Defamation / Reputation, Public Order
Fuchs v. Germany
Closed Expands Expression
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A Bolivian citizen was criminally charged under Article 162 (crime of “desacato“) of the Penal Code for publishing a report, in which she alleged that a public official solicited money in exchange for confirming a judgment that had been entered in her favor. The offense provided that “[a]nyone who by any means slanders or defames a public official, in the performance of his or her duties or by reason of these duties, shall be punished by imprisonment of one month to two years.”
Following an action filed by the citizen, the Plurinational Constitutional Tribunal of Bolivia declared Article 162 unconstitutional, finding such criminal measure did not meet a three-part test used by the Inter-American Court of Human Rights with respect to limitations on freedom of expression. In particular, the Tribunal held that the offense was not necessary in a democratic society as less restrictive measures could be used to protect the honor of public officials and that the law could disproportionately impact the legitimate interest of overseeing the functioning and performance of public duties.
A citizen was charged with the crime of desacato for having publicly reported that an official with the Office of the Public Prosecutor asked her for money on behalf of the District Prosecutor, in order for the Prosecutor to confirm a judgment that had been handed down in her favor. According to the charge, the accused citizen had committed the crime of desacato for defaming two public officials in the performance of their duties.
In response to the criminal proceedings against her, the citizen filed an action for unconstitutionality (recurso de inconstitucionalidad) against Article 162 of the Penal Code, which established the crime of desacato. The article read: “anyone who by any means slanders or defames a public official, in the performance of his or her duties or by reason of these duties, shall be punished by imprisonment of one month to two years.” The judge hearing the criminal case dismissed the action and the case was referred to the Pluri-National Constitutional Court. The Court found that the contested article violated the Constitution of Bolivia and declared it unconstitutional.
The Constitutional Court had to decide whether the article prohibited “slandering or defaming” a public official by any means because of his or her duties violated the right to freedom of expression.
To solve the problem, the Court used the proportionality test as it was used by the Inter-American Court of Human Rights (IACtHR) in certain freedom of expression cases. The Court began by noting that according to IACtHR case law, restrictions on freedom of expression must: (i) be expressly provided for by law; (ii) seek the protection or the rights and reputation of persons, national security, public security, health, or public morals; and (iii) be necessary in a democratic society. The need for the restriction must be determined by deciding whether it tends “to fulfill a compelling public interest.” [p. 20]. This, in the opinion of the Bolivian Court, compromises the legitimacy of restrictions that merely show that they seek “a useful or appropriate purpose.” This is because it has conventionally been necessary that such restrictions protect interests “that, due to their importance, clearly prevail over society’s need for the full enjoyment of the right protected by Article 13 [of the ACHR] and do not restrict the right [to free speech] more than strictly necessary.” [p. 20].
Following this methodology, the Court stated that the article in question pursues a legitimate aim as it seeks to protect the right to honor, which is a right held by all people. However, it stated that government officials or public servants engage in activities which are of interest to the public and, therefore, an open discussion of the way in which they perform their duties is necessary. In the event that any information published for this purpose is false, public servants have the possibility of response and correction set forth in Article 106.II the Constitution of Bolivia.
In light of the foregoing, the Court concluded that the offense of desacato is not necessary in a democratic society to protect interests such as the honor of officials. First, because there are other less onerous methods; and, secondly, because this results in a disproportionate impact that affects the legitimate “interest of the public in learning of certain factors that could influence [the] performance of [public] duties.” [p.18].
According to the Court, this provision of criminal law undermined oversight of corruption and thereby weakened protection of society’s “collective rights.” In this regard, the Court asserted that oversight of public administration prevents the commission of acts violating fundamental rights or the collective right to development. In a social State under the rule of law, the Court said, public activities “must be subject to special oversight that should be comprehensive and unrestricted, in order to protect the whole of society from corruption.” [p. 21]. Thus, the Court concluded that one of the limits to the honor of public officials is set by oversight of corruption, as established by international standards on this matter. In this regard, the Court argued that public servants must be willing to be “subject to constant criticism,” by virtue of the public interest in the work they perform. In the opinion of the Court, enhanced protection of the right to freedom of expression in such matters is needed because this is one of the pillars of a democratic State.
The Court argued that there was no justification for giving especially favorable treatment to public servants, in light of both the importance of the duties they perform and their privileged access to the media. Finally, it stated that the fact that desacato constitutes an offense subject to public prosecution, and the fact that officials can easily receive legal counsel, represents a breach of the principle of equality of arms with respect to citizens who can not easily receive reputable legal counsel. [p. 25].
Considering the above and the duty to harmonize domestic laws with the State’s international obligations, the Court declared unconstitutional the criminal offense in question.
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The Constitutional Court is in charge of interpreting the constitutionality of the laws of Bolivia and its decisions are binding.
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