Defamation / Reputation, Digital Rights, Violence Against Speakers / Impunity
Andrea Lilian Uribe Peña v. Ministry of Labour and Carlos Alberto Merchán Espíndola
Closed Expands Expression
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The Inter American Court of Human Rights found that the State of Ecuador violated the right to freedom of expression of lieutenant Anibal Grijalva as enshrined in article 13.1 of the Inter-American Convention. After denouncing arbitrary detentions, tortures, enforced disappearances and killings committed by members of the Ecuadorian Navy, Grijalva was subjected to administrative and criminal proceedings. Said proceedings, the Court noted, violated Grijalva’s right to a fair trial and had a retaliatory intent against the lieutenant. According to the Court, this could have produced a chilling effect on the freedom of expression of Grijalva and other public officials willing to disclose human rights’ violations.
In December 1991, lieutenant commander Vicente Aníbal Grijalva Bueno, from Ecuador’s merchant navy, informed his superior officer about illegal and arbitrary detentions, tortures, forced disappearances and the murder of three people, committed by members of the navy.
The Intelligence Service of Ecuador (SERINT) started an investigation against Grijalva in July 1992. In the investigation Grijalva was accused of several acts of corruption such as collecting bribes, gasoline smuggling, expediting procedures for local merchants and allowing prostitutes to enter boats in exchange for money. Considering this, a sanctioning administrative process was carried out against Grijalva to verify the accusations. On May 18, 1993, after the process was concluded and Grijalva was found guilty, he was discharged from service.
On the 8th of September 1994, Grijalva presented an unconstitutionality recourse to the Tribunal of Constitutional Guarantees of Ecuador to highlight several procedural irregularities that occurred during the administrative process. The Tribunal considered that the right to defense of Grijalva was curtailed, since he was never notified of the accusations and “the corresponding judging files were not presented, despite being requested in an opportune manner” [par. 53]. The Tribunal decided that the decree that ordered Grijalva’s discharge was unconstitutional and ordered that the officer “be reinstated to the Armed Forces within 30 days” [par. 54].
The Minister of National Defense, on September 28, 1995, sent a document to the president of the Tribunal of Constitutional Guarantees arguing that the Armed Forces never participated in unconstitutional acts and that Grijalva’s restitution promoted undesirable elements, indiscipline, and disrespect of military hierarchy. Likewise, in October, the Navy’s General Commander requested a provisional suspension of the Tribunal’s judgement pending a definitive ruling by the military criminal justice system. The request was denied.
In 1994, Grijalva publicly exposed to the media the human rights violations he had previously reported within the military. In June of that year, the Judge of the First Naval Zone initiated a military criminal process against Grijalva for “crimes against military faith” [par. 62].
On March 13, 2000, the Military Judge of the First Naval Zone convicted Grijalva “based on the collected proof, such as administrative reports that reference invoices, the testimonies of the accused, those affected by him, and members of the Navy, that show the commission of criminal offenses like extortion of merchants or granting transport permits for fraudulent purposes” [par. 79]. On March 15, Grijalva appealed the ruling to the Military Justice Court. On March 13, 2001, the Military Justice Court upheld the first instance decision, thus confirming the guilty verdict against Grijalva.
On the 25th of July of 2019, the Inter American Commission of Human Rights (IACHR) submitted to the Inter American Court of Human Rights (IACtHR) the case of Grijalva against Ecuador, alleging several violations of the Inter American Charter of Human Rights (ACHR), such as article 8 (right to a fair trial), article 13 (freedom of thought and expression) and article 25 (right to judicial protection).
The Inter American Court of Human Rights analyzed if, and to what extent, the State of Ecuador breached international provisions that protect human rights. In matters of Freedom of Expression, the main issue before the Court was whether the administrative and criminal proceedings held against Grijalva, were a retaliatory act seeking to restrict his freedom of expression, regarding the allegations Grijalva made about “severe violations of human rights” [para. 156] by members of the Navy.
The Commission argued that the claims made by Grijalva to his own institution, and later to the media are “activities that human right defenders can undertake” [par. 149]. For the IACHR the criminal and administrative proceedings against Grijalva were indeed reprisals since both initiated shortly after the lieutenant denounced the participation of members of the military in gross human rights violations. Considering this, the IACHR alleged that the State of Ecuador breached article 13 of the Inter American Charter.
On the other hand, the State argued that the criminal process against Grijalva was in no way an act of retaliation against the officer. According to the defendant, “the charges were not invented, there were not any disproportionate sanctions, there was no arrest or arbitrary detentions, and due process was followed” [par. 151].
In previous considerations of this case, the Court found serious irregularities in both the administrative and criminal process against Grijalva, that amounted to serious violations of article 8 of the ACHR.
For instance, the Court argued that the ruling that convicted Grijalva lacked motivation and violated the officer’s presumption of innocence, since the decision issued by the military criminal judge provided no reasoning about factual or legal matters, failed to analyze important pieces of evidence that exonerated the victim, and mentioned that Grijalva “didn’t care to provide elements that attenuated or absolved his responsibility” [par. 118]. During the criminal procedure Grijalva didn’t have the opportunity to cross-examine witnesses, whose testimony was essential for reaching a conviction. Likewise, the Court also found that in that procedure there was illegal evidence, since one of the witnesses was tortured and forced to provide testimony against Grijalva.
Regarding the administrative process against Grijalva, the State of Ecuador acknowledged to the IACtHR its international responsibility for the violation of articles 8 and 25 of the ACHR. According to Ecuador, a military agent, who was accused previously of human rights violations by the lieutenant, was involved in preparing the reports that were used to discharge Grijalva. Likewise, several authorities who were accused by Grijalva, and had a direct interest in the result of the investigation, were in the Council of Superior Officers that ultimately decided to discharge the lieutenant.
The State also accepted that Grijalva didn’t have the opportunity to “know, participate, and defend himself” [para. 25], in the sanctioning process against him.
For the IACtHR, the proceedings against Grijalva were deeply flawed and ignored basic procedural guarantees. Also, the Court noted that both the administrative and the criminal proceedings against Grijalva “started shortly after the officer made allegations about the participation of members of the military in the commission of serious human rights violations.” [par. 158]
Considering this coincidence, along with the nature of the irregularities that happened in the administrative and criminal proceedings carried out against Grijalva, the Court concluded that there was “a retaliatory intention against the victim, and the purpose was to silence him for his claims against members of the institution he belonged to for serious human rights violations, in order to protect the institution of the military. The corporative response from the military institution was to exclude Mr. Grijalva from it” [para. 158].
The IACtHR considered that the illegal acts committed by military authorities, denounced by Grijalva, and the several violations against due process and judicial guarantees in the criminal and administrative proceedings, could have a chilling effect on freedom of expression, which in turn affects the social dimension of the right to freedom of expression. The Court refers to the case of Escaleras Mejía y Otros Vs. Honduras to reiterate the idea that “regarding human rights’ defenders, reprisals produce a social effect of frightening and fear, whose result is intimidation that silences and inhibits the work of this people” [par. 161].
The Court also considered that “it is the duty of public officials, including members of the armed forces, to disclose serious violations of human rights, upon knowing about them” [para. 160]. For the IACtHR, “the State has a duty to guarantee the proper conditions so its public officials can freely report or denounce irregularities without being threatened or harassed” [para. 161].
Lastly, the Court argued that the State should have provided protection to Grijalva “so he could make any accusations without fear of reprisal” [para. 161].
In light of these facts, the Court concluded that the State violated the right to freedom of expression, enshrined in article 13 of the ACHR, of Mr. Anibal Grijalva. As reparations, the Court ordered the State to pay to Mr. Grijalva the sum of $350,000 USD for the material damages and $75,000 USD for the immaterial damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision issued by the IACtHR expands freedom of expression by recognizing that the proceedings carried against Grijalva had a retaliatory intent that could have a chilling effect on the work of human right defenders, thus breaching article 13 of the ACHR. In this regard, it is important that the Court considered that the State has the obligation to provide protection, and foster a better environment, so public officials can disclose human rights’ violations without fear of reprisals, which provides a robust protection of speech on matters of public interest.
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