Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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Retired military, Francisco Usón Ramirez, was sentenced to five years and six months prison for the crime of “Slander against the National Armed Forces [injuria contra la Fuerza Armada Nacional]” of Venezuela, because he issued opinions that were critical of the acts of this institution in a case called “Fuerte Mara”. The Inter-American Court of Human rights heard the case and concluded the criminal statute in question did not comply with the principal of strict legality. It further concluded that, in this case, the use of criminal law was not suitable, necessary or proportional. Accordingly, the Court found the Venezuelan State violated Mr. Usón’s right to freedom of speech and ordered the State, among other things, to annul the military penal proceedings against him and reform the criminal statute that had been applied.
Retired military, Francisco Usón, went on the television program “La Entrevista” (The Interview), as an expert on military matters, to comment on a press article that mentioned the alleged use of a “flamethrower” to punish some soldiers in “Fuerte Mara”. In the television program, Mr. Usón explained how a flamethrower works. When explaining the weapon’s mechanism, he stated that, if it were true that the young men were punished with a flamethrower, the situation would be “very-very serious” because, among other reasons, the use of this type of weapon requires “premeditation.” [par. 37].
As a result of his statements, Mr. Usón was prosecuted for the crime of “Slander against the National Armed Forces [injuria contra la Fuerza Armada Nacional]” in the military criminal justice system. The crime established in the Organic Military Justice Code, that served as basis for the proceedings, reads: “whoever slanders, offends, or disparages the National Armed Forces or any of its units shall be subject to three to eight years in prison.” The final judicial ruling sentenced Usón to five years and six months of prison.
The Inter-American Court of Human rights heard the case and concluded the criminal statute in question did not comply with the principle of strict legality –principio de estricta legalidad-. It further concluded that, in this case, the use of criminal law was not suitable, necessary or proportional. Accordingly, the Court found the Venezuelan State violated Mr. Usón’s right to freedom of speech and ordered the State, among other things, to annul the military penal proceedings against him and reform the criminal statute that had been applied.
The Inter-American Court of Human Rights had to decide whether the criminal sentence against Mr. Usón for injuring the Armed Forces’ right to honor when he issued critical opinions on the activities of this institution in a specific case, violated, among others, the right to freedom of expression.
First, the Court argued that article 1.2 of the American Convention on Human Rights (ACHR) establishes that the rights recognized by this instrument correspond to individuals or natural persons. That is, they refer to human beings and not State institutions like the Armed Forces.
The Court indicated that article 11 of the ACHR protects the rights to honor and to dignity that all people have. These rights constitute limits to the right to freedom of expression, as long as they fulfill the legitimacy requirements established in article 13.2 of the ACHR for these restrictions.
In effect, in reference to the right to freedom of expression (in the terms recognized in article 13 of the ACHR), the Court first indicated that this right is essential to the strength and existence itself of a democratic society. It further indicated this right may be subject to restrictions, especially when it interferes with other human rights protected under the ACHR. Notwithstanding, it clarified that although article 13.2 of the Convention (which also prohibits prior censorship) establishes the possibility of determining subsequent liabilities for the abusive exercise of this right, such subsequent liabilities must be exceptional and strictly necessary.
Therefore, the Court reiterated the rule established in article 13.2 of the ACHR according to which, a limitation on freedom of expression must fulfill the following basic conditions to be legitimate: i) it must be provided for by law; ii) it must be directed at attaining a legitimate purpose and be suitable for such; iii) it must be necessary; iv) it must be proportional.
On the first point, the Court indicated that any limitation to freedom of expression must be established by law in a formal and material sense. In reference to restrictions originating in criminal law, the Court stated “the codification of a crime shall be stated expressly, accurately, taxatively and previously, even more so when criminal law is the most restrictive and severe means to establish liabilities for illicit behavior” [par.55]. Regarding the purpose of the measures, the Court indicated that it is necessary to analyze whether they are aimed at achieving a legitimate end that is consistent with the ACHR and justify restricting freedom of expression.
With respect to the suitability of the measure, the Court reiterated that criminal law may be an appropriate mechanism to legitimately limit abuses in the exercise of any right, “provided this serves the purpose of safeguarding the juridical good to be protected.” pPar. 67]
Referencing the necessity of the measure, the Court indicated it is indispensable to examine the different alternatives that exist for reaching the legitimate purpose and, additionally, to establish whether there are less harmful mechanisms available. In this sense, the Court declared, “Criminal Law is the most restrictive and severe means to establish liabilities for illicit behavior, particularly when sanctions involve deprivation of liberty. Therefore, the use of the criminal way shall respond to the principle of minimum intervention, due to the nature of criminal law as ultima ratio. This means that in a democratic society the punitive power shall only be exercised insofar as it is strictly necessary to protect the fundamental juridical goods from the most serious attacks that damage or jeopardize it. The opposite would lead to the abusive exercise of the punitive power of the State.” [par. 73]
Regarding the last step of the analysis, the Court indicated it is necessary to examine whether the measure is strictly proportional to the legitimate purpose that is being sought. Hence, the measure must be appropriate to obtaining the purpose and must interfere as little as possible with the exercise of freedom of expression. Furthermore, it asserted the proportionality analysis must take into account that the speech of state institutions and the discharge of duties is specially protected by the ACHR, with the purpose of cultivating democratic debate, “because it is supposed that in a democratic society the State institutions or entities as such are exposed to public scrutiny and criticism, and their activities are inserted in the domain of public debate. This threshold is not based on the quality of the subject but on the public interest of the activities carried out. Hence larger tolerance should face the affirmations and considerations made by citizens when exercising their democratic right.” [par. 83]
In the case under review, the Court had to determine: i) whether the crime of slander against the National Armed Forces (injuria contra la Fuerza Armada Nacional), as codified in the Venezuelan Organic Military Justice Code, meets the strict legality standard that is required to limit freedom of expression by means of criminal proceedings; ii) whether the protection of the Armed Forces’ reputation is a legitimate purpose under the ACHR and whether criminal mechanisms are suitable to achieve this purpose; iii) whether the criminal penalty is necessary; iv) whether the criminal penalty is strictly proportional, that is, “whether the sanction imposed […] guaranteed the right to reputation of the Armed Forces in a broad manner, without annulling his right to express his opinion.” [par. 49]
The Court found the criminal sentence for the crime of “Slander against the National Armed Forces (injuria contra la Fuerza Armada Nacional)”, as a measure that restricts freedom of expression, was not strictly formulated and, consequently, violated the principal of strict legality. In the Court’s view, the codification of the crime was ”vague and ambiguous” because it did not strictly define the elements of the criminal conduct and did not take into account the intention to commit the crime or mens rea. Therefore, the measure did not “comply with the legality requirements of Article 9 of the Convention and the provisions of Article 13.2 of the Convention regarding the imposition of further liabilities.” [par. 57]
In reference to the purpose of the measure, the Court found its objective was to protect the honor or reputation of the Armed Forces. In its view, although the purpose was to protect the right of an institution, protecting honor and reputation, in and of itself, is a legitimate objective that justifies restricting freedom of speech.
The Court further found the measure imposed on Usón Ramirez was not suitable or necessary ”because it was “excessively vague and ambiguous.” In this respect, the Court recalled it “has considered on previous occasions that the exercise of the punitive power of the State has been abusive and unnecessary to protect the right to honor, when the criminal statute in question does not establish clearly what behaviors involve serious damage to such right. That is what occurred in the case of Mr. Usón Ramirez.” [par. 75]
The Court held that to determine the strict proportionality of the measure, one should analyze: “i) the degree of impact to one of the goods at stake, determining whether the intensity of such impact was serious, intermediate, or moderate; ii) the importance of the satisfaction of the opposite good, and iii) whether its satisfaction justifies the restriction of the other one.” [par. 80]
The Court considered the impact on freedom of speech was truly very serious because “the consequences of being subjected to trial in a military court […]; the criminal trial itself; the preventive deprivation of freedom imposed on him; the sanction depriving him of liberty for five years and six months to which he was judgmentd [sic]; including him in the criminal record; the loss of revenues during the time he was in prison; the affectation of the exercise of the rights that are restricted due to the sanction imposed; being far away from his family and loved ones; the latent risk of losing his personal liberty, and the stigmatizing effect of the criminal sanction imposed on Mr. Usón Ramírez” [par. 81].
In regard to the importance of the right to honor or reputation, the Court set forth, that although determining whether the Armed Forces hold this right is beyond the scope of its power, it can declare it is a very important right.
Finally, the Court considered the criminal proceedings did not take into account the fact that Mr. Usón’s statements were specially protected speech because they questioned the possible acts of a State institution that was the subject of the program’s analysis. In effect, the Court stated “the remarks made by Mr. Usón Ramírez were related to matters that were clearly of public interest. Despite the existence of public interest regarding the events in Fuerte Mara, to which the Armed Forces depende [sic], Mr. Usón Ramírez was tried and judgment [sic] without taking into account the requirements of the American Convention regarding the larger tolerance required regarding any affirmations and considerations expressed by citizens exercising their democratic right” [par. 84]. Similarly, the Court found the tribunals had considered Mr. Usón’s statements were opinions; hence, the Court reiterated its jurisprudence according to which opinions cannot be considered true or false and, therefore, cannot be penalized. Additionally, Usón’s statements were contingent upon evidence of the underlying facts they referred to—Usón indicated that if the alleged facts were true, the situation “would be very-very serious.” In light of these findings, the Court stated, “[a]n opinion conditioned in such a way cannot be subjected elements which question veracity. Furthermore, the above shows that Mr. Usón Ramírez lacked any specific intention to insult, offend, or disparage since if he had had the intent to do so, he would not have conditioned his opinion in such a way.” [par. 86]
In conclusion, the Court considered the criminal statute that was applied to penalize Usón did not fulfill the strict legality requirement and reached the conclusion that applying criminal law in this case was not suitable, necessary or proportional. In consequence, the Court considered the Venezuelan State violated Mr. Usón’s right to freedom of expression. The Inter-American Court ordered Venezuela, among other things, to annul the military criminal proceedings against him and reform the crime statute under which he was charged.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Inter-American Court reiterates the standards set forth in Kimel v. Argentina, in the sense that it reaffirms the rule according to which speech involving State institutions, the public interest, and public officials in exercise of their duties, enjoy a higher degree of protection. Likewise, it stresses the strict standards that must be met when limiting these specially protected types of speech, particularly, the “three-part” test or proportionality analysis.
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