Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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The Inter-American Court of Human Rights found the eight-year-long criminal defamation proceedings brought against a Paraguayan presidential candidate, Ricardo Canese, to be a violation of his right to freedom of expression under Article 13 of the American Convention on Human Rights. Mr. Canese was sentenced to a prison term, payment of a fine, and was subject to restrictions on leaving Paraguay for the duration of the proceedings. The Inter-American Court found the proceedings against Mr. Canese to be unnecessary and excessive despite the fact he was eventually acquitted, and highlighted the fundamental importance of freedom of expression during an electoral process as a means of questioning and investigating the suitability of candidates.
Mr. Canese was an industrial engineer and vocal opponent of the dictatorship of Alfredo Stroessner in Paraguay. Throughout his engineering career he had researched and written about the Itapú bi-national hydroelectric power plant, one of the largest hydroelectric dams in the world and the principal natural wealth of Paraguay. The project was constructed on the basis of an agreement between Brazil and Paraguay to exploit the hydroelectric potential of the Paraná River. One of the two contractors for the construction of the power plant was CONEMPA Consortium, whose Chair was Juan Carlos Wasmosy between 1975 and 1993.
In 1993, Mr. Canese stood for presidential election in Paraguay against Mr. Wasmosy. During Mr. Canese’s campaign, journalists from the ‘Noticias’ and ‘ABC Color’ newspapers interviewed him. The ‘Noticias’ newspaper published an article entitled “Wasmosy forjó su fortuna gracias a Stroessner” [Wasmosy amassed his fortune thanks to Stroessner], in which Mr. Canese was quoted as declaring, among other things, that “Wasmosy […] passed from bankruptcy to the most spectacular wealth, thanks to support from the dictator’s family, which allowed him to assume the chairmanship of CONEMPA, the consortium that enjoyed the monopoly, in Paraguay, of the principal civil works of Itaipú.” The ‘ABC Color’ newspaper published an article entitled “Wasmosy fue prestanombre de la familia Stroessner” [Wasmosy was the Stroessner family’s front man], which quoted Mr. Canese as saying that “Mr. Wasmosy was the Stroessner family’s front man in CONEMPA, and the company transferred substantial dividends to the dictator.” [para. 69(7)].
In October 1992, the directors of CONEMPA filed a criminal complaint against Mr. Canese for the crimes of slander and injuria over the statements made in ‘Noticias’ and ‘ABC Color’. Mr. Wasmosy did not file a criminal complaint.
In March 1994, the First Trial Judge for Criminal Matters convicted Mr. Canese of slander and injuria of the directors of CONEMPA, sentencing him to four months imprisonment and payment of a fine (14,950,000 million guaranis). In November 1997, the Court of Criminal Appeal modified the classification of the offence to slander, and also decided to modify down the prison sentence to two months and reduce the fine to 2,909,090 guaranis.
In November 1998, a new Criminal Procedure Code came into force lowering the penalties for slander, and establishing a fine as an alternative to imprisonment. In 2002, the Supreme Court of Justice annulled the final judgments against Mr. Canese, and absolved him of guilt. For the duration of the proceedings before the domestic courts, Mr. Canese was subject to restrictions on leaving Paraguay which were only lifted on a few occasions.
The Inter-American Court (Court) had to determine whether the criminal proceedings against Mr. Canese, the criminal and civil sanctions imposed on him, and the restrictions on him leaving the country to which he was subjected for almost eight years and four months unduly restricted his right to freedom of expression under Article 13 of the American Convention on Human Rights.
The Court recalled that freedom of expression has two equally relevant dimensions that must be guaranteed simultaneously: an individual dimension that protects the right of the individual to express their own thoughts, and a social dimension that protects the collective right to receive information. In relation to this case, the Court noted that the statements for which Mr. Canese was sued permitted these two dimensions to be exercised. It allowed him to disseminate information he possessed about one of the opposing candidates and it promoted an exchange of information with voters.
The Court went on to note the importance of freedom of expression in a democracy, reiterating that freedom of expression is essential for the “consolidation and dynamics of a democratic society”. [para. 86] The Court reiterated that without effective freedom of expression “a fertile ground is created for authoritarian systems to take root in society” (Herrera Ulloa v. Costa Rica, para. 116). The Court noted that, in the present case, the statements were made during an important process of democratization in Paraguay, as they were made during an electoral campaign in the context of the transition from a dictatorship to a democracy.
Additionally, the Court emphasized the fundamental role of the two dimensions of freedom of expression in the context of an electoral process: “they become an essential instrument for the formation of public opinion among the electorate, strengthen the political contest between the different candidates and parties taking part in the elections, and are an authentic mechanism for analyzing the political platforms proposed by the different candidates. This leads to greater transparency, and better control over the future authorities and their administration.” [para. 88]. The Court considered it essential that the right to freedom of expression be protected and guaranteed in a political debate preceding the election of those who will govern the State, and that everyone should have the opportunity to “question and investigate the competence and suitability of the candidates, and also to disagree with and compare proposals, ideas and opinions, so that the electorate may form its opinion in order to vote.” [para. 90]
The Court also highlighted the public interest nature of the statements at issue in the case. Firstly, the statements related to CONEMPA, which was involved in the construction of the Itapú bi-national hydroelectric power plant. Secondly, Itapú was being investigated by the National Congress for corruption involving Mr. Wasmosy and CONEMPA. The statements were made against Mr. Wasmosy who was himself a public figure, and they questioned his competency and suitability to be President of Paraguay.
The Court reiterated that the right to freedom of expression is not absolute. Nonetheless, it stated that any restrictions on expression must be justified by demonstrating a “compelling public interest”. Furthermore, to be necessary in a democratic society, the restriction must be proportionate to the legitimate objective that justifies it and closely tailored to accomplishing that objective, interfering as little as possible with the exercise of the right. The Court reasoned that, given the democratic control exercised by society through public opinion, there would be a reduced margin for any restriction on political debates or on debates on matters of public interest.
The Court reiterated that speech relating to public officials and those carrying out public duties enjoys a greater degree of protection. More specifically, the Court stated that opinions and statements of public interest regarding an individual standing as a candidate for the presidency should be accorded a broad latitude as such an individual lays himself open to public scrutiny. The Court noted that this different threshold of protection is not based on the nature of the subject, but “on the characteristic of public interest inherent in the activities or acts of the specified individual.” [para. 103] On this basis, the directors of CONEMPA were also found to fall within the category of persons who must have a greater margin of acceptance and tolerance of criticism in the context of a public debate.
With regards to the penalty imposed on Mr. Canese, the Court recalled that penal laws are the “most restrictive and severest means of establishing liability for an unlawful conduct.” [para. 104] The Court also criticized the domestic courts for failing to take into account the importance of the right to freedom of expression in the context of this case. The Court concluded that the length of the criminal proceedings, the sentence, and the restriction on leaving the country for the duration of the proceedings constituted “an unnecessary and excessive punishment” [par. 106]. Furthermore, the proceedings had the continuing effect of limiting the debate on matters of public concern and Mr. Canese’s exercise of the right to freedom of expression for the remainder of the electoral campaign. In reaching this conclusion, the Court could find no imperative social interest justifying the punitive measures adopted in this case.
In the Court’s view, all of this amounted to a restriction that was incompatible with Article 13 of the American Convention and, therefore, a violation of the right to freedom of thought and expression. Paraguay was ordered to pay damages of $35,000 to Mr. Canese for the harm sustained from violations of his human rights under the American Convention, including the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by emphasizing the importance of freedom of expression in the context of elections and the need to protect and guarantee speeches involving public interest matters, public officials and candidates for public office.
Furthermore, the Inter-American Court declared that, in this case, the length of the criminal proceedings and its consequences constituted an unnecessary and excessive restriction on the right to freedom of expression, even where the individual was eventually acquitted.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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