Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Constitutional Court of Peru dismissed a claim that a Legislative Decree, which altered the definition of extortion, infringed a number of fundamental rights and freedoms, and was hence unconstitutional. Legislative Decree 1237 modified article 200 of the Criminal Code by broadening the definition of extortion beyond the traditional requirement of “an undue economic benefit or advantage” to include obtaining “an advantage of any other kind.” The applicant argued that the definition was more applicable to coercion rather than to extortion and could imply an infringement of the right to protest and its related rights. The Court addressed the alleged infringements of (1) the principle of legality, (2) the right to protest, (3) the right to freedom of assembly, (4) the right to freedom of expression, (5) the right to freedom of opinion, (6) the right to freedom of conscience, (7) the right to political participation, and (8) the right to petition, and dismissed each of them. Nonetheless the Constitutional Court made an extensive interpretation of article 200 in order to limit the application of this rule against the right to protest, thereby recognizing the right to protest as an autonomous fundamental right protected by the Constitution
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The applicant –the Colegio de Abogados de Puno (Lawyers Association of Puno)– claimed that Legislative Decree 1237, which modified –among others– article 200 of the Peruvian Criminal Code, was unconstitutional and could infringe a number of fundamental rights and freedoms. Thus, the applicant requested that the Court partially nullify the Legislative Decree.
The Legislative Decree modified the definition of extortion in the Peruvian Criminal Code. In particular, the applicant questioned the fact that the Legislative Decree included new conditions under which extortion can be committed: in addition to the traditional requirement of “an undue economic benefit or advantage” originally included in the definition of extortion, this Decree added the fact of obtaining “an advantage of any other kind”.
According to article 200, and considering the modification by the Legislative Decree, extortion is committed whenever “someone, by means of violence or threat, forces a person or an institution –public or private– to provide the agent or a third party with an undue economic benefit or advantage, or with an advantage of any other kind.” The offense would result in a prison sentence ranging from ten to fifteen years. Moreover, article 200 includes the same conditions in the following relevant provisions:
“The same sentence will apply if, with the aim of contributing to extortion, someone uses information accessed through their position or deliberately provides the means for committing the offense.
Whoever, by means of violence or threat, takes over premises, obstructs means of communication, prevents free transit, or disturbs normal functioning of public services or the execution of legally authorized constructions, with the aim of obtaining from authorities an undue economic benefit or advantage, or an advantage of any other kind, could face a prison sentence ranging from five to ten years.
The public official with power of decision or someone who holds a position of trust or decision-making, violating article 42 of the Peruvian Constitution, participates in a strike with the aim of obtaining, either for themselves or for a third party, an undue economic advantage or benefit, or an advantage of any other kind, will be punished with disqualification, in accordance with provisions 1 and 2 of article 36 of the Criminal Code.”
The applicant argued that these conditions provided by the Legislative Decree ignore the proprietary nature of the offense under analysis and apply to coercion rather than to extortion. Moreover, the applicant stated that the definition of the additional conditions in article 200 is not sufficiently clear and the modifications imply an infringement of the right to protest and its related rights –the right to freedom of assembly, the right to freedom of expression, the right to freedom of conscience, the right to political participation, and the right to petition. The applicant also held that the takeover of premises or the hindering of means of communication are typical mechanisms used by citizens to protest and request for improvements in their life conditions. However, they are criminalized by Legislative Decree 1237. The applicant argued that, although the right to protest is not explicitly guaranteed by the Peruvian Constitution, it is recognized as an “emergent fundamental right” according to article 3 of the Constitution and article 29 of the American Convention on Human Rights (ACHR) [p. 7] In addition, the applicant affirmed that the Baguazo case (2009), about a pacific protest around the ancestral rights to territories, had already explicitly recognized the right to protest.
Additionally, according to the applicant, this article constituted an infringement of the right to freedom of expression among other fundamental rights. It is “an act of censorship against those who protest, since the means covered by article 200 are the ones used to convey messages to society as well as to the government. The restriction under analysis prevents the dissemination of those messages and fines the demonstrators” [p. 7]. Thus, the applicant held that democratic exchange and the dissemination of ideas are endangered, and that the Legislative Decree aims at preventing citizens from getting to know the points of view of protesters.
In addition, the plaintiff held that the provisions of article 200 prevented the implementation of the proportionality test: the conflict between fundamental rights during a protest needs to be analyzed case by case to decide if it is either a social protest or the illicit exercise of violence [p. 8]. The judges in Baguazo applied the proportionality test and recognized the legitimacy of force measures when they are justified by the rights they are aimed to protect. According to the applicant, the criminalization of protests is incompatible with the government’s obligation to protect human rights defenders, specifically leaders and members of rural and native groups [p. 9].
The defendant stated that the definition of “an advantage of any other kind” is clear and that the article under analysis does not affect lawful protests. Thus, fundamental rights such as the right to freedom of assembly or the right to freedom of expression are not affected.
Judge Ledesma Narváez delivered the judgment for the Court. The main issue before the Court concerned the infringement of certain fundamental rights as a result of the addition of “an advantage of any other kind” to the definition of extortion in the Criminal Code. The Court considered the claim unsubstantiated, and hence it could not reach the five votes necessary to state the unconstitutionality of the Legislative Decree.
The Court addressed the alleged violations of (1) the principle of legality, (2) the right to protest, (3) the right to freedom of assembly, (4) the right to freedom of expression, (5) the right to freedom of opinion, (6) the right to freedom of conscience, (7) the right to political participation, and (8) the right to petition, and dismissed each of them on the basis of the following arguments:
(1) The Court held that legislators are allowed to protect legal goods and interests in addition to the proprietary elements included in extortion, respecting the reasonability and proportionality principles. According to the Court, the offense is clearly defined and the text enables any citizen with a basic level of education to easily understand its nature.
(2) Regarding the right to protest–even though it is not explicitly recognized by the Peruvian Constitution– the Court stated that the constitutional public order requires the recognition of this right as a fundamental right that every person holds to maintain a critical position against power, whether private or public. However, the right to protest does not protect violence or threats, or any undue economic benefit or an advantage of any other kind. The provision “an advantage of any other kind” does not involve lawful requests such as those related to salary increases, the decrease in costs of public services, and the protection of the environment among others.
(3) The Court affirmed that the right to freedom of assembly is not infringed, since this right does not protect any kind of violence or “an undue economic benefit or an advantage of any other kind.”
(4) Regarding the alleged infringement of the right to freedom of expression, the Court stated that, according to Peruvian ruling 01001-2013-PA/TC, this right “guarantees the possibility to make declarations through means of communication without either previous authorization or censorship of any kind”. Thus, since the behavior prohibited in article 200 does not relate to declarations on means of communication, the right to freedom of expression is not infringed.
(5) The Court considered that the provisions under analysis are not directly related to either the formation of an opinion or its dissemination. Thus, the right to freedom of opinion is not affected.
(6) As for the right to freedom of conscience, the Court stated that this fundamental right does not protect situations such as the one specified in the provision under analysis, so this right is not affected.
(7) The Court held that, according to the Peruvian Constitution, the right to political participation protects participation in public affairs in the framework of an institution, individually or collectively –e.g., voting, participating in popular consultations, or removing authorities among others– which is not related to the conduct prohibited in the provisions under analysis in the present case.
(8) According to the Court, the right to petition entails a) the right to submit written requests to public authorities, and b) the obligation of the authorities to offer an answer to the request. In this case, none of these conditions are affected by the provisions under analysis.
Although, the Constitutional Court declared the lawsuit unfounded, since it did not manage to gather 5 votes to declare the unconstitutionality of article 200, it made an extensive interpretation of article 200 in order to limit the application of this rule against the right to protest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Whereas the Constitutional Court of Peru recognized the right to protest as a constitutional right, as well as the importance of the protection of the right to freedom of expression to guarantee the right to protest, it dismissed the unconstitutionality claim. As the applicant argued, the modifications made by Legislative Decree 1237 to article 200 could imply serious infringements to the right to protest, as well as to the right to freedom of expression and to freedom of assembly.
According to the Institute for Legal Defense (Instituto de Defensa Legal), this was the first time the Constitutional Court recognized the right to protest as an autonomous fundamental right protected by the Constitution. The Institute concluded that: “Considering that Article 82 of the Constitutional Procedural Code recognizes the judgments of the Constitutional Court, in unconstitutionality processes, the nature of res judicata: binding for all public powers and of general normative effects, we can conclude that here not only a new right has been recognized, but a new regulatory framework, of a jurisprudential nature, has also been developed for the right to protest”.
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According to the Institute for Legal Defense (Instituto de Defensa Legal): “Considering that Article 82 of the Constitutional Procedural Code recognizes the judgments of the Constitutional Court, in unconstitutionality processes, the nature of res judicata: binding for all public powers and of general normative effects, we can conclude that here not only a new right has been recognized, but a new regulatory framework, of a jurisprudential nature, has also been developed for the right to protest”.
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