Freedom of Expression
Press Release 85/03
THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION REGRETS THE DECISION OF THE SUPREME COURT OF THE BOLIVARIAN REPUBLIC OF VENEZUELA UPHOLDING DESACATO LAWS
The OAS Special Rapporteur for Freedom of Expression, Eduardo Bertoni, expressed regrets over the decision handed down by the Constitutional Chamber of the Supreme Court of Justice of the Bolivarian Republic of Venezuela on matters related to the exercise of freedom of expression in that country. The judgment was signed on July 15, and took effect upon publication. It appears from a preliminary analysis of the judgment that the Court upheld the laws known as desacato [crime of insulting, injuring, or threatening a public official] in Venezuelan legislation. These laws could hamper the exercise of freedom of expression, as the Special Rapporteur for Freedom of Expression has repeatedly pointed out.
The Inter-American Commission on Human Rights (IACHR) analyzed the compatibility of desacato laws with the American Convention on Human Rights in a report written in 1995 (see OAS/Ser. L/V/II.88, doc. 9 rev., February 17,1995). In summary, the following arguments were made: a) Desacato laws provide greater protection to government officials than to private citizens, in direct violation of the fundamental principle of a democratic system, which subjects the government to controls, such as public scrutiny, to prevent and control abuses of its coercive powers; and b) desacato laws act as a deterrent to criticism, because of people’s fear of law suits or monetary sanctions. Moreover, these laws, which include the right to truth, unduly restrict free expression, because they do not consider the fact that much criticism is based on opinion, and therefore cannot be proven. Desacato laws cannot be justified by saying that their purpose is to defend the “public order” (a purpose permitted to regulate expression under Article 13), since that is counter to the principle that an effectively functioning democracy is the best guarantee of public order.
The Rapporteur would note that desacato laws grant a privilege to public officials, and that they are the legacy of a socio-political situation completely different from the present one. According to most jurisprudence, these crimes first arose under Roman Law, which termed them “ crimen lesae maiestatis” or crimes of lese majesty [against the sovereign]. Under the ancient regime, prior to the French Revolution, crimes of lese majesty were regarded as crimes against the Emperor, and not against the State. This transformation occurred as a result of the strong identification of the State with the Emperor. Hence, attacks against public officials representing the Emperor were considered attacks against the State itself. These ideas are the foundation of the legal precepts that have survived in our times, and are known as desacato. It is altogether clear, however, that they are completely anachronistic and incompatible with a democratic society.
In this day and age, with the IACHR recommendation regarding the incompatibility between desacato laws and the Convention, referred to earlier, and on that basis, various international and nongovernmental organizations throughout the world have joined voices to speak out on the need to abolish desacato laws, which limit freedom of expression by punishing expressions that might be offensive to public officials. Among those who have spoken in favor of repealing these laws are the following: the United Nations Special Rapporteur on Freedom of Opinion and Expression; the World Bank; and, many nongovernmental organizations, such as the Inter-American Press Society; the Alliance of Independent Journalists, Indonesia; ARTICLE 19; Association de Journalistes of Burkina; Canadian Journalists for Free Expression, Canada; the Center for Human Rights and Democratic Studies, Nepal; the Center for Media Freedom and Responsibility, Philippines; Centro Nacional de Comunicación Social, Mexico; Committee to Protect Journalists, USA; Ethiopian Free Press Journalists' Association, Ethiopia; Féderation professionnelle des journalistes du Québec, Canada; Free Media Movement, Sri Lanka; Freedom House, USA; Freedom of Expression Institute, South Africa; Independent Journalism Center, Moldavia; Independent Journalism Centre, Nigeria; Index on Censorship, United Kingdom; Instituto Prensa y Sociedad, Peru; International Federation of Journalists, Belgium; International Federation of Library Associations and Institutions (IFLA) – Free Access to Information and Freedom of Expression (FAIFE), International Press Institute, Austria; Journalistes en danger, Congo; Media Institute of Southern Africa, Namibia; Pacific Islands News Association, Fiji; PERIODISTAS, Asociación para la Defensa del Periodismo Independiente, Argentina; Press Union of Liberia; Thai Journalists Association, Thailand; Timor Lorosa'e Journalists Association; West African Journalists Association, Senegal; World Press Freedom Committee, USA.
In October 2000, the IACHR adopted the Declaration of Principles on Freedom of Expression, developed by the Office of the Special Rapporteur for Freedom of Expression. The Declaration constitutes a recommendation on how to interpret Article 13 of the Convention. Principle 11 refers to desacato laws, and states 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.”
The Special Rapporteur for Freedom of Expression will continue to analyze the judgment of the Constitutional Chamber of the Supreme Court of Justice of the BolivarianRepublic of Venezuela . Notwithstanding that, Bertoni noted: “I regret that in Venezuela , the highest court has upheld desacato laws, when various countries in the region have now repealed them or are in the process of doing so.”
Office of the Special Rapporteur for Freedom
of Expression
July 16, 2003 .
Washington
DC .