Case Summary and Outcome

The Inter-American Court of Human Rights (IACtHR) held that Venezuela violated Henrique Capriles’s right to freedom of expression in connection with the 2013 presidential elections. Following the death of Hugo Chávez, the National Electoral Council called early elections and, during the brief campaign period, public media coverage overwhelmingly favored the then-candidate Nicolás Maduro, while Capriles, the opposition candidate, received minimal and largely negative coverage. Capriles also denounced the use of public resources and official communications to support Maduro and requested a broader audit of the vote. After the National Electoral Council rejected his request, Capriles challenged the election before domestic courts. The Constitutional Chamber of the Supreme Court of Justice declared his electoral action inadmissible—arguing it contained allegedly “disrespectful” language toward the judiciary—imposed the maximum fine provided by law, and referred his filing to prosecutors for possible criminal proceedings. Before the IACtHR, the Inter-American Commission argued that the State’s use of public institutions and public media distorted the electoral debate and that the sanction against Capriles had an unlawful chilling effect; Venezuela denied that these actions affected the will of the electorate and defended the legitimacy of the official broadcasts and the fine, considering that freedom of expression is not an absolute right. The Inter American Court held that democratic elections require an equitable informational environment and that the right to freedom of expression reinforces States’ obligations to ensure fair access to public media and to protect the electorate’s right to receive information. It also held that the State’s conduct impaired Capriles’s opportunity to present his proposals and voters’ access to diverse information and viewpoints. It further maintained that the fine lacked legal clarity and a justification, and that resorting to criminal law to protect the honor of public officials entailed a risk of intimidation and a chilling effect, in violation of Capriles’ right to freedom of expression. The Court ordered the annulment and reimbursement of the fine, compensation, and structural guarantees of non-repetition to prevent the abuse of State resources and public media and to strengthen independent electoral and judicial oversight.

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Facts

On October 7, 2012, Mr. Hugo Chávez was re-elected President of the Bolivarian Republic of Venezuela for the 2013–2019 term, in a context of intense political confrontation and social polarization. This context generated a progressive deterioration of the separation of powers and “a decrease in the independence of the National Electoral Council and the Supreme Court of Justice,” whose members had allegedly been appointed in breach of the Constitution and acted as “trusted operators of the government.” [para. 27 and 28]

On October 12, 2012, Chávez appointed Mr. Nicolás Maduro as Executive Vice-President. Following Chávez’s death, Mr. Nicolás Maduro assumed the office of “Acting President of the Republic.” [para. 35]

On March 9, 2013, the National Electoral Council called presidential elections for April 14, 2013 and established an exceptional thirty-six-day electoral calendar, with only ten formal days of campaign.

On March 11, 2013, Mr. Henrique Capriles, candidate of the Democratic Unity Roundtable (MUD, “Mesa de la Unidad Democrática”), and Mr. Nicolás Maduro, candidate of the United Socialist Party of Venezuela (PSUV, Partido Socialista Unido de Venezuela), registered for the race.

During the campaign, various international observation reports noted marked media polarization favoring Nicolás Maduro, who “received 90% of the electoral coverage on public media, of which 91% was positive, while Henrique Capriles received 1% of the coverage, 91% of which was negative.” [para. 42]

In the weeks before the election, there was an “absolute appropriation of publicly-owned media” for the propaganda of the official candidate. [para. 43] In addition, between March 5 and April 2, 2013, more than 26 hours of compulsory national broadcasts were transmitted with institutional messages in which Mr. Nicolás Maduro appeared as the political heir of Hugo Chávez.

It was also established that high-ranking public officials made public statements in support of Mr. Nicolás Maduro’s candidacy, including the Minister of Defense, the Minister of Oil and Mining, the Minister of Foreign Affairs, and other ministers, in official acts or through state-run media. Furthermore, pressure was reportedly exerted on public officials to support the government candidate actively and to participate in campaign events, amounting to a “concordance between State-Administration-Party.” [para. 51]

The use of public assets and resources by the United Socialist Party of Venezuela in support of Mr. Nicolás Maduro was documented, including official vehicles, public buildings, institutional websites, propaganda displayed in government offices, and campaign events held on public premises.

Between March and April 2013, Capriles’ campaign team filed 348 complaints before the National Electoral Council alleging irregularities—including the misuse of public assets, covert propaganda, the participation of public officials in campaign events, and public defamation against him.

On April 14, 2013, the National Electoral Council announced the results of the elections, declaring Mr. Nicolás Maduro the winner with 50.61% of the votes—Mr. Henrique Capriles obtained 49.12% of the votes. These results were based on data transmitted electronically to the National Electoral Council’s computing center, rather than on the printed voting receipts generated by each machine and deposited in the respective ballot boxes. On the same day, a partial verification was conducted in approximately 54% of the polling stations, comparing the receipts of some ballot boxes with the electronic tally sheets.

On April 17 and 22, 2013, Mr. Capriles requested the National Electoral Council to conduct a comprehensive audit of the electoral process, “which would include not only a verification of the electoral results, but also of the printed voting materials,” invoking Article 156 of the Organic Law on Electoral Processes. [para. 64]

On May 22, 2013, the National Electoral Council rejected the request, arguing that Mr. Capriles’ petition “amounted to a manual recount or an absolute audit of the votes cast that was not contemplated in the Venezuelan legal framework.” [para. 65]

On May 2, 2013, Mr. Henrique Capriles filed an electoral contentious action before the Electoral Chamber of the Supreme Court of Justice of Venezuela, seeking the annulment of the presidential election. In his filing, he challenged the inequitable conditions of the campaign, the use of public media and national broadcasts, the dissemination of irregular propaganda, the use of state assets and institutions in favor of the official candidate, the pressure exerted on public officials, the use of various intimidation mechanisms, as well as the refusal to conduct a comprehensive audit and the lack of impartiality of the National Electoral Council. He asserted that, taken together, these irregularities constituted instances of “fraud, bribery, corruption or violence” that should lead to the annulment of the electoral process [para. 67].

Likewise, on June 10, 2013, Mr. Capriles filed a new electoral contentious action before the Electoral Chamber of the Supreme Court of Justice due to the lack of a timely and adequate response to his audit requests submitted to the National Electoral Council on April 17 and 22, 2013. In this filing, he maintained that a comprehensive audit should not be limited to a comparison of electronic tally sheets, but should encompass the counting of all printed votes in each ballot box.

On June 20, 2013, the Constitutional Chamber of the Supreme Court of Justice assumed jurisdiction ex officio over all cases related to the 2013 presidential election, displacing the Electoral Chamber.

On July 2, 2013, Mr. Capriles challenged all the justices of the Constitutional Chamber of the Supreme Court of Justice and requested the establishment of a new chamber to hear his electoral challenge. Mr. Capriles questioned the impartiality of several justices due to their prior links with the United Socialist Party of Venezuela or with the National Electoral Council.

On July 17, 2013, the President of the Constitutional Chamber—who had also been challenged—rejected all the motions for recusal, stating that there were no sufficient factual or legal grounds. The judge considered that the professional backgrounds of the justices did not constitute legal grounds for recusal.

On August 7, 2013, the Constitutional Chamber of the Supreme Court of Justice of Venezuela declared Capriles’ electoral contentious action inadmissible because it contained “offensive and disrespectful expressions toward the Constitutional Chamber and other judicial bodies.” [para. 72] It further stated that Mr. Capriles had offended the “majesty” of justice by accusing the Chamber of following the line of the ruling party. [para. 72] In addition, it imposed on Capriles a fine of 10,700 bolívares—the maximum amount allowed under Article 121 of the Organic Law of the Supreme Court of Justice—and ordered that his filing be referred to the Office of the Public Prosecutor to assess potential criminal liability. On the same day, it also declared the June 10, 2013, action for omission against the National Electoral Council inadmissible, considering that the electoral authority had duly responded in its May 22, 2013, decision.

As a result, on September 9, 2013, Mr. Capriles filed a petition before the Inter-American Commission on Human Rights (IACHR), in which he alleged violations of his political rights and his right to freedom of expression in the context of his participation as a presidential candidate in the April 14, 2013, elections. In particular, he argued that he was unable to participate in the presidential elections on equal terms and that he had not had effective judicial remedies to challenge the electoral irregularities. He further alleged that his right to freedom of expression under Article 13 of the American Convention on Human Rights (ACHR) had been violated as a result of being fined for statements made during the judicial process in which he denounced irregularities in the presidential elections.

After analyzing the petition, on November 19, 2021, the Commission adopted Admissibility and Merits Report No. 449/21, in which it concluded that Venezuela violated Mr. Capriles’s right to freedom of expression, among other rights, and issued various recommendations to the State.[1] Among them, the Commission recommended that Venezuela fully repair the violations suffered by Mr. Capriles and pay him compensation for having been denied equal conditions in the presidential elections.

It also recommended that the State adopt measures of non-repetition to ensure equality in electoral processes. The IACHR further recommended that Venezuela guarantee the exchange of ideas in electoral processes and avoid illegitimate pressure from the executive branch on the electorate, as well as implement measures to strengthen the independence of the National Electoral Council. It also recommended setting aside the sanction imposed on Mr. Capriles, “and adapting domestic legislation to ensure that disciplinary grounds associated with the right to freedom of expression of those who appear before the Supreme Court of Justice are compatible with the right to freedom of expression under the American Convention on Human Rights.” [para. 36]

On January 28, 2022, the Commission notified Venezuela of the report and granted it a two-month period to report on its compliance with the recommendations. The State did not provide any information about the recommended measures and their adoption.

In the absence of a State response, on April 28, 2022, the Commission submitted the case to the jurisdiction of the Inter-American Court of Human Rights (IACtHR), requesting that Venezuela be declared internationally responsible for violating Mr. Capriles’s right to freedom of expression, among other rights. The Commission also requested that the IACtHR order the State to adopt the reparation measures recommended in Admissibility and Merits Report No. 449/21.

In its submission before the Court, the Commission argued that Venezuela violated Mr. Capriles’s right “to participate in elections under general conditions of equality, that he lacked effective judicial remedies to protect his political rights, and that his freedom of expression and the principle of legality were violated as a result of the imposition of a fine based on statements made by Mr. Capriles during the judicial process.” [para. 1]

On July 3, 2023, Venezuela filed its answer to the Commission’s complaint. In that submission, Venezuela maintained that the alleged electoral irregularities did not affect the will of the voters and defended the use of public media and national broadcasts as legitimate mechanisms to guarantee public access to information. With regard to the statements of public officials, it denied that they had unduly favored any candidate. About the fine imposed on Henrique Capriles, it asserted that freedom of expression cannot be exercised abusively and that the sanction was imposed in response to injurious statements against the judiciary, so that no violation of Article 13 of the American Convention had occurred.

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[1] https://www.corteidh.or.cr/docs/casos/capriles_ve/2_informe.PDF

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Decision Overview

Due to the complexity of the case, the Inter-American Court of Human Rights had to examine alleged violations of several rights protected under the American Convention on Human Rights. This case analysis will focus on the issues related to freedom of expression. The first issue concerning this right that the Court had to analyze was whether the State’s actions and omissions during the electoral process—including the conduct of the Constitutional Chamber, the use of public resources, the coverage by public media, and the conduct of the National Electoral Council—affected Mr. Capriles’ right to freedom of expression. The second issue the Court had to examine was whether the manner in which the Constitutional Chamber of the Supreme Court of Justice decided the electoral contentious action filed by Mr. Capriles—together with the fine imposed and the referral of his submission to the Public Prosecutor’s Office—violated his right to freedom of expression under Article 13 of the American Convention on Human Rights.

The Inter-American Commission argued that Venezuela systematically used public resources, assets, and institutions to favor Mr. Nicolás Maduro’s candidacy, including the involvement of public officials, the disproportionate use of State media, and tolerance toward threats of retaliation against those who did not support the ruling party’s candidate—thereby creating a climate of fear incompatible with a democratic contest. In particular, it considered that the biased management of public media and the pressure exerted on voters affected freedom of expression in its individual and collective dimensions by limiting plural access to information and political debate, placing the official candidate in an advantageous position, and violating Capriles’ right to compete on equal terms. The Commission further asserted that the irregularities denounced by Mr. Capriles were resolved in a biased and partisan manner by the Constitutional Chamber of the Supreme Court of Justice, whose justices had ties to the ruling party and which, moreover, dismissed the recusals filed by the alleged victim himself. Regarding the fine, the Commission maintained that the Constitutional Chamber of Venezuela’s Supreme Court did not explain to what extent the sanctioned expressions affected honor or the normal development of the judicial proceedings, while imposing the most severe sanction available, with a disproportionate impact and a chilling effect on judicial criticism in an electoral context.

For its part, Venezuela argued that the alleged irregularities were not sufficiently serious to affect the will of the electorate and that the use of official broadcasts and public media responded to a legitimate policy of providing information to the population. It also denied that public officials’ statements had unduly favored Mr. Maduro. It asserted that the sanction imposed on Capriles was a valid response to offensive expressions directed at the judicial branch, which were not protected by freedom of expression.

First, the Court had to decide whether the State’s actions and omissions during the electoral process affected Mr. Capriles’ rights to freedom of expression, political rights, and equality before the law, as protected under Articles 13, 23, and 24 of the ACHR. In particular, the Court had to analyze whether such practices impacted the electorate’s equitable access to information and Mr. Capriles’ opportunities, as an opposition candidate, to disseminate his proposals.

The Court reiterated that the American Convention rests on the interdependence between democracy, the rule of law, and human rights. In the same vein, it affirmed that the Inter-American Democratic Charter lists among the essential elements of representative democracy “the holding of periodic, free, and fair elections” and “the separation of powers and independence of the branches of government.” [para. 94]

Regarding political rights, the Court explained that Article 23 of the ACHR recognizes that all persons have the right and opportunity to participate in public affairs (directly or through freely chosen representatives), to vote and to be elected in periodic and genuine elections by universal, equal, and secret suffrage, and to access public office and functions under general conditions of equality. In particular, the Court explained that “genuine elections are those that reflect the free expression of the people, and constitute the basis of the authority and legitimacy of the government.” [para. 101]

It then held that Article 13 of the Convention “reinforces the State’s obligations to achieve equity in the contest, with regard to access to the media and electoral propaganda.” [para. 103] In addition, the Court held that, under Article 13, States must ensure equitable access to State media during campaigns, preventing electoral information from favoring a single candidate—especially if that candidate is the incumbent—since equity in access to the media is an essential element of the electoral process.

The IACtHR also explained that articles 23 (political rights), 24 (equality under the law), and 13 (freedom of expression) of the ACHR require “the existence of an electoral system that allows for periodic and genuine elections to be held, guaranteeing the free expression of the voters.” [para. 107] To the Court, States have an obligation to preserve electoral integrity, ensuring, at a minimum, the transparency of the process—particularly in campaign financing and vote counting—with the participation of independent monitors and observers. States must also guarantee that candidates have real opportunities to disseminate their proposals through traditional and digital media and that the public has access to information about the campaigns. Moreover, the IACtHR explained that States have a duty to prevent the abusive use of the State apparatus in favor of official candidacies, including the use of public resources or voter coercion; guarantee the impartiality, independence, and transparency of electoral bodies at all stages, including the verification of results; and develop suitable and effective judicial or administrative remedies in response to irregularities that might affect the integrity of the election.

The Court added that, when the holder of the executive branch is a candidate, additional and reinforced measures are required to prevent undue advantages. In this context, it held, those controls must include rules regarding the use of institutional social media, because it can generate an illegitimate imbalance in the contest.

Regarding the specific case, the IACtHR considered that public officials were pressured to participate in partisan acts in support of Mr. Maduro and that there were threats of retaliation against those who did not support the ruling party. In addition, public employees reported on social media instigation and dismissals for having supported opposition candidacies, while high-level officials publicly declared that they would dismiss those who criticized the government or Mr. Maduro.

The Court also held that Mr. Maduro used his functions as acting president for electoral purposes, conducting campaign activities from the Presidential Palace, announcing the allocation of public resources for partisan acts, and disseminating official propaganda through compulsory national broadcasts outside the period authorized by the National Electoral Council. In the IACtHR’s view, this blurred the line between government action and campaign activity, granting Mr. Maduro privileged media exposure compared to Mr. Capriles.

With regard to access to the media, the Court considered it proven that public media granted Mr. Maduro 90% of the electoral coverage—mostly positive—while Capriles received only 1%, mostly negative. At this point, it recalled that, under Article 13 of the Convention, State media coverage must be governed by a logic of equity, since “freedom of expression is embedded in the democratic public order, which is inconceivable without free debate and without the right of dissent.” [para. 126]

In this regard, the Court held that there was a “completely disproportionate” coverage by public media in favor of Mr. Maduro.  Taking this into account, the IACtHR stated that “these facts limited Mr. Capriles’ opportunities to make his proposals known to citizens, generated an advantage in favor of Nicolás Maduro, and affected voters’ access to information.” [para. 128] In addition, the Court held that Mr. Maduro had mechanisms that amplified his exposure (e.g., compulsory institutional messages) without effective regulation by the National Electoral Council during the electoral period.

With respect to the National Electoral Council, the IACtHR determined that it did not act with impartiality or independence, given the political linkage of three of its rectors to the ruling party. This lack of impartiality was also evidenced by the fact that the National Electoral Council did not respond to any of the more than 300 complaints of irregularities filed by Mr. Capriles’ campaign team.

Regarding the transparency of the count, the Court observed that the National Electoral Council rejected the request for a comprehensive audit of the results, despite the narrow electoral margin. On this issue, the IACtHR held that by denying any verification mechanism, the State affected the transparency of the election results.

Considering this, the Court held that the cumulative effect of these actions and omissions—the institutional advantage granted to Mr. Maduro, the abusive use of public resources, pressure on officials, disproportionate media coverage, the partiality of the National Electoral Council, and the lack of an audit—“affected the integrity of the electoral process for the presidential election held on April 14, 2013 in Venezuela.” [para. 143] On that basis, the IACtHR held that Venezuela violated Capriles’ right to compete under general conditions of equality and to access public office through genuine elections, as well as the collective right of voters to choose freely.

The Court further emphasized that “the limits imposed on Mr. Capriles to make his proposals known to citizens, and the consequent lack of access by the electorate to information about the opposition candidate through public media, affected the right of access to information, protected by Article 13 of the American Convention.” [para. 144]

The second issue the IACtHR had to decide was whether the Constitutional Chamber’s decision to declare Capriles’ electoral action inadmissible—together with the imposition of a fine and the referral of his submissions to the Public Prosecutor’s Office—violated his right to freedom of expression as recognized in Article 13 of the ACHR.

The Court explained that freedom of expression protects both “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.” [para. 158] It also affirmed that this right has an individual and a social dimension, which are of equal importance and must be guaranteed simultaneously by States.

The IACtHR further recalled that the right to freedom of expression is not absolute, as it allows for the exceptional imposition of subsequent liability. It clarified that restrictions of this kind on expression must be strictly necessary, and can not be used as “direct or indirect mechanism[s] of prior censorship.” [para. 159] Likewise, citing its case law in Mémoli v. Argentina and Baraona Bray v. Chile, the Court held that States “may impose subsequent liabilities for the exercise of freedom of expression when the expression may have affected the right to honor and reputation.” [para. 159]

The IACtHR then argued that subsequent liabilities for the exercise of freedom of expression must “be previously established by law,” “respond to an objective permitted by the American Convention (‘respect for the rights or reputations of others’ or ‘the protection of national security, public order, or public health or morals’), and be necessary in a democratic society.” [para. 160]

In addition, the Court held that any “expressions that have the capacity to generate disorder or disruption sufficient to make it impossible or continuously hinder the normal functioning of the judicial process” or “that affect the rights to honor and reputation of members of the judiciary” may be subject to sanctions under Article 13 of the Convention. [para. 160] Nevertheless, it underscored that such sanctions are legitimate only if they are necessary for the advancement of the proceedings and do not restrict freedom of expression beyond what is strictly necessary.

In analyzing the specific case, the Court examined the sanction imposed on Mr. Capriles for the expressions included in his electoral contentious action, in which he questioned the impartiality of the Constitutional Chamber of Venezuela’s Supreme Court of Justice and accused it of following the line of the ruling party. As a consequence of those statements, the IACtHR recalled that Venezuela’s Supreme Court declared Mr. Capriles’ action inadmissible and imposed a fine for disregarding the “majesty” of the judicial branch. [para. 180]

The Court noted that Article 121 of the Organic Law of Venezuela’s Supreme Court of Justice authorized pecuniary sanctions against those who “disrespect, offend, or disturb” the judicial branch. [para. 181] However, the Court held that that provision did not clearly define those conducts, and that the Constitutional Chamber of the Supreme Court of Justice limited itself to describing them in generic terms. The IACtHR also held that the Constitutional Chamber of Venezuela’s Supreme Court of Justice “did not specify which actions taken by the alleged victim constituted a direct offense against the Judicial Branch that warranted the imposition of a fine.” [para. 182] In addition, the Court held that the Constitutional Chamber did not explain how Mr. Capriles’ statements affected the normal development of the proceedings.

For the IACtHR, Capriles’ statements constituted a legitimate exercise of his right to freedom of expression, since they sought to express his disagreement with the composition of the tribunal and denounce the lack of impartiality in an electoral context marked by irregularities. In the absence of sufficient reasoning, the Court held that the fine imposed on Mr. Capriles “was arbitrary and violated his right to freedom of expression.” [para. 183]

The Court then analyzed the Constitutional Chamber’s decision to refer the case file to the Public Prosecutor’s Office to assess a potential criminal prosecution. On this point, citing its jurisprudence in Baraona Bray, the IACtHR concluded that the use of criminal law to protect the honor of public officials against criticism regarding the exercise of their functions is not admissible under the American Convention. It also emphasized that, in this manner, “the chilling effect caused by the initiation of criminal proceedings is avoided, as well as its repercussions on the enjoyment of freedom of expression and the weakening of debate on matters of public interest.” [para. 184, emphasis in original]

In that vein, the Court held that States must establish alternative avenues to criminal law so that public officials may obtain rectifications or civil remedies—always respecting the principle of proportionality. It clarified that, in litigation linked to electoral processes, this scrutiny must be “especially meticulous,” since restrictions on freedom of expression can directly affect political rights. [para. 163]

Consequently, the IACtHR concluded that the fine constituted an arbitrary sanction that violated Capriles’ right to freedom of expression, and that the referral of the case to the public prosecutor aggravated that violation by producing “a chilling effect that affects the collective dimension of freedom of expression.” [para. 186, emphasis in original]

For all the reasons set out above, the Court declared Venezuela internationally responsible for violating Mr. Capriles’ political rights, freedom of expression, and equality before the law, as protected under Articles 23, 13, and 24 of the ACHR.

As measures of reparation, the IACtHR ordered the State to publish and widely disseminate the judgment through official media outlets with nationwide circulation and on the websites and social media accounts of the National Electoral Council and the Supreme Court of Justice, ensuring public access to the full text.

With respect to non-repetition guarantees, the Court ordered Venezuela to adopt structural measures to ensure the integrity and equity of electoral processes, avoiding the abusive use of the State apparatus in favor of a candidate, in particular through public resources or by pressuring or threatening officials. It also ordered the establishment of mechanisms to sanction any public official who undermines the integrity of the electoral process; to ensure the transparency of the count through verifiable procedures regarding the resources and data used; to allow candidates to request verification of results; to ensure free and equitable access for candidates to the media —especially public media— and to adopt monitoring mechanisms regarding airtime, content, and impartiality. Likewise, the State must ensure that the National Electoral Council, the Constitutional Chamber, and the Electoral Chamber act independently and impartially, are composed of authorities without political ties and appointed in accordance with the Inter-American standards, and respect the legal procedure for recusals.

In addition, the IACtHR ordered the State to annul integrally the fine imposed on Mr. Capriles and the reimbursement of any amounts paid in execution of that decision. Likewise, for non-pecuniary damage, the Court set compensation for USD 40,000 in favor of Mr. Capriles. Finally, the Court ordered the State to pay USD 5,000 in costs and expenses.

Concurring and dissenting opinions

In a concurring opinion, Judge Nancy Hernández López agreed that Venezuela violated Mr. Capriles’ freedom of expression by imposing a fine and referring his brief to the Public Prosecutor’s Office due to his criticism of the judiciary, underscoring the risk of a chilling effect associated with triggering criminal proceedings. However, she considered that the tension between freedom of expression and the honor of public officials should not be resolved through an automatic exclusion of criminal law, but rather through a case-by-case analysis. She also considered that, in this matter, given the nature of the statements and the lack of reasoning of the Supreme Court of Justice, neither criminal nor disciplinary sanctions were warranted.

For his part, Judge Rodrigo Mudrovitsch, also in a concurring opinion, emphasized that even the threat or possibility of criminal prosecution for criticism of public officials may inhibit democratic debate. He added that Inter-American jurisprudence tends toward excluding criminal law as a mechanism to protect the honor of public authorities and maintained that the referral of the case file to the prosecutor’s office already constituted an intimidating use of punitive power. In addition, he asserted that Article 121 of the Organic Law of the Supreme Tribunal of Justice violates the principle of legality due to its vagueness, as it allows sanctions for “disrespect” or “offense” without foreseeable criteria; therefore, the Court should have declared it incompatible with the American Convention.

In his concurring opinion, Judge Humberto Antonio Sierra Porto shared the finding against Venezuela regarding the administrative sanction—due to lack of reasoning and disproportionality—but disagreed with the thesis of an absolute prohibition on resorting to criminal law to protect the honor of public officials. He also criticized the lack of consistency and justification in the jurisprudential evolution toward such categorical rules and argued that the compatibility of subsequent liabilities must be assessed through legality, necessity, and proportionality criteria. In this case, he concluded that the fine violated freedom of expression, but that the mere referral to the Public Prosecutor’s Office did not, because a real intimidating effect was not demonstrated.

Likewise, in a concurring opinion, Judge Eduardo Ferrer Mac-Gregor underscored the interdependence between freedom of expression, political rights, and electoral integrity. He explained that equitable access to the media and State neutrality are conditions for a genuinely democratic contest. From that perspective, he maintained that arbitrary restrictions on political speech during electoral periods affect not only the candidate, but also the collective right of the public to receive diverse information and to participate in free elections.

In her dissenting opinion, Judge Patricia Pérez Goldberg challenged the majority standard that categorically excludes the use of criminal law to protect the honor of public officials. She explained that “by holding that public officials cannot resort to criminal law to defend their honor in response to critical expressions, the decision of the Inter-American Court excludes cases in which, indeed, an official’s honor and dignity may be seriously harmed by statements that exceed the scope of legitimate criticism and may unjustifiably damage their reputation.” [para. 11] While she acknowledged the arbitrariness of the fine, she disagreed that the mere referral to the Public Prosecutor’s Office, in and of itself, constituted a violation of freedom of expression.

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