Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
In Progress Contracts Expression
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A Venezuelan court of first instance sentenced political opposition leader Leopoldo López to thirteen years and nine months in prison for public incitement, criminal conspiracy, and instigating arson and criminal damage. Additionally, the Judge convicted three students for the crimes of arson, criminal damage and public incitement. López organized a protest in opposition to Venezuelan government policies, during which clashes between protesters and State forces resulted in the death of two people and considerable damage to public property. The judge acknowledged Lopez’s many public speeches calling for peaceful protests, but found that the broad dissemination of his and his followers’ anti-government messages via social media coupled with his influence as a public figure were sufficient to prove his intent to incite violence and plan a conspiracy, which justified a maximum sentence. Lopez’s defense asserted that the arguments of the Attorney General’s Office were politically motivated, that Lopez’s conduct did not meet the basic requirements for the crimes of conspiracy or incitement and that the Court denied all the evidence they tried to introduce.
In response to the legal irregularities of this judgment and its clear violation of international norms, the Inter-American Commission on Human Rights (IACHR) stated in a press release that “the IACHR’s Office of Special Rapporteur for Freedom of Expression has argued that the right to protest includes the right to choose a cause and its purpose; and nonviolent calls for a change of State policy, or even for a change of government itself, is part of specially-protected speech. The Commission would like to reiterate that responsibility for acts of violence during a protest must be ascribed individually.”
Political leader Leopoldo López, a member of one of the parties in opposition to the Venezuelan government, gave several speeches inviting citizens to mobilize in a peaceful protest against the government’s administration. Thousands of people were in attendance on the day of the protest and, together with López, they intended to deliver a document to the Attorney General of the Republic requesting the release of several imprisoned opposition members. However, when they reached his office, the Attorney General refused to personally receive the request and the political leader and his companions withdrew from the location. The protest continued and later a confrontation broke out between the protestors and State forces. The clashes resulted in the death of two people and considerable damage to public property.
As a consequence, the Judge issued an arrest warrant against Leopoldo López and three students who were protesting; she considered that López’s speeches incited citizens to perpetrate acts of violence against public officials and institutions. This drove the Attorney General to initiate criminal proceedings against López for the crimes of arson and criminal damage, as instigator, and the crimes of public incitement and criminal conspiracy, as author. The Attorney General’s Office did not press charges over the death of the two people during the protest. The political leader surrendered to the authorities, and was imprisoned. Additionally, the Attorney General’s Office decided to prosecute the three students over the property destruction caused during the protest.
The Attorney General’s Office argued that given Lopez’s public relevance, his messages were heard and read by thousands of people. He further argued that this could be proven, for example, by the millions that followed his Twitter account. The Attorney General’s Office claimed the speeches he was broadcasting transmitted inciteful messages “between the lines,” by disparaging the government’s work and suggesting change that could only be achieved, according to the Attorney General’s Office, through violence. Furthermore, he asserted the speeches contained historical references alluding that Mr. López intended to take up arms against the legitimate government. Finally, he argued the leader had prepared the speeches together with his advisors, and since the speeches incited violence, this proved the crime of criminal conspiracy. All of this could be inferred, according to the Attorney General’s Office, from the coded or subliminal messages transmitted by López.
With respect to the charges pressed against the students, the Attorney General’s Office argued that they had followed Lopez’s orders like “sheep.” It asserted there were witness statements; photographs and videos that proved the students were responsible for the harm caused to public property on the day of the protests.
Leopoldo Lopez’s defense attorney argued that the Attorney General’s Office did not explain the elements of the crimes, and that there was no clarity about the facts, the circumstances of time, manner, and place and the link between the acts carried out by López and the confrontations between public forces and the demonstrators. The defense asserted the arguments of the Attorney General’s Office were mostly political and showed unfamiliarity with the criminal laws. He indicated that the political leader’s speeches did not incite violence, and did not induce causing damages to public property, on the contrary, the political leader repeatedly called for peaceful demonstrations. With respect to the offense of criminal conspiracy, the defense argued that Lopez’s conduct did not fulfill the elements of the crime. Finally, his defense claimed that in the intermediate stage of the proceedings the Judge rejected all of the evidence they tried to introduce, and that such a decision should be formally reviewed so that they could properly exercise the right of defense.
The defense attorneys for the students argued at trial that the case put on by the Attorney General’s Office was limited to offending the accused and presenting subjective arguments that were distant from the reality of the legal norms. As was the case with Mr. López’s defense counsel, they criticized the Judge for not ordering the collection of any evidence for the student’s defense, which violated their fundamental rights. Finally, they argued that it was impossible to prove the commission of the alleged acts with the evidence presented by the Attorney General’s Office.
The Judge decided to sentence Leopoldo López to ten years and six months in prison, and the students to custodial sentences ranging from four to ten years.
First, the Judge had to decide whether the speeches disseminated by political leader Leopoldo López, criticizing the government’s administration and calling on citizens to attend peaceful demonstrations against the government, incited the commission of criminal acts and if, in any way, the political activist was responsible for the acts of violence that occurred in the demonstration that he had summoned.
Second, the Judge had to decide whether political leader Leopoldo López and other party sympathizers who accompanied him on the day of the demonstration were a criminal organization whose purpose was to “manipulate citizens” into attacking public property.
Finally, the Judge had to decide whether three students that were present in the demonstration should be penalized in accordance with existing criminal laws, over alleged acts of vandalism that took place during the aforementioned demonstration.
First of all, the Judge considered that in order to penalize the conduct of political leader Leopoldo López, it was necessary to prove that the speeches he had disseminated had the actual capacity to induce citizens to disregard the law and its authorities, and to commit crimes.
Since the expressions used by the political leader were limited to calling citizens to a peaceful protest to find a “solution” to the situation they were facing, the Judge ordered the collection of the evidence requested by the prosecution. According to the experts summoned to court at the request of the Attorney General’s Office, Mr. López’s words contained a “subliminal” message and the call to protest was actually a call to violent action. The Judge did not order the collection of the evidence requested by the defense.
The Judge began her opinion by pointing out that the accused was a person with public relevance, who enjoyed a strong leadership position within his group of sympathizers and used both conventional media and social media to spread his messages. She indicated that López, in his speeches, referred to the members of the current government as “corrupt,” “oppressive” and “undemocratic” and also said that they had ties to drug trafficking, which led López to call upon citizens to “conquer democracy” through public demonstrations. The Judge observed that a large number of demonstrators responded to Leopoldo Lopez’s call and caused “a series of violent acts, the disregard of legitimate authorities, and the disobedience of the law that triggered the excessive attack by a group of people whose actions were determined by the speeches of the above-mentioned citizen.” According to the Judge, the evidence requested by the prosecution (which could not be refuted by the defense) indicated the form of López’s speech on Twitter, “caused in the disposition of his followers an aggressive behavior, thus jeopardizing public tranquility” [p.262-263]. Furthermore, according to the testimony of another “semiologist” requested by the Attorney General’s Office, “he sent disqualifying messages through his speeches that triggered violent acts” [p.263]. Based on the foregoing, the Judge stated “it was clear that [López] and his structured group set a strategy, to use conventional and alternative media to strengthen his speeches—which had violent contents—, for their sole purpose was eliminating public tranquility, by calling a group of people in alignment with his speeches, to disregard legitimate authorities and laws” [p.266]. The evidence requested by the defense to refute these assertions was denied.
The Judge considered that Mr. Lopez had analyzed the audience he was addressing and the impact his words would have on it. In this sense, the Judge determined that when the political leader invited his sympathizers to effect change, he sought to enact it through illegitimate means. According to the Judge “his purpose as a political leader, despite his appeals for peace and tranquility, was to achieve the ‘ouster’ of the current government through calls for public mobilization, disobedience of the law, and the disregard of public authorities, which had all been legitimately constituted” [p. 270].
The Judge concluded this point by stating that “citizens have the right to demonstrate peacefully, however, if citizen Leopoldo López wished to exercise his right as a citizen of Venezuela, as a political leader, he has sufficiently knowledgeable that the appropriate means are the Recall Referendum, Constitutional Amendments and the Constitutional Assembly [sic]” [p. 270].
As a result of these considerations, the Judge decided to convict the political leader of the crimes of arson and criminal damage as an instigator, and public incitement as an author.
For the Judge, it was clear that there would be disturbances on the day of the protest that could result in damage to public property, and the political leader allowed this situation to happen instead of doing something to prevent it.
In reference to the criminal conspiracy charges, the Judge considered that this was a crime of endangerment, where the mere act of associating with criminal purposes constitutes the unlawful conduct. Therefore, it is not necessary that the final criminal activity occurs, and it is enough to simply agree to plan it. In this specific case, the Judge considered that the accused went to the demonstration with several party sympathizers. For the Judge, this was enough to consider that Leopoldo Lopez “is part of a criminal association, and his purpose is to launch a public and aggressive campaign against the president of the Bolivarian Republic of Venezuela Citizen NICOLAS [sic] MADURO and State institutions” [p. 278], and therefore she decided to convict him as the author of the crime of criminal conspiracy.
Thirdly and last, the Judge considered that the prosecuted students had incited citizens to perform the acts of vandalism identified in Leopoldo López’s speeches and, as some of the witness statements revealed, one of them was even seen throwing gasoline at some of the property that was damaged. For these reasons the Judge decided to convict them of the crimes of public incitement, criminal damage and arson.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The analyzed opinion restricts the right to freedom of expression in at least five ways. The Judge did not satisfy the argumentative burden necessary to show that Leopoldo Lopez’s speeches incite violence. Indeed, to satisfy this condition, it is necessary that the person possess the intent to cause violence and the capacity to do so. None of this is proven in the specific case. In this respect, the Judge failed to comment on the causal link between the speech and the damage to public property after the demonstrations, completely ignoring the fact that the convicted individual, in the Judge’s own words, called for peace and tranquility. Additionally, the Judge did not take into account that in order to argue that a crime was committed with mens rea, the actor must have forethought of the specific result he aims to achieve. In other words, in the case of Mr. Lopez, he must have foreseen and sought the arson and damage to state property. The Judge does not mention this in her opinion.
Although there is no evidence that the opposition leader’s speech was an incitement to violence, there is evidence that it was a speech opposing the government that strongly questioned the government leaders and called for social mobilization. It was, therefore, speech especially protected by international human rights law given its political contents. Restricting the opposition leader’s speech, would have required passing a strict scrutiny test, however, none of the elements of the decision met this standard.
Third, the Judge ignores that the exercise of the right to protest is one of the manifestations of the right to freedom of expression. In this regard, the Judge indicates in her opinion that given López’s political formation, he should have used the constitutional mechanisms that are available for holding officials accountable. However, in her decision, she acknowledges that accessing these mechanisms is too complicated and a “Herculean task.” In this regard, the Inter-American Commission on Human Rights (IACHR) stated in its press release of September 25, 2015, that “the IACHR’s Office of Special Rapporteur for Freedom of Expression has argued that the right to protest includes the right to choose a cause and its purpose; and nonviolent calls for a change of State policy, or even for a change of government itself, is part of specially-protected speech. The Commission would like to reiterate that responsibility for acts of violence during a protest must be ascribed individually.”
Fourth, the Judge determines the length of the prison term without objective and reasonable criteria and does not provide the slightest argument for why she decided to impose the maximum sentence allowed for these crimes, overlooking that this reasoning is required by the principle of proportionality enshrined in both the Venezuelan Penal Code and the American Convention on Human Rights. This omission results in excessive sentences that disproportionately restrict freedom of expression.
Fifth and last, both the presiding Judge and the judicial officials involved in the proceedings ignored the right of defense of the accused, because only the evidence requested by the Attorney General’s Office was collected, leaving both López and the student protesters without protection. In this regard, in the aforementioned press release the IACHR stated: “On numerous occasions, the IACHR has insisted that justice operators play a key role in guaranteeing justice and respect for rights and freedoms under a democratic system and in promoting respect the right of access to justice for people who have been victims of human rights violations; and in ensuring respect for due process for individuals being tried. The right to due process is vital to any criminal proceeding as it allows defendants to prepare and properly defend themselves against the charges laid against them. It also ensures effective protection of other human rights.”
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