Defamation / Reputation
Niskasaari v. Finland
On Appeal Expands Expression
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Santos Ferraz was charged with the crime of contempt by the Prosecutor’s Office of the State of Santa Catarina, Brazil. In a groundbreaking and unprecedented decision, on his own initiative, the judge of first instance exercised the conventionality control and declared the criminal contempt statute was inapplicable in this case. As a result, the judge dismissed the complaint and declared the innocence of the accused.
Santos Ferraz was charged with the crime of contempt under article 331 of the Brazilian Criminal Code, over insults directed against members of the military police in the city of Florianopolis, Brazil. The defense argued the accused lacked intent or mens rea. However, the judge of first instance exercised on his own initiative the conventionality control and declared the criminal contempt statute was inapplicable in this case. As a result, the judge dismissed the complaint and declared the innocence of the accused.
The court of first instance, in an unprecedented decision in the country, applied out of its own initiative, or ex officio, the conventionality control in the case and found the criminal statute was incompatible with the American Convention on Human Rights and, hence, rejected the complaint. The court stated “a law’s compatibility is not a mere ability conferred to individual judges, but an obligation, in light of the principle of the Constitutional supremacy”, [part II] that requires judges to exercise the control of conventionality.
The judge indicated that, as a result, adjudicators have the duty to set aside “juridical norms of a legal nature that contravene international human rights treaties” [part II]; the judge stressed that the Inter-American legal and doctrinal framework, as well as comparative law, declares that the crime of contempt is incompatible with article 13 of the American Convention on Human Rights which, in turn, requires the inapplicability of this crime. In this sense, the judge concluded that “a public display of disrespect expressed by an individual against an agent while that is carrying out administrative activities […] does not constitute an act whose prejudicial effect merits the deployment of criminal protection. It is clearly an authoritative legal provision” [part II].
The judge held the complaint was inadmissible and acquitted the accused of the crime of contempt.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although it is the decision of a lower or first instance court, it is highlighted because it was unprecedented that a judge, on his own initiative or ex officio, declared the crime of contempt incompatible with the American Convention on Human Rights and, therefore, rejected a criminal complaint that was based on this statute.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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