Content Regulation / Censorship, Hate Speech, National Security, Public Order
Government of Kazakhstan v. Respublika
Closed Expands Expression
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The first Chamber of the Supreme Court held that the criminalization of halconeo or “lookout” was unconstitutional. Halconeo means to obtain and dispense confidential or reserved information concerning the public security forces or armed forces in order to avoid the detention of the author or authors of a crime or so that they can carry out a criminal activity to the detriment of a third party. A citizen filed an action to indirectly enforce constitutional rights (acción de amparo indirecto) to challenge the constitutionality of this statute. In his complaint, the petitioner argued the contested article violated the rights to access information and freedom of expression established in articles 1, 6, 7, 14 and 22 of the Constitution; articles 1, 2 and 13 of the American Convention on Human Rights; and articles 1, 2 and 19 of the International Covenant on Civil and Political Rights. The petitioner further argued the legislative structure of the punishable offenses and of the penalties is limited by certain principles, values and rights enshrined in the Constitution. The first Chamber of the Supreme Court resumed its original jurisdiction to hear this action’s review and declared the unconstitutionality of the contested regulation. The Court said, “the existence of a law that, ab initio, criminalizes seeking information, that considers prima facie and without a prior declaration that the information is classified or reserved, and that, in addition, does not require evidence of harm, can have a chilling effect (…) because, without taking into account whether the liability [of the potential offender] is proven, the mere fact of being subjected to criminal proceedings clearly deter [the potential offender] from carrying out his professional work, in the face of a real threat of being subjected to one or more proceedings”.
Article 398 Bis of the Criminal Code of the State of Chiapas, criminalizes the offence known as halconeo or “lookout,” which consists in obtaining and dispensing confidential or reserved information related to the public security forces or the armed forces with the purpose of avoiding the detention of the author or authors of various crimes or so that the author or authors can carry out criminal activities to the detriment of a third party. The contested provision states:
“Article 398 Bis. Whoever obtains and provides confidential or reserved information related to public security forces or armed forces in order to prevent arrest of the author or authors of a crime or so they can carry out a criminal activity to the detriment of a third party, will be sanctioned with a penalty of two to fifteen years imprisonment and a fine of two hundred to four hundred daily minimum wages.
When the conduct is executed using minors or people who do not have the capacity to understand the wrongfulness of the act, the penalty is increased by one half of that indicated in the first paragraph.
Furthermore, the penalty is increased by one half when the conduct is carried out by public servants who belong or have belonged to a public security institution, the armed forces or in the case of individuals who have belonged or belong to companies that provide private security services.
When the conduct is carried out using official equipment or vehicles or public or commercial transportation service vehicles, or vehicles with a similar appearance, the penalty is increased by one half of that indicated in the first paragraph.
In addition, confidential or reserved information means information related to activities that originate in operations, investigations, prosecutions of crimes or their authors, the same information that has that nature in terms of the Constitution of the United Mexican States and the Law that Guarantees Transparency and the Right to Information for the State of Chiapas” [p. 1-2].
A citizen filed an action to indirectly enforce constitutional rights (acción de amparo indirecto) to challenge the constitutionality of this statute. In the complaint of the action to indirectly enforce constitutional rights (acción de amparo indirecto), the petitioner argued the contested article violated the right to access information and freedom of expression established in articles 1, 6, 7, 14 and 22 of the Constitution; articles 1, 2 and 13 of the American Convention on Human Rights: and articles 1, 2 and 19 of the International Covenant on Civil and Political Rights; the petitioner further argued the legislative structure of the punishable offenses and the penalties is limited by certain principles, values and rights enshrined in the Constitution.
The district judge that heard the case in first instance dismissed the action. The petitioner filed an appeal for review against that decision and the Supreme Court decided to reassume its original jurisdiction to hear the review, reversing the judgment of the district judge and granting the petitioner’s request for protection. The contested rule was declared unconstitutional.
The Supreme Court had to analyze whether the legislative branch of a federal entity can legitimately restrict access/dissemination of information through the use of criminal law against those who seek and disseminate sensitive and reserved data related to the security forces and armed forces.
In the case at issue, the Court stated the petitioner argued that the mere entry into force of Article 398 bis of the Criminal Code for the State of Chiapas has an impact in legal sphere because it extinguishes, factually and legally, freedom of expression and access to information, when it imposes a prison sentence on those who seek and disseminate confidential and reserved information related to the security and armed forces with the purpose of preventing the arrest of the authors of a crime. The Court further found “this creates a deterrent for the collection and dissemination of information due to the threat of activating the [S]tate’s punitive powers” [p. 20].
For the Court, “the existence of a law that, ab initio, criminalizes seeking information, that considers prima facie and without a prior declaration that the information is classified or reserved, and that, in addition, does not require evidence of harm, can have a chilling effect (…) because, without taking into account whether the liability [of the potential offender] is proven, the mere fact of being subjected to criminal proceedings clearly deter [the potential offender] from carrying out his professional work, in the face of a real threat of being subjected to one or more proceedings” [p. 20]. For the Court, “the lone fact of submitting a journalist to criminal proceedings as a result of the legitimate exercise of this right can have an impact and, in addition, can constitute a disproportionate use of criminal law” [p. 20].
The Court considered, “due to the importance of freedom of expression in a democratic society and the high levels of responsibility it entails for professionals in the field of social communication, […], the State must minimize restrictions on the circulation of information. Therefore, any restriction on freedom of expression and access to information that affects the content of certain information (content-based) and not only the form, time and place of expression, should be considered suspect and subject to strict constitutional scrutiny” [p. 48-49].
In addition, “the contested provision restricts enjoyment of the essential core of the right of access to information, because its enunciation has a chilling effect when it criminalizes the public discussion of a section of the activities of public authorities that is ideally located at the center a society’s evaluation, such as public safety (core speech), and is not limited to restricting incidental or peripheral aspects of speech” [p. 53].
The Supreme Court concluded the contested provision is unconstitutional because it “does not comply with the principle of specificity, materializing the constitutional flaws that concern the rights to freedom of expression and access to information, [given that] the criminal statute is over inclusive as it does not define with precision the type of speech or communicative action that is being prohibited by the legislator in light of the legitimate aims that are being sought” [p. 62]
The Court further added, “the contested regulation does not satisfy the principle of specificity. This has a negative effect on the sphere of public debate where freedom expression and access to information are exercised, because the petitioner, by not having certainty about the type of discourse he cannot participate in, is preemptively discouraged from fully participating in these communicative activities for fear of being penalized. As we mentioned, therein lies the chilling effect of a criminal statute that lacks specificity. This lack of certainty originates in several of the terms used in the criminal statute that has been analyzed. The main one, is that when exercising the journalistic profession, the petitioner will not be able to determine whether there exists the intent to ‘prevent arrest of the author or authors of a crime or so they can carry out a criminal activity to the detriment of a third party’ or if the intent is other, in the presence of a mere desire to inform the public. The journalist will also not be able to determine the type of communicative action that may trigger the penalties in the contested regulation, because it is beyond his control, the manner in which each member of society will use information disseminated through public deliberation channels to serve his own ends, and it is possible that the beneficiaries of the debate will include authors of crimes who can take advantage of these journalistic activities to avoid being detained or for committing a crime” [p. 62-63]
The Court additionally asserted, “the failure of the contested provisions to comply with the principle of specificity opens up space for the executive and/or judicial authority to exercise their discretion and introduce their personal opinions on the type of speech that should be banned in specific circumstances. This flaw in validity is found when the regulation readily gives the authorities the power to prohibit communicative actions they do not agree with. This discretionary power violates the main mechanism that citizens can use to exercise democratic control over the authorities: unpopular criticism. This is determined specifically, in each instance: although the qualification of ‘confidential or proprietary information related to the public security forces or the armed forces’ redirects to a general body of regulations that specifies when this type of information acquires this qualification, it is undeniable that the authorities have some discretion to qualify the information as such. This, because it deals with evaluative concepts that were designed to be used in the administrative realm of access to information in response to requests of individuals, and that bringing these concepts to the criminal law arena without further delimitation and without adequate proof of harm, gives an authority the possibility of directing the State’s punitive power for influencing public deliberation, for the decisions of when information is confidential or reserved might be influenced by an official’s intent to censure certain types of public debate that he might consider harmful. In other words, the criminal provision does not prevent an authority from acting in their own self-interest when deciding if certain information pertaining to public safety should be classified as confidential or reserved, which is exacerbated in the case at issue, because the journalist will not necessarily know of that classification ex ante and, therefore, he must guess on his own the decision of the authority that classifies the information he intends to communicate to the public” [p. 63-64]
In this sense, the Court ordered, “the effects of this action to enforce constitutional rights (acción de amparo) bind all the authorities of the State of Chiapas to take account of the unconstitutionality of the provision, which is why the petitioner cannot be subjected to the application of the statute, either now or in the future. Since the contested provision has been characterized by the Supreme Court as an entry barrier to constitutionally guaranteed public deliberation channels, all authorities must consider that this restriction has been lifted from the public deliberation arena, and therefore, the petitioner can participate freely in it, without having to bear the certainty that his journalistic activity can be pursued by the authorities. Simultaneously, local authorities cannot exercise against the petitioner the discretionary powers granted by the provision to influence public deliberation” [p. 64-65].
The Court explained, “the relevant issue in this constitutional judgment is not whether the contested provision surpasses the petitioner’s legal sphere from the perspective of the punitive consequences that are required as penalty for his conduct, that is, if the petitioner has realized the legal hypothesis that activates the prosecutorial and judicial powers of the punitive apparatus of the State. What is relevant, on the other hand, is the impact it has on a petitioner that is a journalist, when it prevents, hinders or establishes entry conditions for joining the public arena to engage in the public debate” [p. 32].
In the Court’s view, the “information the journalist is denying himself from collecting or disseminating is essential for the public scrutiny of institutions and, therefore, for the proper functioning of representative democracy” [p. 36].
For the Court “the right to information is embedded in the right to freedom of thought and expression, as it includes the freedom to seek, receive and impart all kind of information and ideas, regardless of boundaries, either orally, in writing or in print or artistic form, or through any other media she chooses” [p. 40].
The Court explained that Article 6 of the Constitution “states that all information in the possession of any federal, state and municipal authority, body, agency or organism, is public and can only be temporarily reserved for reasons of public interest in the terms provided for by law. It also states that any person, without having to justify any interest or its use, has gratuitous access to public information, their own personal data and its rectification. For the effective protection of this right, the article provides for the establishment of mechanisms to access information and expedited review procedures, which will be conducted before specialized and impartial bodies and agencies, that have operational, management and decision-making autonomy” [p. 40].
Regarding exceptions to freedom of expression, “article 13, paragraph 2 of the American Convention and [article] 19, paragraph 3 of the International Covenant on Civil and Political Rights, define as limits on the right to freedom of thought and expression—which includes the right to information: (i) respect for the rights or reputations of others, and (ii) the protection of national security, public order, or health or public morals. Specifically, the interpretation of the Inter-American Court of Human Rights of article 13, paragraph 2, determines a restriction compatible with the Convention must meet the following three-part test:
Restrictions on the right of access to information must be suitable for achieving the compelling objective that is being pursued and strictly proportionate to the purpose. Among different options for reaching the objective, it is necessary to choose the one that is the least restrictive on the protected right. Specifically, in relation to the proportionality requirement, any restrictions on access to information that is in the possession of state authorities must show that disclosing the information effectively risks causing substantial harm to the legitimate purpose that is sought and show that the harm to the objective is greater than the public’s interest in accessing that information” [p. 45-47].
Now, for the Court, Article 6 of the Constitution “expressly contemplates two types of restrictions on the right of access to information: on the one hand, public information may be temporarily restricted for reasons of public interest in the terms established by the relevant regulations, and on the other, it establishes the obligation to protect information related to private life and personal data. These provisions only set out the legitimate or constitutionally valid purposes for establishing limitations on the right at issue. However, they both redirect to secondary legislation that develops the specific hypothesis that lay out when exceptions that seek to protect constitutionally accepted interests can exist as limits to access to information. On this issue, it is accepted that the legislature can legitimately establish limitations on the right of access to information, provided that such limitations protect public or private interests and find rational justification in terms of the protected legal interest, that is, there is proportionality and congruence between the fundamental right in question and the interests to be protected” [p. 47].
Concerning the case under review, the Court considered it was necessary to apply the three-part test to determine the legitimacy of the limitation on the right to freedom of expression. Hence, the Court stated, “in regard to the goal pursued by the contested law—which in this specific case, has been established by law—, the restriction of the measure seeks a legitimate end because it aims to protect public safety. […] For the First Chamber, such objectives are included, prima facie, within the constitutionally and conventionally authorized limits regarding the ‘public interest’ and the ‘public order’” [p. 52].
However, the Chamber stated, “there are three main points to take into consideration and which explain why the rule does not pass a strict constitutionality test: (i) the reference to confidential or reserved information redirects to other regulations; (ii) it determines the purpose of the conduct is that the information allows the commission of the crime or that whoever commits a crime will not be detained; (iii) the criminal statute is open when it establishes that the information has the purpose of avoiding detention after committing a crime (regardless of the crime), or avoiding carrying out a “criminal activity” (without specifying which one)” [p. 55].
Furthermore, “the contested provision has a disproportionate impact on a section of the population: journalists. By criminalizing the act of seeking any information related to public security, without being able to determine beforehand if that information is reserved, it is clear that journalists will be one of the groups impacted by the law, because they—like the petitioner— have a social function seeking and sharing information on matters of public interest and bringing it to the public debate arena. Therefore, the statute does not only inhibit journalistic activities but also has the effect of making this profession unlawful on this particular part of it” [p. 61].
For this reason, the Court considered, “the provision under analysis is not a measure that is necessary for satisfying the public interest it intends to protect—the safety of members of the security and armed forces—, nor is the restriction that is imposed on access to information the least restrictive measure. As expressed previously, journalistic work consists of informing the public about matters of public interest, which involves seeking information and its subsequent dissemination. What the contested provision does, is to impose a sanction on a human right using the most harmful measure—prison—, through an illegitimate restriction, and through an unclear criminal statute that, additionally, lacks specificity” [p. 62].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling is emblematic because it contributes to the consolidation of the expansion of the protective scope of the action to indirectly enforce constitutional rights (acción de amparo indirecto) in the current constitutional model for protecting human rights. Regarding the protection of freedom of expression and access to information, the ruling declares the importance of the exceptional and moderate use of criminal law, as it considers the existence of criminal laws can have a chilling effect, among others, on the people who disseminate information as a profession.
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