Violence Against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
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Closed Mixed Outcome
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The Argentinian National Court of Appeals in Criminal and Correctional Matters decided to close the investigation into P. Moyano, since the required elements of criminal threat were not met. Luis Majul, a journalist, filed a criminal action against P. Moyano because he believed that Moyano was responsible for coordinating a group of people who hung posters against him and his wife along public roads. Those posters contained the slurs “squeezer and extortionist of judges and prosecutors” and “Repudiate and remember this face”. The Appellate Court considered that even though the posters aimed to undermine the professional reputation of Mr. Majul, they did not meet the threshold necessary to constitute a threat by Mr. Moyano against the complainant. The Court reasoned that it was not proven that the communications contained an “announcement of a future certain and clear harm, an unavoidable requirement of the criminal qualification proposed by the plaintiff in his appeal” [p. 4].
Mr. Luis Majul is a journalist who filed a criminal complaint against P. Moyano, a union leader who allegedly coordinated a group of people in order to hang some posters that portrayed a negative image of the journalist and his wife. The posters contained slurs such as “squeezer and extortionist of judges and prosecutors” accompanied by an image of him, his wife and the Buenos Aire’s attorney.
As a result of these events a criminal investigation for threats was initiated against Mr. Moyano. However, it was closed by the first instance judge, as she found that it was impossible to proceed with the investigation considering the lack of presence of the element of the offense consisting in the existence of a “future announcement of a certain and clear harm”. This decision was taken based on article 195 the from Criminal Procedural Code of the Nation and on article 45 of Argentinian Criminal Code.
This decision was appealed by the complainant -Mr. Majul- for three main reasons. First, because in his opinion the first instance judge only interpreted the slurs “squeezer and extortionist of judges and prosecutors” and “Repudiate and remember this face” as detrimental for the prosecutor, ignoring that it was also negative for the journalist who was actually being threatened by the posters. Second, due to the inconsistencies of the ruling – according to which the case was closed because it had not been possible to identify the people who committed the crime, even though in other excerpts of the judgement it was claimed that the case was being closed because the acts investigated could not be classified as offences. Finally, Mr. Majul claimed that it was not relevant for the investigation that Mr. Moyano was not present at the place where the posters were hung, since it was clear -from other evidence such as videos- that he instigated others to do so.
Judges Ricardo Matías Pinto and Rodolfo Pociello Argerich delivered the judgment for the Argentinian National Court of Appeals in Criminal and Correctional Matters. The main issue before the Court was to determine whether coordinating a group of people to hang posters with a journalist’s picture on it, accompanied by the expressions “squeezer and extortionist of judges and prosecutors” and “Repudiate and remember this face” constituted threats under the criminal law.
The complainant argued that the described facts were enough for convicting Mr. Moyano for threats, since “all the evidence corroborated the hypothesis that the posters aimed to stop the investigations and publication of information related to P. Moyano’s legal cases, under threat of making his and his family’s lives impossible” [p. 2]. In other words, Mr. Majul claimed that the posters were a mechanism that was being used to silence his journalistic investigations.
Conversely, the judges considered that the posters and the expressions that accompanied them were not sufficient for convicting Mr. Moyano for threats, as the law required an act by which an individual deliberately announces “that he wants to cause another person some future harm”. According to the judges in this case, it was no evidence of a clear or certain stated intention to incur a future harm.
The Court further stated that the “social disapproval that the acts analyzed may have cannot replace one of the elements required by the criminal law” [p. 4]. Therefore, even though the Court recognized that the actions taken against the journalist aimed to undermine his professional reputation, Mr. Moyano could not be convicted for the offence of threatening the journalist.
In consideration of the above, the Court upheld the decision of the first instance judge to close the investigation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome, as it on one hand fails to protect the right to freedom of expression of the journalist, even when it is recognized that acts intending to undermine the journalist’s reputation took place; but on the other hand, it establishes a high standard for taking legal action against people who express uncomfortable and shocking opinions. The case falls within a critical discussion regarding the protection of freedom of expression, namely the extent to which expressions that might undermine activities of watchdogs like journalists or human rights defenders should have some sort of punishment whilst this might have a direct effect on the application of general standards on freedom of expression.
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