Freedom of Expression

Press Release R 5/14


R 5/14





Washington D.C., January 24, 2014 − The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) expresses its concern over a decision of the National Court of Justice of Ecuador that upheld a judgment that convicted José Cléver Jiménez, Carlos Eduardo Figueroa and Fernando Alcibíades Villavicencio for criminal judicial defamation against President Rafael Correa.


The decision of April 16th, 2013, confirmed on January 14, 2014, sentenced Congressman Cléver Jiménez and advisor and journalist Fernando Alcibíades Villavicencio to a year and a half of imprisonment, that according to the ruling "should be served in the Pichincha Social Rehabilitation Center [Centro de Rehabilitación Social de Pichincha]." Union leader Carlos Eduardo Figueroa was sentenced to six months of imprisonment. Additionally, they were sentenced to pay a financial compensation equivalent to the monthly salary of Citizen Rafael Vicente Correa Delgado, for each month since the date when the complaint was filed (August 4, 2011), and the notification of the judgment. The ruling provided that the defendants must offer a public apology to Rafael Correa by print media, television and radio and publish an excerpt of the judgment in four media outlets, in addition to the payment of the President attorney’s fees.


The case stems from a complaint filed in 2011 by Jiménez, Villavicencio and Figueroa before the public prosecutor claiming that on September 30, 2010, President Rafael Correa had allegedly committed crimes against humanity according to articles 7 and 8 of the Rome Statute, as well as other offenses under the Ecuadorian Criminal Code, such as inciting political chaos and civil discord. The National Court of Justice ordered the closing of the case classifying the complaint as "malicious and reckless". Following these events the President filed a complaint against the applicants for criminal judicial defamation provided in article 494 of the Criminal Code, which establishes imprisonment of up to three years for "those who propose a judicial indictment or file a complaint that is not proven during the trial." The National Court of Justice handed down the condemnatory sentence on April 16, 2013, and on July 24, 2013, rejected the applications for annulment and appeal filed by the defendants. The Court upheld the first instance ruling, whereupon, the applicants filed a cassation appeal. On January 14, 2014 the National Court of Justice of Ecuador rejected the appeal and upheld the decision.


The Inter-American Commission on Human Rights, based on the American Convention on Human Rights, established more than a decade ago that the use of criminal law to sanction expressions about public officials is disproportionate and infringes the right to freedom of expression. Particularly, the Commission has held that the use of criminal law to protect the honor of public servants from complaints submitted to the relevant authorities regarding the exercise of their functions is disproportionate. According to the Commission, the imposition of criminal sanctions for expressions used in complaints to the authorities can lead to prevent or inhibit social oversight over public servants.


Principle 11 of the IACHR’s Declaration of Principles on Freedom of Expression maintains that "Public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,’ restrict freedom of expression and the right to information." Also, Principle 10 of this Declaration establishes that "the protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest."


The Inter-American Court has also established, with regard to potential civil sanctions, that civil judgments in cases concerning freedom of expression must be strictly proportional so as not to have a chilling effect on said freedom, since "the fear of a civil penalty, [in light of a] claim […] for […] very steep civil [damages], 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 [compromise] 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."


As held by the Inter-American Court, the fundamental human right to freedom of expression, enshrined in international human rights treaties, not only protects the information and opinions that are complacent or harmless but especially those that can disturb or even offend public officials or a segment of society; such are the demands of pluralism, tolerance and the spirit of openness, which are essential in a democratic society.


The Office of the Special Rapporteur for Freedom of Expression was created by the Inter-American Commission on Human Rights (IACHR) to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system.