Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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Panamanian attorney, Tristán Donoso, alleged in a press conference that then Procurador General de la Nación (National Attorney General) had illegally tapped, recorded and disclosed his private telephone communications. Donoso made his claim against a national backdrop of controversy over the official’s powers to intercept communications. The Attorney General was prosecuted and acquitted of the crime of illegal wiretapping. Tristán Donoso was convicted of the crime of false imputation of a publicly actionable crime (calumnia) for denouncing the Attorney General, and was ordered to pay material and moral damages to the then Attorney General. The Inter-American Court of Human Rights heard the case and concluded the criminal penalty imposed on Tristán Donoso was evidently unnecessary and the fear of being subject to a disproportionate civil penalty had a chilling effect on freedom of expression.
Lawyer Santander Tristán Donoso had a telephone conversation with the father of one of his clients, Walid Zayed. In the conversation, Tristán Donoso and Zayed senior exchanged opinions and information on the alleged financing, with drug trafficking money, of campaign of the then- Procurador General de la (Attorney General) to be reelected as a legislator.
At a later date, a public prosecutor forwarded to the former Attorney General a cassette tape with the conversation between Zayed and Tristán Donoso, which had been recorded “without leave from the Ministerio Público [Office of the Public Attorneys, for it had been made by private initiative.” [par.40]. By order of the former Attorney General, a copy of the cassette recording and its transcript was sent to the Archbishop of Panama who, in turn, forwarded it to two members of the congregation. One of the congregation members informed Mr. Tristán Donoso of the existence of the recording. The former Attorney General met with the Junta Directiva del Colegio Nacional de Abogados (Governing Board of the National Bar Association). In the meeting, the former official played the recording and stated that “such recording was […] some sort of a conspiracy” in order to “damage either his own person or the image of the Ministerio Público [Office of the Public Attorneys]”. On such recording “the voice of whom […] he said were Mr. [Z]ayed and Lawyer Santander Tristán Donoso could be heard.” [par. 44]
Mr. Tristán Donoso communicated his dissatisfaction to the former official and requested an explanation.
Three years later, in the midst of an intense public debate on the powers of the Procurador General (Attorney General) to order the interception and recording of telephone conversations, Tristán Donoso called a press conference at the headquarters of the Colegio Nacional de Abogados de Panamá) Panama National Bar Association) and declared:
“on that sad July of 1996, I was having a telephone conversation with the father of one of such persons in that criminal prosecution [of Walid Zayed for the alleged charge of money laundering], which the Attorney General tape recorded and of which I have a cassette and not only that was done, he used the cassette to summon the authorities of the Junta Directiva del Colegio Nacional de Abogados [Governing Board of the National Bar Association] […] to explain to them that I was part of a conspiracy against his person. [T]wo brave lawyers who were at that historical meeting, […] told the Attorney General that what he was doing at that moment was a crime” [par. 95].
Several public officials also publicly questioned the then-Attorney General. In effect, the Civil Judge Number Three filed a criminal complaint against him for illegally tapping his courtroom’s telephone. In light of this, the Defensor del Pueblo (Ombudsman) issued a press release declaring, “the wiretapping of the telephone conversation ordered by the Procurador General de la Nación [National Attorney General], […] against the Juez Tercero Civil [Civil Judge Number Three] is unacceptable, disgraceful and very serious” [par. 98]. The President of the Supreme Court also wrote a note to the then-Attorney General, in which he stated: “The Supreme Court of Justice has not given you, Attorney General, a blank or full endorsement to order the wiretapping of telephone communications.” [par.100].
Tristán Donoso filed a criminal complaint against the former Attorney General for the crime of “abuse of authority and violation of duty by public officials.” In the final decision on the case, the Supreme Court decided to “reject the complaint submitted” and acquit “in a final manner” the former Procurador [National Attorney General] [par. 48].
The day after the press conference, the former Attorney General Filed before the Office of the Auxiliary Prosecutor a criminal complaint against Donoso for the crimes of false imputation of a publicly actionable crime (calumnia) and defamation (injuria). Additionally, the official submitted a damages complaint for the amount of $1,100,000 balboas. Tristán Donoso was acquitted by the tribunal of first instance. However, the appeals tribunal reversed the acquittal and sentenced Mr. Trsitan Donoso to a penalty of 18 months of imprisonment and disqualification to hold public office for an equal term for having found him to be the perpetrator of the crime of false imputation of a publicity actionable crime (calumnia). Additionally, the appeals tribunal substituted the prison term for payment of a 75 day fine and ordered him to pay material and moral damages to the then-Attorney General. The exact amount of the damages was left pending because it was going to be decided by a lower court.
At the time of the incident, the Panamanian criminal code established prison sentences for these crimes. Hence, it read, regarding calumnia: “Section 172. Any person who falsely accuses another of committing a punishable act will be subject to a 90 to 180 days’ fine”. Likewise, article 173A established: “173-A. When the crimes described in articles 172 and 273 are committed through a media outlet, the applicable penalty shall be 18 to 24 months’ imprisonment in the case of calumnia and 12 to 18 months’ imprisonment in the case of injuria.” . Subsequently, the criminal code was reformed to eliminate prison penalties for individuals who issue these type of expressions against high-ranking public officials.
The Inter-American Court of Human Rights heard the case and concluded the criminal sentence was unnecessary and the civil penalties were disproportionate and, consequently, the State violated freedom of expression.
 IACtHR. Case 12.360, Report N° 114/06, Panama, Santander Tristán Donoso. August 28, 2007.
The Inter-American Court have to decide whether the State of Panama violated the right to freedom of expression established in article 13 of the American Convention on Human Rights (ACHR) when it sentenced Tristán Donoso to a criminal penalty and payment of several damages for publicly announcing that the then-Attorney General illegally tapped and disclosed his private conversations. Particularly, when the official was declared innocent of committing said crime.
The Court reiterated that article 13 of the ACHR guarantees freedom of expression to all individuals and, therefore, it is not a right that is limited to a profession or specific group of people. It indicated that freedom of expression includes the right “to seek, receive, and impart information and ideas of all kinds, and to receive and have access to the information and ideas disclosed by others” [par. 109].
With respect to the right to honor, protected under article 11 of the ACHR, the Court recalled that speech involving an individual’s fitness to occupy public office or the conduct of public officials enjoys a higher level of protection. The Court reiterated that in a democracy, the activities of public officials “go beyond their private life and expand to enter the arena of public debate. Such threshold is not based on the quality of the individual, but rather on the public interest attending the activities the officer performs.” [par.115]. Furthermore, “[t]his different honor protection standard is justified by the fact that public officials voluntarily expose themselves to control by society, which results in a greater risk of having their honor affected and also the possibility – given their status – of having greater social influence and easy access to the media to provide explanations or to account for any events in which they take part” [par. 122].
As a consequence, the Court emphasized “the Judiciary must take into account the context in which the statements involving matters of public interest are made; the judge shall “assess the respect of the rights and reputations of others in relation to the value in a democratic society of open debate regarding matters of public interest or concern’” [par. 123].
In this sense, the Court recalled that the right to freedom of expression is not absolute and the Convention contemplates the possibility of establishing subsequent liabilities when this freedom is abused. These restrictions must be exceptional and fulfill the standards established by article 13.2 of the ACHR: they must be provided for by law, be directed at obtaining a legitimate purpose, and be suitable, necessary, and proportional.
In the case under review, the Court indicated the crime of false imputation of a publicly actionable crime (calumnia) that Tristán Donoso was sentenced for, was provided for by law in a formal and material sense. Additionally, the Court argued that protecting the reputation and honor of an individual was a legitimate purpose consistent with the Convention and that criminal proceedings are a suitable mechanism for achieving that purpose.
Regarding the necessity requirement of the measure, the Court indicated that in a democracy, punitive power “is exercised only to the extent that is strictly necessary in order to safeguard essential legally protected interests from the more serious attacks serious attacks which may impair or endanger them. The opposite would result in the abusive exercise of the punitive power of the State.” [par. 119]. The Court emphasized that criminal mechanisms must be examined with “particular caution” when they are used as measures that restrict freedom of expression. It specified the analysis must weigh “extreme seriousness of the conduct of the individual who expressed the opinion, his actual malice, the characteristics of the unfair damage caused, and other information which shows the absolute necessity to resort to criminal proceedings as an exception. At all stages the burden of proof must fall on the party who brings the criminal proceedings.” [par. 120].
The Inter-American Court considered that Tristán Donoso’s complaint that the then-National Attorney General illegally tapped a private conversation was of the “highest public interest” in a scenario of intense debate over the official’s power to order wiretaps. In effect, the Court stated that assertions on the manner in which a high-ranking public official carries out his duties, and whether the official’s conduct is in compliance with the national legal system, are of public interest [par 121].
The Court added that, in this context, Tristán Donoso had valid reasons to consider his public statements were true. In fact, the Court said “at the time Mr. Tristán Donoso called the press conference, there were various and important information and assessment elements allowing to consider that his statement was not groundless regarding the responsibility of the former Attorney General for the recording of the conversation. […]All these elements led the Court to conclude that it was not possible to sustain that his expression was groundless and, consequently, that the criminal remedy was a necessary action” [par. 125-126]. In this sense, the Court declared although the criminal penalty of 75 days’ fine was not excessive, “the criminal conviction imposed as a form of the subsequent liability established in the instant case is not necessary […] considering the alleged violation of the right to honor […]for which reason it results in a violation of the right to freedom of thought and of expression enshrined in Article 13 of the American Convention” [par. 129].
The Court further emphasized “the fear of a civil penalty, considering the claim by the former Attorney General for a very steep civil reparation, may be, in any case, equally or more intimidating and inhibiting for the exercise of freedom of expression than a criminal punishment, since it has the potential to attain the personal and family life of an individual who accuses a public official, with the evident and very negative result of self-censorship both in the affected party and in other potential critics of the actions taken by a public official.” [par. 129]
Taking into account the above arguments, the Court concluded that Tristán Donoso’s criminal conviction violated the right to freedom of expression under article 13 of the ACHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Inter-American Court reiterated its jurisprudence regarding the enhanced protection enjoyed by speech involving public officials and issues of public interest, emphasizing that this differentiated threshold of protection can relate to both opinions and factual statements if there are sufficient grounds to believe the truthfulness of the assertion. It is also the first case to establish that the fear of suffering the consequences of disproportionate civil sanctions may have an inhibiting effect on the exercise of freedom of expression even more serious than that which may result from criminal prosecution.
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