Access to Public Information, Defamation / Reputation, Political Expression
Jereissati v. Mendonça de Barros
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The Constitutional Court of Colombia reversed the second instance decision by dismissing an action to enforce constitutional rights brought by several non-governmental organizations (NGOs) in relation to defamatory statements made by the President of the Republic against them. The NGOs brought the action against the President of the Republic claiming that the presidential address broadcasted on national television linked NGOs with terrorist groups, which not only violated their rights to honor and good name, but also endangered the life and integrity of individual petitioners. The Court held the action was inadmissible because it was not possible to identify the specific persons or organizations that the President was referring to in his statements. However, the Court noted that statements made by senior officials are subject to veracity and impartiality duties and therefore, when the President of the Republic uses mass media to disseminate his opinions, he should employ a higher level of responsibility. The Court further noted that the President of the Republic also has the duty to guarantee special constitutional protections to certain groups —such as human rights defenders who are part of NGOs—and not to increase their exposure to risk.
The President of the Republic, Álvaro Uribe Velez, made two presidential addresses that were broadcast on national television channels. He claimed that the members of some non-governmental organizations (NGOs) were “political opportunists at the service of terrorism, cowardly waving the banner of human rights, trying to recapture the [public] spaces that civic forces and the citizenry have taken away from terrorism in Colombia” [p. 7]
He further added: “they are the spokespersons of terrorism,” “they know no shame or limitations,” “their publications are founded on rumors and lies,” “they have caused the social collapse of the Nation,” they speak “falsehoods,” they are “prophets of disaster” that “only see the light when terrorism prevails.” Finally, he indicated these people’s statements “were weak, imperceptible when terrorism dominated” and became “strident when we started acting against terrorism,” they have resources to publish books and “tarnish the honor of our generals and the Colombians who battle terrorism, and they do not feel shame nor embarrassment and deceive international opinion with books that lack serious sources…months ago, they tried to trick the international opinion again in London, who did not listen to them to stop aid to Colombia.” [p.7]
Several NGO representatives asked the President to retract the statements made in his addresses because, in their opinion, they were untrue and stigmatized NGOs by damaging their reputations. The Presidency’s Legal Office rejected the rectification request because it considered the President of the Republic had acted within the legitimate exercise of his right to express political opinions.
As a result of the response of the Presidency’s Legal Office, the NGO representatives  brought an action to enforce constitutional rights (acción de tutela) against the President of the Republic. The petitioners argued the President’s statements violated their rights to honor and reputation and endangered the life and integrity of those who worked for the organizations.
The Judge of the first instance ruled against protecting the petitioners’ rights. The Judge observed the president’s declarations did not name any specific person or organization and therefore it could not be affirmed the elected official referred specifically to the petitioners. Also, the Judge found there was no evidence of the dangers allegedly faced by the workers of these NGOs. The petitioners appealed this decision because they considered that although the President did not reference any specific organization, it was still possible to identify them. In effect, the petitioner organizations were the only ones that had gone to London in the past months to discuss human rights violations with the international community. The Appellate Judge upheld the ruling.
The Constitutional Court decided to reverse the second instance decision and instead dismissed the complaint. However, the Court noted the President of the Republic has the duty to guarantee the rights of persons in need of special protection—such as human rights defenders who are part of NGOs—and to not “increase the exposure to risk” [p. 41] of these individuals.
 The organizations that initiated the tutela were: the National Association of Displaced Afrocolombians (AFRODES by its acronym in Spanish); the Municipal Constitutional Assembly of Mogotes; the Permanent Assembly of Civil Society for Peace; the Colombian Commission of Jurists; the National Association of Indigenous and Black Peasant-Farmer Women of Colombia (ANMUCIC by its acronym in Spanish); the National Association of Peasant-Farmers of Colombia (ANUC by its acronym in Spanish); the Association for Alternative Social Promotion (MINGA); the Integral Peasant-Farmer Association of Atrato (ACIA by its acronym in Spanish); the Worker’s Central Organization (CUT by its acronym in Spanish); Committee for Solidarity with Political Prisoners; the General Confederation of Democratic Workers (CGTD by its acronym in Spanish); the Consultancy for Human Rights and Displacement (CODHES by its acronym in Spanish); the New Rainbow Corporation; Fundación Estrella Orográfica del Macizo Colombiano (FUNDECIMA by its acronym in Spanish); the National Agrarian Coordinator; the National Indigenous Organization of Colombia (ONIC by its acronym in Spanish); Peace Planet; the Center for Research and Popular Education (CINEP by its acronym in Spanish); the Colombian Platform for Human Rights, Development and Democracy; and the Women’s Peace Route.
The Court had to decide whether the presidential addresses that linked NGOs with terrorist groups and were broadcasted by national television channels violated the rights to honor and a person’s good name, and endangered the life and integrity of the petitioners.
First, the Court observed that every person has the right to defend and promote the defense of human rights. This defense is an expression of the right to citizen participation, because “the exchange between the people who defend this category of rights and the State is fundamental in the process to construct a democratic debate, and undoubtedly allows increasing the influence of citizens in political decision-making processes” [p. 25].
For the Court, human rights defenders are subject to “enhanced protection” because as a result of their activities, they are in a special risk situation. Thus, it is clear that non-governmental organizations can assume the judicial defense of the rights of their members and workers whenever they are under assault or being threatened.
Now then, the Court reasoned that in order for an action to enforce fundamental rights (acción de tutela) to prosper, it is essential to identify in concrete terms the people who have suffered a fundamental rights violation. This was not possible in the case under review because the President did not refer to the petitioners specifically but to a genre of organizations. As a result, the representatives lacked standing and therefore the Court could not grant the tutela protection, and instead held it was “inadmissible.”
Nevertheless, the Court decided to address the issue for reasons of “constitutional pedagogy.” The Court observed the President of the Republic has the “authority-duty” to communicate with citizens to inform them about decisions of national and international importance that are taken during his government. This “authority-duty is substantially different than the simple freedom of expression generally recognized to citizens, and rather constitutes a legitimate means of exercising the governmental authority typical of contemporary democracies” [p. 33]. In turn, this communication “constitutes a mechanism that facilitates the construction of a free and informed public opinion, a presupposition for the participation of citizens in the decisions that affect them, and oversight of public power” [p. 33].
In the opinion of the Court, the statements of senior officials are subject to veracity and impartiality duties. In this sense, when the President of the Republic gives his opinion on a matter, these opinions “cannot be formulated except on a minimum basis of factual and actual justification and on reasonableness criteria” [p. 34], consequently when the high-ranking official “addresses citizens, he must abstain from issuing any statement or representation that harms or jeopardizes [the fundamental rights of citizens]” [p. 35], specially when referring to those who receive special constitutional protection, such as human rights defenders.
The Court stated that any statement made by the President of the Republic is subject to political and legal controls, like debates in Congress, criminal action for the crime of defamation, tutelas and even actions before international tribunals with jurisdiction to decide matters in Colombia.
The Court added that when the President of the Republic uses mass media to disseminate his expressions, he should employ a higher level of responsibility “considering these outlets have a vast capacity to penetrate all spheres of society, can reach a considerable number of recipients, have an immediate impact on shaping public opinion and even the behavior and relationships of individuals, because the space to reflect on the news that is received on a daily basis is minimal, and the individuals affected have minimal possibilities of defense against the information that is being disseminated” [p. 36].
Finally, the Court indicated that the relationship between human rights defenders and the State should develop within a framework of peace, respect, and tolerance. Furthermore, government entities and especially the President of the Republic must recognize human rights defenders are subjects of special constitutional protection, “grant and adopt positive actions to guarantee this special protection and… avoid any kind of activity that could increase these persons’ exposure to extraordinary risks” [p. 41].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the right to freedom of expression insofar it sets out clear guidelines that the President of the Republic should take into account when making presidential speeches that refer to those who are subject to special constitutional protection. Although in this case the tutela action was inadmissible, the Court took care to limit, in a reasonable manner, the contents of the speeches of this high-ranking official when, due to their strong impact on citizens, they could result in harm and limitations to the exercise of rights of those who defend human rights.
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 decision had a significant impact in the country, because the then-president issued statements on the relationship between several NGOs and terrorist groups, which caused their stigmatization and indirect restrictions on the work they were conducting. The media disseminated the news stating that the Constitutional Court indicated to the president that he should revise his speeches so they would not violate the rights of NGOs. However, a year later, the Court had to rule on other assertions disseminated by the government regarding the alleged ties between NGO members and drug trafficking.
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