Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The Inter-American Court of Human Rights held that Venezuela had violated the right to freedom of expression by imposing criminal defamation sanctions on a journalist. The journalist had been sentenced to two years and three months in prison for the crime of continued aggravated defamation after publishing an article about alleged irregularities in the management of the Savings Bank of the National Assembly of Venezuela. The Court held that the article concerned a matter of public importance and that the use of criminal sanctions to protect the honor of a public official “is not conventionally appropriate” and Venezuela had therefore infringed the American Convention on Human Rights and awarded damages to the journalist [para. 121].
On May 23, 2003, Tulio Alberto Álvarez Ramos published an article in the newspaper “Así es la Noticia”, titled “National Savings Bank Looted”, in which he disclosed alleged irregularities in the financial management of the National Assembly of Venezuela.
On December 31, 2003, the then-president of the National Assembly, Willian Lara, filed a formal complaint against Tulio Álvarez for the crime of defamation in terms of article 444 of the Venezuelan Criminal Code. As Lara had brought multiple charges under the same provision the matter proceeded under the crime of continued aggravated defamation, which refers to the application of article 444 together with article 99. Article 99 states that “[s]everal violations of the same legal provision, even if committed on different dates, shall be considered as a single punishable act”. The use of this provision results in stricter sentencing if the accused is found guilty.
On December 16, 2004, the Seventh Criminal Court issued a preliminary resolution, prohibiting Tulio Álvarez from leaving the country.
Before the criminal case concluded, Tulio Álvarez filed a writ of amparo (a constitutional protection action), before the Court of Appeals of the Criminal Judicial Circuit of the Metropolitan Area of Caracas. He cited irregularities in the handling of the conciliation hearing and in the study of the evidence by the Seventh Judge. On February 11, 2005, the Second Chamber of the Court of Appeals declared the writ of amparo inadmissible, finding that Tulio Álvarez should file an ordinary appeal before invoking the extraordinary jurisdiction. On February 18, 2005, Mr. Tulio Álvarez appealed against this order, and on April 14, 2005, the Constitutional Chamber of the Supreme Court of Justice confirmed the inadmissibility of the action on the grounds that other ordinary remedies were available.
On February 10, 2005, the Criminal Court sentenced Tulio Álvarez to two years and three months imprisonment for continuous aggravated defamation. The Court also ordered Tulio Álvarez’s political disqualification. Tulio Álvarez unsuccessfully appealed against both aspects of the sentence.
On March 4, 2009, the Ninth Judge of First Instance in Execution Functions declared that Tulio Álvarez had complied with the sentence and the accessory penalties. On October 7, 2009, Tulio Álvarez filed a writ of amparo against the Electoral Commission of the Professors Association of the Universidad Central de Venezuela, arguing that the Commission did not include him in the electoral records of the association, despite the total compliance with the sentence having been decreed. On November 25, 2009, the Electoral Chamber of the Supreme Court of Justice accepted the writ of amparo and ordered the Association of Professors of the Universidad Central de Venezuela to immediately include Tulio Álvarez in the electoral registry. However, on March 16, 2010, the Office of the Comptroller General of the Republic requested a constitutional review before the Constitutional Chamber of the Supreme Court of Justice, which, on November 3, 2010, resolved to accept the constitutional review and annul the decision of November 25, 2009, issued by the Electoral Chamber of the Supreme Court of Justice.
Tulio Álvarez approached the Inter-American Commission on Human Rights, which filed the case before the Inter-American Court of Human Rights on July 5, 2017. The Commission argued that the application of criminal sanctions against Tulio Álvarez infringed the right to freedom of thought and expression protected by article 13 of the American Convention of Human Rights (the Convention). Article 13(1) states that “[e]veryone 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.” Article 13(2) states that “[t]he 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 to the extent 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”.
The central issues before the Court concerned the legitimacy of restrictions to freedom of expression through the imposition of subsequent liabilities of criminal nature, and the effects that precautionary measures and an eventual criminal conviction may have on rights such as judicial guarantees, judicial protection, the principle of legality, civil and political rights and the freedom of movement and residence.
Regarding the right to freedom of expression and political rights, the Inter-American Commission of Human Rights argued that, in principle, the protection of the honor or reputation of public officials or persons involved in matters of public interest should be guaranteed through civil and not criminal sanctions. The Commission also argued that the sanctions applied to Tulio Álvarez were disproportionate and that, moreover, the ambiguity in the description of the criminal offence of defamation contained in article 444 of the Venezuelan Criminal Code implied a breach of the requirement of strict legality that must prevail in cases related to the right to freedom of expression.
Tulio Álvarez’s representatives argued that “…the imposition of subsequent liability on the exercise of freedom of expression was contrary to the standards of International Human Rights Law concerning the restriction of freedom of expression when it involves criticism of public servants or the discussion of matters of public interest” [para. 84].
The Court reiterated that subsequent restrictions to freedom of expression are exceptional in nature and should not limit, beyond what is strictly necessary, the full exercise of the right or become a direct or indirect mechanism of prior censorship. In this sense, the Court recalled that subsequent liabilities must comply with the requirements of legality, it must respond to an objective allowed by the American Convention and be necessary in a democratic society. The Court concluded, for the first time, that States must exclude criminalization and therefore remove the possibility that speech protected by public interest be subject to criminal penalties [paras. 120-124].
The Court held that Tulio Álvarez’s article constituted information of public interest since the person in question was a public official at the time linked to the events, and the issue was of public relevance. In this regard, the Court recalled that on matters of public interest, not only expressions that are harmless or well received by public opinion are protected, but also those which shock, irritate or disturb public officials or any sector of the population – as was the case of Tulio Álvarez. The Court held that, in the case of “speech that is protected because it concerns matters of public interest, such as the conduct of public officials in the performance of their duties, the State’s punitive response through criminal law is not appropriate under the Convention to protect the honor of an official” [para. 121].
The Court pointed out that, mindful of the fact that the supposed purpose of the criminal proceedings against Tulio Álvarez was to protect Lara’s right to honor, there was no social imperative that made it necessary to restrict freedom of expression given that the article referred to the performance of a public official in the exercise of his functions in relation to the management of public resources. In other words, the relevant public interest is linked to the dissemination of the news and not to the possible subjective protection of the right to honor and reputation of Lara.
For these reasons, the Court determined that Venezuela violated article 13(2) of the American Convention – the protection of freedom of thought and Expression – in relation to article 1(1) (which concerns the obligation to protect rights), to the detriment of Tulio Álvarez Ramos. The Court held that under the terms of the Convention, the publication of an article of public interest concerning a public official cannot be considered a criminal offence or a crime against honor. In respect of the additional penalty of political disqualification, the Court held that because the criminal prosecution and the conviction violated article 13, the additional penalty of restriction of political rights that was imposed consequently violated article 23 – the right to participate in government – in relation to article 1. Additionally, the Court declared Venezuela’s international responsibility for violating the right to judicial guarantees, as well as the right of movement and residence during the criminal proceedings against Tulio Álvarez, including the prohibition of leaving the country as a precautionary measure.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by reiterating that the use of subsequent criminal liability is incompatible with human rights law when it criminalizes speech which is in the public interest. The Court stressed that, with regard to the protection of the right to honor of public officials, the punitive response of the State through criminal law is not appropriate under the Convention.
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