it was not necessary to establish whether what was disseminated by the defendant is true or false, since the latter simply expressed their personal idea, opinion, or thought about the "facts" they published on their "Facebook" profile. That being the case, it is determined that the reasoning of the *a quo* is unfounded, since it set aside the scope of protection of the right to honor corresponding to public officials, even as established by our Constitutional Chamber, whose jurisprudence is binding *"erga omnes"*. Similarly, it omitted to carry out a legal analysis or rigorous assessment regarding the content of the "piece" disseminated on the "Facebook" profile of [Name12], limiting its reasoning, in this sense, to indicating that it was not necessary to establish whether such content was true or not, that it is an opinion, and opinions do not need to be proven, which is incorrect according to what was stated *supra* in this regard. In this sense, it is worth adding that the *a quo* also does not set forth the reasoning that legally allows it to qualify the publication in question as "a mere or simple opinion," despite the fact that it starts from the affirmation of a series of situations that, in principle, is closer to an imputation than an opinion about "the facts" that are part of the publication. Added to the foregoing is that the *a quo* does not establish in the reasoning of the judgment on the merits what evidence it assessed and in what way it managed to grant the character of "facts"—as it establishes in its reasoning—to the events cited by the defendant in their publication, and regarding which it limited itself to indicating that they came to their knowledge, and based on such situation, they gave their opinion and disseminated it on their public "Facebook" profile. In the same sense, the appealed judgment does not establish the aspects that the *a quo* assessed to establish with certainty that the "facts" disseminated and criticized by the defendant [Name12] are of public interest by virtue of being related to the activity—verifiable or objectively presumable—of the public functions of the [Name6] [[Name3]] in the exercise of their […]. Like […]. It follows that the court of merit did not adequately assess the point under analysis, in order to define whether the "facts" brought to the light of public opinion by [Name12] are evidently false or merely speculative, with the purpose of establishing their legal suitability to be the object of criticism, by virtue of corresponding to the exercise of the public function of the [Name6], or failing that, whether the exposition of the content of the publication in question, without attending to or disregarding the quality or truth of the information disseminated, constitutes in itself an action that pursues and demonstrates a defamatory purpose to the detriment of the [Name6] [[Name3]], who vehemently denied in their statement in the debate that the events aired by [Name12] were true, an aspect that, it is reiterated, the *a quo* did not assess with the depth and rigor legally required. **iii.-** In relation to the foregoing, the comprehensive examination of the judgment reveals that the criminal court does not define or substantiate with precision how it concludes with certainty that in the *subjudice* we are in the presence of simple thoughts, ideas, or questions disseminated by the defendant [Name12], and not in the presence of a nuanced offense to the right to honor of [[Name3]]. Thus, the *a quo* did not assess whether through the content and the manner in which the exposition of the unsubstantiated "facts" in question was presented, under the appearance and affirmation of being true or certain, and written in a way that could lead to the conclusion that there was an influence peddling or incorrect conduct by the [Name6] to enrich themselves by virtue of the exercise of the public function, we could be in the presence of a piece suitable, adequate, and sufficient to affect the right to honor of the [Name6]. This situation arises because the court of merit analyzed the events complained of solely and exclusively based on its *ad hoc* definition to establish the scope of protection of the right to honor that the *a quo* deemed corresponds to whoever exercises the position of […], a criterion that, in accordance with what was extensively set forth throughout this ruling, is not duly reasoned since it does not conform to the interpretation and application of the norms analyzed *supra* that regulate the protection owed to the right to honor *versus* the protection and exercise of freedom of expression in the case of those who exercise public functions. **iv.-** The reasoning of a criminal judgment cannot lie in the definition of an ideology derived from what a body of the ordinary criminal jurisdiction considers to be the position of "the majorities," but must be circumscribed to the application and interpretation of the law, as well as to the assessment of binding jurisprudential criteria, those emanating from higher judicial authorities that, without limiting the principle of judicial independence, are applicable to the specific case. In this sense, it is appropriate to add that the human nature of whoever holds the position of judge of the Republic cannot be disregarded, nor their relationship with the social environment, which entails that they have a particular ideology that could indirectly have some weight when interpreting and applying the legal norm, however, it is not acceptable for the support of a judicial decision to have a direct and manifestly ideological foundation, derived from a particular perception of social reality. In the specific case, this latter situation is what actually defines the scope of the protection of the right to honor that the lower court judges specified as corresponding to whoever holds the position of […], by considering that such legal right can only be affected when the offense directly or expressly attributes the commission of a crime to whoever occupies such position. A public position.

v.- The trial court conducted a segmented rather than a comprehensive analysis of the entirety of the text reported as defamatory, an approach that does not correspond to what the Third Chamber has established should proceed in this regard as set forth supra, since in each specific case, not only the content of the disseminated information must be assessed, but also the manner in which it is disseminated—wording, vocabulary, placement of photographs, etc.—must be evaluated to determine whether or not the publication is suitable for achieving a defamatory result. Thus, the analysis of the set of proven facts in the judgment on the merits (cf. folios 323 and 324 of the main file) allows establishing that the adjudicators considered it proven that the content of the publication in question presents as true that [Name6] acquired a farm valued at two and a half million dollars, and that she is the owner of a wind generation company, and that based on such assertions the defendant [Name12] makes a comparison with the case of a person—a well-known soccer player—who at that time was under criminal investigation, regarding whom he indicates that by “discovering lukewarm water” and with five days of study at INCAE he became a millionaire and owner of yachts, airplanes, and a life of luxury. Likewise, the defendant expressly states that “[…] I compare the wealth of the Lady with this player, whom we applaud for their entrepreneurship and business vision, that ease of paying millions of dollars, without us mortals finding an explanation in our daily lives where money takes a lifetime of effort and work to earn (…) these instant riches amaze us and we find no logical explanations. Now, will it be that they read the Book of Secrets and discovered the short path to wealth. In any case, we congratulate [Name10] who is preparing her exit from public office as a millionaire and possessor of material wealth that for any citizen takes a lifetime and for public officials and soccer players seems like just five days of kicking a ball […]” (cf. folio 324, the transcription is literal). From the foregoing it follows that, in the present case, it is necessary to analyze in a complete and not segmented manner, as the trial court did, the content and the form of the publication disseminated by [Name12], in order to define whether it was disclosed in the pure exercise of the defendant's right to freedom of expression, in an ironic, heavy-handed, and annoying manner, or if, on the contrary, the text disseminated on the “Facebook” profile of [Name12] corresponds to the abusive and disproportionate exercise of such fundamental right. This analysis was not conducted by the a quo, because it did not integrally assess the content of the publication in question, and in turn, because it analyzed the text in question solely from the perspective that only direct offenses and the imputation of criminal acts as the only possible interpretation of a publication can violate the right to honor of a person who exercises […]. Added to the foregoing, the trial court considered that [Name6] deemed her honor affected based on subjective assessments she derived from “the story” published by [Name12], which the a quo considered are not the only ones possible to derive from it—without providing further grounds in this sense, as has already been noted—all of which it assessed to conclude that the facts reported in the present case are not defamatory. Based on all the foregoing, it is concluded that the factual, cognitive, and legal analysis conducted in the judgment on the merits does not conform to the normative precepts established in articles 39 and 41 of the Political Constitution, nor to what is stipulated in articles 1, 142, 184 and 363 of the Code of Criminal Procedure, which implies the defect of erroneous legal reasoning of the ruling challenged by the representative of [Name6] [[Name3]]. Consequently, the appeal filed by attorney [Name5] is granted, and the appealed ruling is annulled in its entirety. The referral of the case back to the trial court of origin is ordered so that, with a different composition, it resolves what is legally appropriate.

**POR TANTO:** The evidence offered at the oral hearing by the representative of the defendant is rejected. The appeal of the criminal judgment filed by attorney [Name5] is granted, by virtue of which the challenged ruling and the trial that preceded it are annulled in their entirety, and a new trial is ordered before the same criminal court with a different composition, so that it proceeds to resolve what is legally appropriate.

NOTIFY.- Edwin Esteban Jiménez González Mario Alberto Porras Villalta [Nombre4] Judges of the Criminal Sentence Appeals Tribunal File: 13-000052-0016-PE (14) Defendant: [Nombre33]. Victim: [[Nombre3]] Offense: Defamation Nombre22

PODER JUDICIAL TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL Resolución: [Telf1] TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL . Segundo Circuito Judicial de San José. Goicoechea, a las dieciséis horas cinco minutos del trece de febrero de dos mil quince.- RECURSO DE APELACIÓN interpuesto en la presente causa seguida contra [Nombre1] , fecha de nacimiento el 10 de enero de 1958, sexo hombre, situación sentimental casado con [Nombre2] , lugar de residencia San Antonio de Belén Costa Rica, ciudad de origen Zarcero, de empleo señala Facultad de Derecho de la Universidad de Nombre2042 y Baldí Hot Springs Resort & Spa, por el delito de DIFAMACIÓN, en perjuicio de [[Nombre3] ]. Intervienen en la decisión del recurso, el juez Edwin Esteban Jiménez González, y los co-jueces Mario Alberto Porras Villalta y [Nombre4] . Se apersonó en esta sede el licenciado [Nombre5] , en calidad de apoderado especial de la parte [Nombre6] y actora civil.

RESULTANDO:

I.- Que mediante sentencia número 625-2014 , de las ocho horas treinta minutos, del veintiuno de julio de dos mil catorce, el Tribunal Penal del Primer Circuito Judicial de San José, resolvió: "POR TANTO: De conformidad con lo expuesto, artículos 28, 29 y 41 de la Constitución Política; 1, 8 y 11 de la Declaración Universal de Derechos Humanos; v y xviii de la Declaración Americana de los Derechos y Deberes del Hombre, 1,13,y 14 de la Convención Americana de Derechos Humanos; 19 del Pacto Internacional de Derecho Civiles y Políticos, 30, 31, 145, 146, 147, 149 y 151 del Código Penal; 1 a 15, 34 a 41, 72 a 74, 141, 142, 143, 265 a 270, 360 a 368, 103 del Código Procesal Penal, normas vigentes sobre reparación civil del código penal de 1941, 1048 del Código Civil; 221 a 234 del Código Procesal Civil, por unanimidad de los votos emitidos, se resuelve: Se absuelve a [Nombre7] de un delito de DIFAMACION en perjuicio de [[Nombre3] ]. Se declara sin lugar la acción civil resarcitoria incoada por [[Nombre3] ] CONTRA [Nombre8] . Se resuelve sin especial condenatoria en costas. Son los gastos del proceso a Nombre01 del estado.- (sic.,)" II.- Que contra el anterior pronunciamiento interpuso recurso de apelación el licenciado [Nombre5] , en calidad de apoderado especial de la parte [Nombre6] y actora civil.

III.- Que verificada la deliberación respectiva de conformidad con lo dispuesto por el artículo 465 del Código de Procesal Penal, el Tribunal se planteó las cuestiones formuladas en el recurso de apelación.

IV.- Que en los procedimientos se han observado las prescripciones legales pertinentes.

Redacta el Juez de apelación de sentencia penal [Nombre9] ; y,

CONSIDERANDO:

I.- En el trámite del presente recurso de apelación de sentencia penal se llevó a cabo una audiencia oral, sea a las 9:30 horas del 6 de noviembre de 2014. El Tribunal de Apelación de Sentencia Penal del II Circuito Judicial de San José estuvo integrado por la jueza [Nombre4] , y por los jueces Edwin Esteban Jiménez González y Mario Alberto Porras Villalta. En la realización de la misma, la [Nombre6] y actora civil [Nombre443 [Nombre10]] estuvo representada por el licenciado [Nombre5] , y el querellado y demandado civil, [Nombre11] [Nombre12] , se representó por el doctor [Nombre13] . Tales profesionales en derecho expusieron de manera oral los argumentos que estimaron pertinentes para la defensa de los intereses de su representada y representado (cfr. folio 452). Asimismo, en dicho acto procesal se ofrecieron como prueba varios documentos por parte del doctor [Nombre14] , sean éstos los visibles de folio 453 a 461 del sumario, siendo que la decisión en torno a tal ofrecimiento se difirió para el dictado de la presente resolución. Las actuaciones específicas realizadas en la audiencia se registraron digitalmente, y son apreciadas por esta cámara de alzada para la resolución del presente recurso de apelación de sentencia penal.

II.- a) Mediante escrito presentado en fecha 13 de agosto de 2014, el licenciado [Nombre5] (cfr. folios 379 a 416), en calidad de apoderado especial de la [Nombre6] y actora civil, [[Nombre3] ], interpone recurso de apelación en contra de la sentencia N° 625-2014 dictada por el Tribunal Penal del I Circuito Judicial de San José, a las 8:30 horas del 21 de julio de 2014, en razón de que en la misma se absolvió de toda pena y responsabilidad a [Nombre7] por el delito de difamación que se querelló en su contra como cometido en daño de [[Nombre3] ], así como se declaró sin lugar la acción civil resarcitoria incoada en el presente proceso penal. Fundamenta su impugnación en el contenido normativo del artículo 8.2h) de la Convención Americana sobre Derechos Humanos, Nombre02 como en lo estipulado en los numerales 448 y 458 a 466 del Código Procesal Penal. Del estudio del sumario se colige que dicho recurso se presentó en tiempo, conforme al plazo de ley, y de acuerdo a los presupuestos que se requieren para que la impugnación posibilite el adecuado y correcto conocimiento de las inconformidades planteadas por el recurrente en orden al examen integral de la sentencia impugnada, tal y como lo establece el artículo 8.2h de la Convención Americana sobre Derechos Humanos, y se dispone en los artículos 458, 459, 460 y 462 del Código Procesal Penal. b) En libelo visible de folios 421 a 437 del legajo principal, el doctor [Nombre13] en su calidad de representante de la parte querellada y demandada civil, contestó la audiencia que se le confirió en cuanto al recurso de apelación de sentencia penal incoado por el licenciado [Nombre5] . En dicho escrito, el abogado [Nombre14] lleva a cabo la exposición de los argumentos con base en los que sustenta su petición de que se declare sin lugar la impugnación planteada en el subjudice, los que se aprecian a efecto de dictar el presente pronunciamiento.

III.- En cuanto a la prueba ofrecida por el doctor [Nombre13] en la audiencia oral realizada en el trámite del presente recurso de apelación. En la audiencia oral realizada en el trámite del presente asunto, el doctor [Nombre14] ofreció la siguiente prueba: i.- fotocopia certificada de la versión digital de una revista en la que se hace mención a la [Nombre6] y actora civil [[Nombre3] ] (folios 453 y 454); ii.- Seis fotocopias certificadas obtenidas de la dirección electrónica http//es.wikipedia.org/wiki/Forbes (folios 455 a 461). Se procede a resolver la petición y ofrecimiento de prueba que planteó el representante de la parte querellada y demandada civil, para lo cual deben considerarse los siguientes aspectos: a.- En la ley penal adjetiva que regula la fase de apelación de sentencia penal, no se contempla norma alguna que establezca la posibilidad de ofrecer, ni que sea procedente, aceptar prueba para mejor resolver o prueba nueva de forma absoluta e ilimitada en alzada, tal y como se puede dar en otras etapas del proceso penal. b.- La actividad probatoria en fase de apelación de sentencia penal está directamente vinculada a la tutela efectiva del derecho de recurrir del fallo penal, por lo que el legislador estableció que la prueba que se puede acoger en el trámite de una impugnación de dicha especie, Nombre03 definirse en orden a garantizar el examen integral del fallo por parte del órgano jurisdiccional de alzada. Lo anterior, por cuanto lo que se procura con dicho medio impugnativo es el amplio control y el examen comprensivo del fallo recurrido, Nombre02 como del juicio que le precedió, de modo que la actividad probatoria en apelación Nombre03 desarrollarse de manera cautelosa y en estricto apego a los alcances propios del derecho al recurso, a efecto de no desnaturalizar ni desconocer la importancia y relevancia jurídico-procesal del juicio oral y público. De ahí que la fase de apelación, con respecto al ofrecimiento y aceptación de prueba, Nombre03 ser afín y respetuosa del esquema de juicio oral y público de instancia única que rige en nuestro sistema procesal penal. Por lo anterior, lo que corresponde apreciar en cada caso es si la prueba ofrecida y aceptada es útil y pertinente para revisar y controlar de manera amplia e integral la sentencia penal dictada por el tribunal penal, Nombre02 como del juicio que le antecedió. d.- Es en virtud de lo anterior que en el artículo 464 del Código Procesal Penal, cuya normativa regula la actividad probatoria en fase de apelación, se establece que lo que procede en dicha sede procesal es el examen de los registros del debate y, excepcionalmente, la reproducción de algún medio probatorio en virtud de las debilidades de los registros o, en su caso, la recepción de prueba nueva que sea útil y pertinente para la solución del recurso en orden al examen integral del fallo. Bajo tales criterios, el legislador reguló que es procedente prueba nueva en fase de apelación, sólo en los siguientes supuestos: i.- la prueba ofrecida en su oportunidad pero que haya sido arbitrariamente rechazada; ii.- la prueba que aparezca como novedosa con posterioridad a la sentencia y; iii.- aquella prueba que, aunque existiendo previamente, no estuvo en posibilidad efectiva de ser ofrecida por el interesado en su momento. e.- De igual forma, en aras de garantizar que el tribunal de alzada dispusiera de un instrumento jurídico-procesal adecuado y suficiente para lograr el examen integral del fallo, como producto del recurso de apelación de sentencia, el legislador estableció en el artículo 462 párrafo 3) del Código Procesal Penal que el tribunal puede ordenar traer de oficio prueba que estime necesaria, útil y pertinente para la comprobación de los agravios acusados. Nombre02 las cosas, se concluye que la documentación antes descrita no se engloba en los presupuestos de prueba nueva regulados para el trámite y resolución del recurso de apelación de sentencia penal, Nombre02 como tampoco tales probanzas son útiles y pertinentes para resolver los aspectos discutidos en el subjudice, ya que la información que se desprende de las impresiones supra descritas tiene que ver con ámbitos de la vida personal de la [Nombre6] y actora civil [[Nombre3] ] que no están vinculados en modo alguno con los hechos que son objeto de controversia en el sub litem. Por lo anterior, se rechaza la prueba ofrecida por el doctor [Nombre14] en la audiencia oral realizada en la presente causa.

IV.- En virtud de la relación existente entre los tres motivos del recurso de apelación interpuesto por el licenciado [Nombre5] , los mismos se analizan y se resuelven de modo conjunto conforme de seguido se expone. PRIMER MOTIVO: El licenciado [Nombre15] alega falta de fundamentación respecto de la teoría elaborada por el tribunal de juicio sobre la aplicación del delito difamación cuando el afectado es un [...], según la cual, sólo se da tal ilicitud cuando las afirmaciones sean directas, expresas, inequívocas e injuriosas. Señala que el punto objeto de reclamo es esencial para la solución del caso, ya que los juzgadores de instancia elaboraron, oficiosamente, una teoría sobre la aplicación del delito de difamación para el caso específico en que la víctima de la acción delictiva sea un [...]. En tal sentido, aduce que el a quo exige que las expresiones sean “expresamente” injuriosas, con lo cual se violenta el contenido normativo del artículo 142 del Código Procesal Penal, ya que tal afirmación no se sustenta en una fundamentación clara y precisa, Nombre02 como tampoco respeta la estricta aplicación de las reglas de la sana crítica sobre elementos probatorios de valor decisivo, todo lo cual implica a su vez, la violación del artículo 363 de dicho cuerpo procesal. Señala el recurrente que a partir del argumento antes expuesto, los juzgadores llevaron a cabo la segmentación de cada uno de los párrafos de la publicación que considera difamatoria, siendo que de esta forma concluyen que “[…] en cuanto a la afirmación sobre que la [Nombre [Nombre10]] adquirió una finca por la suma de dos millones y medio de dólares, no contiene ninguna ofensa, ni la atribución inequívoca de un delito. Señalan los jueces que esa frase no señala expresamente que la adquisición sea producto de la comisión de un delito. Aquí los jueces indican que es una opinión particular de la perjudicada afirmar que se lesionó su honor porque con sus ingresos no podía comprar una propiedad de ese valor. Insisten los jueces en que el querellado no dice expresamente que la compra fue producto de un delito. Afirman los jueces que esa es tan solo una posibilidad y acto seguido, sin indicar en qué consisten ni de dónde lo extraen, se señala en el fallo que concurre multiplicidad de inferencias. Posteriormente señalan que entre otras hipótesis como la adquisición por fuentes lícitas como herencia, donación o lotería. Siguiendo con el análisis que hacen los jueces del texto querellado como difamatorio, en lo que se refiere a la afirmación del imputado en cuanto a que la [Nombre [Nombre10]] es dueña de una empresa de generación eólica, tampoco hay una frase que lesione el honor. Dicen los redactores del fallo que se trata nuevamente de una apreciación del [Nombre6], sin antes haber ponderado la declaración de la [Nombre6] y la del imputado. En igual sentido determinan que no hubo afectación directa al honor en cuanto al denunciado enriquecimiento ilegal y sobrevenido al final del mandato en el patrimonio de la [Nombre6] […]” (cfr. folios 381 y 382). Al respecto, el recurrente acusa que los juzgadores no consideraron ni dieron valor alguno, en el fundamento de su decisión, a la falsedad de las imputaciones, defecto lógico sobre el que indica que plantea un reparo independiente. Además, señala que es claro que el a quo hace una lectura de cada hecho sobre la base de la teoría que elaboró en el fallo, descartando que la publicación de marras se trate de una ofensa directa en contra de su representada. Indica que en la sentencia de mérito se invoca la resolución dictada por la Corte Interamericana de Derechos Humanos en el caso [Nombre16] vs. [Nombre17] en cuanto al margen de tolerancia que le corresponde al [...], sin embargo, alega que el a quo no llevó a cabo mayor consideración en cuanto a lo que argumentó en el debate con respecto los alcances de ese umbral de tolerancia. En tal sentido, indica que en el fallo se estableció que, quien ocupe dicho Nombre01 público, sólo podrá accionar penalmente cuando se le haya imputado una ofensa directa, afirmación que carece de fundamento. Agrega que tampoco se sustentó el Nombre04 de que la figura del [...] Nombre05 obligada a soportar todas la denuncias públicas, las críticas y las quejas que se presenten en contra de su gestión, siendo que el a quo no expuso cuáles fueron las consideraciones que tomó en cuenta para establecer una diferencia entre la tutela del derecho al honor de las personas comunes con respecto a quien ostenta el Nombre01 público antes referido. Concluye el impugnante que la postura de exigir una ofensa directa para que un [...] Nombre06 acceder a la tutela penal de su derecho al honor, es meramente una opinión subjetiva que no tiene referente dogmático o jurisprudencial alguno, a lo que Nombre03 sumarse que tal Nombre04 esbozado por el a quo carece del razonamiento lógico y suficiente. En tal sentido el recurrente acusa que el tribunal penal en su fallo, hace referencia al pronunciamiento dictado en el caso [Nombre18] vs. Nombre2042 por la Corte Interamericana de Derechos Humanos, sin embargo, omite especificar que la cita que reproduce corresponde al voto concurrente del juez [Nombre19] , el que no equivale al Nombre04 del voto de mayoría de dicho órgano jurisdiccional. Añade que en la sentencia de marras se citan los párrafos 127, 128 y 129 de la resolución de la Corte Interamericana de referencia, siendo que de su contenido no se colige el requisito de ofensa directa para tutelar el derecho al honor de un [...], criterio que califica de arbitrario “[…] no solo porque en su respaldo no refiere argumentaciones autónomas ni suficientes que la validen, sino porque, en cuanto a sus efectos, el razonamiento insustantivado del Tribunal de Instancia, produce un vaciamiento del contenido y la tutela del honor del [...]. Esto reviste especial importancia en el caso concreto porque los jueces omiten, además, pronunciamiento sobre la falsedad o no de las imputaciones que realiza el querellado [Nombre20] a la perjudicada [Nombre [Nombre10]], cuando entonces ostentaba el Nombre01 de […] […]” (Nombre07. folios 383 y 384). Solicita que se declare con lugar el presente motivo de apelación, se anule la sentencia y el debate que le precedió, y reponer ambos ante una integración diferente del tribunal de mérito. SEGUNDO MOTIVO. El recurrente alega la falta de fundamentación de la sentencia con respecto a los argumentos que permiten excluir, en el caso concreto, la concurrencia del ejercicio del derecho a la crítica. Esto por cuanto considera que el querellado [Nombre12] se basó en la afirmación de falsedades que decidió publicar. Acusa falta de fundamentación, por haber considerado el a quo que en la especie el querellado actuó en el ejercicio de un derecho a la crítica, sin tomar en cuenta ni descartar los alegatos planteados en tal sentido por la parte [Nombre6] y actora civil en el juicio, argumentos según los cuales se establece que en este caso no existió tal derecho a la crítica, toda vez que el justiciable actuó con pleno conocimiento de la falsedad de la especie que difundió. Agrega que el tribunal de instancia ignoró sendas resoluciones de la Corte Interamericana de Derechos Humanos, de la Sala Constitucional y la Sala Tercera de la Corte Suprema de Justicia de nuestro país, Nombre02 como de los Tribunales de Apelación de Sentencia Penal costarricenses, cuyo contenido excluye el ejercicio del derecho a la libertad de expresión y a la crítica de funcionarios públicos, cuando la misma se sustenta en afirmaciones que son falsas, con lo cual se vulnera la normativa del artículo 142 en relación con la dispuesta en el artículo 184, ambos del Código Procesal Penal, en cuanto al deber de fundamentación de la sentencia. El licenciado [Nombre15] establece que, uno de los argumentos centrales sobre los cuales gravitó la “Teoría del Caso” de la parte [Nombre6] y actora civil, consistió en exponer al tribunal de juicio las razones por las que en la especie no concurren los presupuestos que justifican la aplicación de la figura del ejercicio legítimo de un derecho, lo cual destaca que expuso desde el inicio del contradictorio, con el fin de que el a quo prestara atención a tal aspecto, argumento que, señala, de igual forma reiteró y desarrolló con amplitud en la fase de conclusiones del debate. Al respecto, el impugnante señala que en el contradictorio alegó que en el subjudice hubo un exceso en los márgenes de la libertad de expresión por parte del querellado [Nombre12] , en virtud de haber proferido y propalado una serie de falsedades, lo cual excluye la procedencia del ejercicio del derecho a la crítica de un funcionario público. No obstante lo anterior, en el texto del fallo no se emitió Nombre04 alguno en cuanto a las tesis defendidas por la parte [Nombre6], con lo cual se generó indefensión y se quebrantó el deber del tribunal de juicio de resolver todos los aspectos alegados en el contradictorio, lo cual, alega, que quebranta los preceptos establecidos en tal sentido por la Corte Interamericana de Derechos Humanos en la sentencia que dictó en el caso [Nombre21] y otros el 5 de agosto de 2008. Concretamente, el licenciado [Nombre5] señala que en las conclusiones del juicio argumentó que el relato del querellado [Nombre12] no era creíble, ya que él mismo reconoció que sus aseveraciones divulgadas en su perfil de “Facebook” eran falsas, Nombre08 manifestó que no las había verificado antes de llevar a cabo su difusión indiscriminada. Señala que los reclamos que en cuanto al punto objeto de análisis expuso en el debate, sólo podrían ser conocidos por quien fue al juicio, puesto que quien solamente lee la sentencia no encontrará referencia alguna a los argumentos que planteó para descartar la existencia del ejercicio legítimo de un derecho por parte del querellado, todo lo cual se omitió apreciar, indebidamente, en el fallo impugnado, con lo cual se conculcó el derecho a ser oído y obtener una respuesta judicial oportuna por la inobservancia del deber de motivar la sentencia penal en el presente caso. Alega que el tema esencial que se omitió valorar por el tribunal de instancia fue que en la especie no existió un derecho a criticar a la [CED1 ], ya que el comentario divulgado se refirió a hechos falsos, lo cual ningún funcionario público está obligado a tolerar, ni siquiera quien ocupe la más alta representación del Estado, como lo fue en este caso la [Nombre6] y actora civil [Nombre443 [Nombre10]]. Señala que en el debate se establecieron las razones por las que la [Nombre6] postuló ante los jueces de mérito que en el caso particular no se ejerció el derecho a la crítica, sino que lo que se dio fue una afirmación irresponsable de falsedades, lo cual considera que se omitió valorar en lo absoluto en el fallo objeto de recurso. Agrega que en “[…] la exposición conclusiva también se argumentó que doña [Nombre443 [Nombre10]] indicó que la publicación contenía hechos falsos, que se divulgó desde la página de Facebook del imputado [Nombre22] , y trascendió fuera de esa comunidad virtual, al punto de que llegó a ser increpada por la diputada presidenta de la Comisión de Ingreso y Gasto Público de la Asamblea Legislativa, quien requirió explicaciones sobre el texto divulgado, siendo su respuesta que se trataba de falsedades sobre las que tomarían las acciones legales pertinentes […]” (cfr. folio 393). Por otra parte, el abogado recurrente señala que en el juicio le expuso al tribunal penal que la Corte Interamericana de Derechos Humanos establece criterios de legalidad, necesidad e idoneidad para delimitar la tutela del honor Nombre09 a la libertad de expresión, siendo que tal órgano jurisdiccional ha estipulado que no procede la protección de esta última, cuando lo que se afirma son falsedades, Nombre02 como ha establecido que la libertad de expresión tiene límites y cuando se transgreden, puede exigirse responsabilidad por el ejercicio abusivo de tal prerrogativa. Al respecto, el impugnante alega que en el fallo de mérito los juzgadores de instancia no analizaron si a la luz de los precedentes “interamericanos”, en el caso concreto el imputado [Nombre7] incurrió en falsedades a pesar de ser un extremo ampliamente debatido en el contradictorio, Nombre02 como dejó de lado considerar el precedente jurisprudencial N° 1050-2002 de la Sala de Casación Penal, en el que se establece que el abuso de un derecho excluye la legitimidad del uso de la libertad de expresión. Indica que el a quo no razonó con respecto a los argumentos de la querella previamente apuntados, Nombre02 como llevó a cabo una cita parcial de la resolución N° [Telf2] de la Sala Constitucional, siendo que la utilizó en lo que le convenía para su elaborada posición, pero dejó de lado el valorar los aspectos que se engloban al final de la cita de dicho pronunciamiento, segmento de la tal resolución en el que se hace referencia a que las falsedades, rumores o insidias que carecen de veracidad, no son parte del ejercicio de la libertad de expresión. Señala el licenciado [Nombre15] que “[…] Resulta inaudito que el Tribunal señalara que el objeto del juicio no era si al final de su mandato la señora [Nombre10 [Nombre10]] había adquirido la finca o si tuviera alguna participación en empresas de generación eólica (cfr. folio 365). Esto es absurdo porque precisamente lo que se indicaba en la querella es que por ser falso el contenido de la publicación, no existía un derecho a diseminar indiscriminadamente una falsedad. Ahora bien, de la lectura integral de la sentencia se deduce que el Tribunal ASUME que el justiciable ejerció ese derecho, pero no puede interpretarse que a contrario sensu, que al haber resuelto de esta forma, inmediatamente excluye cualquier otra interpretación, como la que se propuso en juicio de parte del [Nombre6] y actor civil (…) Como complemento decisivo para el agravio Nombre03 considerarse que era imprescindible que el Tribunal esclareciera si estaba o no ante un texto en que se afirmaban o no falsedades. En lugar de resolver esta cuestión, los jueces optan por una única interpretación del texto, sin tomar en cuenta que la ofendida negó categóricamente cada una de las afirmaciones ahí vertidas y las calificó como falsas (falta de fundamentación de su declaración), y que el propio imputado insistió en su deposición que no tomó ninguna medida para verificar la fuente del texto, que lo asumió y lo divulgó sin constatar si era verdadero o no, e insistió en el juicio en que la señora [Nombre10 [Nombre10]] era corrupta […]” (cfr. folios 403 y 404). Concluye el impugnante, que la seriedad del agravio que plantea se constata al incluir hipotéticamente sus argumentos expuestos en el juicio que se dejaron de valorar en la sentencia, ya que de haberse analizado tales aspectos, estima que el a quo se hubiera visto obligado a establecer que la acción del justiciable era típica de un delito de difamación, Nombre02 como que no procedía la aplicación de la causa de justificación del ejercicio legítimo del derecho a la libre expresión. Solicita que se declare con lugar el presente motivo, se anule la sentencia y el debate que le precedió, y se ordene la reposición de ambos. TERCER MOTIVO. El licenciado [Nombre5] reclama que la sentencia carece de fundamentación por cuanto el tribunal de juicio utilizó en su razonamiento precedentes de la Corte Interamericana de Derechos Humanos que no son aplicables y carecen de relación con los hechos querellados en contra del imputado [Nombre7] , lo cual contraviene la normativa establecida en el artículo 41 de la Constitución Política, Nombre02 como lo dispuesto en los artículos 2, 6 y 142 del Código Procesal Penal. Argumenta que “[…] la tesis central del tribunal sentenciador residió en argumentar que tratándose de funcionarios públicos, con mayor acento aquellos que fueron electos a través del voto popular, como ocurre en el caso de la [Nombre6], Nombre03 exhibirse un mayor umbral de tolerancia a las críticas y cuestionamientos de los ciudadanos. Es este razonamiento el que sirve a los jueces de instancia para concluir luego que las afirmaciones vertidas por el acusado, mediante una red social, debieron ser soportadas por mi representada. Sin embargo, el a quo se apoyó en dos resoluciones de la Corte Interamericana de Derechos Humanos –que por cierto, no es un tribunal continental como con imprecisión afirman los jueces, sino regional- cuyos supuestos fácticos difieren sustancialmente del caso planteado por la señora [Nombre [Nombre10]]. En las sentencias referidas por el órgano de mérito aunque se analizaron los alcances de la libertad de expresión y su colisión con otros derechos fundamentales, los hechos respondían a situaciones muy distintas a las sometidas al conocimiento de las autoridades judiciales en este proceso. De allí que la doctrina que se incorporó al fallo impugnado resultaba inaplicable lo que lo convierte en un voto claramente infundado […]” (cfr. folios 406 y 407). En su argumentación, el recurrente lleva a cabo un resumen y exposición del contenido de la resolución del caso [Nombre16] vs. [Nombre17] dictada por la Corte Interamericana de Derechos Humanos el 2 de mayo de 2008. Al respecto, señala que la diferencia crucial de dicho caso con el de la [Nombre6] y actora civil [Nombre10 [Nombre10]], radica en que lo que se dio en aquel fue una valoración u opinión sobre el trabajo de un juez, no una imputación de una conducta ilícita o al menos éticamente sospechosa, tal y como sucedió en contra de su representada. Señala el impugnante que en “[…] relación con doña [Nombre [Nombre10]], no se hizo una valoración ni se compartió una opinión crítica sobre su condición, entonces, de jefa de Estado. Lo que se hizo fue atribuirle una conducta ilícita o éticamente reprochable. La conclusión que se deriva del voto bajo estudio es que un funcionario público tiene la obligación, como parte del debate de una sociedad democrática, de recibir ataques y valoraciones negativas y severas. Sin embargo, esa rigurosidad en el examen del desempeño de un Nombre01 del Estado, sobre todo de un alto Nombre01 como el que ejerció la señora [Nombre10 [Nombre10]], no cubre la imputación de hechos falsos, delictivos o inmorales. Este aspecto. Que no se incluyó en la sentencia de la Corte, fue marginado por los jueces de instancia penal para aseverar que las manifestaciones del endilgado se ajustaban a lo fijado por el tribunal regional cuando claramente no es Nombre02 […]” (cfr. folio 409). Por otra parte, el licenciado [Nombre15] lleva a cabo una exposición y resumen de la resolución dictada por la Corte Interamericana de Derechos Humanos el 2 de julio de 2004 en el caso [Nombre18] vs. Costa Rica. Señala que dicho proceso seguido en contra de nuestro país, tiene diferencias notables con la causa penal tramitada en contra de [Nombre7] , lo que determina que exista un vicio de falta de fundamentación de la sentencia. Al respecto, el impugnante alega que “[…] la Corte regional concluyó que no se había cometido ningún delito porque el periodista a quien, como quiera, le asiste un interés público de informar solo reprodujo informaciones que se estaban generando en medios europeos. Quizás el punto crucial es que ambos procesos regionales, que al tiempo que los acerca entre ellos los aleja de los supuestos de hecho de la causa contra [Nombre12] , giran en torno a unas manifestaciones o unas publicaciones dirigidas contra actos de funcionarios públicos en el ejercicio de sus cargos. En la especie no se hicieron juicios de valor no se publicó información que proviniera de fuente alguna sobre la [[Nombre3] ]. Lo que se hizo fueron unas manifestaciones que cuestionaban, a partir de una conducta supuestamente desplegada por la querellada, su integridad moral […]” (cfr. folios 411 y 412). El recurrente cita en su argumento el fallo del Tribunal Europeo de Derechos Humanos dictado el 15 de marzo de 2011 en el caso de [Nombre23] contra España. En tal sentido señala que lo más relevante de dicho precedente, con respecto al caso que se juzga en la especie, es que “[…] los jueces europeos establecieron una línea de examen al valorar lo expresado por [Nombre23] . De acuerdo con el Tribunal de Derechos Humanos, lo indicado por el dirigente vasco no atacaban la vida personal del jede de Estado ni su honor: “…las declaraciones en litigio no cuestionan la vida privada del rey o su honor personal (…) no implicaban un ataque personal gratuito contra su persona [….]” (cfr. folio 413. La transcripción es literal). Así, alega que en el caso del imputado [Nombre12] sí se dio un cuestionamiento al honor personal de la [Nombre6] o lo que es lo mismo en los términos que lo define el Tribunal de Derechos Humanos Europeo, un ataque gratuito contra su persona. Esto, por cuanto se publicó a través de una red social una serie de afirmaciones sobre el sorpresivo e inexplicable enriquecimiento de la [[Nombre3] ], todo mientras ejercía dicho cargo. Por lo anterior, el recurrente considera que tal cuadro fáctico difiere de lo analizado por la Corte Interamericana de Derechos Humanos en los dos votos apreciados por los juzgadores de instancia en la sentencia de mérito. Añade que no se compartió información sobre alguna investigación que se estuviera realizando en contra de su representada, no se llevó a cabo valoración alguna de su gestión, siendo que lo que se hizo fue el atribuirle una conducta específica, a lo que Nombre03 sumarse que conforme a la experiencia común no es pensable que una persona que se ha dedicado a la función pública como la [Nombre6] y actora civil [[Nombre3] ], tuviera la capacidad económica para obtener lícitamente una propiedad como la que [Nombre12] aseguró que poseía su patrocinada. Los sueldos de los funcionarios públicos “[…] no permitían bajo ningún concepto alcanzar una “vida millonaria” según las palabras del acusado; de allí que la afirmación del señor [Nombre12] da cuenta de un enriquecimiento ilícito de parte de quien durante casi dos décadas fue funcionaria pública […]” (cfr. folio 414). Señala que en el subjudice lo que se trató fue de un empresario que publicó informaciones falsas e injuriosas contra su representada, lo cual dista rotundamente de la discusión en torno al derecho a la libertad de expresión que se resolvió en los precedentes de la Corte Interamericana de Derechos Humanos que indebidamente apreció el a quo en la sentencia de mérito. El recurrente plantea la siguiente interrogante en su alegato: “[…] ¿Por qué razón unas afirmaciones lesivas del honor, sugerir que un […] Nombre11 enriqueció durante su mandato, constituían el ejercicio de la libertad de expresión? Era la pregunta que el a quo debió responderse. Esa respuesta no se plasmó en la sentencia impugnada […]” (cfr. folio 415). Acusa que el agravio consiste en que para dictar la sentencia absolutoria a favor del querellado [Nombre12] , el tribunal de mérito invocó y valoró resoluciones del sistema interamericano de derechos humanos que no guardan relación fáctica con los hechos objeto de litigio, lo que implica el quebranto del principio de derivación y razón suficiente y en consecuencia la falta de fundamentación de la sentencia. Los reclamos son procedentes. Del examen integral del fallo, Nombre02 como de los alegatos planteados por el licenciado [Nombre5] , se establece que los cuestionamientos incoados en contra de la sentencia absolutoria dictada a favor del imputado [Nombre7] , son procedentes. Esto, por cuanto el fallo de mérito no se fundamentó conforme legalmente procede y lo exigen los artículos 39 y 41 de la Constitución Política, Nombre02 como los numerales 1, 142, 180, 181 y 363 del Código Procesal Penal. El amplio estudio del fundamento descriptivo, fáctico, intelectivo y jurídico de la sentencia de mérito, lleva a la conclusión de que el a quo no sustentó conforme a la estricta aplicación de las reglas de la sana crítica, ni conforme a la debida aplicación de las normas penales jurídicamente relevantes para la solución del presente caso, su decisión de absolver al justiciable [Nombre7] de toda pena y responsabilidad por el delito de difamación que se querelló en su contra. Tal conclusión se afinca en tres ejes esenciales de razonamiento jurídico, los que de seguido se exponen. A.- Análisis de los principales contenidos y fundamentos de la sentencia impugnada. A efecto de tener claridad en cuanto a los alcances del fallo de mérito, es menester puntualizar y analizar los aspectos de mayor importancia con base en los que los juzgadores de instancia absolvieron al querellado [Nombre12] . Así se tiene lo siguiente: i.- El tribunal penal establece que, a partir de la sentencia objeto de impugnación, se erige un línea jurisprudencial novedosa –tal y como lo alega el recurrente-, la cual regulará la relación de quien ostente el Nombre01 de [...] frente a los ciudadanos, en lo que atañe al límite entre el derecho al honor y la libertad de expresión. ii.- El a quo indica que con el fin de “educar” a la población en cuanto al uso y el abuso de las redes sociales –principalmente “Facebook”- definirá la naturaleza jurídica de dicho tipo de redes. En tal sentido los juzgadores de instancia señalan que “Facebook”, y las redes sociales en general, son medios de comunicación iguales a cualquiera otro de los ya conocidos, ya que desde el momento en que terceros tienen acceso a la cuenta o perfil de una persona determinada, lo que se publica se difunde y está al alcance de varias personas. Así, concluyen que es claro que las personas no pueden publicar cualquier manifestación a través de tal canal de comunicación, Nombre08 las redes sociales no están excluidas de la regulación dispuesta en nuestro ordenamiento jurídico, de modo que quien abuse de su libertad de expresión por dicha vía se expone a una sanción penal, siendo que si insulta u ofende a otro, o en su caso atribuye falsamente la comisión de un delito, la persona puede ser perseguida penalmente por los delitos de injurias, calumnias o difamación. iii.- El tribunal de instancia señala que el análisis de la conducta querellada en contra de [Nombre12] , a efecto de definir si abusó o no de su libertad de expresión en detrimento del honor de la [[Nombre3] ], trasciende las barreras del Derecho Penal, ya que la discusión Nombre03 realizarse en el campo del Derecho Constitucional. Por lo anterior, los juzgadores de instancia consideran que Nombre03 valorarse en primer término el principio de igualdad, según el cual todas las personas son iguales ante la ley, siendo necesario apreciar en todo caso que la igualdad de trato Nombre03 darse a quienes ostentan la misma condición, posición o situación. A contrario sensu, si hay personas que no están en una similar condición, posición o situación, no se les puede dar el mismo tratamiento. En el fallo se establece que los puntos antes expuestos son fundamentales para la correcta solución del caso, ya que la [Nombre6] [[Nombre3] ] era la […] para el momento de los hechos de marras, condición distinta a la del resto de las personas, y fue en esa condición que [Nombre12] hizo referencia a la [Nombre6] en su perfil de “Facebook”. En razón de lo expuesto, el a quo consideró en el fallo que, para determinar los alcances del derecho al honor de [[Nombre3] ], debe tomarse en cuenta la investidura […] que en aquel momento ostentaba la [Nombre6], ya que estima que por tal motivo el contenido de su honor no es el mismo que el del resto de los funcionarios públicos, Nombre02 como tampoco del de los otros costarricenses. En tal sentido, el tribunal penal indica que todos los funcionarios públicos están más expuestos a la crítica por el hecho de haber asumido voluntariamente un Nombre01 de tal naturaleza, de modo que al estar de acuerdo a una mayor exposición inherente al puesto, también deben aceptar mayores críticas respecto de las que les corresponde tolerar a quienes no ejercen la función pública. Al respecto, los juzgadores de instancia citan un precedente de la Corte Interamericana de Derechos Humanos dictado el 2 de mayo de 2008 en el caso [Nombre16] vs [Nombre17], en el que, según su apreciación, dicha Corte Interamericana consideró que “[…] las actividades de los servidores públicos públicos salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral (…) se asienta en el interés público de las actividades que realiza […]” (cfr. folio 346 del principal). En tal sentido, el quo concluye lo siguiente: “[…] Nótese que el máximo órgano continental de los derechos humanos, establece que en América los funcionarios públicos están más expuestos a la crítica, que ello es inherente al Nombre01 que voluntariamente aceptaron, y que las actividades que realizan son de interés público. Ahora bien, Nombre03 notarse que estas afirmaciones de la Corte Interamericana, han sido producidas en el marco de casos donde están involucrados servidores públicos de alto rango, pero no del máximo rango como lo es en esta querella, la […]. Está claro que el Nombre01 público de mayor jerarquía en nuestro país es la […], se trata de un puesto de elección popular, implica la jerarquía del Poder Ejecutivo, quien ostente este Nombre01 ejerce la representación nacional e internacional del Estado costarricense, y es la persona que dirige las principales instituciones del gobierno central, dentro de las que se incluyen por ejemplo, el Ministerio de Seguridad, el Ministerio de Salud y el Ministerio de Hacienda-. Estas valoraciones son importantes porque si afirmamos con la Corte Interamericana “…que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público.” (Caso [Nombre24] vs. [Nombre17], ídem), aún mayor es la exposición del máximo jerarca de la función pública y correlativamente, aún mayor Nombre03 ser la crítica pública. Nótese que el Tribunal está interpretando conforme al principio de proporcionalidad la línea jurisprudencial de la Corte Interamericana, Nombre08 si al funcionario público es inherente una mayor crítica y exposición que a las personas que no ejercen una función pública, la gradualidad inherente a una valoración judicial justa, proporcional y razonable, determina que dentro de la categoría “funcionario público”, el nivel de tolerancia a la crítica Nombre03 ser mayor conforme a la jerarquía del funcionario. Es decir, si la premisa número uno dicta que un funcionario público Nombre03 tolerar más críticas respecto de quienes no son funcionarios públicos, como premisa número dos puede afirmarse dentro de la categoría “servidor público”, será mayor el nivel de tolerancia conforme también sea mayor la jerarquía del funcionario. Esta premisa se justifica por las siguientes razones. No es lo mismo un servidor público nombrado por los procedimientos administrativos usuales -régimen de– servicio civil por ejemplo- respecto de un servidor público nombrado en elecciones nacionales; éste último servidor tiene un mandato directo del Soberano y tiene un Nombre01 de mayor responsabilidad; tampoco es lo mismo un servidor público que no toma decisiones, respecto de un servidor que sí toma decisiones; no es lo mismo un servidor público que dirige o preside una institución pública, respecto de un servidor público que trabaja en la misma institución pero en un puesto de menor jerarquía. Por lo tanto, el tribunal no puede dejar de lado la investidura de la parte [Nombre6], Nombre08 para la fecha en que ocurrieron los hechos la señora [Nombre10 [Nombre10]] era la […], por lo tanto, si bien era funcionaria pública como miles de personas más, ejercía el Nombre01 de mayor jerarquía en el sector público, ostentaba la representación del Estado costarricense, tenía la dirección de las políticas de todas las instituciones públicas bajo su mandato y, por lo tanto, estaba en una condición especial que el Tribunal no puede desconocer. La aspiración a la justicia nos obliga a valorar cada caso de acuerdo a sus propias características, Nombre08 solo Nombre02 puede tomarse una decisión equitativa que responda verdaderamente a la valoración de los hechos, de las pruebas y de las condiciones personales de los litigantes; esta es la justicia proporcional y ajustada; lo contrario sería justicia genérica, impersonal y por tanto, no sería justicia. En esta línea, el Tribunal se enfrenta a la decisión de fijar el contenido del derecho al honor de quien ostente el Nombre01 de [...], Nombre09 a la libertad de expresión de los ciudadanos [...]” (cfr. folios 346 a 349. La transcripción es literal). iv.- En su razonamiento de fondo, el a quo transcribe el contenido de la publicación realizada en el perfil de “Facebook” de [Nombre7] , sea: “[…] “[…] MILLONARIA” “... Estoy de visita en la Península de Nicoya, y en estas paradisiacas playas pregunto por una finca hermosa. Me responde el lugareño que la adquirió nuestra […] Nombre12 dos millones y medio de dólares...”. Conversando con unos empresarios sobre la adquisición millonaria de la […], me dicen que la cosa no termina ahí, sino que es dueña de generación eólica —esa que se hace con el viento-, Nombre02 que tenemos a una […] Nombre13 terminando su mandato se nos ha convertido en toda una empresaria...”. “ Me recuerda el caso de la “cenicienta” pero esta era una historia ficticia salida de un cuento, entonces viene a mi memoria el caso de [Nombre [Nombre25]] que en cinco días de estudio descubrió en el INCAE el agua tibia y se hizo millonario poseedor de yates, aviones, vida de lujo y buen vestir. De Hatillo a Valle del Sol en un instante solo con tocar la bola. Ahora el brinco es de Desamparados a Escazú. Si ese paralelismo de tocar la bola deja mucha ganancia sin esfuerzo alguno, más que la diversión de participar en el juego, Nombre02 que comparo la instantánea riqueza de la Señora con este jugador, a quienes aplaudimos su emprendedurismo y visión para los negocios, esa facilidad para pagar millones de dólares, sin que los mortales encontremos una explicación en nuestra vida cotidiana en donde el dinero cuesta hacerlo toda una vida de esfuerzo y trabajo... “. “... Estas riquezas instantáneas nos asombran y no encontramos explicaciones lógicas. Ahora bien, será que leyeron el Libro de los Secretos y descubrieron el camino corto a la riqueza. De cualquier manera felicitamos a la [Nombre [Nombre10]] quien prepara su salida de la función pública siendo millonaria y poseedora de riquezas materiales que a cualquiera de los ciudadanos les cuesta una vida y a los funcionarios públicos y futbolistas parece solo cinco días de tocar la bola […]” (cfr. folios 348 y 349). En tal sentido, en la sentencia de mérito el a quo señala que la [Nombre6] [[Nombre3] ] consideró que el texto es difamante porque, desde su perspectiva, contiene afirmaciones ofensivas y falsas que le sindican un enriquecimiento ilícito, ya que su salario por el Nombre01 de [Nombre443 [Nombre10]] que ostentaba en aquel entonces, no permitía la compra de una finca de dos millones y medio de dólares, siendo además que la [Nombre6] estimó que su honestidad fue atacada, Nombre08 los costarricenses pudieron presumir como ciertos, hechos que no lo son. En este punto del fallo, el tribunal de mérito hace referencia al contenido de la declaración rendida en el juicio por [[Nombre3] ], siendo que aprecia que la [Nombre6] rechazó enfáticamente su participación en la generación de energía eólica, Nombre02 como negó ser la dueña de una propiedad en Guanacaste con un valor de dos millones y medio de dólares. De seguido, los juzgadores de instancia valoraron lo que el querellado [Nombre12] manifestó en el debate de la siguiente forma: “[…] Sobre la acusación, en el juicio el imputado [Nombre7] -en resumen- aceptó que en su cuenta de “facebook” hizo la citada publicación, la cual no fue redactada por él, que desconoce quién la redactó, que la tomó de la misma red social, la “copió y la pegó” en su propia cuenta, haciéndola pública porque le pareció importante que otros la conocieran. Dijo que nunca quiso dañar el honor de la señora [Nombre6] y se definió como un activista que se ha encargado de denunciar actuaciones del gobierno de la señora [[Nombre3] ] que consideró incorrectas o ilegales, por las que incluso planteó ante el Ministerio Público sendas denuncias, cuyo resultado final desconoce. Alegó que al publicar el [Identificacion1], hacía uso de su derecho de expresión, de informar y ser informado. Sobre la base de su declaración en juicio, el tema de la autoría de la publicación deja de tener relevancia, Nombre08 [Nombre12] admite haber hecho suyo el contenido del texto y además lo publicó a través de su cuenta de Facebook. Además, conforme lo demuestra la certificación notarial aportada por la [Nombre6], la citada cuenta es de acceso público para cualquier persona usuaria de esta red social. También el Tribunal tiene por demostrado que al ser diseminado el texto, su contenido llegó a un número indeterminado de personas, muchas de las cuales reaccionaron expresando sus opiniones y percepciones al respecto, incluidas en el líbelo de la querella, Nombre02 como en la certificación notarial que corresponde a una impresión de la cuenta de “Facebook” de [Nombre12] , específicamente de los comentarios a su publicación […]” (cfr. folio 360). Luego de dar por sentado que la publicación de marras fue realizada por el querellado [Nombre12] y que se difundió a un número indeterminado de terceras personas, los juzgadores de instancia proceden a hacer referencia a la libertad de expresión como el sustento normativo para la formación de una opinión pública libre, propia de un pueblo pensante, analítico y crítico de la realidad. Asimismo, señalan que un Estado democrático y respetuoso de la Constitución Política Nombre03 facilitar a sus habitantes una efectiva participación en debates públicos, dando un contenido amplio, mas no permisivo, de la libertad de expresión, de modo que permita cumplir a su vez con una función contralora del poder político y del manejo de los asuntos públicos. Al respecto, en el fallo se cita lo que los juzgadores enuncian como un precedente de la Sala Constitucional de la Corte Suprema de Justicia que hace referencia al derecho de expresión, siendo que no se aporta dato alguno para identificar tal pronunciamiento. De seguido, el tribunal penal de instancia establece que el querellado distribuyó el texto de marras a un número indefinido de personas, con lo cual informó de dos hechos –la compra del inmueble y la participación en la empresa de energía eólica por parte de la [Nombre6]-, Nombre02 como brindó su opinión en tal sentido, lo cual indica que [Nombre443 [Nombre10]] manifestó que afectó su honor, siendo que, sin llevar a cabo una valoración profunda de los puntos antes referidos, el a quo procede a establecer que la libertad de expresión y el derecho a la información no son irrestrictos, ya que estos últimos encuentran un límite en el honor de las personas regulado en el artículo 41 de la Constitución Política, cuyo contenido estiman los juzgadores que Nombre03 ser leído en conjunto con lo estipulado en el artículo 33 de nuestra Carta Magna, el que reconoce el valor de la dignidad humana, a lo que indican que Nombre03 sumarse la tutela penal del derecho al honor a través de los delitos de injurias, calumnias y difamación contemplados en el Código Penal. Así, los juzgadores de instancia concluyen que toda persona tiene derecho al honor, entendido como la estima, opinión o consideración que los demás tienen de ella. Establece el a quo que toda manifestación que afecte el honor de una persona, es, en principio, idónea para ser considerada un delito, siendo que la libertad de expresión no abarca cierto tipo de expresiones y no las justifica, sean estas las que a pesar de tener forma de pensamientos, ideas u opiniones, resultan ser frases innecesarias para exteriorizar lo que se va a decir y, además, las que sean directamente insultantes o que atribuyan expresa e inequívocamente la comisión de un delito. En este sentido, el tribunal de mérito invoca el contenido de la resolución N° [Telf2] de la Sala Constitucional de la Corte Suprema de Justicia, pronunciamiento en el que se deslindan los alcances del derecho a la libertad de expresión. De seguido, señalan los juzgadores que, según la doctrina y la jurisprudencia, el honor tiene dos vertientes: la subjetiva, que corresponde al concepto que de sí mismo tiene un individuo determinado, su amor propio o autoestima y; la objetiva, que es la imagen que el sujeto proyecta ante los demás, por lo que está compuesta por la forma en que los otros perciben esa imagen. Con base en lo anterior, el a quo establece en su análisis que una expresión o manifestación constituye un delito de difamación o cualquier otro en contra del honor, cuando la ofensa afecta desde la perspectiva objetiva dicho bien jurídico, siendo que Nombre03 tratarse de una ofensa literal, expresa o que axiomáticamente se entienda como un insulto. Con base en lo expuesto, los juzgadores de instancia indican que en el caso concreto optan por valorar y tomar en consideración la investidura que tenía la [Nombre6] [[Nombre3] ] para la fecha en que [Nombre7] hizo la publicación de marras en su cuenta de “Facebook”, “[…] ello con el fin de perfilar una línea jurisprudencial acerca del contenido del derecho al honor de los servidores públicos en general, y de quien ostente la […] en particular. Solo así, como se verá, puede establecerse cuáles manifestaciones quedan cubiertas por la justificación normativa que otorga la libertad de expresión, y Nombre02 resolver el caso sometido a estudio de este órgano jurisdiccional. La [Nombre6] [Nombre10 [Nombre10]] para la fecha de los hechos, ejercía la […], Nombre14 por tanto servidora pública. Pero la afirmación no puede quedar ahí. La [Nombre6] [Nombre [Nombre10]] tenía el puesto público de mayor jerarquía, era un puesto de elección popular que le daba a [Nombre [Nombre10]] no solo más responsabilidades administrativas del Estado, sino también la máxima exposición al examen público de todas sus actuaciones. Y ello es Nombre02 Nombre08 en Nombre04 del Tribunal, todo funcionario público, especialmente los de mayor jerarquía, y categóricamente el de mayor jerarquía, a saber el […] Nombre05[…], tidos a un deber mayúsculo de transparencia, que “implica acceso a la información pública y la difusión amplia, permanente e imparcial de las decisiones públicas. Sólo e02 se c se cumple con el Principio de Máxima divulgación, el cual establece la presunción de que toda información es accesible, sujeta a un sistema restringido de excepción (Tiffer [Nombre26]. La constitucionalidad de los delitos de injurias y difamación e09 a la a la crítica a los funcionarios públicos), y también entra en juego, en la misma proporción jerárquica mencionada, la obligación de rendición de cuentas, éste último deber consagrado en el numeral 11 de la Constitución Política, que le obligaba a [[Nombre3] ] a soportar todas las denuncias públicas, las críticas y las quejas que se presentaran sobre su persona y sobre su gestión; sí sobre su persona porque el ejercer el e01 de m de mayor jerarquía en el Poder Ejecutivo, esa investidura trasciende a la vida privada justamente por los principios de transparencia y rendición de cuentas. De acuerdo con la doctrina de la transparencia. La actividad pública e03 ser ser y aparecer como un “Casa de cristal” […]” (cfr. folios 354 y 355. La transcripción es literal). En razón de lo expuesto, los juzgadores de instancia reiteran que a la [Nombre6] [[Nombre3] ] le correspondía un umbral de tolerancia más alto que al resto de los funcionarios públicos, e09 a lo a los pensamientos, ideas o cuestionamientos sobre su proceder, ya que se colocó voluntariamente en el servicio público, por lo que le corresponde un proceder público y privado intachable. En su argumentación el tribunal de instancia reitera que, de acuerdo a los principios de proporcionalidad e igualdad, entre mayor es el e01 públ público que se ocupa, mayor es la tolerancia en razón de los deberes de rendición de cuentas y transparencia a los que está sometido el funcionario público, siendo que en tal sentido se citan algunos parágrafos de la resolución dictada por la Corte Interamericana de Derechos Humanos en el caso [Nombre18] vs. Costa Rica. En el análisis que plantea el a quo en la sentencia de mérito, lleva a cabo una razonamiento que define como “la base ideológica” de su fallo, indicando en tal sentido lo siguiente: “[…] En el considerando primero de esta sentencia se afirmó que este era un caso muy importante. A lo dicho entonces el Tribunal agrega las siguientes consideraciones que pretenden constituir la base ideológica que sustenta este fallo. En esta sentencia el Tribunal afronta la difícil decisión de interpretar la realidad social para establecer a partir de ella, qué tipo de Estado y de sociedad constituye el anhelo de la mayoría de los costarricenses. Al intentar hacerlo, el Tribunal no impondrá sin más su posición, sino que trataremos de fundamentarla en una lectura razonable de la realidad de los últimos años. Premisa número uno: en el 2005 y como respuesta rápida a las denuncias penales que involucraron a […] y altos funcionarios de instituciones del Estado, fue promulgada la Ley Contra la Corrupción y el Enriquecimiento Ilícito. Esta normativa creó nuevos delitos como por ejemplo el tráfico de influencias, reformó otros ya existentes, como por ejemplo el peculado y la malversación, con el fin de enviar un mensaje claro y contundente a la sociedad: desde el seno de la Asamblea Legislativa, órgano representante de la voluntad popular, se le dijo no a la corrupción de los servidores públicos. Este voz legislativa constituye la primera premisa histórico normativa que utiliza el Tribunal, para afirmar que desde el punto de vista normativo, en la última década inició un proceso de transformación de la ley vigente, que hoy se ve vigorizado con otras leyes que han fortalecido la lucha del Estado no sólo contra el enriquecimiento ilícito en general, sino también contra la delincuencia organizada que se infiltra en la función pública. De esta forma, desde el ámbito legislativo hay un llamado a la transparencia en la función pública. Premisa número dos: siempre, con el fin de dar plena vigencia al deber de transparencia en la función pública, durante la última década ha sido evidente el robustecimiento de los órganos de control estatales. Se ha creado la Procuraduría de la Ética con el fin de que “el abogado del Estado” no sólo se ocupe de la estricta legalidad de las actuaciones públicas, sino también para incorporar en el debate el deber ético y moral que también es una expresión de la transparencia. También la Contraloría General de la República ha tenido mayor protagonismo, mediante un riguroso control de la realidad patrimonial de los funcionarios públicos. Se destaca aquí, el deber que tienen algunos funcionarios públicos de rendir una declaración jurada de su patrimonio, además que para el Tribunal lo más importante es que en la última década ha aumentado el ámbito de cobertura de esta obligación. En efecto, con el paso de los años hemos sido testigos de que cada vez más cargos públicos se añaden a la lista de servidores que deben rendir la declaración de sus bienes – de sus activos y sus pasivos -, y que la declaración cada vez pretende ser más detallada y comprensiva de la realidad patrimonial de los servidores, al incluir por ejemplo, participaciones en sociedades anónimas y usufructos de hecho. Dicho sea de paso, este Tribunal es claro ejemplo de esta vorágine, e08 hace hace dos años los Jueces de la República – enhorabuena – también rendimos declaración jurada ante la Contraloría General de la República. Nótese que con esta segunda premisa el Tribunal desea ilustrar que la realidad nacional es evidente: se ha buscado dar contenido efectivo al deber de rendición de cuentas, siempre con el fin de garantizar la transparencia en las funciones de quienes voluntariamente servimos al país en la función pública. Premisa número tres: la denuncia ciudadana y la denuncia pública que han liderado los medios de comunicación, también son una realidad que el Tribunal desea visibilizar en este fallo. En la última década los Tribunales de Justicia han tramitado gran cantidad de denuncias de ciudadanos contra funcionarios públicos. e02 es, es, la ciudadanía asimiló la importancia de la transparencia en la función pública, y ha asumido un rol preponderante en la investigación penal de conductas de servidores públicos. Sin que ahora interese el resultado de esos procesos, o su cita puntual, lo cierto es que el Tribunal interpreta una realidad que todas las personas han podido conocer durante los últimos años. A esta dinámica de denuncias ciudadanas, se ha unido el papel activo de los medios de comunicación que también han vivido un proceso de cambio, fundamental en la consideración de este órgano jurisdiccional. En la última década la mayoría de los medios de comunicación dejaron de lado una labor periodística exclusivamente informativa, para introducir a su lado una función investigativa. Ello es evidente, ahora la prensa no se limita sólo a informar, sino que investiga, busca la noticia. En esa búsqueda ha encontrado terreno fértil en la función pública, e08 se h se ha investigado a una gran cantidad de servidores públicos, con el fin de exponer y denunciar posibles hechos delictivos. En e04 del del Tribunal no es un argumento válido afirmar que este nuevo paradigma periodístico obedece al interés de generar mayores porcentajes de audiencia; razonables que son por el interés que despierta en la opinión pública la denuncia de posibles delitos cometidos por servidores públicos; e08 lo i lo importante es que aumentan esos porcentajes justamente porque el interés de las personas por este tipo de periodismo investigativo, obedece al interés del colectivo por la transparencia y la rendición de cuentas de quienes ejercen la función pública. Estas premisas que ha elaborado el Tribunal, son aptas para afirmar que hay una realidad social en Nombre2042 y que constituye la base ideológica de este fallo. En esta sentencia el Tribunal e03 expr expresar sus razones jurídicas, a partir de la respuesta a una pregunta fundamental: ¿qué tipo de Estado y de sociedad quiere la mayoría de los costarricenses? ¿Se quiere un Estado fuerte donde el honor de los servidores públicos tenga mayor protección legal que la libertad de expresión? o ¿Se quiere un Estado Constitucional donde exista una justa proporción entre el honor de los funcionarios públicos y la libertad de expresión de los demás costarricenses? Sobre la base de las premisas expuestas por el Tribunal, estimamos que una decisión justa y acorde con la realidad social y con los parámetros constitucionales, es aquella donde sin dejar desprotegido el honor de la persona que ejerce la […], se brinde una mayor protección a la libertad de expresión de los costarricenses […]” (cfr. folios 358 a 360 del legajo principal. La transcripción es literal). A partir de lo que el a quo expone como la “base ideológica” de su sentencia -la que extrae de su lectura particular de la realidad socio-política de nuestro país- concreta el aspecto o pilar esencial en que sustenta su fallo, siendo que individualiza un parámetro -que es el que estima que corresponde a la plataforma filosófica que desarrolla en su razonamiento- con base en el que tamiza las expresiones vertidas por el querellado en la publicación que la [Nombre6] [Nombre [Nombre10]] estimó como lesiva a su honor, y que le llevan a considerar que el contenido del texto difundido en el perfil de “Facebook” de [Nombre12] , no afecta el honor de dicha [Nombre6]. Así, tal parámetro es definido por el a quo de la siguiente forma: “[…], quien ostente la […] será víctima de un delito contra su honor, única y exclusivamente cuando alguna persona emita una manifestación, idea, pensamiento u opinión expresa y unívocamente injurioso, difamante o calumnioso, aún cuando sea lingüísticamente irritante, molesto, sugestivo y hasta sarcástico. En otras palabras, son libre expresión todas las manifestaciones que aunque molestas o irritantes para el honor de quien sea [...], se hayan justificadas siempre y cuando no sean abiertamente injuriosas o difamatorias per se, y siempre y cuando la atribución de un delito no sea la única inferencia razonable que de la manifestación e06 extr extraerse. Con este panorama, ahora e03 hace hacerse una lectura muy cuidadosa de los hechos de la querella, en primer orden para saber si se alcanza el escalón de la tipicidad objetiva – es decir la expresa y única difamación o calumnia – y en segundo orden para establecer si el texto tiene un opinión crítica o expresión de pensamiento que rebase el límite de lo que un [...] e03 tole tolerar […]” (cfr. folio 360 del sumario). De esta forma y bajo tal parámetro, el tribunal de mérito realiza un análisis de los hechos que integran la querella discutida en el subjudice, siendo que concluye que los mismos no contienen ningún insulto explícito o palabra que incuestionablemente constituya una ofensa ni la atribución concreta y unívoca de un hecho delictivo a la [Nombre6] [[Nombre3] ]. De esta forma, al analizar el contenido del punto cuarto de la querella, el tribunal de mérito considera que el querellado [Nombre12] sugirió como “una posibilidad”, que la [Nombre6] haya adquirido una finca irregularmente, en la suma de 2.5 millones de dólares, siendo que los juzgadores estimaron que es válido interpretar que la [[Nombre3] ], con sus ingresos, no podía adquirir un bien inmueble tan costoso. No obstante tal afirmación, el a quo señala que esa es sólo una de las inferencias posibles de derivar del texto de marras, por lo que concluye que no existe una imputación expresa y unívocamente idónea para afectar el honor objetivo de la [Nombre6]. El tribunal de instancia concluye que no existe el elemento objetivo del artículo 146 del Código Penal, ya que estimó que no se constató la existencia de “especies idóneas” como un sinónimo de injuria o de ofensa. Por otra parte, al examinar el punto quinto de la querella, el tribunal penal, siguiendo el mismo parámetro supra indicado, considera que la [Nombre6] [[Nombre3] ] realiza una inferencia propia que tampoco es la única que se colige a partir del texto querellado, con lo cual descarta la existencia de algún delito en la actuación de [Nombre12] . En relación con el hecho sexto de la querella, el a quo establece que [[Nombre3] ] estimó que, en el contenido del mismo existe una afirmación denigrante en su perjuicio, en razón de que el querellado la relacionó con un ex jugador de fútbol que en aquel entonces estaba siendo investigado por el Ministerio Público. Al respecto, los juzgadores de instancia consideraron que la lectura textual de las frases que se engloban en el punto de la querella supra enunciado, no contienen algún “adjetivo calificativo despectivo” a la [[Nombre3] ], ni le imputa directa y unívocamente algún delito. En tal sentido se establece en el fallo de mérito que “[…] La inferencia hecha en la querella es nuevamente una conclusión, una apreciación personal, respetable y válida, acorde a la lógica pero no literal ni única. Véase que [Nombre [Nombre25]], conocido exjugador de fútbol, a quien para la época de la publicación de [Nombre12] –mediáticamente se vinculó con una investigación por legitimación de capitales- no tiene en su contra sentencia condenatoria que lo señale como autor o partícipe de un delito, de modo que tampoco es válido conjeturar que se equipara el proceder de [[Nombre3] ] con el de un delincuente, como equivocadamente los realiza la [Nombre6]. Sin duda [Nombre12] sugiere que como [Nombre [Nombre25]] pudo haberse enriquecido ilícitamente al tratarse de una persona investigada penalmente, también [[Nombre3] ] pudo haberse enriquecido de la misma forma; no obstante, esta no es la única inferencia razonable que se extrae del texto querellado. Si fuera esa la única conclusión, la sugerencia unívoca de [Nombre12] , otra sería la conclusión del Tribunal; empero, el querellado también sugiere otros posibles escenarios y al hacerlo no comete formalmente un delito sino que cuestiona con dureza algo que le parece que e03 ser ser aclarado por la entonces [Nombre [Nombre10]], en suma, su proceder no sólo no es típico de ningún delito, sino que se haya justificado en el uso legítimo de su libertad de expresión […]” (cfr. folio 363. La transcripción es literal). Con respecto al punto sétimo de la querella, el tribunal de mérito estimó que [Nombre [Nombre10]] lo consideró ofensivo porque, según su parecer, se dijo en su contra que ella era poseedora de una “fortuna sobrevenida e ilegal”. Según el fallo de mérito, en el segmento de referencia se dice lo siguiente: “[…] Estas riquezas instantáneas nos asombran y no encontramos explicaciones lógicas. Ahora bien, será que leyeron el Libro de los Secretos y descubrieron el camino corto a la riqueza. De cualquier manera felicitamos a la [Nombre [Nombre10]] quien prepara su salida de la función pública siendo millonaria y poseedora de riquezas materiales que a cualquiera de los ciudadanos les cuesta una vida y a los funcionarios públicos y futbolistas parece solo cinco días de tocar la bola […]” (cfr. folio 363). En el análisis del texto antes descrito, el a quo bajo la óptica de su parámetro supra indicado, consideró que en tal segmento no consta palabra u oración alguna, que constituyan un improperio, oprobio o ignominia, e02 como como tampoco se señala a [Nombre [Nombre10]] como la dueña, receptora o creadora de una fortuna ilegal. Así, concluye el tribunal penal que se trata de un nuevo proceso personal de comprensión de la [Nombre6], ya que el enunciado de referencia permite una “aprehensión diversa” a la derivada por [Nombre [Nombre10]], la que califica de sarcástica de parte del querellado [Nombre12] puesto que hace referencia al “Libro de los Secretos” y expresa una felicitación a la [Nombre6]. En tal sentido, literalmente en la resolución impugnada los juzgadores consideraron lo siguiente: “[…] Es indudable que la publicación del querellado [Nombre12] está redactada en un tono irónico, sarcástico y mordaz y su lectura integrada con conocimientos previos y prejuicios, puede resultar chocante, de modo que es comprensible la molestia, que según lo que narró en juicio, ha provocado en la [Nombre6] [Nombre [Nombre10]]. Sin embargo, ni el sentido literal de las palabras usadas por [Nombre12] , ni su contexto contienen difamaciones ni tampoco la comisión de un delito es la única inferencia razonable de las insinuaciones que esbozó el querellado en su publicación. Como se analizó, el texto no insulta ni ofende el decoro de [Nombre [Nombre10]], podría colegirse la sugerencia que cometió un delito pero esa sugerencia no es la única que hace el querellado, y de ahí el Tribunal infiere que no hubo lesión al honor de [Nombre [Nombre10]], quien como [Nombre [Nombre10]] debía en consecuencia, tolerar esas sugerencias, sí, todas ellas, y no hacer suya una sola para pretender la condenatoria solicitada en las conclusiones del debate […]”. v.- Otro aspecto que se desarrolla en la sentencia y es de peso en la solución del subjudice, es el atinente a que el tribunal de mérito consideró que [Nombre7] no tenía la obligación de probar que [Nombre [Nombre10]] había comprado el inmueble de marras, e02 como como tampoco que efectivamente ella tenía participación en empresas de generación eléctrica a partir de fuentes eólicas. Tal e04 se e se esbozó por parte del a quo a partir de dos razones: “[…] la primera consiste en que ni una cosa ni la otra son per se, afirmaciones difamatorias ni mucho menos calumniosas y, en segundo lugar, porque a partir de la lectura integral del texto querellado, el Tribunal infiere que hay una relación directa entre esos dos eventos que expone el querellado, y su opinión al respecto; es decir, [Nombre12] informó de dos hechos con el fin único de opinar al respecto. Por lo tanto, si el Tribunal diera mérito a la pretensión de [[Nombre3] ] y exigiera que [Nombre12] haya debido probar los dos hechos para obtener una absolutoria, haría nugatoria la libre expresión de la que es titular e09 a la a la persona que en aquel momento ejercía al […], e08 por por esa condición [Nombre12] informó primero de dos hechos que le llamaron la atención e09 al N al e01 públ público de la [Nombre6], y a partir de eso expuso su opinión […]” (e07. fol. folio 364 del sumario. La transcripción es literal). En torno a los razonamientos antes expuestos, con base en los que el tribunal de mérito restó importancia a la veracidad o falsedad de los hechos que se engloban en la publicación difundida por [Nombre12] , los juzgadores de instancia consideraron que, el texto querellado no es el mejor ejemplo de una información seria y respaldada, ni la exposición de un pensamiento elaborado o de una crítica profunda de [Nombre7] . No obstante lo anterior, estimaron que el contenido del texto en cuestión sí es propio de lo que faculta la Constitución Política a todos los ciudadanos en el ejercicio del derecho de expresión e09 a la a la persona que ejerce el e01 de [ de […], e15, por, por esa “condición voluntariamente aceptada”, está compelida a tolerar, siempre y cuando, no se le ofenda expresamente, ni la comisión de un delito sea la única sugerencia que razonablemente se derive de un comentario, opinión o publicación realizada por un ciudadano. En razón de lo expuesto, el a quo concluyó que la acción realizada por [Nombre7] es atípica, ya que en el fallo se estimó que la misma no contiene una “especie idónea” para afectar el honor de la [Nombre6], por lo que tampoco se puede arribar a la corroboración del tipo subjetivo. Añade el tribunal de juicio que el querellado actuó amparado al ejercicio de un derecho fundamental como lo es la libertad de expresión, puesto que, a pesar de que usó un texto fuerte, sarcástico y sin duda molesto, para expresar su opinión a partir de los hechos que tomó como base para su manifestación, no surge unívocamente del texto que publicó que la [Nombre6] haya cometido un delito, sino que brotaron varias posibilidades, lo que determina que el proceder [Nombre12] no es antijurídico en virtud de la especial condición de […] e16 la [ la [Nombre6] [[Nombre3] ], situación que le significaba un margen de transparencia muy amplio por cumplir y de cuentas por rendir, todo lo cual apreció el a quo para descartar en la especie el ejercicio excesivo del derecho de expresión. Por último, el tribunal cierra su análisis para absolver a [Nombre7] , señalando lo siguiente: “[…] El autor nacional [Nombre27] , en el artículo arriba citado afirma que cuando se detecta una colisión entre el derecho individual del honor de un funcionario público y el derecho colectivo de expresión, e03 dars darse prevalencia a este último, en aplicación del principio del derecho penal mínimo, afirmación que comparte el Tribunal y que en la tarea de establecer esta línea entre el abuso del derecho de expresión y su correcto uso, ha estimado que el texto que nos ocupa se encuentra dentro de la línea de lo que se considera que no es abuso. e02 las las cosas, se absuelve de toda pena y responsabilidad a [Nombre7] del delito de DIFAMACIÓN en perjuicio de [[Nombre3] ]. Se emite este fallo sin especial condena en costas. Los gastos del proceso, son a e01 del del Estado […]” (cfr. folio 367). El examen y descripción de los aspectos que se apreciaron en la sentencia de mérito para absolver a [Nombre7] , permite tener claridad y total comprensión de las falencias del fallo, que implican el vicio de falta de fundamentación que se reclama y que se acoge en el presente pronunciamiento. De seguido se expondrán aspectos jurídicos que son de carácter esencial para la correcta solución del presente caso, y luego se puntualizarán los defectos en el razonamiento del tribunal de instancia que quebrantan la normativa establecida en los artículos 39 y 41 de la Constitución Política, e02 como como de la estipulada en los artículos 1, 142 y 184 del Código procesal Penal. B.- Aspectos jurídicamente relevantes para la solución del caso conforme a Derecho. El presente caso tiene dos particularidades que necesariamente deben valorarse con detenimiento y rigurosidad para la correcta solución jurídica del litigio que se conoce, sean en éstos: 1.- que la [Nombre6] [Nombre [Nombre10]] ostentaba el e01 de [ de […] e17 la f la fecha en que [Nombre7] –querellado- publicó en su perfil de “Facebook” el texto que se acusa como difamatorio; 2.- que los hechos objeto de juzgamiento están vinculados directamente con dos derechos de rango constitucional, cuya tutela en el ámbito penal revela su importancia para el desarrollo social e individual de cada uno de los habitantes de nuestro país, sean: i.- el derecho al honor y; ii.- el derecho a la libre expresión. En atención y bajo el prisma de estos dos pilares de carácter esencial del sublitem, se deben definir los aspectos jurídicamente relevantes y necesarios para la solución del caso conforme a Derecho. Así, se procede a individualizar tales supuestos. b.1.- Marco jurídico normativo. En primer término es necesario establecer el marco normativo que está vinculado a los hechos que se juzgan y que es necesario apreciar y aplicar para su correcto conocimiento. De esta forma e03 defi definirse en primer lugar la normativa que es parte del bloque de constitucionalidad que está relacionada y que regula la temática en cuestión, siendo esta la siguiente: i.- Artículo 11 de la Constitución Política; En su normativa se regula un principio que es de carácter esencial para la debida aplicación del derecho penal –y sin duda alguna para el caso concreto- como lo es el principio de legalidad. En dicho precepto constitucional se estipula lo siguiente: “(…) Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella. Deben prestar juramento de observar y cumplir esta Constitución y las leyes. La acción para exigirles la responsabilidad penal por sus actos es pública. La Administración Pública en sentido amplio, estará sometida a un procedimiento de evaluación de resultados y rendición de cuentas, con la consecuente responsabilidad personal para los funcionarios en el cumplimiento de sus deberes. La ley señalará los medios para que este control de resultados y rendición de cuentas opere como un sistema que cubra todas las instituciones públicas. (Así reformado por Ley N° 8003 del 8 de junio del 2000) (…)”. Otro aspecto de carácter esencial para la solución del caso, y que se deriva del artículo 11 constitucional, es el deber de rendición de cuentas de los funcionarios públicos e02 como como la exigencia de responsabilidad personal en el cumplimiento de sus deberes. ii.- Artículo 41 de la Constitución Política. En este precepto se establece el derecho al honor con rango constitucional, es decir, se le concede el grado de derecho fundamental, de ahí la relevancia que tiene esta norma para resolver el fondo del litigio que se conoce en la especie. En dicho artículo se establece: “(…) Ocurriendo a las leyes, todos han de encontrar reparación para las injurias o daños que hayan recibido en su persona, propiedad o intereses morales. e03 hacé hacérseles justicia pronta, cumplida, sin denegación y en estricta conformidad con las leyes (…)”. iii.- Otro artículo de nuestra Constitución Política cuya normativa es aplicable e importante para la solución del presente caso, es la establecida en su numeral 28, en el que se regula lo siguiente: “(…) Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley. Las acciones privadas que no dañen la moral o el orden públicos, o que no perjudiquen a tercero, están fuera de la acción de la ley (…)”.iv.- Por otra parte, tenemos el artículo 29 de nuestra Carta Magna en el cual se tutelan como derechos fundamentales la libertad de expresión, información y prensa, las que sin duda alguna están directamente vinculadas al evento querellado en la presente causa penal. Literalmente, en dicha norma se regula lo siguiente: “(…) Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca (…)”. De igual forma, es necesario puntualizar la regulación del Derecho Convencional que está vinculada y e03 ser ser valorada en la solución del presente caso, sea esta la siguiente: i.- Artículo 11 de la Convención Americana sobre Derechos Humanos. En esta norma se reconoce expresamente como un derecho humano la protección a la honra y a la dignidad de la persona. Así, se dispone lo siguiente: “(…) Protección de la Honra y de la Dignidad. 1. Toda persona tiene derecho al respeto de su honra y al reconocimiento de su dignidad. 2. Nadie puede ser objeto de injerencias arbitrarias o abusivas en su vida privada, en la de su familia, en su domicilio o en su correspondencia, ni de ataques ilegales a su honra o reputación (…)”. ii.- También, como parte del “bloque convencional” que rige en nuestro ordenamiento jurídico, en el artículo 19 del Pacto Internacional de Derechos Civiles y Políticos se reconoce expresamente el derecho a la libertad de expresión y de información, siendo que tales derechos se regulan de la siguiente forma: “(…) 1. Nadie podrá ser molestado a causa de sus opiniones. 2. Toda persona tiene derecho a la libertad de expresión; este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección. 3. El ejercicio del derecho previsto en el párrafo 2 de este artículo entraña deberes y responsabilidades especiales. Por consiguiente, puede estar sujeto a ciertas restricciones, que deberán, sin embargo, estar expresamente fijadas por la ley y ser necesarias para: a) Asegurar el respeto a los derechos o a la reputación de los demás; b) La protección de la seguridad nacional, el orden público o la salud o la moral públicas (…)”. iii.- En el mismo orden, en el artículo 13 de la Convención Americana sobre Derechos Humanos se estipula lo siguiente: “(…) 1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección. 2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar: a) el respeto a los derechos o a la reputación de los demás, o b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas. 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones (…)”. iv.- Una norma relacionada con las previamente expuestas y que es relevante para la decisión del subjudice, es la dispuesta en el artículo 19 de la Declaración Universal de Derechos Humanos, en la cual se establece lo siguiente: “(…) Todo individuo tiene derecho a la libertad de opinión y de expresión; este derecho incluye el de no ser molestado a causa de sus opiniones, el de investigar y recibir informaciones y opiniones, y el de difundirlas, sin limitación de fronteras, por cualquier medio de expresión (…)”. Por otra parte, en el ámbito legal de nuestro ordenamiento jurídico, se contempla una serie de regulaciones que son de vital importancia para la solución de la presente querella conforme a Derecho, sean éstas las siguientes: i.- El artículo 146 del Código Penal tipifica el delito de difamación, que es precisamente el hecho punible que se querelló como cometido por el imputado [Nombre7] . En dicho artículo se establece: “(…) Difamación. Será reprimido con veinte a sesenta días multa en que deshonrare a otro o propalare especies idóneas para afectar su reputación (…)”. Así, es claro que el derecho fundamental al honor está de por medio en la solución del subjudice, con la particularidad que también es importante para tal efecto la apreciación rigurosa del derecho a la libertad de expresión tutelado en las normas jurídicas superiores supra expuestas; ii.- La normativa que se regula en el artículo 25 del Código Penal, está directamente vincula con la temática objeto de discusión, específicamente, en cuanto al ejercicio legítimo del derecho a la libertad de expresión. En su regulación se dispone lo siguiente: “(…) Cumplimiento de la ley. No delinque quien obrare en cumplimiento de un deber legal o en el ejercicio legítimo de un derecho (…)”. Esta causa de justificación es de suma importancia a efecto de definir en un caso como el que se resuelve, si existe responsabilidad penal o no por la difusión de hechos que se querellan como lesivos al honor. iii.- También es jurídicamente relevante en el presente caso, el contenido normativo del artículo 22 del Código Civil, ya que en este se regula expresamente la prohibición del abuso de un derecho, disposición que está vinculada a la libertad de expresión según las normas que reconocen y tutelan tal derecho fundamental en los instrumentos jurídicos que conforman el bloque de constitucionalidad, tal y como supra se expuso. En dicho artículo se dispone lo siguiente: “(…) La ley no ampara el abuso del derecho o el ejercicio antisocial de éste. Todo acto u omisión en un contrato, que por la intención de su autor, por su objeto o por las circunstancias en que se realice, sobrepase manifiestamente los límites normales del ejercicio de un derecho, con daño para tercero o para la contraparte, dará lugar a la correspondiente indemnización y a la adopción de las medidas judiciales o medidas administrativas que impidan la persistencia en el abuso (…)”. iv.-Por otra parte, en virtud de la especial condición personal de la [Nombre6] [[Nombre3] ], debe apreciarse que en la Ley General de Administración se regulan disposiciones relacionadas con el tema de fondo, las que son relevantes para la solución del caso. En primer término, en el artículo 11 de la ley citada se regula el principio de legalidad como rector esencial de la actuación de los funcionarios públicos, siendo que se estipula lo siguiente: “(…) La Administración Pública actuará sometida al ordenamiento jurídico y sólo podrá realizar aquellos actos o prestar aquellos servicios públicos que autorice dicho ordenamiento, según la escala jerárquica de sus fuentes. Se considerará autorizado el acto regulado expresamente por norma escrita, al menos en cuanto a motivo o contenido, aunque sea en forma imprecisa (…)”. Por su parte, en el artículo 113 de la Ley General de la Administración Pública se dispone lo siguiente: “(…) 1. El servidor público deberá desempeñar sus funciones de modo que satisfagan primordialmente el interés público, el cual será considerado como la expresión de los intereses individuales coincidentes de los administrados. 2. El interés público prevalecerá sobre el interés de la Administración Pública cuando e06 esta estar en conflicto. 3. En la apreciación del interés público se tendrá en cuenta, en primer lugar, los valores de seguridad jurídica y justicia para la comunidad y el individuo, a los que no puede en ningún caso anteponerse la mera conveniencia (…)”. Otra norma legal relevante, es el artículo 114 de la Ley General de la Administración Pública, en la cual se establece: “(…) 1. El servidor público será un servidor de los administrados, en general, y en particular de cada individuo o administrado que con él se relacione en virtud de la función que desempeña; cada administrado deberá ser considerado en el caso individual como representante de la colectividad de que el funcionario depende y por cuyos intereses e03 vela velar. 2. Sin perjuicio de lo que otras leyes establezcan para el servidor, considérese, en especial, irregular desempeño de su función todo acto, hecho u omisión que por su culpa o negligencia ocasione trabas u obstáculos injustificados o arbitrarios a los administrados (…)”. El marco normativo expuesto, contiene las disposiciones que deben considerarse y aplicarse en la solución del subjudice, el que , tal y como anteriormente se apuntó, presenta dos particularidades de gran relevancia jurídica que deben valorarse, necesariamente, para dictar la decisión que conforme a Derecho corresponde, sean éstos; que la [Nombre6] [Nombre [Nombre10]] ocupaba el e01 de [ de […] e17 el m el momento en que [Nombre7] publicó en su cuenta personal de “Facebook” el texto que se querelló como difamatorio en la presente causa y; que los hechos objeto de juzgamiento están vinculados directamente con dos derechos de rango constitucional, cuya tutela en el ámbito penal revela su importancia para el desarrollo social e individual de cada uno de los habitantes de nuestro país, sean: i.- el derecho al honor y; ii.- el derecho a la libre expresión. Así, del estudio y aplicación de las normas supra apuntadas, se determina que en el presente caso existe lo que se puede enunciar como una especie de “fricción” entre los derechos fundamentales al honor y el de la libertad de expresión, sobre los que e03 indi indicarse, expresamente, que a pesar de tal situación no son excluyentes entre sí. Esto, por cuanto lo que se determina en tal sentido, con base en lo regulado en nuestro ordenamiento jurídico, es que ambos derechos fundamentales están estrechamente vinculados el uno con el otro, puesto que tanto el derecho al honor como la libertad de expresión, son esenciales para el desarrollo individual y social de toda persona, a lo que e03 suma sumarse que la libertad de expresión tiene una cualidad esencial desde el punto de vista político-institucional y social, como lo es que la tutela y respeto de tal derecho son absolutamente necesarios para garantizar la estructuración, vigencia y desarrollo de una sociedad basada en un Estado Democrático, como el que se enmarca en nuestra Constitución Política. e02 las las cosas, las disposiciones contenidas en los instrumentos normativos de referencia, permiten establecer que no es dable pensar o considerar, que uno de tales derechos humanos es de grado superior o que deba aplicarse en detrimento absoluto del otro, ya que lo que corresponde a efecto de garantizar y proteger ambos derechos humanos, debidamente, conforme a los preceptos de nuestro ordenamiento jurídico, es su aplicación igualitaria, siendo que en el supuesto de darse una colisión entre ambos –en virtud de su especial vinculación- lo que corresponde es valorar las circunstancias objetivas y subjetivas de cada caso concreto, con el fin de modular racional y proporcionalmente, el valor que corresponde otorgar al derecho al honor con respecto a la libertad de expresión en un determinado asunto de relevancia jurídico penal. Es importante complementar la idea anterior, de modo que aunado a las consideraciones propias del caso en particular en cuanto a la “modulación” de los derechos fundamentales de referencia, e03 apre apreciarse también y definirse con cuidado, el alcance o ámbito de cada uno de tales preceptos fundamentales. Esto, con el objetivo de determinar si en un caso concreto el derecho a la libre expresión se extralimitó o se “salió” de su ámbito legítimo de tutela. Lo anterior es importante porque, normalmente, el derecho al honor se verá afectado con manifestaciones, opiniones o críticas de terceros, pero esa afectación –por sí sola- no e03 ser ser el parámetro único a considerar, ya que también e03 apre apreciarse y definirse hasta dónde la honra y el decoro –en el caso de los funcionarios públicos- e03 tole tolerar dichas críticas, de modo que no sólo es suficiente “modular” el ámbito de tutela específico de uno u otro derecho humano, sino que además, se deben fijar límites y alcances de tales derechos. Lo anterior se sustenta en el estudio y análisis objetivo e integral de la normativa enunciada, análisis que lleva a concluir que la libertad de expresión no puede limitarse o restringirse a priori, lo cual implicaría que tales restricciones se traduzcan en una censura previa que desnaturalizaría y significaría a su vez, el vaciamiento del contenido y eficacia de la libertad de expresión, lo que es absolutamente nocivo para el adecuado desarrollo y vigencia de un Estado Democrático de Derecho. De la normativa expuesta, e02 como como de la naturaleza jurídica y fines de la libertad de expresión, lo pertinente es que los límites a su ejercicio se den a posteriori, sí y sólo sí, en los casos en que se haya dado un uso abusivo de la libertad de expresión que exceda su contenido normativo, y que implique, a su vez, la vulneración de otros derechos fundamentales, tal y como puede darse con respecto al derecho al honor, con el que ya se ha indicado que el derecho a la libre expresión está estrechamente vinculado. De esta forma no procede establecer como regla absoluta que el derecho a la libertad de expresión va a prevalecer en todo caso y sin límite alguno sobre el derecho al honor, siendo lo jurídicamente procedente considerar y definir en cada cada caso concreto, cuál es el peso o el valor que le corresponde a uno u otro, a efecto de garantizar adecuadamente y conforme a los parámetros constitucionales, la vigencia y tutela efectiva de ambos derechos fundamentales bajo su equilibrio y reconocimiento adecuado. Lo antes expuesto es de suma relevancia jurídica para la solución del subjudice conforme a Derecho y para garantizar uno de los pilares fundamentales del debido proceso penal, como lo es el derecho a una sentencia justa y sujeta a la legalidad, tal y como se establece en la célebre resolución N° 1739-92 de la Sala Constitucional de la Corte Suprema de Justicia. Específicamente en virtud de que, tal y como se ha establecido previamente, la [Nombre6] [Nombre443 [Nombre10]] ocupaba la […] en el momento en que acaecieron los hechos objeto de juzgamiento. Tal situación introduce a otra temática esencial en el análisis del subjudice, a saber, la condición de funcionario público y la obligación que, en virtud de tal calidad, existe para con los administrados en general, de modo que en razón de lo preceptuado por los principios de legalidad y rendición de cuentas, todo aquel que ostente el e01 de f de funcionario público tiene una mayor responsabilidad en el ejercicio de las competencias propias de su investidura, e02 como como está sujeto a un mayor escrutinio y fiscalización en el ejercicio de la función pública, parámetro que en definitiva le da un matiz especial al derecho fundamental a la libertad de expresión versus el derecho al honor. Así, es claro que en razón del principio de rendición de cuentas derivado de los artículos 11 de la Constitución Política, e02 como como de los artículos 11, 113 y 114 de la Ley General de la Administración Pública, quien sea funcionario público y ejerza un e01 de t de tal naturaleza, ya sea de elección popular o de cualquier otro tipo, en virtud de su condición de funcionario público y por haber optado voluntariamente a la gestión de un puesto de esa categoría, está obligado a soportar un mayor nivel de tolerancia en el escrutinio y fiscalización del ejercicio de su cargo, e02 como como en la realización de sus actuaciones –incluso de carácter personal- que directa o indirectamente se vinculen, afecten o tengan incidencia en la gestión de su función pública. En razón de lo anterior, no cabe duda que quien ostenta un e01 como como el que ocupaba para la fecha de los hechos la [Nombre6] [Nombre [Nombre10]], sea el de la […] –y en general todo aquel que ocupe o ejerza la función pública-, tiene el deber de someterse –y aceptar- un mayor control en el ejercicio de sus funciones, no sólo por los órganos o mecanismos formales creados para tal efecto, como por ejemplo la Contraloría General de la República, sino también –y en un grado de suma importancia- por los medios de control y fiscalización informal, tal como lo son los medios de prensa y la opinión pública en general. Así, se garantiza que la administración de los bienes y recursos del Estado –que en realidad pertenecen a todos los habitantes del país y los han delegado para su correcto gobierno a los funcionarios públicos- se realice conforme a los fines y con la eficiencia exigida por la ley, por parte de quienes ejercen algún e01 públ público. A su vez, se tutela el efectivo resguardo y vigencia del Estado democrático, en el que no caben en modo alguno restricciones previas –o de algún otro tipo- a la libertad de expresión como medio de control y dominación social, siendo más bien que en un esquema democrático como el que rige en nuestro país e03 gara garantizarse la libertad de expresión como una forma de control del ejercicio del poder público. De esta forma, y concretamente, quien ejerza el e01 de l de la […], está sujeto a un mayor nivel de tolerancia en el escrutinio de sus funciones, lo cual sin duda alguna abarca los aspectos atinentes al ejercicio de la libertad de expresión con respecto al derecho al honor del […] o la […], de modo que quien ostenta el e01 está está sujeto a críticas, cuestionamientos, opiniones o manifestaciones que se dirijan o se sustenten en el ejercicio de su función pública o que estén vinculadas directa o indirectamente a su condición de funcionario público y a las competencias que desempeña. No obstante lo anterior, y desde ya es preciso establecer, no es legalmente procedente la interpretación que de las normas supra expuestas lleva a cabo el tribunal penal en la sentencia de mérito. Esto, por cuanto tal e04 deri deriva de una interpretación subjetiva de la realidad político-social costarricense por parte de los juzgadores de instancia, postura conforme a la que definen una base ideológica de su decisión, la que, según expresamente e02 lo i lo indican en el fallo, sustenta el e04 o pa o parámetro esencial con base el que resuelven el fondo del presente asunto, sea éste, que los juzgadores aprecian o consideran que quien ocupa la […] debe soportar o tolerar aún mayores limitaciones a su derecho al honor con respecto al resto de los funcionarios públicos, en cuanto al ejercicio de la libertad de expresión, de modo que sólo las ofensas directas a tal derecho fundamental o la referencia a hechos que expresamente constituyen un delito, serían los supuestos en que podría darse la vulneración ilícita del derecho al honor del […] Nombre04[…], el cual descartan la afectación al derecho al honor en la especie de la […] Nombre6] [Nombre6], [Nombre443 [Nombre10]]. En tal sentido, el estudio e interpretación que conforme a Derecho corresponde del marco normativo previamente definido, no permite establecer que se regule expresa o tácitamente que el nivel de tolerancia de quien ostenta el e la […] de la […] sea distinto al del resto de los funcionarios públicos que son miembros de los Supremos Poderes de la República, o de cualquier otro úblico d público de grado inferior a los antes señalados. Así, la diferenciación que lleva a cabo el a quo –distinguiendo donde la norma no lo hace- en cuanto al punto objeto de análisis, no es objetiva ni jurídicamente sustentada, sino que deriva de su parecer o postura subjetiva en cuanto a lo que estiman los juzgadores de instancia que es la respuesta que corresponde a las interrogantes que se auto plantean en su fallo, sean éstas: “[…] ¿qué tipo de Estado y de sociedad quiere la mayoría de los costarricenses? ¿Se quiere un Estado fuerte donde el honor de los servidores públicos tenga mayor protección legal que la libertad de expresión? o ¿Se quiere un Estado Constitucional donde exista una justa protección entre el honor de los funcionarios públicos y la libertad de expresión de los demás costarricenses […]” (cfr. folio 360 del legajo principal). Las limitaciones y relación existentes entre el derecho a la libertad de expresión con respecto al derecho al honor de los funcionarios públicos costarricenses, no se define a partir de la interpretación o individualización subjetiva de la ideología de lo que en tal sentido se considere que quieren las mayorías de nuestro país, tal y como equívocamente lo lleva a cabo el a quo en la sentencia de mérito. La relación jurídica entre el derecho al honor y la libertad de expresión en aras de garantizar adecuadamente los principios de legalidad, de transparencia y rendición de cuentas de los funcionarios públicos, para la vigencia y correcto desarrollo del modelo democrático que instaura nuestra Carta Magna, efinirse definirse con base en la aplicación del marco normativo supra expuesto, del cual se determina lo siguiente: i.- Los funcionarios públicos están sujetos a los principios de legalidad y de rendición de cuentas en su calidad de depositarios de la función pública. ii.- La aplicación estricta de tales principios implica que los funcionarios públicos tienen un mayor nivel de tolerancia en el escrutinio y fiscalización del ejercicio de sus cargos, a efecto de garantizar el adecuado manejo de los recursos públicos de todos los administrados, omo para como para garantizar el desarrollo pleno del principio democrático y el resguardo del Estado Democrático que instaura nuestra Constitución Política. iii.- La normativa constitucional, convencional y legal supra expuesta, determina que los funcionarios públicos, a pesar del deber de tolerancia al que están sometidos por su condición de tal, sí poseen y son titulares del derecho al honor, el cual utelarse tutelarse y garantizarse bajo la aplicación estricta del principio de rendición de cuentas y transparencia propios de un Estado Democrático de Derecho, los que dan un especial matiz y un umbral de tolerancia mayor, en la relación honor versus libertad de expresión de los funcionarios públicos, el que jurídicamente no puede traducirse en el vaciamiento o desconocimiento de facto de la tutela al honor de quienes ejercen la función pública, en los que, obviamente, se incluye el e […]. A de […]. Así, si bien la persona que ostente dicho ombre03 oportar soportar críticas, cuestionamientos u opiniones, las que incluso, pueden ser fuertes, ácidas e incómodas, mantiene su derecho al honor, de modo que el mismo no puede vulnerarse bajo la cortina o la mampara del ejercicio legítimo de un derecho (artículo 25 del Código Penal), sea el de la libertad de expresión, cuando en realidad lo que existe es un ejercicio abusivo e ilegítimo de tal derecho fundamental que implica una vulneración del decoro y dignidad de la persona que no sólo la afecta en su ámbito individual, sino que además, en virtud de su condición especial, la afecta con respecto al ejercicio de la función y administración pública. Tal uso abusivo del derecho al honor se puede realizar de muchas formas, tal y como expresamente se ha estipulado en la jurisprudencia constitucional, convencional y de nuestra Sala III de la Corte Suprema de Justicia –a la cual se hará referencia en un acápite subsiguiente- y no sólo mediante ofensas directas o señalamientos delictivos expresos en contra de un […] Nombre19[…], mo sin un sustento objetivo y jurídico lo estimaron los jueces de instancia en la sentencia de mérito. sas, par las cosas, para garantizar la tutela y aplicación efectiva de la normativa supra expuesta que regula los derechos fundamentales al honor y a la libertad de expresión en un caso como el que se dilucida en el subjudice, sin que se dé un menoscabo ilegítimo de uno de tales derechos en detrimento del otro, y lograr guardo y el resguardo y eficacia de ambos, no deben valorarse o definirse formas a priori o taxativas como propias o necesarias para la ofensa al honor de un determinado funcionario público, sea en el presente asunto el de quien ocupe la […], sino que lo procedente es apreciar o valorar en cada caso concreto la especie que se acusa o querella como ofensiva al honor del funcionario público, desde dos perspectivas; 1.- que el texto o contenido del material publicado se realice, exprese o plantee de una forma o manera que conlleve a una afectación o un menoscabo objetivamente constatables del honor, decoro o dignidad del funcionario público, en virtud del ejercicio abusivo de la libertad de expresión. Es decir, que lo principal es el contenido ofensivo de la publicación, mas sin embargo, tal y como lo ha indicado la Sala Tercera en la resolución supra estudiada, es importante valorar la forma en que se expresan, se plasman las ideas o se lleva a cabo la publicación; 2.- que de “la especie” que se querella o reputa como lesiva al honor, se derive la existencia de un dolo común de quien la realiza, es decir, el conocimiento y voluntad de que la manifestación es ofensiva al honor, sea afectar la honra o decoro del funcionario público, voluntad que se aparta y excede el ejercicio de la libertad de expresión que corresponde al escrutinio y fiscalización que deben tolerar los funcionarios públicos como parte del deber de transparencia y rendición de cuentas que está aparejada al tentan. que ostentan. En términos sencillos, puede puntualizarse que lo mínimo que puede requerírsele a una persona que lleva a cabo una publicación o difusión de una expresión con respecto a una persona que ostenta un o –a pos público –a posteriori a efecto de evitar cualquier posibilidad de censura previa-, es el que se haya cerciorado al menos, de la seriedad o existencia real de la fuente, es decir, apreciar y definir al menos una base objetiva que justifique el cuestionamiento, crítica, denuncia, comentario etc., que se difunde o publica. Es claro que dependiendo de cada caso en particular, y en atención al grado de responsabilidad, jerarquía y grado de exposición del determin de un determinado funcionario público, será más común y se tendrá que aceptar con mayor habitualidad el margen de tolerancia a la crítica, cuestionamientos u opiniones desfavorables que se lleven a cabo en el ejercicio serio y mesurado de la libertad de expresión, como medio de control y formación de opinión pública, tal y como ocurre en el […]. iv. de la […]. iv.- De la normativa expuesta, se colige que la libertad de expresión en torno al derecho al honor de los funcionarios públicos, no cubre ni ampara el ejercicio de aquella mediante el señalamiento o divulgación de hechos falsos, simples especulaciones o comentarios maliciosos que tienen como verdadera finalidad la de afectar el honor del funcionario público involucrado, y no la de hacer efectivo el ejercicio legítimo de un derecho con el objetivo de informar o generar opinión pública con respecto a situaciones que son relevantes para el correcto ejercicio de la función pública. Lo anterior no se traduce en que quien lleva a cabo una manifestación, crítica u opinión con respecto a la actuación de un funcionario público, esté obligado a demostrar la verdad del contenido de su publicación, ya que tal postura podría limitar indebidamente la libertad de expresión como una forma de censura previa. Lo que procede en cada caso concreto –tal y como supra se adelantó-, es analizar en primer término, la base objetiva del comentario, opinión o publicación, y en segundo lugar, que su emisión y difusión no tengan como verdadera finalidad la de afectar indebidamente el derecho al honor de un funcionario público bajo la apariencia o subterfugio de invocar el ejercicio de la libertad de expresión. Esto, en razón de que aceptar abiertamente y sin discriminación alguna cualquier tipo de expresión o comentario negativos en contra de un funcionario público, sin tamizar tales manifestaciones bajo la óptica del mayor nivel de tolerancia que les corresponde no es procedente. Tampoco es de recibo, afectar radicalmente su derecho al honor, en virtud de la definición y apreciación de presupuestos de hecho taxativos que no se derivan ni regulan, en el marco jurídico supra expuesto en modo alguno, tal y como lo hace el a quo. Tal postura lejos de satisfacer, procurar y permitir el control, escrutinio y fiscalización de quienes ostentan cargos públicos, a efecto de garantizar los deberes de transparencia y rendición de cuentas constitucionalmente establecidos, para la vigencia y desarrollo del Estado democrático a través de la formación de opinión pública y el cuestionamiento de los distintos actos que se dan en el ejercicio del poder y la administración estatal, lo que genera es la “deformación de la opinión pública”, lo que conlleva al desencanto y pérdida de confianza indebidos en quienes ejercen la administración pública y, en consecuencia, a la posible afectación irregular del correcto orden institucional. Lo anterior no solo afecta el honor individual de tales personas, sino que además y lo que es sumamente perjudicial para un Estado Democrático, menoscaba la institucionalidad y la gobernabilidad del mismo, ya que se produce indebidamente un ambiente de desconfianza y desencanto de los administrados en general, con respecto de quienes ejercen la función pública por su delegación y en su representación. De esta forma, la libertad de expresión y comunicación en un esquema constitucional democrático, no solo incluye la posibilidad de llevar a cabo las manifestaciones de modo libre y sin censura previa por los habitantes del Estado, sino que además, contempla el derecho a recibir y que se difunda información veraz, seria, objetiva y responsable sobre la actuación de quienes ostentan la función pública, a efecto de garantizar la formación de una adecuada opinión pública que enriquezca y consagre el principio de democrático a través de la tutela y correcta aplicación de los principios de transparencia y rendición de cuentas los que, obviamente, atañen y vinculan a quien ejerza la […]. En razón de todo lo expuesto, se determina que la base ideológica que se definió subjetivamente por el a quo, a partir de su apreciación particular de la realidad de nuestro país, para definir parámetros que según su apreciación descartan la existencia de conductas ilícitas lesivas al honor en perjuicio de la [Nombre443 [Nombre10]] por los hechos que querelló en contra del imputado [Nombre7] , es una decisión que no se acuerpa ni se ajusta a las normas que en nuestro ordenamiento jurídico regulan el derecho al honor de los funcionarios públicos con respecto al ejercicio de la libertad de expresión. b.2.- Precedentes jurisprudenciales aplicables al tema de fondo. En la sentencia de mérito los juzgadores de instancia invocan y aprecian en su argumentación, precedentes jurisprudenciales de las Salas Constitucional y Tercera, de la Corte Suprema de Justicia, e la Cor como de la Corte Interamericana de Derechos Humanos. No obstante lo anterior, el examen integral del fallo deja ver que, tal y como lo reclama el impugnante, el tribunal de juicio no valoró de modo íntegro el contenido de tales pronunciamientos, a pesar de que resultan muy importantes para decidir el fondo del presente asunto, toda vez que en ellos se estudia y desarrolla el tema relativo a los preceptos y criterios que deben seguirse en el abordaje jurídico-penal de la relación que existe entre los derechos fundamentales a la libertad de expresión con respecto al derecho al honor de quienes ejercen la función pública, ambién d como también definen otros aspectos jurídicamente relevantes para la solución del caso. Por tal motivo y en virtud de que el marco jurisprudencial de referencia ha sido apreciado y valorado a efecto de fundamentar el presente pronunciamiento, es necesario recapitular y analizar los contenidos más importantes de cada uno de los precedentes invocados en el fallo de mérito, relacionados con el tema objeto de litigio. 1.-Sala Constitucional de la Corte Suprema de Justicia. El estudio del fallo de mérito permite establecer que los juzgadores de instancia utilizaron, en el fundamento de su decisión de absolver al querellado [Nombre7] , el precedente jurisprudencial de la Sala Constitucional N°2006-05977, de las 15:16 horas del 3 de mayo de 2006, en el que se resolvió una acción de inconstitucionalidad planteada en contra del texto "Los responsables de delitos de calumnias o injuria cometidos por medio de la prensa, serán castigados con la pena de arresto de uno a ciento veinte días", contenido en el párrafo primero del artículo 7º de la Ley de Imprenta, N° 32 del 12 de julio de 1902. En dicho pronunciamiento, cuyas disposiciones arse que recordarse que son erga omnes, se destacan los siguientes aspectos: i.- En el precedente objeto de estudio se analiza el derecho fundamental a la libertad de prensa, siendo que la Sala Constitucional indica en tal sentido, que el caso se aborda desde la perspectiva de dicho derecho en relación con funcionarios públicos y la divulgación de temas de relevancia social -hechos noticiosos-, esto aún y cuando la norma está concebida dentro de un marco más amplio de sujetos. Al respecto, cabe señalar que en la sentencia de mérito los juzgadores no apreciaron en modo alguno que si bien el caso analizado en el precedente constitucional de referencia, tiene algunos aspectos que son aplicables al presente asunto -por estar relacionados en cierto grado con los hechos que se juzgan en el sublitem-, el tema que se trató en específico por la Sala Constitucional fue el de la libertad de prensa, lo cual difiere de lo que se discute en esta querella, toda vez que “la especie” que se querelló como lesiva al honor de [[Nombre3] ] no se publicó en un medio de prensa, ni tampoco se llevó a cabo por alguna persona dedicada a tal ámbito profesional. Esto, por cuanto [Nombre7] no es periodista, a lo e que el sumarse que el querellado tampoco realizó la publicación de marras como resultado de una investigación periodística, ni bajo las características de la difusión que se estila y que son propias de los medios de comunicación de tal naturaleza. Esta situación e presen tenerse presente para poder dimensionar los alcances del pronunciamiento en cuestión, a efecto de derivar los aspectos que del mismo sí son aplicables en la solución del subjudice, lo cual se dejó totalmente de lado por el a quo en la valoración que llevó a cabo en el fallo del precedente constitucional que se estudia. ii.- Otro aspecto que no valoró el tribunal penal con el peso que jurídicamente corresponde, es la afirmación que hace la Sala Constitucional en cuanto a los límites que tiene la libertad de prensa –que en algún momento de su razonamiento identifica como libertad de expresión- con respecto a quienes ejercen la función pública y su derecho al honor. En tal sentido se estipula, en términos generales, que las normas que establecen restricciones a dicho derecho fundamental no tienen como finalidad limitar el deber de transparencia, pero sí la de sancionar la mala fe y la negligencia inexcusable de quien utiliza la libertad de prensa como medio para lesionar el honor de un funcionario público. Literalmente, sobre los aspectos previamente apuntados la Sala Constitucional establece: “[…] No se trata entonces de una norma configurada para escudar la función pública, ni evitar la necesaria transparencia que r sobre existir sobre sus actos, sino que pretende en general, sancionar a quien de mala fe o por negligencia inexcusable, utiliza la libertad de prensa como medio para lesionar el honor de las personas y el derecho de los ciudadanos a recibir información adecuada y oportuna de parte de los periodistas y medios que difunden información a través de medios escritos. No se abordan por no ser parte del caso, los temas ajenos al marco señalado, como lo son los otros sujetos no periodistas o medios de comunicación, que se expresan e informan sobre los distintos temas diariamente a la ciudadanía por medio de la imprenta que engloba de manera genérica todos los tipos de impresos, impresión, edición, circulación de folletos, revistas y publicaciones de toda clase […]”. Lo anterior revela las debilidades en el razonamiento y, en consecuencia, en el fundamento de la decisión objeto de impugnación. iii.- En cuanto a la libertad de expresión, la Sala Constitucional establece que tal derecho fundamental es un pilar esencial de la democracia, lo cual asume y comparte plenamente esta cámara de alzada, según lo expuesto en el punto precedente de este pronunciamiento. Específicamente, en tal sentido la Sala Constitucional estipula lo siguiente: “[…] La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa […]”. iv.- En el precedente objeto de estudio, la Sala Constitucional define el contenido de la libertad de expresión encuadrándola en distintas facetas, categorización que es de capital importancia para solución del presente caso. Al respecto se estipula lo siguiente: “[…] Contenido de la libertad de expresión . La libertad de información podría decirse que tiene varias facetas, según lo ha reconocido la doctrina nacional (de las cuales las tres primeras se relacionan con lo que aquí se discute): a) la libertad de imprenta en sentido amplio, que cubre cualquier tipo de publicación, b) la libertad de información por medios no escritos, c) el derecho de rectificación o respuesta. La libertad de prensa engloba de manera genérica todos los tipos de impresos, impresión, edición, circulación de periódicos, folletos, revistas y publicaciones de toda clase. Es por su naturaleza vehículo natural de la libertad de expresión de los ciudadanos. Se traduce en el derecho para los administrados de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos. Por su naturaleza, está sujeta a las mismas limitaciones que la libertad de expresión. Tiene como funciones en la democracia: informar (hechos, acontecimientos noticiosos), integrar la opinión (estimulando la integración social) y controlar el poder político, en cuanto es permanente guardián de la honestidad y correcto manejo de los asuntos públicos. Dado su vínculo simbiótico con la ideología democrática, un sin fin de instrumentos internacionales y prácticamente todas las Constituciones del mundo libre, desde la Declaración Francesa de 1789 (art.11) la han reconocido (…) La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, rse con ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema […]” (El subrayado no es parte del texto original). De lo expuesto se coligen dos puntos fundamentales con respecto al ejercicio de la libertad de expresión, a efecto de cumplir con los fines propios de un Estado Democrático, a saber: a.- se le define como el derecho de los administrados a difundir ideas a un número indeterminado de personas sobre hechos que por su naturaleza con de interés de la generalidad por considerarse noticiosos. Así, es claro que lo que la libertad de expresión permite difundir son “hechos” que sean relevantes y tengan el carácter de noticiosos, por estar vinculados al ejercicio de la función pública. Tales aspectos no fueron valorados por el a quo a pesar de utilizar en su razonamiento de fondo el contenido jurisprudencial del precedente de referencia, siendo que no llevó a cabo apreciación alguna para definir si en el presente asunto, “la especie” que se querelló como idónea para afectar el derecho al honor de [[Nombre3] ] por ser difamatoria, reviste el carácter de “hecho” y, a su vez, si puede considerarse de interés para la generalidad de las personas por ser de carácter noticioso. En este sentido cabe reiterar según fue establecido supra por este tribunal de alzada, que desde el punto de vista penal quien ejerce el derecho a libertad de expresión o de prensa no está obligado a demostrar la veracidad de los hechos que difunde, sin embargo, sí es necesaria la constatación de cierta base objetiva que permita descartar que lo que se esconde detrás de la publicación es una falsedad o una mera especulación que de manera maliciosa se pone a circular o se difunde a sabiendas de que es idónea para afectar el honor del funcionario público que se involucra, tal y como la misma Sala Constitucional lo estipula en la jurisprudencia que se examina. El examen integral del fallo recurrido deja ver que el tribunal de mérito no valoró, con la rigurosidad que exigen los artículos 142 y 184 del Código Procesal Penal, los aspectos antes apuntados a pesar de ser esenciales para categorizar y decidir adecuadamente los hechos querellados en la presente causa. b.- La Sala Constitucional expresamente establece que no son procedentes límites previos al ejercicio de la libertad de expresión, ya que tal tipo de restricciones podría implicar una especie de censura previa. No obstante lo anterior, nuestro Tribunal Constitucional establece que sí son procedentes ciertos límites a posteriori, mismos que no supriman el contenido del derecho fundamental, límites que se justifican en que toda libertad rse con ejercerse con responsabilidad, a efecto de procurar y alcanzar los fines legítimos dentro del sistema. v.- Otro aspecto esencial que se toca en el precedente objeto de estudio, es el relativo a los límites que la Sala Constitucional estipula que le corresponden a la libertad de expresión. En tal sentido se establece que no todas las expresiones tienen el mismo valor, y en consecuencia, no gozan de la misma protección constitucional. Al respecto, retoma la jurisprudencia del Tribunal Constitucional español, siendo que indica lo siguiente: “[…] Para determinar cuáles expresiones se pueden limitar y en qué medida, es importante tomar en cuenta que no todas las expresiones pueden tener el mismo valor ni gozar, en consecuencia, de la misma protección constitucional. emplo, i por ejemplo, incluso la jurisprudencia internacional, vgr. el Tribunal Constitucional español, ha señalado que carecen de protección constitucional, los insultos o los juicios de valor formalmente injuriosos e innecesarios para la expresión de una idea, pensamiento u opinión […]”. De lo anterior se colige que carecen de protección los insultos, os juici como los juicios de valor formalmente injuriosos e innecesarios para la expresión de una idea, pensamiento u opinión. En tal sentido, el examen comprensivo del fallo de mérito permite concluir que los juzgadores de instancia no valoraron bajo los parámetros estipulados por la Sala Constitucional, el contenido de la publicación que se querelló como difamatoria en el presente asunto, siendo que no apreciaron si la manera en que se redactó tal manifestación y su contenido, eran necesarios para la expresión de la especie que se difundió en el perfil de “Facebook” del [Nombre7] . En este sentido cabe agregar que el a quo analizó la publicación de marras de manera segmentada y restrictivamente, a partir del modo su que de modo subjetivo definió como la “base ideológica” de su fallo, del cual estableció los parámetros que consideró y determinó como los únicos que pueden generar la afectación del derecho al honor de quien ocupa la […]. ó su exa, limitó su examen del caso en apreciar si el texto en cuestión era directamente injurioso o atribuía indubitablemente una conducta delictiva a la [Nombre6], análisis que evidentemente no se ajusta a los parámetros definidos por nuestra Sala Constitucional en el precedente de referencia, situación que se traduce en la errónea fundamentación jurídica de la sentencia recurrida. Siguiendo con el análisis que dicha Sala realiza en la jurisprudencia objeto de estudio, en cuanto a las limitaciones que constitucionalmente le corresponden al derecho a libertad de expresión, es importante destacar los siguientes puntos que delimitan el legítimo ejercicio de dicho derecho fundamental: “[…] En otro peldaño se encuentran las opiniones, es decir, los juicios de valor personales que no sean formalmente injuriosos e innecesarios para lo que se quiere expresar, aunque contengan lo que se conoce como "opiniones inquietantes o hirientes"; estas opiniones sí estaría protegidas constitucionalmente por la libertad de expresión y podría tener como contenido incluso la ironía, la sátira y la burla. En otro escalón estaría la información, entendiendo por tal la narración veraz de hechos, que estaría protegida como regla general, a menos que vulnere otros derechos fundamentales o bienes constitucionalmente protegidos (por ejemplo, el honor, la intimidad, el orden y tranquilidad de la nación, los derechos de los niños y adolescentes). En otro nivel estaría la noticia, entendiendo por tal la narración veraz de hechos que tienen relevancia pública, ya sea por los hechos en sí mismos, o por las personas que intervienen en ellos; las noticias contribuyen de manera destacada a la creación de la opinión pública libre. En el último escalón se encontrarían las falsedades, los rumores o insidias que se esconden detrás de una narración neutral de hechos y que en realidad carecen por completo de veracidad. Sobre el tema de la veracidad, la Comisión de Derechos Humanos ha señalado (Declaración de Principios sobre Libertad de Expresión, adoptada por la Comisión Interamericana de Derechos Humanos en su 108 periodo ordinario de sesiones en octubre de 2000) que se considera censura previa cualquier condicionamiento previo, a aspectos tales como veracidad, oportunidad o imparcialidad de la información, pero a e Tribun de este Tribunal, erse que entenderse que está referido a la posibilidad de utilizar dichos argumentos como justificantes de una censura previa de la información, no para impedir el derecho a una tutela judicial efectiva injurias a las injurias o daños que hayan recibido en su persona, propiedad o intereses morales, como lo establece el artículo 41 de nuestra Constitución al señalar: “Ocurriendo a las leyes, todos han de encontrar reparación para las injurias o daños que hayan recibido en su persona, propiedad o intereses morales. eles jus hacérseles justicia pronta, cumplida, sin denegación y en estricta conformidad con las leyes.” Se reconoce que el ejercicio de la libertad de prensa, entendida como parte del derecho a informar y por lo tanto una forma de libertad de expresión, rse dent ejercerse dentro de principios éticos elementales, bertad d “la libertad de prensa no es sinónimo de derecho a injuriar”. Esto porque existe otro derecho fundamental que justifica que el sistema jurídico provea un equilibrio que será determinado siempre con análisis del caso concreto. No quiere esto decir que en todos los casos el honor de las personas ecer, o prevalecer, o que son derechos del mismo rango. Son más bien libertades que se relacionan entre sí dentro del sistema de libertad que soporta nuestra institucionalidad democrática […]” (El subrayado no es parte del texto original). De lo antes señalado se derivan dos aspectos muy importantes en cuanto al derecho al honor, que no fueron valorados debidamente por el a quo, a saber: a.- Las opiniones o juicios de valor personales no están exentos per se o de modo absoluto de generar un abuso del derecho a la libertad de expresión en detrimento de otros derechos fundamentales. Así, conforme lo dispone nuestro Tribunal Constitucional, para descartar tal uso abusivo del derecho a la libertad de expresión, arse y d apreciarse y definirse si las opiniones son formalmente injuriosas e innecesarias para difundir lo que se quiere expresar, análisis que omitió llevar a cabo el tribunal de mérito en el subjudice, en virtud de la preponderancia absoluta que le dio al parámetro que subjetivamente definió, para delimitar las conductas que taxativamente determinó como las únicas que pueden afectar el derecho al honor en el caso específico de quien ostenta la […]. Cabe agregar que las opiniones inquietantes, hirientes, irónicas, satíricas o burlescas, siempre que no sean formalmente injuriantes e innecesarias para expresar lo que se publica, no exceden la libertad de expresión según lo estipula la Sala Constitucional en el precedente que se analiza. Al respecto, rse que indicarse que en el fallo de mérito el tribunal penal señala que lo referido por el querellado [Nombre12] en contra de [[Nombre3] ], se llevó a cabo a través de un texto “fuerte”, “sarcástico” y sin duda “molesto” para dicha [Nombre6], a partir de los hechos que [Nombre12] informó como base para su manifestación u opinión. En tal sentido arse que reiterarse que en la sentencia impugnada, no se establece ni se deriva el razonamiento lógico ni tampoco con base en qué medios probatorios el a quo le otorgó, certeramente, el carácter de “hechos” a los puntos que se engloban en el texto publicado en el perfil de “Facebook” de [Nombre28] , en contra de la [Nombre [Nombre10]]. De igual manera, en el fallo los jueces de instancia tampoco expresaron los motivos por los que consideraron que “la especie” difundida por el querellado, se hizo de una manera que no es formalmente injuriosa e innecesaria para comunicar lo que se difundió en la cuenta de “Facebook” de [Nombre12] . b.- Otro defecto en el fundamento jurídico de la sentencia, que se constata de su examen integral –con base en lo preceptuado por la Sala Constitucional en el pronunciamiento que el a quo invocó en su fallo-, es que el tribunal de mérito no expresó n alguno o razón algunos en virtud de los que descartó en el subjudice que las manifestaciones que fueron querelladas como difamatorias no constituyen falsedades, rumores o insidias que se difundieron bajo una aparente “narración neutral de hechos” en el perfil de “Facebook” de [Nombre7] –pues no se analizó- si la publicación de marras carece por completo de veracidad. En este sentido, tal y como lo alega el recurrente [Nombre15] , el tribunal penal no valoró íntegramente la declaración de la [Nombre6] [[Nombre3] ] rendida en el juicio, ya que sólo la apreció a efecto de concluir en el análisis segmentado de la publicación de marras que realizó en el fallo, que “los sentimientos expresados por la [Nombre6] eran meras apreciaciones personales y derivaciones entre muchas otras que se podían colegir del contenido de la publicación querellada como difamatoria” (sin que en el fallo se precisen objetivamente cuáles son esas “otras muchas derivaciones”). En relación con el punto que se analiza, rse que indicarse que la Sala Constitucional, en el precedente objeto de estudio, establece que no puede pretenderse la acreditación de la verdad de lo que se publica a priori, ya que tal situación implicaría una especie de censura previa y afectaría el derecho a la libertad de expresión, pero a su vez considera nuestro Tribunal Constitucional que en el caso en que una persona decidió ejercer tal derecho fundamental a sabiendas de que el mismo tiene límites y le puede generar responsabilidades, es procedente y necesario a posteriori establecer que lo expresado no se trata de falsedades o rumores que carecen por completo de veracidad. Este supuesto, definido como uno de los parámetros constitucionales para limitar la libertad de expresión, no se valoró adecuadamente por el tribunal penal en la sentencia de mérito.vi.- Uno de los puntos de mayor relevancia para la solución del subjudice, que se desarrolla en la jurisprudencia de la Sala Constitucional objeto de estudio, es el relativo a la forma en que erse la resolverse la colisión que puede darse entre el derecho al honor y el ejercicio a la libertad de expresión, en el caso en que de por medio esté una persona o personas que ejerzan la función pública, siendo que en tal sentido la Sala valora la doctrina de la “posición preferente” del derecho a la información. Al respecto, se estipula lo siguiente: “[…] Es reconocido que la libertad de expresión en su más amplio sentido, es tan fundamental que representa el fundamento de todo el orden político, es decir, no es una libertad más, de ahí que haya surgido -principalmente por influencia norteamericana-, la doctrina de la "posición preferente" del derecho a la información en materia de control de constitucionalidad, entendida como aquella que afirma que cuando el derecho a informar libremente entra en conflicto con otros derechos, aunque sean derechos fundamentales, tiende a superponerse a ellos, posición que explica el porqué aspectos del derecho a la intimidad y al honor de las personas públicas deban ceder ante el interés de la información. El Tribunal Constitucional español se ha referido a la posición preferente de la libertad de expresión s derech a otros derechos fundamentales en los siguientes términos: Dada su función institucional, cuando se produzca una colisión de la libertad de información con el derecho a la intimidad y al honor aquélla goza, en general, de una posición preferente y las restricciones que de dicho conflicto puedan derivarse a la libertad de información deben interpretarse de tal modo que el contenido fundamental del derecho a la información no resulte, dada su jerarquía institucional, desnaturalizado ni incorrectamente relativizado (sentencias 106/1986 y 159/1986). Sin embargo es evidente que la posición preferente existe en cuanto el derecho sea ejercido para cumplir con su función legítima en la democracia y por ende como parte esencial del mismo, no para permitir falsedades, rumores o insidias que se esconden detrás del ejercicio de un derecho fundamental con la excusa como se indicó, de una supuesta narración neutral de hechos carentes por completo de veracidad, que causan violaciones a libertades también esenciales desde el punto de vista del sistema de libertad, como lo son el honor de las personas y el derecho a ser informados en forma adecuada y oportuna. Es tan importante esta libertad, que efectivamente goza de especiales protecciones en aras de su correcto ejercicio, como la libertad de conciencia, la protección de la fuente, la no censura previa para mencionar algunas, todo en aras de que ejerza la función social que está llamada a cumplir dentro del marco democrático. En ese sentido lleva razón el recurrente cuanto señala que la libertad de prensa, contrario al derecho al honor, tiene además de su dimensión de protección individual, una dimensión social. Se olvida sin embargo que la otra cara de la libertad de prensa, también con una dimensión social evidente, es precisamente el derecho de las personas a recibir una información, adecuada y oportuna (no manipulada), con lo cual se excluye la posibilidad de ejercer esta libertad en forma contraria a fines legítimos del sistema o que, a su vez, lesione intereses igualmente legítimos del mismo. En ese sentido la posición preferente vale en tanto y en cuanto no se utilice como mecanismo para violar otros fines relevantes del sistema, porque para eso no fue concebida. De lo contrario se estaría autorizando una manipulación o desinformación de las personas o de las masas, objetivo tan contrario para la democracia, como la censura misma. En ese sentido, cuando se habla de que el derecho a transmitir información respecto de hechos o personas de relevancia con preeminencia sobre el derecho a la intimidad y al honor, en caso de colisión, resulta obligado concluir que en esa confrontación de derechos, el de la libertad de información, como regla general, ecer sie prevalecer siempre que la información transmitida sea veraz, y esté referida a asuntos públicos que son de interés general por las materias a que se refieren, por las personas que en ellas intervienen, contribuyendo, en consecuencia, a la formación de la opinión pública en forma legítima. En este caso el contenido del derecho de libre información alcanza su máximo nivel de eficacia justificadora echo al al derecho al honor, el cual se debilita, proporcionalmente, como límite externo de las libertades de expresión e información (sentencia STC 107/1988 ). Cabe aclarar que jurídicamente no es posible exigir que todo lo que se publique sea verdadero o exacto, o ha señ como lo ha señalado el Tribunal Constitucional español, de imponerse la verdad como condición para el reconocimiento del derecho, la única garantía de la seguridad jurídica sería el silencio (STC 28/96), pero tampoco puede amparar al periodista que ha actuado con menosprecio de la verdad o falsedad de lo comunicado. Lo que sí protege es la información rectamente obtenida y difundida “aunque resulte inexacta, con tal de que se haya observado el deber de comprobar su veracidad mediante las oportunas averiguaciones propias de un profesional diligente”. (STC 178\93). Igualmente protege, el reportaje neutral, entendido como “aquellos casos en que un medio de comunicación se limita a dar cuenta de declaraciones de terceros, aun y cuando resulten ser contrarias a los derechos de honor, intimidad personal y familiar y la propia imagen, (STC 22|93), siempre que medie la buena fe, es decir que no se haya enterado el responsable de la difusión de su inexactitud o falta de veracidad, porque a partir de ese momento, de no corregirse se estaría actuando de mala fe, en afectación de otras garantías relevantes para el sistema de libertad […]” (el subrayado no es parte del texto original). En cuanto a la doctrina de la “posición preferente” de la libertad de comunicación con respecto a la tutela de otros derechos fundamentales como el derecho al honor, rse que indicarse que sin duda alguna, el tribunal de mérito le otorgó preferencia a la libertad de expresión por sobre el derecho al honor de la [Nombre6] [[Nombre3] ], tal y como en principio se establece que es lo que corresponde por la Sala Constitucional en el precedente de referencia. No obstante lo anterior, en el razonamiento que se plasmó en el fallo de marras, no se realizó consideración alguna en cuanto a los aspectos que según nuestro Tribunal Constitucional, deben apreciarse para determinar si la “posición preferente” es aplicable o no en un caso determinado, sea específicamente, que el a quo no expresó los razonamientos con base en los que determinó que en el presente asunto era plenamente aplicable dicha doctrina. Así, en la sentencia impugnada no se realizó análisis alguno para descartar que las manifestaciones o información difundida por el querellado [Nombre12] en su perfil de “Facebook” no constituyan falsedades, rumores o insidias escondidas detrás del aparente ejercicio de un derecho fundamental bajo la fachada de una supuesta narración neutral de hechos carentes por completo de veracidad. En este sentido, el examen integral del fallo deja ver que el a quo se limitó a considerar que en el presente asunto no era necesario establecer si la información que difundió el querellado era veraz o no, ya que se trató de su “opinión” con respecto a los hechos que se incluyeron en la publicación de marras, siendo que tal y como supra se indicó, el tribunal penal tampoco estableció las razones -ni las pruebas- con base en las que estimó como “hechos” las afirmaciones expresadas por [Nombre12] en contra de la querellada, o por qué calificó dichas afirmaciones como una mera opinión, todo lo cual contraviene los preceptos definidos por la Sala Constitucional y evidencia la errónea fundamentación jurídica de la sentencia absolutoria dictada en la presente causa. vii.- En el fundamento del precedente de la Sala Constitucional objeto de estudio, se hace hincapié en cuanto a que no se puede exigir previamente a quien ejerce su libertad de expresión o de prensa, que constate de antemano la veracidad de lo que publica, ya que se estaría en presencia de una situación que puede degenerar en la censura previa como forma de limitar tales derechos fundamentales, empero, la misma Sala Constitucional, de igual forma, reitera que no es posible invocar la libertad de expresión para difundir situaciones que se sabe son falsas o respecto de las cuales no se hizo esfuerzo alguno por quien hace la publicación, para tratar de constatar algún aspecto objetivo que descarte su falsedad, a necesi como la necesidad de valorar el caso concreto para desvirtuar la mala fe como objetivo real de la publicación. En tal sentido, en el precedente de referencia se retoma lo que ha indicado la Corte Interamericana de Derechos Humanos sobre el tema de la censura previa, e analiz como se analiza el contenido de la sentencia dictada por la Corte Suprema de Justicia de los Estados Unidos en el caso New York Times vs. Nombre57321, consideraciones que sin duda alguna deben tenerse presentes y valorarse en la solución del presente caso. Al respecto, la Sala Constitucional consideró lo siguiente: “(…) Evidentemente que como se indicó, la protección del Estado no puede darse como lo ha señalado la Corte de Derechos Humanos, con el derecho a censurar previamente las informaciones, lo cual será a todas luces inconstitucional (art. 28), sino que se refiere a su control a posteriori, en el caso que haya existido intención de infligir daño o actuado con pleno conocimiento de que se estaban difundiendo noticias falsas o se condujo con manifiesta negligencia en la búsqueda de la verdad o falsedad de las mismas y con ella resultó afectado el honor y reputación de alguna persona. La Sala comparte la opinión de la Corte Interamericana de Derechos Humanos (opinión consultiva 5/85) en el sentido de que: 33. ... No sería lícito invocar el derecho de la sociedad a estar informada verazmente para fundamentar un régimen de censura previa supuestamente destinado a eliminar las informaciones que serían falsas a nsor. Co del censor. Como tampoco sería admisible que, sobre la base del derecho a difundir informaciones e ideas, se constituyeran monopolios públicos o privados sobre los medios de comunicación para intentar moldear la opinión pública según un solo punto de vista. De igual forma reconoce la jurisprudencia sentada en el caso New York Times vs. Nombre57321 de 1964 en la que se señala que la protección que la Constitución ofrece a la libertad de expresión no depende de la verdad, popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos. Los enunciados erróneos son inevitables en un debate libre, y deben ser protegidos para dejar a la libertad de expresión aire para que ar y sob respirar y sobrevivir. Las normas deben impedir que un funcionario público ar a un demandar a un medio de comunicación o a un particular por daños causados por una difamación falsa relativa a su comportamiento oficial, a menos que se pruebe con claridad convincente que la expresión se hizo con malicia real, es decir, con conocimiento de que era falsa o con indiferente desconsideración de si era o no falsa. Esta salvedad que se hace es indispensable bligació a la obligación del Estado de proteger la reputación y honra de las personas y más aún, dentro de la obligación que tiene de velar porque el mal uso o desvío de esta libertad no se utilice para violar fines igualmente esenciales del sistema democrático, entre los que se incluye el sistema de derechos fundamentales […]” (el subrayado no es parte del texto original). El contenido del segmento del precedente antes expuesto no fue valorado en modo alguno por el tribunal de juicio, a efecto de establecer si, en el presente caso, con la publicación realizada por [Nombre7] se hizo un mal uso de la libertad de expresión, ya que el a quo sin mayor fundamento dejó de lado el considerar si la difusión de las afirmaciones en contra de la [Nombre6] tenían algún grado de objetividad o incluso de veracidad, ampoco v como tampoco valoró si el texto publicado en el perfil de “Facebook” de [Nombre12] , se hizo con “conocimiento de que era falsa o con indiferente desconsideración de si era o no falsa,” tal y como lo define nuestra Sala Constitucional a partir del análisis de lo resuelto en el caso New York Times vs. Nombre57321. En conclusión, de todo lo expuesto de determinan dos aspectos fundamentales: a.- El pronunciamiento N° 2006-05977 de la Sala Constitucional desarrolla una interpretación y análisis extensos de la forma en que erse la entenderse la colisión entre el derecho a la libertad de expresión y el derecho al honor, os límit como los límites que constitucionalmente corresponden al ejercicio de la libertad de expresión y comunicación, lo cual sin duda alguna constituye un insumo jurídico necesario para la correcta solución del presente caso; b.- A pesar de que en el fallo de mérito el a quo hace referencia y valora un segmento del precedente constitucional antes enunciado, no lo aplica de modo íntegro y adecuado en el análisis jurídico de los hechos que se querellaron como difamatorios por la [Nombre [Nombre10]] en contra de [Nombre7] , lo cual implica no sólo el desconocimiento de lo preceptuado por la Sala Constitucional para el análisis de un caso como el que se dilucida en la especie. 2.-Sala Tercera de la Corte Suprema de Justicia. En la sentencia objeto de impugnación, el tribunal de instancia invocó el contenido jurisprudencial de la resolución N° 2002-01050, de las 8:50 horas del 25 de octubre de 2002 de nuestra Sala de Casación Penal. El estudio de tal pronunciamiento con respecto al tema de fondo que se conoce en el subjudice, permite establecer que en tal precedente se analiza y desarrolla una serie de aspectos jurídicos que son de suma relevancia para determinar la forma en que procede abordar penalmente el tema relativo al ejercicio de la libertad de expresión versus la tutela del derecho al honor, a efecto de definir en qué casos existe un ejercicio legítimo del derecho fundamental a expresar y comunicar las ideas, y en qué supuestos se da un ejercicio abusivo de tal garantía constitucional que signifique la violación del bien jurídico “honor” penalmente tutelado, sea en el sublitem, en lo que respecta al delito de difamación dispuesto en el artículo 146 del Código Penal que se querelló en contra de [Nombre7] . Es preciso indicar que el examen integral del fallo recurrido permite establecer que los juzgadores de instancia no analizaron de modo integral el pronunciamiento de la Sala de Casación que citaron en el fundamento de la sentencia impugnada, ya que no apreciaron con la rigurosidad que exigen los artículos 142 y 184 del Código Procesal Penal su contenido, a efecto de sustentar adecuadamente la absolutoria dictada en la presente causa. A efecto de sustentar el presente pronunciamiento, se procede a definir y valorar los principales aspectos establecidos por la Sala Tercera de la Corte Suprema de Justicia en torno al asunto de fondo que es objeto de discusión en el subjudice, sean éstos los siguientes: i.- La resolución objeto de estudio versa, específicamente, sobre el ejercicio a la libertad de comunicación de quien se dedica al periodismo, en torno a la tutela del derecho al honor de las personas desde la perspectiva penal. Tal particularidad arse con apreciarse con el fin de marcar la diferencia que existe con respecto a los hechos juzgados en la especie, sin embargo, de la resolución de la Sala de Casación Penal de referencia se derivan aspectos que sí son aplicables para el adecuado análisis jurídico y solución del presente asunto. ii.- Al igual que lo ha establecido esta cámara de apelaciones y se ha desarrollado en el acápite A) de esta resolución, la Sala Tercera de la Corte Suprema de Justicia considera que un caso de relevancia penal en el que existe colisión entre los derechos fundamentales al honor y la libertad de comunicación, expresión o prensa, no se puede decidir atendiendo únicamente a las normas de carácter penal, sino que es necesario valorar normas constitucionales y convencionales con el fin de analizar y resolver adecuadamente el caso. En tal sentido, en el voto de referencia se estipula lo siguiente: “[…] El conflicto entre el derecho al honor y las libertades de información y prensa es uno de los más difíciles de resolver, á ante d se está ante derechos fundamentales de la persona y ello obliga a definir muy bien cuándo alguno de ellos tiene primacía sobre los otros. El problema no se resuelve teniendo en cuenta solamente lo dispuesto en el Código Penal, sino que se direc partirse directamente de la Constitución y de la normativa internacional sobre derechos humanos para nder los comprender los alcances de la legislación punitiva […]”. El ado por externado por la Sala Tercera es el que sigue y justifica en el presente pronunciamiento, que se haya enumerado el marco jurídico cuya normativa se vincula con el conflicto de fondo que se resuelve en la especie, y que a vez, es el que se aprecia para demostrar la errónea fundamentación jurídica de la sentencia de mérito. iii.- La Sala de Casación Penal establece que en caso de conflicto o colisión entre el derecho al honor y la libertad de expresión, el primero de tales derechos fundamentales cede ante el segundo, salvo en los casos en que se haga un uso abusivo del derecho a la libertad de comunicación – en razón de que excede o extralimita el ámbito de protección que este contempla-, supuesto en que el que sí son aplicables las disposiciones penales que tutelan el derecho al honor como un bien jurídico penalmente relevante. Así, la Sala Tercera consideró lo siguiente: “[…] Como salta a la vista, se está en presencia de bienes jurídicos merecedores de igual tutela por parte del ordenamiento. En virtud de lo recién indicado, el problema que rse en e abordarse en este caso es el de cuándo prevalece el derecho al honor sobre las libertades indicadas. De conformidad con las disposiciones constitucionales e internacionales humanitarias, ese conflicto entre derechos fundamentales sólo puede resolverse a favor del derecho al honor cuando se constata un ejercicio abusivo de las libertades de información y de prensa. Lo anterior obedece a que el ordenamiento jurídico costarricense contempla como regla general (consagrada en el artículo 22 del Código Civil) el no amparar el abuso del derecho ni el uso antisocial de éste. Ello se amente a precisamente a que si se abusa de un derecho, eso implica que se ha excedido o extralimitado el ámbito de protección que el mismo contempla, de modo que dicho exceso no queda cubierto por éste y carece de tutela. Así, si no se incurre en abuso alguno, sino que se ejercen legítimamente las libertades de información y de prensa, entonces no hay posibilidad alguna de sancionar penalmente al comunicador, ría come no habría cometido ningún delito contra el honor […]”. De lo expuesto se determina que, en los casos en que se da un exceso en la realización de conductas humanas relacionadas con el tema penal de fondo, sea por el abuso de la libertad de comunicación o de expresión y se llega a un uso antisocial de la misma, tal exceso no queda cubierto por el contenido del derecho fundamental, siendo que por tal motivo carece de tutela y más bien surge la tutela penal del derecho al honor. Lo anterior se aplica plenamente en el supuesto en que estén involucradas personas que sean funcionarios públicos, ya que no es posible discriminar o definir ámbitos de exclusión que permitan o justifiquen un ejercicio antisocial y abusivo de la libertad de expresión o comunicación, por el solo hecho de que la persona afectada ocupe un o, sea c público, sea cual sea dicho cargo, incluso el de la […], ya que la postura que se cuestiona no atiende a criterios de racionalidad y proporcionalidad que deben apreciarse para la tutela y aplicación de los derechos fundamentales. Así, no se puede desconocer un derecho constitucionalmente consagrado como lo es el derecho al honor, el que conservan plenamente quienes ejercen la función pública, eso sí, matizado y atemperado por el deber o la obligación de soportar una mayor tolerancia en aspectos relativos a los cuestionamientos, críticas, opiniones, control y fiscalización –relacionados sin duda alguna con el derecho al honor- que se deriva del ejercicio de su función y de su especial condición, y que se sustenta en los deberes de transparencia y rendición de cuentas constitucional y legalmente estipulados. Por lo anterior, el te el qu mediante el que el a quo define un mínimo y prácticamente nulo ámbito de tutela penal del derecho al honor de quien ostenta la […], en virtud de ejercer tal cargo, es forzado y jurídicamente infundado, toda vez que lo que se deriva en realidad de su razonamiento es que erróneamente se equiparan el deber de tolerancia supra indicado con el vaciamiento de facto del bien jurídico honor de quien ocupa dicho cargo, siendo que tal postura permitiría sin posibilidades de exclusión, el ejercicio abusivo y antisocial de la libertad de expresión y comunicación, lo cual -tal y como supra se indicó- lejos de garantizar y reforzar el modelo democrático que nos rige, implicaría la afectación del derecho a recibir información veraz para la formación de una adecuada opinión pública, ara la i como para la idónea fiscalización de la función pública y, obviamente, del ejercicio de los poderes públicos por parte de todos los administrados. iv.- En la resolución de la Sala de Casación que se estudia, se define y encuadra jurídicamente el principio de rendición de cuentas al que están sujetos todos los funcionarios públicos, en virtud del cual están sometidos a un amplio control y escrutinio por parte de órganos oficiales o formales establecidos para tal efecto –por ejemplo la Contraloría General de la República- y por sectores informales –prensa, medios de comunicación colectiva, los administrados en general- los que tienen una gran peso e importancia en un régimen democrático como el que rige en nuestro país. Asimismo, la Sala Tercera estipula cuáles son los actos de quienes ejercen la función pública que están sometidos a tal tipo de escrutinio, sea en términos generales, aquellos que son de interés público y que corresponden a la faceta pública de la vida de quienes ocupan un natural de tal naturaleza. Tales parámetros permiten establecer los alcances jurídico-penales del deber de tolerancia, n qué ám como en qué ámbitos de la vida o existencia de quien ejerce un o, tiene público, tiene la obligación de soportar un mayor escrutinio y control, siendo que en tal sentido y en torno a la relación derecho al honor versus libertad de expresión, la Sala de Casación establece que el derecho al honor del funcionario público prevalece y rse pena tutelarse penalmente cuando se da un exceso en el ejercicio de la libertad de comunicación o expresión, incluso, por quienes ejercen la actividad periodística. Los puntos antes expuestos no fueron apreciados en modo alguno en la sentencia de mérito, a pesar de ser esenciales para el correcto análisis jurídico de los hechos querellados como difamatorios en la presente causa. En el contenido de la resolución que se examina en lo atinente a los aspectos previamente expuestos, se estipula lo siguiente: “[…] Los acontecimientos que aquí interesan –sea la grabación en video del vehículo del [Nombre6], a inform como la información divulgada por Noti-Catorce y la respuesta dada por [Nombre29]. a los reportajes de dicho noticiero- ocurrieron entre octubre y diciembre de 1999. En aquel entonces la Constitución Política disponía en su artículo 11 lo siguiente: “Los funcionarios públicos son simples depositarios de la autoridad y no pueden arrogarse facultades que la ley no les concede. Deben prestar juramento de observar y cumplir esta Constitución y las leyes. La acción para exigirles la responsabilidad penal de sus actos es pública.” (Cabe acotar que tras la reforma constitucional efectuada mediante Ley N° 8003 de 8 de junio de 2000, publicada en el Diario Oficial La Gaceta N° 126 de 30 de junio de 2000, se modificó dicho artículo de la Constitución y se agregó una disposición en el sentido de que los funcionarios públicos deben cumplir los deberes que la ley les impone; además, se instauró formalmente el principio de rendición de cuentas, aspectos que estima esta Sala –como se verá a lo largo de este Considerando- podían extraerse de la redacción anterior aunada a disposiciones de la Ley General de la Administración Pública, aunque ciertamente la reforma hace más fácil de apreciar el rango constitucional de dicho principio). Como puede observarse, la Ley Fundamental (tal cual es aplicable al caso concreto) claramente establece que los servidores públicos están sujetos al ordenamiento jurídico, eso es lo que se deriva de que se les califique como simples “depositarios de la autoridad”; en otras palabras, no están por encima del Derecho. En esa tesitura, se desprende de la disposición constitucional de comentario (precepto que se revitaliza con la reforma del año 2000 ya aludida) que los funcionarios públicos se ven vinculados tanto por las normas permisivas, como por las ordenatorias y las prohibitivas, agregándose además que sólo pueden hacer aquello que la ley expresamente les autoriza. sas, en las cosas, en Nombre2042 todo funcionario público (sea que haya sido elegido popularmente, haya sido designado por otro o algún cuerpo colegiado, o haya ganado la plaza mediante concurso; sea propietario, suplente o interino; esté nombrado indefinidamente o a plazo; sea de confianza o goce de estabilidad laboral; sea funcionario de carrera o no; etc.) está expuesto, desde que asume el cargo, a la fiscalización de sus actos en el desempeño del cargo. Ello obedece a que todo lo que haga esa persona con ocasión del puesto público que ocupa es de interés para la generalidad de habitantes de la República, ya que de lo que se trata es de velar porque actúe, como servidor, en estricta conformidad con el ordenamiento jurídico. Esa supervisión constante de sus actos es una de las consecuencias que acarrea el ser servidor público, de modo que quien asume un a natura de esta naturaleza acepta de forma implícita que se examine públicamente su actuación. Por la investidura, el funcionario está sujeto al principio de legalidad, según el cual sólo le está autorizado hacer aquello que la ley –en sentido amplio y en adecuación de la escala normativa- expresamente le permite, estándole prohibido todo lo demás. sas, des las cosas, desempeñar una función pública conlleva para la persona una sujeción a controles, los cuales han sido concebidos para verificar que el ejercicio de las atribuciones que derivan del puesto sea correcto, ara evit como para evitar que se incumplan los deberes inherentes al cargo. Ahora bien, dentro de estos controles se cuentan no sólo los institucionalizados (como lo son los propios de la Administración Pública, al igual que los judiciales), sino que en un Estado democrático –la Constitución define a Nombre2042 como tal en su artículo 1- es necesario considerar también el papel de los comunicadores. Si todo ser humano tiene el derecho de ser informado, si existe además la libertad para comunicar pensamientos y opiniones, incluso publicándolos, y si se considera que los comunicadores tienen como profesión el recabar datos, analizarlos y con base en ellos informar a los demás sobre los temas que les interesan, entonces es evidente que la práctica del periodismo es una manifestación perfecta de las libertades de información y de prensa. En esa tesitura, es irrebatible que los medios de comunicación colectiva, los periodistas y demás comunicadores tienen el derecho de informar –haciendo públicos los datos que manejan- a los habitantes. Esa es la premisa que ecer en prevalecer en una sociedad democrática. Lo anterior requiere de ciertas precisiones cuando se está ante un asunto de interés público relacionado con la actuación de un servidor estatal. Lo primero es que asunto de interés público es todo aquello que de manera razonablemente presumible atrae de forma coincidente el interés individual de los administrados (artículo 113 inciso 1) de la Ley General de la Administración Pública); obsérvese que al hablarse de “administrados” se pone en evidencia que se trata de temas relacionados con la conducción del Estado (en sentido amplio, es decir, el Gobierno de la República –descrito en el artículo 9 constitucional- y los demás entes públicos) y el manejo de sus recursos, aspectos que se puede válidamente presumir interesan a la generalidad de habitantes de un país, los quie son ellos quienes contribuyen a sufragar los gastos del Estado. Lo segundo es que lo normal, tratándose de asuntos de interés público, es que medie la intervención de un funcionario estatal, aunque también es posible (aspecto que se verá al final de este Considerando) que haya sujetos no investidos como servidores públicos que llevan a cabo una tarea que sí es pública, por lo que también estarían sujetos a la fiscalización de sus actuaciones en el ejercicio de esa función pública. Así, tratándose de asuntos de interés público, las libertades de información y de prensa que amparan a los comunicadores es tan importante, por constituir uno de los medios de control de la gestión pública en un Estado democrático, que si se le enfrenta con el derecho al honor que como personas también ostentan quienes cumplen una función pública, este último puede ceder ante las primeras, sólo en lo que atañe a la faceta pública de su conducta. De conformidad con ese planteamiento, únicamente cuando se incurra en abuso por parte del comunicador a la hora de informar, será posible anteponer el derecho al honor del funcionario libertad a las libertades de información y prensa que amparan al comunicador, l derech como al derecho de ser informado que le asiste a toda persona. Hay gran cantidad de normas que respaldan esta posición. Por ejemplo, obsérvese que el artículo 26 constitucional garantiza a los habitantes del país el reunirse pacíficamente y sin armas para examinar la conducta pública de los funcionarios. Esto es importante, a la vis salta a la vista que el constituyente tuvo conciencia de que hay aspectos públicos y privados en el comportamiento de los servidores del Estado, siendo sólo los primeros susceptibles de examen y discusión abiertos por parte de la sociedad. Esos actos públicos de los funcionarios son precisamente los que aquí se ha establecido se relacionan con el cumplimiento del cargo; los privados –y por ende no susceptibles de ser debatidos públicamente- son los propios de la intimidad personal y familiar no conexos con el ejercicio de la función. Si se puede debatir públicamente, en una reunión, aspectos de la actuación pública de los servidores estatales, es entonces innegable que ha de poderse informar sobre sus actos para que sean examinados por los habitantes del territorio nacional. Además, arse que recordarse que al tenor del artículo 28 constitucional, nadie puede ser siquiera inquietado por la manifestación de sus opiniones, ni por actos que no infrinjan la ley. Como corolario de lo anterior, arse que observarse que el artículo 29 de la Constitución expresamente prevé la posibilidad de que toda persona comunique (que dirija a otra) sus pensamientos, de palabra o por escrito, e incluso que los publique (que los haga de conocimiento público) sin previa censura, de modo que sólo serán responsables si abusan de estos derechos. En esa tesitura, resulta que el ejercicio de la actividad de los comunicadores, que es indispensable para garantizar el derecho de ser informado que le asiste a toda persona, permite informar libremente aspectos relacionados con el desarrollo de la función pública, por ser éste un asunto de evidente interés público […]”. Cabe agregar a lo supra expuesto, que la Sala Tercera al definir la tutela penal del derecho al honor que corresponde a la situación particular de los funcionarios públicos, no realiza discriminación alguna en cuanto al tipo de ecífico en específico que ocupe una persona determinada, sea de elección popular o que su nombramiento corresponda a un concurso público, etc. Lo anterior evidencia que la tesis sostenida por el a quo, y con base en la que descarta la afectación del derecho al honor de la [Nombre6] [[Nombre3] ], no atiende a los preceptos establecidos por la Sala de Casación Penal en cuanto a la tutela de dicho derecho fundamental que izarse a garantizarse a quienes ejercen la función pública, independientemente del tipo de upen, in que ocupen, incluso, los que se designan por elección popular, dentro de los que claro está el de la […]. En tal sentido, el examen integral del fallo permite establecer que el tribunal penal no establece argumentos jurídicos de peso que justifiquen apartarse de los preceptos jurisprudenciales definidos por la Sala Tercera en cuanto al tema objeto de juzgamiento, siendo que lo único que se deriva del fundamento intelectivo de la sentencia impugnada, es el finen lo que definen los juzgadores de instancia con base en su lectura particular de la realidad costarricense y “la ideología” que, expresamente, señalan que derivan de tal aspecto, determinando a partir de tal argumentación un margen de tutela penal excepcional y específico del derecho al honor que particularmente estiman que le corresponde a quien ocupa la […], criterio que, tal y como se ha venido estableciendo a lo largo del presente pronunciamiento, no está intelectiva ni jurídicamente fundamentado conforme legalmente se exige, según lo dispuesto en los artículos 39 y 41 de la Constitución Política, y en los numerales 1, 142, 184 y 363 del Código Procesal Penal. Otro aspecto que la Sala de Casación Penal precisa como jurídicamente relevante, para definir en qué casos se r penalm tutelar penalmente el derecho al honor de los funcionarios públicos con respecto al ejercicio abusivo de la libertad de comunicación y expresión, es el atinente a las maneras en que puede darse la difusión o exposición de comentarios, opiniones o pensamientos que tienen la entidad suficiente para vulnerar el honor del funcionario público, y por tal motivo la procedencia de la tutela penal de su honra y decoro. En este sentido es claro que la Sala Tercera no restringe los supuestos de tutela penal del derecho al honor de los funcionarios públicos, a los exiguos márgenes y supuestos subjetivamente definidos por el a quo en el fallo de mérito , sea a partir de su cepciona de “excepcionalidad absoluta” o régimen de excepción de tutela penal, que el tribunal de instancia estima que corresponde al honor de quien ejerce la […], a saber, las injurias directas o la imputación de hechos delictivos como únicas interpretaciones posibles de “la especie” objeto de publicación. Al respecto, la Sala de Casación Penal establece que la honra y el decoro de un funcionario público puede afectarse por la manera en que se expresan las ideas, el modo en que se da la publicación, cuando se de la divulgación de datos falsos a sabiendas que los son, cuando no se trate de obtener la versión del funcionario involucrado con el fin de brindar información balanceada, etc. En tal sentido, la Sala Tercera estipuló lo siguiente: “[…] Sólo cuando se abuse de las libertades de información y de prensa (como podría ser el caso de que se divulguen datos falsos a sabiendas de que lo son, que no se trate de obtener la versión del funcionario para ofrecer una información balanceada, que se le niegue al servidor sus derechos de rectificación y/o respuesta, que se trate de asuntos meramente privados o información sensible que no se relacionen con el upa la p que ocupa la persona, que se dé por cierto ante el público que la conducta del servidor es delictiva sin que medie sentencia judicial en ese sentido, que se tenga como intención únicamente el ofender a alguna persona –aspecto que ha de examinarse caso por caso y en el que podrían tener relevancia varios factores, tales como el contexto en que se divulgue alguna información, la forma como se manejen fotografías o imágenes, la manera como se presente la noticia o los comentarios en torno a la misma, o situaciones semejantes) se podrá responsabilizar al comunicador, sar de u el abusar de un derecho (situación que habrá de verificarse en cada caso concreto) implica que se excede el ámbito de protección del mismo. Ese abuso no es amparado por el ordenamiento jurídico (artículo 29 constitucional relacionado con el 22 del Código Civil), por lo que aquel comunicador que incurra en una conducta abusiva habrá de responder por sus actos (lo cual podría incluso acarrear eventualmente la responsabilidad del medio que difundió la información). […]”. Así las cosas, se determina que el tribunal penal no apreció ni valoró adecuadamente el precepto jurisprudencial en cuestión –a pesar de haberlo mencionado expresamente en su fallo-, a efecto de sustentar el se en el con base en el que analizó los hechos querellados y los descartó como lesivos al honor de la [CED1 ], lo cual acredita la errónea fundamentación jurídica del do por e esbozado por el a quo y, en consecuencia, la falta de fundamento jurídico de su decisión de absolver al querellado [Nombre7] . v.- Otro punto tocado en la resolución de la Sala de Casación objeto de estudio, que es relevante para el adecuado análisis jurídico del subjudice, es el relativo al interés público, el que se define como un parámetro que arse par apreciarse para delimitar el grado de tutela penal que al derec darse al derecho al honor de un funcionario público con respecto al ejercicio de la libertad de expresión y comunicación. En tal sentido, se señala lo siguiente: “[…] Claro está que la coexistencia de esas dos disposiciones en el mismo texto normativo revela que son complementarias. En ese sentido, las libertades de información y de prensa relacionadas con asuntos de interés público desplazaría la protección de la honra y la dignidad en lo que se refiere a los funcionarios públicos; adviértase de una vez que esta regla no se aplicaría a las personas que no ostentan tal carácter. Ello se en estos a que en estos supuestos (cuando se está ante un caso de trascendencia pública relacionado con servidores estatales) de lo que se trata no es de la intimidad de una persona, sino de la forma como ella se desempeña en el ejercicio de un o, aspec público, aspecto que –ante el conflicto de los bienes jurídicos en cuestión, a saber el derecho al honor y las libertades de información y de prensa- es el más importante desde el punto de vista de la comunidad nacional. Si lo difundido es correcto y en efecto corresponde a un asunto de interés público, entonces no hay posibilidad alguna por parte del funcionario de reclamar que su honor se ha visto lesionado (en todo caso, si de lo que trata la noticia es de algún acto inapropiado, quien habría lesionado su honor sería el propio servidor y no el comunicador, de modo que a este último no podría trasladársele la responsabilidad de aquél). Claro que si la información es falsa o no se relaciona con un asunto de interés público, entonces eventualmente podría estarse ante alguno de los supuestos de conducta abusiva mencionados supra (que incluso podrían ser constitutivos de delito) que sí conllevan la declaratoria de responsabilidad del comunicador. En esa tesitura, las dos disposiciones internacionales de comentario (artículos 11 y 13 de la Convención Americana sobre Derechos Humanos), vistas en conjunto, revelan que tratándose de asuntos de interés público relativos a la forma como los servidores desempeñan sus cargos, el derecho al honor cede ante la libertades de información y de prensa, nte el d como ante el derecho de ser informado. Entender que no lo desplaza sería tanto como crear una esfera muy amplia de temas en la que no podrían ejercerse las libertades referidas, lo cual sería un atentado contra el régimen democrático que se contempla en la Constitución costarricense. Aunado a lo anterior rse que indicarse que en los artículos 17 y 19 del Pacto Internacional de Derechos Civiles y Políticos también se aborda el problema que nos ocupa. En el primero de ellos se establece que nadie puede ser objeto de injerencias arbitrarias o ilegales en su vida privada, ni de ataques ilegales a su honra o reputación. Esta redacción es importante destacarla porque –examinada a contrario sensu- evidencia que el honor puede verse afectado legalmente, lo cual refuerza la tesis de que hay casos (como los que aquí interesan) en que pese a existir una afectación de dicho bien jurídico no se puede responsabilizar a nadie por ello. Estima esta Sala que lo anterior se da precisamente en los casos en que se publican informaciones sobre asuntos de interés público relacionados con actuaciones cuestionables por parte de funcionarios públicos (o incluso de personas que cumplen una función pública), supuestos en los que evidentemente se ve afectado (como consecuencia y no como intención) el honor de las personas involucradas. En esos supuestos en que lo divulgado inevitablemente afectará a algún servidor público, en los cuales además no ha de mediar un único ánimo de ofender, las libertades de información y de prensa deben prevalecer sobre el derecho al honor, ya que el comunicador actúa cumpliendo con su derecho de informar y no deviene responsable por la consecuente afectación del honor de los funcionarios (que en todo caso, como ya se dijo, tendría su causa en sus propios actos y no en lo que se publica) relacionados con la noticia. Claro está –vale la pena reiterarlo- que si la información no es de interés público, se quiere solamente ofender a alguna persona, o lo que se informa es falso, ahí sí deviene responsable el comunicador (y eventualmente el medio) por el abuso cometido. En síntesis, tanto en la Constitución Política como en las disposiciones internacionales de Derechos Humanos aplicables en Nombre2042 hay normativa que permite afirmar que los funcionarios públicos (no rticular los particulares, salvo en los supuestos en que cumplen una función pública) están sometidos al examen público de sus actuaciones en el ejercicio del cargo, por lo que la libertad de difundir informaciones sobre sus actos en relación con asuntos de interés público desplaza su derecho al honor, de modo que ningún comunicador puede ser penalmente responsable por ese tipo de informaciones, salvo que hubiese actuado de manera abusiva. Esto obedece a que, de conformidad con lo establecido en el artículo 25 del Código Penal, quien ejerce legítimamente un derecho no delinque. A lo ya expuesto rse que agregarse que también existen disposiciones de rango legal que refuerzan el uí se so que aquí se sostiene. Reviste especial importancia lo establecido en los artículos 113 y 114 de la Ley General de la Administración Pública. El primero de ellos dispone: “1. El servidor público deberá desempeñar sus funciones de modo que satisfagan primordialmente el interés público, el cual será considerado como la expresión de los intereses individuales coincidentes de los administrados. 2. El interés público prevalecerá sobre el interés de la Administración Pública cuando en confl estar en conflicto. 3. En la apreciación del interés público se tendrá en cuenta, en primer lugar, los valores de seguridad jurídica y justicia para la comunidad y el individuo, a los que no puede en ningún caso anteponerse la mera conveniencia.” Por su parte, el segundo de los numerales mencionados estipula: “1. El servidor público será un servidor de los administrados, en general, y en particular de cada individuo o administrado que con él se relacione en virtud de la función que desempeña; cada administrado deberá ser considerado en el caso individual como representante de la colectividad de que el funcionario depende y por cuyos intereses 2. Sin velar. 2. Sin perjuicio de lo que otras leyes establezcan para el servidor, considérese, en especial, irregular desempeño de su función todo acto, hecho u omisión que por su culpa o negligencia ocasione trabas u obstáculos injustificados o arbitrarios a los administrados.” Como puede apreciarse, el legislador otorga gran importancia a la satisfacción del interés público como eje rector de la actividad administrativa, tanto que formula el principio de objetividad de la función pública como el actuar en aras de satisfacer dicho interés. Además, salta a la vista el deber de rendición de cuentas por parte de los servidores públicos, quienes deben considerarse –en cada caso concreto- servidores de la persona con la que se relacionen en virtud del sempeñan que desempeñan (cabe acotar que estas disposiciones existen desde 1978, de modo que si se les relacionaba con la redacción anterior del artículo 11 constitucional era evidente la consagración en el ordenamiento costarricense del principio de rendición de cuentas, aún antes de la reforma constitucional del año 2000 a la que se aludió previamente). Esto realza aún más el carácter público de la actuación de los funcionarios en lo que se refiere al cumplimiento de las atribuciones propias del puesto que ocupan. En esa tesitura, es impensable –salvo que se desconozca el principio democrático establecido en la Constitución Política- sancionar penalmente a una persona que actúe de conformidad con su derecho de divulgar informaciones relacionadas con las actuaciones de funcionarios estatales en asuntos de interés público, salvo que haya incurrido en algún abuso (como los expuestos líneas atrás) a la hora de hacer pública la información. […]” (El resaltado en negrita no es parte del texto original) . Con base en lo antes expuesto es oportuno indicar que el examen comprensivo de la sentencia de mérito deja ver que los juzgadores de instancia no llevaron a cabo consideración alguna en cuanto a los motivos de hecho y de derecho por los que concluyeron que el contenido del texto difundido en el perfil de “Facebook” del querellado [Nombre7] , corresponde a una situación propia o vinculada directa o indirectamente, con el ejercicio de la […], o que la público que la [Nombre6] [[Nombre3] ] desempeñaba en aquel entonces. De igual forma, en la sentencia recurrida tampoco se observa un análisis amplio y suficiente que permita establecer si el contenido de la publicación difundida por dicho querellado es correcto -o al menos sustentada en ciertos datos objetivos y constatables-, o que se refiere a una actuación realizada por [Nombre [Nombre10]] como […] tuya una constituya una actuación cuestionable en el desempeño de dicho o. Lo an público. Lo anterior, con el fin de descartar que la publicación objeto de la presente querella no sea en realidad una mera especulación maliciosa o una falsedad que no se vincula o deriva de una actuación realizada por [[Nombre3] ] durante su gestión. Tal ejercicio intelectivo rse nece realzarse necesariamente en el subjudice, para determinar certeramente si el contenido de tal publicación corresponde a un asunto de interés público o no, ya que es en este supuesto en el que la Sala Tercera define que no existe posibilidad alguna por parte de quien ejerce la función pública, de reclamar que su derecho a la honra o decoro se ha lesionado, mparte e que comparte esta cámara de apelaciones y que debió apreciarse con mayor rigurosidad por el a quo para cumplir con los parámetros de fundamentación que legalmente se exigen para la eficacia y validez de la sentencia penal. En conclusión, la Sala de Casación Penal determina en el pronunciamiento objeto de estudio, que el derecho al honor de quienes ejercen la función pública cede ante el ejercicio de la libertad de expresión en razón del deber de rendición de cuentas y por la propia condición de funcionario público –mayor nivel de tolerancia-, cuando se trata de asuntos de interés público o actuaciones cuestionables de los servidores estatales en el desempeño de sus funciones o en asuntos relacionados con tales labores públicas, sin importar el sempeñe, que desempeñe, lo cual tiene su límite y justifica la protección o tutela penal del derecho al honor de los servidores estatales, en los casos en que se haga un uso abusivo de la libertad de expresión o comunicación que exceda el ámbito de protección de dicho derecho fundamental. Tales supuestos no fueron valorados ni razonados de forma amplia, precisa y suficiente por parte del a quo en la sentencia de mérito, en virtud de su ivo de r subjetivo de restringir los supuestos que definieron ad hoc, como propios para la procedencia de la tutela penal del derecho al honor de quien ocupa el . Nombre de […]. miento n razonamiento no es suficiente para desconocer y desatender los criterios de interpretación y aplicación que, a partir de un análisis profundo, amplio e integral de las normas vinculadas con el tema de fondo, han sido establecidos por nuestra Sala de Casación Penal, criterios sobre los que rse que indicarse que siguen los lineamientos jurisprudenciales estipulados por la Sala Constitucional, en el precedente analizado supra en la presente resolución. 3.- Corte Interamericana de Derechos Humanos. En el fallo objeto de impugnación, el tribunal penal invoca y cita algunos segmentos contenidos en dos precedentes de la Corte Interamericana de Derechos Humanos, sean éstos, el dictado en el caso [Nombre18] vs Nombre2042 el 2 de julio de 2014, l emitid como el emitido en el caso [Nombre16] vs [Nombre17] el 2 de mayo de 2008, sentencias en las que se tocaron temas y emitieron criterios relativos al ejercicio y tutela del derecho a la libertad de expresión y de comunicación regulado en el artículo 13 de la Convención Americana sobre Derechos Humanos. 3.1. Sentencia del caso [Nombre18] vs Nombre2042. En cuanto al análisis que de dicho precedente dictado en el Sistema Interamericano de Derechos Humanos, fue realizado por el a quo en la sentencia de mérito, on respe como con respecto a su relevancia para la solución del subjudice, es oportuno indicar los siguiente: i.- En primer término, rse que indicarse que lleva razón el impugnante [Nombre15] en cuanto a que el a quo yerra al citar y valorar el pronunciamiento de referencia. Esto, en virtud de que el tribunal penal equivocadamente y sin justificación alguna, hace referencia y valora en el fundamento del fallo recurrido el ular est particular establecido en el “voto concurrente razonado del juez [Nombre19] ” (En este sentido los párrafos que se identifican como 26 y 27 en la cita textual que se incluye en el fallo de mérito visible a folios 356 y 357 del legajo principal), como si las consideraciones individuales de dicho juez fueren parte de la decisión que la Corte Interamericana de Derechos Humanos –como órgano jurisdiccional colegiado- dictó en torno al caso supra indicado, lo cual es evidentemente incorrecto y revela la debilidad del razonamiento jurídico de la sentencia impugnada. Lo anterior, en razón de que los juzgadores de instancia le otorgaron un valor y peso jurídicos a un voto de minoría que no le corresponde, al invocar y apreciar su contenido como si fuera parte del fundamento que la mayoría de los miembros de la Corte Interamericana consideró y estableció para dictar la sentencia del caso [Nombre18] vs Costa Rica, siendo que ni siquiera llevó a cabo aclaración alguna en cuanto a que avalaba la tesis unipersonal del juez [Nombre30] . Así las cosas, la sentencia de mérito tiene un defecto de fundamentación jurídica en cuanto a los parámetros y supuestos que valoró el a quo para sustentar su criterio, en cuanto a la definición de un ámbito restrictivo y específico para la tutela del derecho al honor de quien ocupa el o de la público de la […], se en el con base en el que descartó la existencia de un hecho punible en el subjudice y decidió absolver de toda pena y responsabilidad a [Nombre7] . ii.- Es importante indicar que en el caso de [Nombre31] estuvieron presentes dos aspectos muy importantes que difieren de los que se discuten en el presente caso, sea que [Nombre18] es periodista y fue en el ejercicio de tal profesión que se le querelló y, en segundo término, que su actuación consistió en reproducir en cuatro artículos periodísticos que elaboró, el contenido de reportajes realizados por periódicos europeos en los que se hacía referencia a supuestas actuaciones ilícitas de una persona que era parte del servicio diplomático costarricense. Tales aspectos son importantes de considerar a efecto de dimensionar los alcances de lo resuelto por la Corte Interamericana en el caso [Nombre18] vs Nombre2042 y modular su contenido a las circunstancias objetivas y subjetivas del caso que se juzga, análisis intelectivo que omitió realizar el a quo en la sentencia de mérito iii.- El examen integral del fallo impugnado permite establecer que los juzgadores de instancia hicieron referencia al contenido de la sentencia del caso [Nombre18] y lo valoraron, para establecer su quien o de que quien ostenta el […] Nomb de la […] imo nive el máximo nivel de tolerancia con respecto a su derecho al honor, en atención a la preferencia que tiene el ejercicio de la libertad de expresión, margen de tolerancia que el a quo consideró que no se equipara al del resto de los funcionarios públicos, específicamente, en virtud de grado jerárquico que le corresponde a quien ocupa la […]. No obstante lo anterior, del examen del análisis realizado por los juzgadores de instancia en cuanto a la jurisprudencia de la Corte Interamericana de referencia, no se coligen elementos de juicio suficientes que, al ser cotejados con lo dispuesto en la sentencia del caso [Nombre18] , permitan arribar al ido por sostenido por el tribunal de instancia y apreciado para dictar el fallo absolutorio objeto de impugnación. En tal sentido, la lectura y estudio de la sentencia dictada en el caso de referencia permite establecer que la Corte Interamericana de Derechos Humanos no lleva a cabo discriminación alguna en cuanto a los márgenes de tutela del derecho al honor que le corresponde a quien ejerce la función pública, con respecto al ejercicio de la libertad de expresión independientemente del o jerarq –tipo o jerarquía- que ocupe la persona. Concretamente, la Corte Interamericana establece que en la situación objeto de estudio, se exige un mayor nivel de tolerancia a quien ejerce la función pública, con el fin de no restringir inadecuadamente el derecho a la libertad de comunicación y expresión, cuyo respeto y efectividad establece como absolutamente necesarios para la consolidación y dinámica de una sociedad democrática. De igual forma, la Corte Interamericana establece que si bien existe un mayor nivel de tolerancia de los funcionarios públicos en cuanto a la tutela de su derecho a la honra o al decoro, en virtud de los deberes de transparencia de las actividades gubernamentales y probidad al que aquellos están sometidos -y con el objetivo de garantizar la vigencia y desarrollo de una sociedad democrática-, que el ejercicio de la libertad de expresión no es absoluto y tiene límites que deben observarse, los que no pueden aplicarse a modo de censura previa, sino a partir de responsabilidades ulteriores establecidas expresamente por ley, y con el fin de garantizar el respeto a los derechos de los demás o de su reputación. Al respecto, en el fallo en cuestión se establece: “[…] 120. Es importante destacar que el derecho a la libertad de expresión no es un derecho absoluto, este puede ser objeto de restricciones, tal como lo señala el artículo 13 de la Convención en sus incisos 4 y 5. Asimismo, la Convención Americana, en su artículo 13.2, prevé la posibilidad de establecer restricciones a la libertad de expresión, que se manifiestan a través de la aplicación de responsabilidades ulteriores por el ejercicio abusivo de este derecho, las cuales no deben de modo alguno limitar, más allá de lo estrictamente necesario, el alcance pleno de la libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa. Para poder determinar responsabilidades ulteriores es necesario que se cumplan tres requisitos, a saber: 1) deben estar expresamente fijadas por la ley; 2) deben estar destinadas a proteger ya sea los derechos o la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o moral pública; y 3) deben ser necesarias en una sociedad democrática (…) 123. De este modo, la restricción oporcion ser proporcionada al interés que la justifica y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo ejercicio del derecho a la libertad de expresión [...]”. iv.- De lo expuesto se determina que la Corte Interamericana reconoce que el derecho a la libertad de expresión no es absoluto, y que por tal motivo puede tener límites o restricciones que no deben darse a priori, sino que sólo pueden ser ulteriores y proporcionales al interés que justifica tales limitaciones, y conforme a lo absolutamente necesario para el logro de tal objetivo, de modo que se interfiera en el menor grado posible en el ejercicio de la libertad de expresión. Tal postura de la Corte Interamericana, apreciada con respecto a lo que establece nuestra Constitución Política y la normativa supra analizada en el presente pronunciamiento, permite concluir que la tutela del derecho al honor de los funcionarios públicos en los casos del ejercicio abusivo de la libertad de expresión y pensamiento, es proporcional con el interés del ordenamiento jurídico-penal de salvaguardar los ataques dolosos, malintencionados y ofensivos a la honra y el decoro de quienes ejercen la función pública bajo el aparente ejercicio de la libre expresión de las ideas o los pensamientos, o en su caso, de la libertad de comunicación, siendo a su vez que tal limitación excepcional y a posteriori, es proporcional e interfiere en un grado mínimo con la libertad de expresión, tal y como lo preceptúa la Corte Interamericana. Esto por cuanto, según nuestro marco normativo constitucional, convencional y legal, y como lo han establecido las Salas Constitucional y Tercera de nuestro país en los precedentes analizados supra, sólo procede la restricción de la libertad de expresión e información en el caso de excesos y abusos en el ejercicio de dicho derecho fundamental que sobrepasen el contenido propio de su tutela. Tal irregularidad no solo conlleva a la afectación del derecho al honor de la persona ofendida, sino que además, vulnera el componente social del derecho a la comunicación y expresión, por cuanto implica la vulneración del derecho que tiene la sociedad de que se compartan ideas, pensamientos o información ajustados a la realidad, de tal forma que se procure y se logre la correcta formación de la opinión pública y el debido control del ejercicio de la función pública. El cumplimiento de estos objetivos es lo que permite lograr el fortalecimiento del marco institucional y democrático de la sociedad, como un efecto propio del correcto ejercicio de la libertad de expresión, lo cual no se logra, e incluso se puede obtener un resultado contrario, si se avalan sin límite alguno ataques maliciosos y expresiones abusivas en contra del decoro y la honra de los funcionarios públicos, lo cual no constituye en modo alguno una labor de fiscalización y control del ámbito público, sino simplemente una forma de afectar la actividad pública mediante la desacreditación de su honor injustamente, lo cual sin duda afecta la credibilidad de quienes ejercen la actividad estatal. Esta situación sería sumamente grave en el caso particular de quien ejerce la […], ya que se afectaría indebidamente no sólo su honor personal, sino la envestidura y el respeto por el sempeña, que desempeña, lo que genera problemas de desconfianza pública, pérdida de fe en las instituciones públicas y la actividad estatal, lo cual no es adecuado para el desarrollo de una sociedad basada en un modelo democrático. Así, del precedente objeto de estudio como de lo estipulado por la Sala Constitucional y la Sala Tercera, el derecho al honor de quien ejerce la actividad estatal –como lo son quienes ocupan cargos políticos-, cede ante el ejercicio de la libertad de expresión, en virtud de tener que soportar por tal condición, un mayor grado de tolerancia, n razón como en razón de la tutela de los principios de transparencia, probidad y rendición de cuentas, siendo incluso que son procedentes las críticas fuertes, incómodas y molestas realizadas en torno a situaciones que son de interés público y están vinculadas directa o indirectamente con las actuaciones que en el desempeño de su función realicen los servidores estatales, lo cual tiene como límite –ulterior- el ejercicio abusivo e irregular de la libertad de expresión o comunicación, el que no se ajusta y excede el ámbito de tutela de tal derecho fundamental. El examen comprensivo de la sentencia de mérito evidencia que el a quo no realizó un análisis fáctico y jurídico adecuado y cuidadoso del contenido normativo de las disposiciones que en nuestro ordenamiento rigen la materia objeto de discusión, ampoco l como tampoco llevó a cabo un ejercicio intelectivo y racional suficiente para desaplicar los precedentes que se han dictado sobre el punto jurídico objeto de juzgamiento, siendo que los juzgadores de instancia optaron por crear un para la ad hoc para la solución del caso –previa y reiteradamente señalado en el presente pronunciamiento-, el que sustentaron en su particular apreciación de la realidad contemporánea político-institucional y social costarricense, n la def como en la definición de una ideología igualmente particular, aspectos con base en los que concibieron y particularizaron –sin mayor sustento objetivo- un ámbito de tutela penal específico y desproporcionadamente restrictivo del derecho al honor de la persona que ocupe la […]. v.- Es preciso acotar que en la sentencia dictada en el caso [Nombre18] vs Nombre2042 por la Corte Interamericana -ampliamente transcrita, pero sin embargo, no tan amplia ni rigurosamente valorada en la sentencia por el tribunal de mérito- expresamente se establece que “los políticos” tienen un mayor nivel de tolerancia en la relación derecho al honor versus libertad de expresión. No obstante lo anterior, la Corte Interamericana establece que a pesar de la situación particular de quienes ejercen la función estatal según lo antes expuesto, sí rse su d tutelarse su derecho a la honra y al decoro, siendo que en tal sentido en el fallo [Nombre18] se estipula lo siguiente: “[…] 127. El control democrático, por parte de la sociedad a través de la opinión pública, fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual r un mar existir un margen reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público. 128. En este contexto es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. Esto no significa, de modo alguno, que el honor de los funcionarios públicos o de las personas públicas no deba ser jurídicamente protegido, sino que éste de maner serlo de manera acorde con los principios del pluralismo democrático […]”. Al respeto es necesario indicar que, a pesar de que en la sentencia de mérito se citan varios segmentos de lo resuelto en el caso [Nombre18] , en la misma no se valoran integralmente los preceptos jurisprudenciales señalados por la Corte Interamericana en el fallo de referencia, siendo que sin mayor justificación el tribunal penal desconoce el ámbito de tutela del derecho al honor que la Corte Interamericana establece que es proporcional a la condición de funcionario público y al mayor nivel de tolerancia al que están sometidos por tal condición. En este mismo sentido, el a quo no aprecia en su razonamiento de fondo, que la Corte Interamericana en cuanto a la tutela del derecho a la honra que corresponde a quienes ejercen cargos públicos, no puntualiza o determina que existan distintos grados de protección de tal derecho fundamental dependiendo de la jerarquía o el tipo de l que oc estatal que ocupe la persona. Así, es claro que el tribunal penal no valoró adecuadamente tal precedente del Sistema Interamericano de Derechos Humanos, al establecer criterios ad hoc y desproporcionadamente restrictivos con respecto a la tutela penal del derecho al honor que consideraron que le corresponde particularmente a quien ejerza el […], sie de la […], siendo que tal postura implica y se traduce en realidad en el vaciamiento casi absoluto del contenido de la tutela constitucional y legal que en nuestro ordenamiento jurídico le corresponde a dicho derecho fundamental, lo cual es improcedente. Al respecto es importante señalar que los mismos juzgadores de instancia establecieron en su fallo que, de la publicación realizada por el querellado [Nombre12] , se derivan algunas acepciones que sí pueden considerarse como ofensivas para la [Nombre6] [[Nombre3] ], pero que sin embargo al estimarse que no son unívocas o las únicas que emanan del contenido del texto difundido, puesto que según el a quo surgen otras acepciones –sin que se definan en el fallo cuáles son las otras derivaciones posibles- que no tienen nada que ver con situaciones ofensivas, no se quebrantó el derecho al honor de la [[Nombre3] ]. Para arribar a tal conclusión, el tribunal penal expone el finió, c que definió, conforme a lo expuesto supra para restringir el ámbito de tutela penal que consideró que le corresponde al […], sea de la […], sea que sólo son punibles como lesivas del honor y el decoro de quien ocupa dicho o, las o público, las ofensas directas y la expresión de ideas u opiniones que tengan como única acepción la imputación de un hecho delictivo. Tal argumentación no deriva de los lineamientos jurídicos que han sido definidos en los precedentes jurisprudenciales estudiados en este pronunciamiento -y citados en el fallo impugnado-, en cuanto a la interpretación y aplicación de las normas que regulan la situación fáctica y jurídica de un caso como el que se discute en el subjudice, incluso, por la jurisprudencia vinculante de la Sala Constitucional, todo lo cual revela una seria debilidad en la fundamentación intelectiva y jurídica del fallo objeto de impugnación. 3.2. Sentencia del caso [Nombre16] vs [Nombre17]. i.- En el fallo recurrido se citan dos segmentos de la sentencia dictada por la Corte Interamericana de Derechos Humanos en el caso [Nombre16] vs. [Nombre17], siendo que en tal sentido los juzgadores de instancia establecieron lo siguiente: “[…] Ahora bien, acerca de este punto la Corte Interamericana de Derechos Humanos, ha dicho que las actividades de los servidores públicos: “...salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral (…) se asienta en el interés público de las actividades que realiza.” (Caso [Nombre16] vs. [Nombre17], 2 de mayo de 2008, párrafo 86). Nótese que el máximo órgano continental de los derechos humanos, establece que en América los funcionarios públicos están más expuestos a la crítica, que ello es inherente al luntaria que voluntariamente aceptaron, y que las actividades que realizan son de interés público. Ahora bien, e que es notarse que estas afirmaciones de la Corte Interamericana, han sido producidas en el marco de casos donde están involucrados servidores públicos de alto rango, pero no del máximo rango como lo es en esta querella, la [… […] Estas valoraciones son importantes porque si afirmamos con la Corte Interamericana “…que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público.” (Caso [Nombre24] vs. [Nombre17], ídem), aún mayor es la exposición del máximo jerarca de la función pública y, correlativamente, aún mayor crítica ser la crítica pública […]” (Cfr. folios 346 y 347. La transcripción es literal) . En tal sentido se ecer que establecer que el a quo no valora íntegra, ni tampoco correctamente, el contenido de la resolución dictada en el caso [Nombre16] vs. [Nombre17], ya que haciendo referencia a tal precedente, los juzgadores de instancia determinan que se nciar el diferenciar el ámbito de tutela del derecho al honor de quien ocupe la […] con respecto a los demás funcionarios públicos que no tienen tal envestidura ni jerarquía. Esto, en razón de que el a quo consideró que en el caso [Nombre16] se establece un mayor grado de tolerancia de los servidores estatales y, en consecuencia, de suyo propio consideran que el grado de tolerancia yor conf ser mayor conforme al o que se público que se ocupa, conclusión a la que arriba el tribunal penal a pesar de que en tal precedente no se hace tal diferenciación. Asimismo, los juzgadores de instancia concluyen motu proprio que a quien ostenta la […] le corresponde un parámetro específico de tutela más restrictivo de protección del derecho al honor con respecto al resto de los funcionarios públicos, diferenciación que estimaron que correspondía realizar en virtud de que en el caso [Nombre16] vs. [Nombre17] no se resolvió en cuanto a la situación particular de quien ostenta dicho tipo de o. Tal i público. Tal interpretación y análisis del precedente en cuestión no es lógica, y en realidad lo que deja ver es que la tesis del a quo no se deriva en modo alguno de lo estipulado por la Corte Interamericana de Derechos Humanos en el caso de referencia, sino que es un fine el que define el tribunal de mérito a partir de su apreciación particular de lo que estimó que es la ideología que desea la mayoría de los costarricenses en cuanto a la gestión de los cargos públicos, particularizando tal deseo popular para el caso de la […]. ii.- En el mismo sentido es importante señalar que, del análisis integral de lo establecido en los precedentes de la Sala Constitucional y de la Sala Tercera, e lo señ como de lo señalado por la Corte Interamericana, no se deriva ni puede considerarse que la totalidad de los actos de la vida privada de quienes ejercen un o sean p público sean parte o puedan incluirse en el mayor ámbito de tolerancia que con respecto a su derecho al honor están sometidos por su condición de funcionarios públicos. Esto, por cuanto el mayor margen de tolerancia del derecho al honor de los servidores estatales con respecto al ejercicio de la libertad de expresión, versa sobre sus actuaciones que sean de interés público y que estén relacionadas directa o al menos indirectamente, con el ejercicio de las actividades propias del cargo, a lo que e que es sumarse que es preciso analizar cada caso en concreto para definir la proporcionalidad del margen de tolerancia que corresponde amparar a efecto de garantizar la vigencia de los derechos fundamentales al honor y a la libertad de expresión, todo lo cual no se apreció debidamente por los juzgadores en la sentencia de mérito. Específicamente, en cuanto a los puntos previamente analizados, en el fallo del caso de [Nombre32] , se estipula lo siguiente: “[…] 51. En torno a estos hechos las partes presentaron diversos alegatos en los que subyace un conflicto entre el derecho a la libertad de expresión en temas de interés público y la protección de la honra de los funcionarios públicos. La Corte reconoce que tanto la libertad de expresión como el derecho a la honra, acogidos por la Convención, revisten suma importancia. Es necesario garantizar el ejercicio de ambos. En este sentido, la prevalencia de alguno en determinado caso dependerá de la ponderación que se haga a través de un juicio de proporcionalidad. La solución del conflicto que se presenta entre ciertos derechos requiere el examen de cada caso, conforme a sus características y circunstancias, para apreciar la existencia e intensidad de los elementos en que se sustenta dicho juicio (…)53.Respecto al contenido de la libertad de pensamiento y de expresión, la Corte ha señalado que quienes están bajo la protección de la Convención tienen el derecho de buscar, recibir y difundir ideas e informaciones de toda índole, ambién e como también el de recibir y conocer las informaciones e ideas difundidas por los demás. Es por ello que la libertad de expresión tiene una dimensión individual y una dimensión social: ésta requiere, por un lado, que nadie sea arbitrariamente menoscabado o impedido de manifestar su propio pensamiento y representa, por tanto, un derecho de cada individuo; pero implica también, por otro lado, un derecho colectivo a recibir cualquier información y a conocer la expresión del pensamiento ajeno. 54. Sin embargo, la libertad de expresión no es un derecho absoluto. El artículo 13.2 de la Convención, que prohíbe la censura previa, también prevé la posibilidad de exigir responsabilidades ulteriores por el ejercicio abusivo de este derecho. Estas restricciones tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de la libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa. 55. Por su parte, el artículo 11 de la Convención establece que toda persona tiene derecho al respeto de su honra y al reconocimiento de su dignidad. Esto implica límites a las injerencias de los particulares y del Estado. Por ello, es legítimo que quien se considere afectado en su honor recurra a los medios judiciales que el Estado disponga para su protección.. 56. La necesidad de proteger los derechos a la honra y a la reputación, tros der como otros derechos que pudieran verse afectados por un ejercicio abusivo de la libertad de expresión, requiere la debida observancia de los límites fijados a este respecto por la propia Convención. Estos deben responder a un ricta pr de estricta proporcionalidad. 57. Dada la importancia de la libertad de expresión en una sociedad democrática y la elevada responsabilidad que ello entraña para quienes ejercen profesionalmente labores de comunicación social, el Estado no sólo zar las minimizar las restricciones a la circulación de la información sino también equilibrar, en la mayor medida de lo posible, la participación de las distintas informaciones en el debate público, impulsando el pluralismo informativo. En consecuencia, la equidad el flujo regir el flujo informativo. En estos términos puede explicarse la protección de los derechos humanos de quien enfrenta el poder de los medios y el intento por asegurar condiciones estructurales que permitan la expresión equitativa de las ideas (…) 71. Como quedó establecido en el párrafo 55 supra, los jueces, al igual que cualquier otra persona, están amparados por la protección que les brinda el artículo 11 convencional que consagra el derecho a la honra. Por otra parte, el artículo 13.2.a) de la Convención establece que la “reputación de los demás” puede ser motivo para fijar responsabilidades ulteriores en el ejercicio de la libertad de expresión. En consecuencia, la protección de la honra y reputación de toda persona es un fin legítimo acorde con la Convención. Asimismo, el instrumento penal es idóneo porque sirve el fin de salvaguardar, a través de la conminación de pena, el bien jurídico que se quiere proteger, es decir, podría estar en capacidad de contribuir a la realización de dicho objetivo. Sin embargo, la Corte advierte que esto no significa que, en la especie que se analiza, la vía penal sea necesaria y proporcional, como se verá infra (…) 79.De otro lado, en el marco de la libertad de información, el Tribunal considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en que fundamenta sus opiniones. Es decir, resulta válido reclamar equidad y diligencia en la confrontación de las fuentes y la búsqueda de información. Esto implica el derecho de las personas a no recibir una versión manipulada de los hechos. En consecuencia, los periodistas tienen el deber de tomar alguna distancia crítica respecto a sus fuentes y contrastarlas con otros datos relevantes (…) 82. Los representantes concordaron con la Comisión y alegaron que “los hechos sobre los que informó el señor [Nombre16] son de interés público”, teniendo en cuenta que la investigación se refería “a un caso paradigmático de la represión” y que la “investigación efectuada por el periodista es parte de [la] revisión que la sociedad argentina ar y de realizar y de la discusión acerca de las causas por las cuales el gobierno militar desplegó su accionar sin haber encontrado obstáculos en el [P]oder [J]udicial”. Agregaron que el señor [Nombre16] “no utilizó lenguaje alguno que pudiera considerarse abusivo” ni utilizó “palabras desmedidas ni mucho menos ultrajantes”; que se refirió al juez “única y exclusivamente con motivo de su actuación funcional y no incursionó en ningún aspecto de su vida o de su personalidad que no guardara relación con su labor como funcionario público”; que en los apartados del libro donde se manifiestan afirmaciones de hecho “todo lo que sostuvo se ajusta a la realidad” y que “los párrafos que formaron parte del juicio penal” contienen “juicios de valor críticos sobre el poder judicial de aquella época”, razón por la cual “no son susceptibles de ser verdaderos o falsos, ni pueden justificar, por sí mismos, una restricción a la libertad de expresión, en tanto se trata del derecho de toda persona de opinar libremente sobre asuntos de interés público y sobre la actuación funcional de un juez en un asunto de la mayor relevancia pública”. 83.En este último paso del análisis se considera si la restricción resulta estrictamente proporcional, de tal forma que el sacrificio inherente a aquella no resulte exagerado o desmedido ventajas a las ventajas que se obtienen mediante tal limitación. La Corte ha hecho suyo este método al señalar que: para que sean compatibles con la Convención las restricciones deben justificarse según objetivos colectivos que, por su importancia, preponderen claramente sobre la necesidad social del pleno goce del derecho que el artículo 13 de la Convención garantiza y no limiten más de lo estrictamente necesario el derecho proclamado en dicho artículo. Es decir, la restricción oporcion ser proporcional al interés que la justifica y ajustarse estrechamente al logro de ese legítimo objetivo, interfiriendo en la menor medida posible en el efectivo ejercicio del derecho a la libertad de expresión. 84.Para el caso que nos ocupa, la restricción tendría que lograr una importante satisfacción del derecho a la reputación sin hacer nugatorio el derecho a la libre crítica contra la actuación de los funcionarios públicos. Para efectuar esta ponderación se ar i) el analizar i) el grado de afectación de uno de los bienes en juego, determinando si la intensidad de dicha afectación fue grave, intermedia o moderada; ii) la importancia de la satisfacción del bien contrario, y iii) si la satisfacción de éste justifica la restricción del otro. En algunos casos la balanza se inclinará hacia la libertad de expresión y en otros a la salvaguarda del derecho a la honra (…) 86. Respecto al derecho a la honra, las expresiones concernientes a la idoneidad de una persona para el desempeño de un o o a lo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores gozan de mayor protección, de manera tal que se propicie el debate democrático. La Corte ha señalado que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque se han expuesto voluntariamente a un escrutinio más exigente. Sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral no se asienta en la calidad del sujeto, sino en el interés público de las actividades que realiza, como sucede cuando un juez investiga una masacre en el contexto de una dictadura militar, como ocurrió en el presente caso […]”. De lo expuesto se determina cómo el tribunal de mérito realizó un análisis sesgado y parcial del precedente dictado por la Corte Interamericana en el caso [Nombre16] vs. [Nombre17], siendo que limitó sus consideraciones a un segmento mínimo de tal resolución, el que ajustó forzadamente al ular con particular con base en el que analizó los hechos de la querella, sea la diferenciación exclusiva de la tutela del derecho al honor que los juzgadores de instancia definieron que le corresponde a quien ejerce la […], lo cual evidencia que no analizaron ni le dieron el valor que jurídicamente corresponde al contenido de la resolución del caso [Nombre16] para la correcta solución del subjudice, el que no ampara ni sirve de base para justificar en modo alguno el que des con el que descartaron la vulneración del derecho al honor de la [Nombre6] [[Nombre3] ] en virtud de los hechos acusados en contra del [Nombre7] , todo lo cual implica la falta de fundamentación jurídica de la sentencia. En razón de todo lo expuesto, se concluye que los precedentes jurisprudenciales analizados supra en el presente pronunciamiento, son sumamente importantes para la solución del presente asunto. Asimismo, se establece que tales precedentes no fueron apreciados íntegra y correctamente por el tribunal penal en la sentencia de mérito, siendo que ninguno de éstos acuerpa el se en el con base en el que el a quo limitó de modo casi absoluto la tutela al derecho al honor de quien ocupa la […] en la relación de dicho derecho fundamental con el ejercicio de la libertad de expresión y comunicación, el que si bien ar un ma soportar un margen de tolerancia mayor en el caso de los funcionarios públicos con respecto al resto de la colectividad, tal limitación no puede implicar el vaciamiento del derecho fundamental a la honra y el decoro de ninguna persona, incluso de quien ejerce la función pública sin importar la jerarquía del tente. A que ostente. Así, no cabe duda que en una sociedad democrática como la que se instituye en el componente orgánico de nuestra Constitución Política, se izar el garantizar el ejercicio y efectividad de la libertad de expresión dándole preferencia, incluso, por sobre la protección del derecho al honor de los servidores del Estado. De esta forma, es procedente amparar un amplio margen para la denuncia, opinión, investigación, cuestionamientos, la crítica fuerte y molesta del colectivo social, e quiene como de quienes directamente son actores y están vinculados al desarrollo de libertad de prensa y comunicación, con respecto al escrutinio y fiscalización de la actividades relacionadas con el ejercicio de la función pública por parte de aquellos que son sus simples depositarios, lo cual permite mantener vigente el pluralismo democrático, fiscalizar el correcto ejercicio de la función pública y evitar restricciones indebidas a la libertad de expresión a efecto de evitar un ambiente propicio o terreno fértil para el surgimiento de sistemas políticos autoritarios. No obstante lo anterior, tal y como ya lo han señalado con toda claridad y precisión las Salas Constitucional y de Casación Penal costarricenses, a Corte como la Corte Interamericana de Derechos Humanos, la libertad de expresión y comunicación no es absoluta, ya que tiene restricciones que deben aplicarse a posteriori con el fin de evitar la censura previa, pero que implican la responsabilidad por la vulneración de otros derechos fundamentales por quienes la ejercen de modo abusivo y desproporcionado, tal y como sucede en el caso del derecho constitucionalmente tutelado al honor, incluso, de los funcionarios públicos. En tal sentido es importante resaltar que ninguno de los entes jurisdiccionales antes citados ha establecido discriminación o diferenciación algunas, en cuanto al derecho o ámbito de tutela del honor y el decoro de los servidores públicos, en virtud del fico o j específico o jerarquía que desempeñen, lo emana que solo emana de la postura definida ad hoc por el tribunal de mérito para analizar el fondo del evento que es objeto de juzgamiento en el presente caso. Al respecto ecerse q establecerse que la postura del tribunal de instancia no está debidamente fundamentada –desde la perspectiva jurídica-, ya que atiende a una forma muy particular de razonar y de definir un parámetro ideológico, para crear una tesis muy subjetiva en cuanto al ámbito de tutela del derecho al honor que estiman que le corresponde, exclusivamente, a quien ejerza la […], postura que carece de un objetivo y riguroso sustento jurídico y jurisprudencial En tal sentido, a lo largo del desarrollo del presente pronunciamiento se ha demostrado que el a quo no aplicó de modo riguroso ni analizó de modo suficiente, el marco jurídico que regula el tema objeto de discusión, ampoco v como tampoco valoró de modo íntegro y suficiente los precedentes jurisprudenciales que cita en su fallo, y que han sido previamente analizados en la presente resolución. b.3. Las redes sociales y su importancia en el ejercicio de la libertad de expresión y comunicación, en torno a la tutela del derecho al honor. En el presente caso la publicación que se querella como difamatoria por [Nombre [Nombre10]] en contra de [Nombre7] , se llevó a cabo en uno de los más modernos y, sin duda alguna, más efectivos medios de comunicación, sea, en una red social de la Internet, específicamente, “Facebook”. A efecto de analizar y definir la importancia jurídico-penal que tiene la existencia de tales grupos socio-virtuales, con respecto a la tutela del derecho al honor, rse que apuntarse que una de las principales características de las redes sociales en nuestra realidad contemporánea es el efecto amplificador del espectro de difusión de las ideas, comentarios, fotografías, videos, noticias, textos, etc., que se comparten y publican por cualesquiera de los miembros que conforman la “comunidad virtual”, hacia la totalidad de esta, o a un grupo de sus integrantes que conforman su entorno o grupo virtual en la red social. En el caso específico de “Facebook”, por ejemplo, la comunidad virtual está compuesta por todos aquellos que tienen una cuenta o perfil, lo que les permite tener su propia página –o perfil- en la Internet y dentro de la red social, con lo cual son parte de esa comunidad, y de esa forma pueden estar en contacto con todos los otros miembros de “Facebook” y compartir toda la información y contenido de su perfil. Asimismo, quien posee una cuenta de Facebook puede restringir el acceso a cierto número de usuarios a su perfil, de modo que comparte comunicación con ese grupo, uede lim como puede limitar el acceso a una parte del contenido de su perfil, por ejemplo de su “muro”, fotos, algunas publicaciones, amigos, etc. De igual forma, el usuario puede limitar la difusión de lo que publica en su página de “Facebook”, ya sea a un grupo de miembros con los que está vinculado virtualmente, o lo que se conoce como el “grupo de amigos” o incluso a algunos de los que pertenecen a ese grupo o algún otro del que sea parte. Así, es claro el poder de difusión y comunicación que tiene “Facebook”, siendo que se puede compartir información de todo tipo “on line” o comunicarse mediante “chats” o conversaciones en todo momento, y en cualquier parte del mundo en que se encuentre cualquiera de los miembros de la comunidad virtual, ya sea a nivel nacional o, incluso, del orbe. Lo anterior revela la gran importancia que tienen las redes sociales en la formación de la opinión pública en la actualidad, a través de la expresión de ideas, pensamientos y críticas, n la dif como en la difusión de información de cualquier tipo, al punto de que los mismos medios de comunicación colectiva tradicionales, como la radio, la televisión y la prensa, se nutren del contenido y participan en el tráfico de información que circula en Internet a través de las redes sociales, de ahí la importancia que para la tutela del derecho al honor con respecto al ejercicio de la libertad de expresión, tienen tales formas de comunicación en la actualidad. Otra característica de suma importancia de las redes sociales, no sólo de “Facebook”, sino también de otra importante cantidad de grupos de ese tipo que existen en el ciberespacio, como por ejemplo “Twitter”, “Instagram”, “Linkedin”, etc, es la facilidad de acceso de la mayor parte del conglomerado social a las distintas comunidades virtuales que existen y se desarrollan en la Internet y, en consecuencia, a toda la información y la gran gama de contenidos que se transmiten, divulgan, comparten o difunden por los miembros de tales redes sociales –por ejemplo mediante la publicación de “posts”, fotografías, videos, comentarios, etc-, siendo que hoy en día los distintos acontecimientos, puntos de vista, informaciones noticiosas -entre otros- de la realidad social, política, económica, científica, etc., se publican y reproducen prácticamente “on line” o en tiempo real. Así, cualquier acontecimiento puede llegar a ser de mucha importancia en la red, y su difusión se dará en un espacio muy corto de tiempo y entre una gran cantidad de personas que tienen acceso o son parte del entorno virtual. En este último aspecto se deben tener presentes los grandes avances de la tecnología actual, la que ha llegado a producir aparatos electrónicos que prácticamente permiten a una grandísima cantidad de personas estar “on line” -o en línea- en todo momento, como por ejemplo a través de los “smartphones” –teléfonos inteligentes-, las “tablets” –tabletas electrónicas-, computadoras personales portátiles, etc., artefactos que cada día son económicamente más accesibles para la gran mayoría de la población de nuestro país y de muchos países del mundo. En el presente caso el estudio del elenco probatorio producido en el juicio deja ver que la publicación realizada por el querellado [Nombre7] generó una gran cantidad de comentarios y apreciaciones respecto del contenido de la misma, por parte de un gran número de usuarios de “Facebook”, participaciones dentro de las que existe una cantidad importante que expresa ofensas directas en contra de la [Nombre6] [[Nombre3] ], quien para aquel entonces era la […] (En este sentido ver folios 23 a 37 del legajo principal), situación que evidencia el supremo impacto y trascendencia que tienen las redes sociales en la difusión de ideas y formación de opinión pública en la actualidad, difusión de información que incluso es más veloz que las hoy en día alcanzan los medios de comunicación tradicionales. sas, es las cosas, es claro que las conductas que se realicen en la Internet tienen gran relevancia jurídico-penal hoy en día, siendo que por tal motivo ha sido necesario crear legislación específica al respecto, como por ejemplo el marco de Delitos Informáticos introducidos al Código Penal mediante Ley N° 9048 del 10 de julio de 2012. De igual forma existen normas en la legislación penal común que regulan y son aplicables a las conductas que se realicen a través de los medios informáticos, tal y como se da en el caso de los delitos contra el honor, tipificados en los artículos 145, 146 y 147 del Código Penal. Con base en todo lo expuesto, se concluye que en el presente caso es dable y necesario analizar con profundidad y con la rigurosidad que exige el deber de fundamentación jurídica de la sentencia penal, si la publicación realizada por el querellado [Nombre7] en su perfil público de “Facebook” generó una lesión al honor de la [Nombre6] [[Nombre3] ], para lo cual se requiere y es importante apreciar las particularidades que, según lo antes expuesto, tienen las redes sociales en nuestra realidad actual, eben con como deben considerarse los aspectos atinentes a la relación derecho al honor de los funcionarios públicos versus el ejercicio de la libertad de expresión, en una sociedad democrática, y conforme a los límites que este último derecho fundamental tiene como resultado de su ejercicio abusivo y desproporcionado, según lo considerado a lo largo del presente pronunciamiento. C.- Defectos puntuales de la sentencia impugnada que constituyen el vicio de falta de fundamentación. En los acápites precedentes de este pronunciamiento y con base en el examen integral del fallo por parte de esta cámara de apelaciones, se han establecido y expuesto razones de hecho y de derecho que evidencian y confirman, que la sentencia de mérito quebranta el deber de fundamentación jurídica que se requiere para su validez y eficacia, conforme a lo establecido en los artículos 39 y 41 de la Constitución Política, n lo reg como en lo regulado en los artículos 1, 142, 184 y 363 del Código Procesal Penal. Así, y como complemento de lo previamente expuesto, es oportuno puntualizar ciertos aspectos del fallo que revelan de igual forma su erróena fundamentación jurídica, tal y como lo reclama el licenciado [Nombre15] . Así, se tiene lo siguiente: i.- Si bien es cierto los funcionarios públicos tienen un mayor nivel de tolerancia con respecto al ejercicio de la libertad de expresión en torno a la tutela de su derecho al honor, en razón de que voluntariamente se sometieron al mayor escrutinio público, el que se deriva de los principios de transparencia y rendición de cuentas, tal particularidad no está aparejada al vaciamiento absoluto del derecho a la honra y el decoro que se les r a quie tutelar a quienes ejercen la función estatal, siendo que el do en ta definido en tal sentido por el tribunal de mérito conlleva en términos prácticos al vaciamiento de dicho derecho fundamental, ya que prácticamente ninguna conducta podría afectar el derecho al honor de quien sea […]. Tales aspectos no fueron debidamente valorados por el a quo, toda vez que dejó de lado toda consideración objetiva respecto de la normativa constitucional, convencional y legal que está vinculada al tema de fondo, mitió va como omitió valorar íntegra y objetivamente los precedentes jurisprudenciales que en cuanto al punto objeto de litigio han sido dictados previamente por la Sala Constitucional y de Casación Penal costarricenses, y también por la Corte Interamericana de Derechos Humanos. Esto, por cuanto los juzgadores de instancia se limitaron a sustentar el se en el con base en el que decidieron absolver al querellado [Nombre12] , a partir de la definición y apreciación de la ideología que consideraron que es la que corresponde a la mayoría de la sociedad costarricense en cuanto al tema en discusión, razonamiento a partir del que el tribunal de mérito fijó un y exclu ad hoc y exclusivo para delimitar el ámbito de tutela al honor que estimó como propio de quien ocupa […]. Tal postura es subjetiva y, conforme al principio de legalidad, excede las funciones propias de la actividad jurisdiccional, sea esta la de interpretar y aplicar la ley, ya que no es procedente que un tribunal penal defina motu proprio una ideología que, según su apreciación particular, le corresponde a las mayorías sociales, y de esa forma, valorar supuestos ideológicos para definir parámetros de tutela de un derecho fundamental y constitucionalmente reconocido como lo es el honor de los servidores estatales, y lo que es más sensible e inadecuado aún, para establecer criterios ad hoc y exclusivos para la protección de tal derecho del ciudadano o ciudadana que ostenten la […], lo cual lejos de garantizar el principio de igualdad establecido en el artículo 33 de la Constitución Política, implica un trato discriminatorio y la falta de protección de la esencia del derecho humano de referencia en virtud de una situación particular que no justifica la supresión absoluta del mismo. Así, el tribunal penal no aprecia el marco normativo que está vinculado y que regula el tema de fondo en cuanto a la garantía de la libertad de expresión y comunicación con respecto a la tutela del derecho a la honra y el decoro de quienes ejercen la función pública, lo cual evidencia la debilidad del razonamiento en que el a quo sustenta la decisión objeto de impugnación. Asimismo, los juzgadores de instancia no exponen razones jurídicas y objetivas suficientes que justifiquen su decisión de no seguir los criterios jurisprudenciales vertidos previamente sobre la forma en que rse lega abordarse legalmente la relación derecho al honor versus el ejercicio de la libertad de expresión en el caso de los funcionarios públicos, siendo que renuncian a llevar a cabo un análisis integral de los precedentes jurisprudenciales que solamente citan y reproducen sesgadamente en su fallo, y en su lugar, limitan su razonamiento de fondo a la consideración de una tesis subjetiva, la que según su particular apreciación crea una línea jurisprudencial en cuanto al ámbito de tutela que exclusivamente le corresponde a quien ostenta la […], análisis que es jurídicamente incorrecto. Esto, por cuanto no procede definir los ámbitos de protección de un derecho fundamental a partir de supuestos ideológicos que, aún y cuando podrían coincidir con la postura de las mayorías, podrían no coincidir con la voluntad del constituyente, aspecto que no es propio de dilucidar mediante el control difuso de constitucionalidad, sino únicamente, mediante el control directo y concentrado que le corresponde a la Sala Constitucional, situación que evidencia la extralimitación de sus competencias que el a quo llevó a cabo para establecer el se en el con base en el que afincó su decisión de fondo. ii.- Tal y como se ha analizado ampliamente en el presente pronunciamiento, no es posible lograr la tutela adecuada de la libertad de expresión en un sociedad democrática, si se establecen limitaciones que operen como una censura previa y que desmotiven el ejercicio de tal derecho fundamental, lo cual es propio de regímenes autoritarios que no corresponden al esquema que contempla nuestra Constitución Política. Así, no es procedente exigir genéricamente y de previo, que lo que se publicará tenga que ser cierto o previamente constatado –probado-, ya que tal postura implica establecer limitaciones que pueden tener como resultado la imposición de la censura previa de opiniones, cuestionamientos y críticas de situaciones que son de interés público, tal y como sucedería con los actos que realizan los funcionarios estatales en el ejercicio de su competencias o en relación a estas, supuesto que sin duda alguna es de interés público y está sujeto a un mayor control y fiscalización por parte de todos los administrados, lo cual como se indicó deriva de los principios de transparencia y rendición de cuentas de los servidores estatales. No obstante lo anterior, tal y como lo establece la normativa supra expuesta, y se estipula en los precedentes jurisprudenciales que previamente han sido objeto de análisis, sí es procedente, sin que se vulnere la libertad de expresión y comunicación, que se den controles a posteriori o se exijan responsabilidades ulteriores de quienes ejercen abusiva y desproporcionadamente tales derechos fundamentales. Así, en cada caso concreto ecerse s establecerse si el ejercicio de la libertad de expresión no es una mampara o cortina que se utiliza para difundir hechos falsos, especulativos o insidiosos que tengan como objetivo real, afectar el honor de un funcionario público, lo cual es un supuesto que no está cobijado por los alcances de la tutela o ámbito de protección que corresponde a la libertad de expresión y comunicación, incluso, cuando se haga referencia a quien ostenta un o sin im público sin importar su jerarquía. Esto, por cuanto ni la Sala Constitucional, la Sala Tercera, ni la Corte Interamericana de Derechos Humanos, establecen alguna diferencia en cuanto al margen de tutela del derecho al honor que le corresponde a quienes ejercen la función pública, ya sea que su elecció sea de elección popular o de algún otro tipo, tal y como supra se apuntó. sas, no las cosas, no es procedente el se en el con base en el que el a quo renunció a conocer los argumentos y tesis de la defensa de la [Nombre6] [Nombre443 [Nombre10]], en cuanto a que en el subjudice es necesario definir si el contenido de la publicación realizada por [Nombre7] es falso y especulativo, y que se difundió con el conocimiento de la idoneidad para afectar el honor de quien ostentaba la […]. En tal sentido los juzgadores de instancia se limitaron a establecer que por tratarse de la [[Nombre3] ] no era necesario establecer si lo que se difundió por el querellado es cierto o falso, ya que aquel simplemente expuso su idea, opinión o pensamiento personal sobre los “hechos” que públicó en su perfil de “Facebook”. sas, se las cosas, se determina que el razonamiento del a quo es infundado, toda vez que dejó de lado los alcances de tutela del derecho al honor que le corresponde a los funcionarios públicos establecidos incluso, por nuestra Sala Constitucional, cuya jurisprudencia es vinculante “erga omnes”. En igual forma, omitió llevar a cabo un análisis jurídico o valoración rigurosa en cuanto al contenido de la “especie” difundida en el perfil de “Facebook” de [Nombre12] , limitando su razonamiento, en tal sentido, a indicar que no era necesario establecer si tal contenido era cierto o no, ta de un se trata de una opinión, y las opiniones no deben de acreditarse, lo cual es incorrecto según lo supra expuesto en tal sentido. En este sentido cabe agregar, que el a quo tampoco expone los razonamientos que jurídicamente le permiten calificar como “una mera o simple opinión” la publicación de marras, pese a que la misma parte de la afirmación de una serie situaciones que, en principio, se acerca más una imputación que a una opinión sobre “los hechos” que son parte de la publicación. A lo anterior e que el sumarse que el a quo no establece en el fundamento del fallo de mérito, qué pruebas valoró y de qué forma logró otorgarle el carácter de “hechos” –tal y como lo establece en su razonamiento- a los eventos que cita el querellado en su publicación, y con respecto a los que se limitó a indicar que fueron de su conocimiento, y a partir de tal situación, dio su opinión y la difundió en su perfil público de “Facebook”. En igual sentido, en la sentencia impugnada no se establecen los aspectos que valoró el a quo para establecer certeramente que los “hechos” difundidos y criticados por el querellado [Nombre12] , son de interés público en virtud de estar relacionados con la actividad –constatable u objetivamente presumible- de las funciones públicas de la [Nombre6] [[Nombre3] ] en el ejercicio de su …]. Nomb como […]. ene que , se tiene que el tribunal de mérito no valoró adecuadamente el punto objeto de análisis, a efecto de definir si los “hechos” puestos a la luz de la opinión pública por [Nombre12] son evidentemente falsos o meramente especulativos, esto con la finalidad de establecer la aptitud legal de aquellos para ser objeto de crítica, en virtud de corresponder al ejercicio de la función pública de la [Nombre6], o en su defecto, si la exposición del contenido de la publicación de marras sin atender o menospreciar la calidad o realidad de la información difundida, constituye por sí misma una actuación que persigue y evidencia una finalidad difamante en perjuicio de la [Nombre6] [[Nombre3] ], quien negó en su declaración en el debate de modo enfático, que los hechos ventilados por [Nombre12] fuesen ciertos, aspecto que se reitera el a quo no valoró con la profundidad y rigurosidad que legalmente se requiere. iii.- En relación con lo antes expuesto, el examen integral de la sentencia revela que el tribunal penal no define ni fundamenta con precisión, de qué forma concluye certeramente que en el subjudice se está en presencia de simples pensamientos, ideas o cuestionamientos difundidos por el querellado [Nombre12] , y no en presencia de una ofensa matizada del derecho al honor de [[Nombre3] ]. Así, el a quo no valoró si a través del contenido y la forma en que se dio la exposición de los “hechos” de marras, no acreditados, bajo la apariencia y afirmación de ser verdaderos o ciertos, y escritos de una forma que podría llevar a la conclusión de que existió un tráfico de influencias o conductas incorrectas de la [Nombre6] para enriquecerse en virtud del ejercicio de la función pública, se podría estar en presencia de una especie apta, idónea y suficiente para afectar el derecho al honor de la [Nombre6]. Tal situación se da en razón de que el tribunal de mérito analizó los eventos querellados, única y exclusivamente, con base en su do ad ho definido ad hoc para establecer el ámbito de tutela del derecho al honor que el a quo estimó que le corresponde a quien ejerce la […], criterio que conforme a lo ampliamente expuesto a lo largo del presente pronunciamiento, no está debidamente fundamentado ya que no se ajusta a la interpretación y aplicación de las normas supra analizadas que regulan la protección que le corresponde al derecho al honor versus a la tutela y ejercicio de la libertad de expresión en el caso de quienes ejercen la función pública. iv.- La fundamentación de una sentencia penal no puede radicar en la definición de una ideología derivada de lo que un órgano de la jurisdicción penal ordinaria, considere que es la postura de “las mayorías”, sino que scribirs circunscribirse a la aplicación e interpretación de la ley, ombre03 como ar los c apreciar los criterios jurisprudenciales vinculantes, os emana como los emanados de autoridades judiciales superiores que sin limitar el principio de independencia judicial, son aplicables al caso concreto. En tal sentido es oportuno agregar que no puede desconocerse la naturaleza humana de quien ostenta el z o juez de juez o jueza de la República, u relaci como su relación con el entorno social, lo cual conlleva a que tenga una ideología determinada que indirectamente podría tener algún peso al interpretar y aplicar la norma jurídica, mas sin embargo, no es aceptable que el sustento de una decisión judicial tenga un fundamento directa y manifiestamente ideológico, derivado de una percepción particular de la realidad social. En la especie, esta última situación es la que en realidad define los alcances de la tutela del derecho al honor que los juzgadores de instancia concretaron como la que le corresponden a quien ostente la […], al considerar que sólo puede verse afectado tal bien jurídico cuando la ofensa sea directa o expresamente se endilgue la comisión de un delito a quien ocupa tal o. Tal a público. Tal apreciación, como ya se indicó, no sólo es infundada, sino que, además, desconoce los preceptos que la Sala Constitucional y los criterios que la Sala Tercera y la Corte Interamericana de Derechos Humanos han definido en torno a los alcances y límites del derecho al honor de los funcionarios públicos versus el ejercicio de la libertad de expresión en un Estado democrático, los que son muy claros en establecer que sí existe y cerse un reconocerse un mayor nivel de tolerancia, pero a su vez, recalcan que no son amparables los excesos y abusos de la libertad de comunicación, que en realidad procuren disfrazar a través del supuesto ejercicio de tal derecho fundamental, la exposición de hechos falsos que resulten injuriantes y difamatorios, a sabiendas de que con tal acción se puede afectar el derecho al honor del funcionario público. Lo anterior, lejos de garantizar la vigencia de la sociedad democrática, más bien le causa un perjuicio, al vulnerarse el componente social del derecho a la libertad de expresión de recibir información pertinente y adecuada para la correcta formación de la opinión pública, y de esa forma garantizar el correcto discurrir de la función pública de tal forma que la misma no sea vea afectada por ataques injustos, que afecten la institucionalidad, gobernabilidad y credibilidad de quienes ostenta el poder público, lo cual es más sensible y delicado en los casos de quienes ejercen los Supremos Poderes de la República. v.- El tribunal realiza un análisis segmentado y no comprensivo de la totalidad del texto que se querelló como difamatorio, abordaje que no corresponde a lo que la Sala Tercera ha establecido que procede en tal sentido conforme a lo supra expuesto, toda vez que arse en apreciarse en cada caso en concreto no sólo el contenido de la información difundida, sino que además rse la f valorarse la forma en que la misma se difunde –redacción, vocabulario, posición de fotografías, etc.- para establecer si la publicación es idónea o no, para alcanzar un resultado difamatorio. Así, el análisis del elenco de hechos probados de la sentencia de mérito (cfr. folios 323 y 324 del legajo principal), permite establecer que los juzgadores tuvieron por demostrado que en el contenido de la publicación de marras se presenta como cierto que la [Nombre6] adquirió una finca valorada en la suma de dos millones y medio de dólares, ue la mi como que la misma es dueña de generación eólica, siendo que partir de tales afirmaciones el querellado [Nombre12] hace una comparación con el caso de una persona -un reconocido futbolista- que en aquel entonces era investigada penalmente, respecto de quien indica que al “descubrir el agua tibia” y con cinco días de estudio en el INCAE se hizo millonario y poseedor de yates, aviones y una vida de lujo. Asimismo, de modo expreso el querellado señala que “[…] comparo la riqueza de la Señora con este jugador, a quienes aplaudimos su emprendedurismo y visión para los negocios, esa facilidad para pagar millones de dólares, sin que los mortales encontremos una explicación en nuestra vida cotidiana en donde el dinero cuesta hacerlo toda una vida de esfuerzo y trabajo (…) estas riquezas instantáneas nos asombran y no encontramos explicaciones lógicas. Ahora bien, será que leyeron el Libro de los Secretos y descubrieron el camino corto a la riqueza. De cualquier forma felicitamos a la [Nombre [Nombre10]] quien prepara su salida de la función pública siendo millonaria y poseedora de riquezas materiales que a cualquiera de los ciudadanos les cuesta una vida y a los funcionarios públicos y a los futbolistas parece solo cinco días de tocar bola […]” (cfr. folio 324, la transcripción es literal). De lo expuesto se colige que, en el presente caso, es necesario analizar de modo íntegro y no segmentado como lo realizó el tribunal de mérito, el contenido y la forma en que se dio la publicación difundida por [Nombre12] , a efecto de definir si la misma fue divulgada en el ejercicio puro del derecho de la libertad de expresión del querellado, de un modo irónico, pesado y molesto, o si por el contrario, el texto difundido en el perfil de “Facebook” de [Nombre12] corresponde al ejercicio abusivo y desproporcionado de tal derecho fundamental. Este análisis no se realizó por el a quo, en razón de que no apreció de modo integral el contenido de la publicación de marras, y a su vez, en virtud de que analizó el texto en cuestión, únicamente, a partir de su solo la de que solo las ofensas directas y la imputación de hechos delictivos como única acepción posible de una publicación, pueden vulnerar el derecho al honor de quien ejerce la […]. Sumado a lo expuesto, el tribunal de instancia consideró que la [Nombre6] estimó como afectado su honor a partir de apreciaciones subjetivas que derivó de “la especie” publicada por [Nombre12] , las que consideró el a quo que no son las únicas posibles de derivar de la misma –sin dar mayor fundamento en este sentido tal y como ya se ha apuntado-, todo lo cual apreció para concluir que los hechos querellados en el presente caso no son difamatorios. Con base en todo lo expuesto se concluye que el análisis fáctico, intelectivo y jurídico realizado en la sentencia de mérito, no se ajusta a los preceptos normativos establecidos en los artículos 39 y 41 de la Constitución Política, n lo est como en lo estipulado en los artículos 1, 142, 184 y 363 del Código Procesal Penal, lo que implica el vicio de errónea fundamentación jurídica del fallo que se reclama por el representante de la [Nombre6] [[Nombre3] ]. En consecuencia, se declara con lugar el recurso de apelación incoado por el licenciado [Nombre5] , y se anula totalmente el fallo recurrido. Se ordena el reenvío de la causa ante el tribunal de origen para que con distinta integración resuelva lo que en derecho corresponde.

POR TANTO:

Se rechaza la prueba ofrecida en la audiencia oral por el representante de la parte querellada. Se declara con lugar el recurso de apelación de sentencia penal incoado por el licenciado [Nombre5] , en virtud de lo cual se anula en su totalidad el fallo impugnado y el juicio que le precedió, y se ordena la realización de un nuevo juicio ante el mismo tribunal penal con distinta integración, para que proceda a resolver lo que en Derecho corresponde. NOTIFÍQUESE.- Edwin Esteban Jiménez González Mario Alberto Porras Villalta [Nombre4] Jueces y Jueza del Tribunal de Apelación de Sentencia Penal Imputado : [Nombre33] .

Ofendido : [[Nombre3] ] Delito : Difamación Nombre22