Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The Colombian Constitutional Court delivered a decision dismissing a Tutela (constitutional injunction) and consequently abstained itself from intervening in a dispute concerning freedom of expression. The case concern a conflict raised when Néstor Obed Camargo Camelo sent some WhatsApp messages to Jaime Parra Cubillos and some other people, in which he referred to Jaime Parra as an undesirable person within the political party, commenting on his background as disastrous, calling Jaime Parra a mere political merchant. The Court disregarded Jaime Parra’s contention and observed that the conflict should be solved within the political party itself, as the discussed statement was made in a political context, and between two members of the same political party. The Court emphasized the need to respect political parties’ autonomy and to exhaust disciplinary instances of the Party in application and compliance with its statutes before beginning a Constitutional action.
On November 20, 2018, Jaime Parra Cubillos (the Plaintiff) and other people received a Whatsapp message from Néstor Obed Camargo Camelo (the Defendant) containing an image with the following expression, “The Party Directorate in the municipality of Líbano has always stated that Mr. Jaime Parra alias “Karpov” is an undesirable person within the party, his background is disastrous, he is only a political merchant.” During the period, Camargo was the President of the Board of Directors of the Centro Democrático party in the municipality of Líbano, Tolima.
Jaime Parra filed a Tutela (an application for the protection of constitutional rights) against Camelo seeking the protection of his fundamental rights to honor, good name, and due process. The Plaintiff contended that his fundamental rights were violated by the dissemination of specific information via Whatsapp. Later, on January 30, 2019, the Plaintiff convoked the Defendant to meet with him in Libano’s Police Station for him to present the evidence that supported the expressions contained in the WhatsApp messages. Consequently, on January 31, 2019, a public hearing was held, and the defendant acknowledged that he was the one who sent the messages. However, he refused to take back what was said. Therefore, the Police Officer “issued a police reprimand to both the plaintiff and the defendant for the events that occurred and urged both to refrain from generating problems of coexistence in the future” [p. 4].
In the tutela, Plaintiff claimed that the Defendant should retract his expressions for two main reasons. First, the statements disseminated via WhatsApp violated his fundamental rights to honor, good name, and due process. Second, Defendant had not been able to provide any documentation supporting the alleged declaration of the Centro Democratico’s party regarding the undesirability of Plaintiff.
The first instance ruling dismissed the tutela, considering that the procedural requirements for the action filed were not met, since the Plaintiff was not in a state of defenselessness against the person who allegedly violated his rights. On the contrary, the Court stated that the message was disseminated by a means of low impact (Whatsapp) with a limited scope to the contacts of the sender of the message. Further, the Court concluded that it was not demonstrated by Plaintiff how many people the message was sent to or if it was forwarded.
The Plaintiff appealed the order contending that the Judge minimized the damage produced by the dissemination of the message since he reduced his analysis to estimate that WhatsApp is not a medium of great impact. Thus, the Court had left aside other considerations, such as the fact that who sent the message was the President of the Board of Directors of the Centro Democrático party in the municipality of Líbano, so the effect of his action is in itself considerable” (p. 7).
On March 27, 2019, the Appellate Court decided to overturn the first instance decision and upheld the protection of the constitutional rights of the Plaintiff. The Appellate Court considered that the plaintiff was defenseless since he did not have control over the Whatsapp messages. Moreover, the Court stated that the right to freedom of expression, even when it concerns opinions has restrictions. The Appellate Court noted that opinions should meet standards of truth and accuracy of sources. The Court concluded by directing the defendant to take back the messages sent on the reasoning that what was disseminated in the message was not true. (Impugned Order)
Under Colombia legal regime, the tutela is a constitutional injunction that aims to protect fundamental constitutional rights when they are violated or threatened by the action or omission of any public authority. This mechanism is incorporated in Article 86 of the Constitution. Furthermore, Decree 2591/91, which regulates tutela, establishes that once the regular proceeding is concluded every tutela file should be sent to the Constitutional Court, which may decide to select it for a special review or not. The instant case was chosen by the Constitutional Court for its review.
Justice Diana Fajardo Rivera of the Constitutional Court delivered the judgment. The primary issue before the Court was to determine whether the Constitutional Court judge can resolve a dispute concerning the exercise of the right to freedom of expression between two members of the same political party, wherein internal instances of control have not been exhausted, and what is being debated is not a matter of public interest.
Plaintiff contended that the Constitutional Court should protect his fundamental rights to honor, good name, and due process. Further, Plaintiff asked the Court to direct Defendant to take back the expressions made by him because he questioned expressions that were offensive to him. Conversely, Defendant asserted that the disputed expressions were opinions issued in his legitimate exercise of freedom of expression.
The Constitutional Court observed that the Plaintiff was defenseless in comparison to the Defendant since at the moment in which the messages were sent, the Defendant was the President of the Board of Directors of the Centro Democrático party in the municipality of Líbano, Tolima. Therefore, at that moment the Defendant had an obvious position of leadership that placed him in a position of superiority towards the claimant.
The Court emphasized that Colombia’s political context could not be ignored and set substantial standards that should be evaluated when examining this nature of the issue. The Court noted that Colombia had a lot of political tension and a complex political reality that affected especially small regions and vulnerable populations. Considering the political scenario, the Court held that it is essential to consider that depending on the place of the country in which people are, what is said about a member of a political party may also risk the guarantee of other rights, besides honor and goodwill, such as health, dignity and even life.
Further, the Court went ahead and examined the freedom of expression and the burdens of truth and impartiality as limits to it. The Court highlighted the difference between freedom of expression, straightly speaking, and freedom of information. On the former, which is the one applicable to the case, the Court expressed that it “enjoys a wide range of guarantees and, therefore, its limits are much narrower” (p. 16). The Court noted that this category of freedom of expression was covered by a constitutional presumption in its favor, thus, in cases of conflict between it and other rights, freedom of expression prevails.
The Court referred to its case law and IACtHR’s decision [Kimel v Argentina (2008); Fontevecchia v Argentina (2011) & Herrera Ulloa v Costa Rica (2004)] which had identified some specially protected speeches. The reasoning of these cases highlighted political speech, public interest debate, and speeches in which the State or its officials are being criticized. The special protection granted to political speech is based on protecting other fundamental guarantees including the correct exercise of the administrative function (Article 209 C.P.), the political control of Congress and other public corporations (Articles 114 and 138 C.P.), direct and participatory democracy (Article 3 C.P.), and the right to citizen political control (Article 40 C.P.). The Court observed that democracy and plurality, as constitutional values, are the basis for this higher degree of protection.
The Court asserted that discussions in a political context include debates and contradictions. It noted that it is a space in which there are usually attacks, therefore, it constitutes a special dynamic, which must be observed by the judge of tutela while adjudicating similar nature of issues. The Court noted that previously this Court has endorsed on several occasions the possibility for parties to use the so-called “negative propaganda” during election time” [p. 19].
The Court laid down a test while determining a conflict between two members of the same political party that the Court must examine: (i) the type of organization to which the parties belong; (ii) who communicates; (iii) about whom or what is being communicated; and (iv) what is being communicated. If, after analyzing these four aspects, it concludes that it is a case that must be resolved by the constitutional judge, the next step is to evaluate the communicative act according to these other three aspects, namely: (v) to whom it is communicated: (vi) how it is communicated; and (vii) by what means it is communicated.
When applying this test to the particular case, the Court reached the following conclusions:
i) The type of organization to which the parties belong: Both the plaintiff and the defendant were members of Centro Democrático, a political party that is consolidated and organized in a hierarchical structure, in which there is a duty of obedience concerning the decisions and directives adopted by the management and representation bodies, as well as it has a clear internal disciplinary process [para. 71].
ii) Who is communicating: at the time in which the facts occurred, the Defendant was the President of the Regional Directorate of Líbano’s Centro Democrático party and the message seemed to be sent speaking in such capacity. However, during the constitutional process, it was proved that since its constitution, the Regional Directorate of Líbano’s Centro Democrático party was never summoned to meet, therefore it was materially impossible for them to issue a joint statement regarding one of its members [para. 72].
iii) About what or about whom it is communicated: Defendant’s opinion aimed to qualify the conditions of “Jaime Parra alias ‘Karpov’”, whom he refers to as a person not welcome or undesired by the Board of Directors, of disastrous background, and a political merchant.
iv) What is communicated: the message issued by Defendant is indeterminate and contains a high degree of subjectivity. The Court observed that it cannot place it within a protected speech, as Defendant claims. It is not a discussion proper of the political debate. It must be emphasized that the message was not denouncing, for example, acts of corruption or mismanagement of public funds. What was done was to qualify, with terms that may be annoying, one of the militants of the Centro Democrático party” [p. 33].
The Court noted that considering the previous reasonings the Court, this case doesn’t meet the threshold wherein a Constitutional Court judge should intervene. Conversely, the Court observed that this conflict should be solved within the framework of the disciplinary process of the political party, to preserve the principle of autonomy of political parties. Lastly, the Court emphasized that conflict like the present one should not be solved by restricting freedom of expression, but by fighting it with more expressions and, especially, allowing the plaintiff and the defendant to express their opinions.
The Court in its conclusion overturn the Impugned Order and disregarded Plaintiff’s contention of violation of freedom of honor, good name, and due process.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the understanding of freedom of expression by laying down a test to determine political conflicts. The decision following the general principle of non intervention in freedom of expression matters, decided to encourage the Plaintiff and the Defendant to solve their controversies within the instances provided by their political party, especially fighting speech with more speech.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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