Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The Constitutional Court of Guatemala declared that articles criminalizing threats, defamation and insult of public officials were unconstitutional and violated freedom of expression guarantees. Guatemala’s Criminal Code contained three articles that imposed criminal penalties for threatening, defaming and insulting the dignity of public servants or the exercise of their public duties. Three citizens of Guatemala challenged the articles’ constitutionality. The Court, relying on Guatemala’s Constitution and cases from the Inter-American Court of Human Rights and the European Court of Human Rights agreed that the articles violated the right to freedom of expression, particularly the right to scrutinize public officials.
Three citizens filed an action challenging the constitutionality (acción de inconstitucionalidad) of Articles 411, 412, and 413 of the Criminal Code of Guatemala. These articles imposed criminal penalties for threatening, defaming and insulting the dignity of public servants or the exercise of their public duties (respectability). Under the provisions, threats, defamation or insult of senior officials was an aggravating factor, but truth could serve as a defense.
According to the plaintiffs, the articles violated the constitutional guarantee that any criticism of public servants concerning the exercise of their public functions may not be criminalized. The guarantee is enshrined in Article 35 of Guatemalan Constitution.
During the proceedings, Guatemala’s Constitutional Court ordered the provisional suspension of the provisions which were eventually declared unconstitutional.
First, the Court had to determine whether Articles 411 and 412 of the Criminal Code of Guatemala violated the right to freedom of expression by imposing criminal penalties on anyone making statements that insulted the dignity or respectability (decoro) of public officials.
Secondly, the Court had to determine whether Article 413 of the Criminal Code of Guatemala violated the right of freedom of expression by requiring that in criminal proceedings, the speaker of allegedly illicit language, to provide proof of the veracity of the criticism and accusations made against a public official in order to avoid criminal penalties.
The Court noted that the Constitution of Guatemala protects the right to freedom of expression and, in particular, criticism “that is aimed at the performance of public duties” [para. 6]. The Court held that the provisions violated this guarantee because they criminalized offensive speech regarding public officials.
The Court held that the contested provisions were broad in scope and thus violated the principle of legality and created a reasonable likelihood that individuals might be subject to criminal penalties for criticizing or challenging public officials. The Court reasoned that the Articles created a strong incentive for individuals to self-censor and to avoid making statements or publishing information that could offend public officials. Therefore, the impugned provisions penalized constitutionally protected forms of expression.
Based on a review of the Inter-American legal framework, especially the Declaration of Principles on Freedom of Expression of the Inter-American Commission (IACmHR), the Court stated that in a democratic society, public officials have a duty to submit to a higher level of public scrutiny. Furthermore, on the basis of European Court of Human Rights decisions, the Court stated that the right to freedom of expression even protects the expression of ideas or information that offend, shock, and disturb the State, because these are the requirements of pluralism, tolerance, and spirit of openness that characterize democratic societies. In this regard, the Court indicated that defamation (desacato) laws are contrary to the American Convention on Human Rights (ACHR).
However, the Constitutional Court noted that civil penalties may be imposed against an unrestricted or abusive exercise of freedom of expression that affects a public official’s honor, privacy, and public image. This, stated the Court, is derived from the American Convention of Human Rights and the International Covenant on Civil and Political Rights – both require that the dignity of all people be protected. The Court recalled that the imposition of civil penalties against a journalist requires the use of the special procedure established by the Expression of Thought Act (Ley de Emisión de Pensamiento). This procedure focuses on the protection, prima facie, of the right to freedom of expression with regard to matters of public interest.
Finally, the Court found that the exceptio veritatis (the truth exception) imposed by Article 413 reverses the burden of proof, which is unreasonable, discourages the expression of criticism, and violates the constitutional principle of in dubio pro libertate, meaning that a defendant may not be convicted by the court when doubts about his or her guilt remain. [p. 7]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This was one of the first national court decisions declaring criminal defamation (desacato) laws unconstitutional on the grounds that they violated freedom of expression. The Inter-American Commission of Human Rights, itself had already declared the incompatibility of such laws with the American Convention on Human Rights. This was the first national case in the world that expressly declared criminal defamation to be contrary to international human rights law.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Constitutional Court is the highest court concerning the constitutionality of laws in Guatemala.
The Office of the Public Prosecutor requested the action for unconstitutionality to be upheld.
The Office of the Inspector General requested the action for unconstitutionality to be upheld.
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