Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The Inter-American Court of Human Rights declared the international responsibility of the State of Chile for the violation of the rights to freedom of thought and expression, to judicial protection and to the principle of legality of Mr. Daniel Urrutia Laubreaux as a result of a disciplinary process that culminated in a sanction of censure against him, later reduced to a private warning, for submitting an academic paper to the Supreme Court of Justice criticising their actions during the Chilean military regime. Mr. Daniel Urrutia Laubreaux, a career judge in Chile, was authorised by the Supreme Court of Justice to attend an academic course on Human Rights and Democratisation Processes. At the end of the course, Mr. Urrutia Laubreaux submitted his final academic work to the Supreme Court of Justice, for which he was subsequently subjected to disciplinary proceedings. The Inter-American Court of Human Rights considered that although the freedom of expression of persons exercising jurisdictional functions may be subject to greater restrictions than that of other persons, this does not imply that any expression by a judge may be restricted. The Court determined that it is not in accordance with the American Convention to sanction expressions made in an academic work on a general topic and not a specific case, such as the one made by Judge Urrutia Laubreaux.
On April 8, 2004 the Supreme Court of Justice authorised Judge Urrutia Laubreaux, then Judge of Guarantee of Coquimbo, to attend the course on Human Rights and Democratisation Processes. On November 30, 2004 Judge Urrutia Laubreaux informed the Supreme Court of Justice that he had passed the diploma course and submitted his final report entitled “Propuesta de Política Pública de Introducción del Enfoque de Derechos Humanos en el trabajo del Poder Judicial de Chile” (Proposal for a Public Policy for the Introduction of a Human Rights Approach in the work of the Chilean Judiciary). This academic work contained a series of criticisms of the judiciary, particularly in relation to its role during the Chilean military regime. In this regard, Mr. Urrutia Laubreaux proposed in his report that the State should admit its international responsibility for the human rights violations committed during the military regime, as well as adopt a human rights approach aimed at providing the reparations deserved by the victims of that regime.
On December 22, 2004 the Court of Appeals of La Serena, the competent disciplinary body, received the report prepared by Mr. Urrutia Laubreaux from the clerk of the Supreme Court. On December 27, 2004, the clerk of the Supreme Court returned the academic report to Mr. Urrutia Laubreaux alleging that “…the aforementioned report contains inadequate and unacceptable assessments for this Court [para. 60].
On January 13, 2005 the Court of Appeals of La Serena notified an official letter ordering Judge Urrutia Laubreaux to provide a report on his reasons for sending a copy of his final work to the Supreme Court. In response, on January 18, 2005 Judge Urrutia Laubreaux submitted the requested report indicating that his motive was to document to the Supreme Court that he had taken the course, the high grade he had obtained, as well as to submit the final product of the study he had undertaken. Judge Urrutia Laubreaux further clarified that the production of the aforementioned report was for strictly academic purposes.
On March 31, 2005 the Court of Appeals of La Serena decided to sanction Mr. Urrutia Laubreaux with a disciplinary measure of “written censure”, in application of numbers 1 and 4 of Article 323 of the Organic Code of the Courts, considering that Judge Urrutia Laubreaux’s academic work was “a manifestation of excessive expression by a judge of the Republic to refer to the actions of his hierarchical superiors”, which allegedly violated the principle of hierarchical respect in the Judiciary. [para. 62] On April 5, 2005, Mr. Urrutia Laubreaux appealed the decision before the Supreme Court; however, on May 6, 2005 the Supreme Court upheld the appealed sentence, reducing the conviction to a “private reprimand” and ordering that the sanction be recorded on Judge Urrutia Laubreaux’s résumé, on which it remained for more than 13 years.
On May 29, 2018 following up on the recommendations contained in the Merits Report of the Inter-American Commission on Human Rights, the Supreme Court of Justice of Chile rescinded the private reprimand imposed against Mr. Urrutia Laubreaux in 2005, considering that he had shared his academic work in the exercise of his right to freedom of expression. Also, in response to the recommendations of the Merits Report, Judge Urrutia Laubreaux met at least three times with the President of the Supreme Court, however, they did not reach an agreement on compensatory reparation.
The issue brought before the Court in this case concerns the conventionality of the restriction of a judge’s freedom of expression through disciplinary proceedings arising from the referral of an academic paper. In this regard, the Inter-American Commission on Human Rights, in submitting the case, held that the State imposed an arbitrary restriction on the exercise of freedom of expression by imposing a subsequent liability that failed to comply with the requirements of the Convention [para. 71]. Particularly, the Commission noted that: i) the disciplinary grounds applied to Judge Urrutia did not comply with the principle of legality; ii) the pursued purpose of “hierarchical respect” cannot be understood as one of the legitimate purposes that Article 13(2) of the American Convention enshrines to justify the imposition of subsequent liability, and iii) there is no relationship of means to end between the restriction applied to the production of an academic work and the pursued purpose, so that the requirement of necessity in a democratic society is not met. The Court also stated that the opinions and expressions contained in the academic work are of public interest and should be protected with greater rigour to the extent that they contribute to the debate on how the judiciary can respond to allegations of serious human rights violations.
Concerning the victim’s representatives, they pointed out that Judge Urrutia Laubreaux’s opinion on the role of the judiciary in his country during the dictatorship was a matter of general interest, of state-building and democratic society and, as such, should not be sanctioned. The representatives also argued that the Chilean judiciary’s sanctioning measure was inapplicable, particularly because Judge Urrutia Laubreaux’s pronouncement did not concern a case under his jurisdiction. They further argued that the limitation imposed, without any legal basis, does not prove to have been necessary in a democratic society.
On the other hand, the State pointed out that freedom of expression is not absolute with respect to judges and that every Chilean judge must be subject the limits established in Article 323 No. 4 of the Organic Code of the Courts. Likewise, the State pointed out that the aforementioned norm, being a constitutional organic law, satisfies “the requirement of legality inherent to any legitimate restriction on freedom of expression” . Similarly, it argued that the rule applied is justified by the legitimate objective of preventing conflicts from arising in the Judiciary that affect the credibility of the judiciary, undermine its legitimacy and threaten its independence. In this sense, the publication of “writings whose objective is none other than to attack other magistrates evidently generates a situation of internal tension that ends up affecting the entire judiciary” [para. 74]. The Chilean State emphasised that this restriction is necessary in the context of a democratic society such as Chile’s since:
“(i) it conforms to the legitimate aim it seeks to fulfil and (ii) it is strictly proportionate to the purpose pursued. The State indicated that ‘any judge who seeks to make intemperate criticisms against his peers – ‘attacks’ in terms of Article 323 No. 4 of the Organic Code of Courts – must do so by requesting prior authorisation from the Supreme Court’. Finally, the State asserted that its international responsibility in the specific case ‘must be assessed in the light of the standards of freedom of expression existing in 2005 and not those existing in 2019′” [para. 74].
The Inter-American Court of Human Rights recalled that, while the American Convention guarantees the right to freedom of expression to everyone regardless of any other consideration, in the particular case of judges, these persons may be subject to “different restrictions and in ways that would not affect other persons, including other public officials [para. 82]. In that sense, the general objective of ensuring independence and impartiality is, in principle, a legitimate purpose for restricting certain rights of judges. However, this does not imply that any expression of a judge can be restricted. In this regard, the Court reiterated that:
“Without effective freedom of expression, materialised in all its terms, democracy vanishes, pluralism and tolerance begin to break down, the mechanisms of citizen control and denunciation begin to become inoperative and, in short, the fertile ground begins to be created for authoritarian systems to take root in society [para.77].
In relation to the foregoing, in the present case, the Court determined that the academic work carried out by Mr. Urrutia Laubreaux constituted an exercise of his freedom of expression. In this regard, the Court held that “it is not in accordance with the American Convention to punish expressions made [by a judge] in an academic work on a general topic and not on a specific case, such as the one made by the victim in the instant case [para. 89].
With regard to the decision of the Supreme Court of Chile dated May 29, 2018 recognising the violation of freedom of expression and ordering the annulment of the sanction imposed against Judge Urrutia Laubreaux, the Court considered that this decision constituted an adequate and timely control of conventionality of the sanction of private reprimand imposed against Judge Urrutia Laubreaux in 2005. However, the Court noted that the sanction remained on Judge Urrutia Laubreaux’s record for more than 13 years, resulting in an impediment of his judicial career. Along these lines, the Court determined that this damage had not been repaired by the State, so that the violation of Mr. Urrutia Laubreaux’s right to freedom of expression had not been fully remedied and consequently declared that the State of Chile had violated Article 13 in relation to Article 1(1) of the Convention to his detriment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the scope of freedom of expression by including the academic output of judges within the scope of protection of Article 13 of the Convention insofar as such expression refers to a general subject and not to a specific case. While the Court noted that the general objective of ensuring independence and impartiality is, in principle, a legitimate purpose for restricting certain rights of judges, in the case at hand, it found that sanctioning expressions made by judges in an academic work on a general topic is not in accordance with the American Convention.
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