Freedom of Expression

4 - Chapter III - Legislation and Freedom of Expression (continued)



Penal Code[1]


Article 189. Anyone committing an offense against a public servant or agent of authority in the act of lawfully carrying out his duties or by reason of them shall be subject to one to six years’ imprisonment in addition to that which corresponds to the crime committed.


1.                  Although this section does not refer specifically to crimes of disrespect, or desacato, against public officials, but rather to any crime when it is committed against a public official, the effect is to make the penalties greater for criminal defamation, libel and slander when these are committed against public officials. Articles 350 through 363 of the Penal Code deal with libel, defamation and slander. The defense of truth is available in cases of defamation in which the allegedly defamed party is a public official or person acting in a “public character,” if the imputation was related to the exercise of his or her functions.[2]


Article 361. Slander, defamation and libel of Congress, either of the legislative chambers, the courts or any other official corporate body or institution shall be punishable under terms of the provisions set out herein, without prejudice to those in Article 190 of this Code.


Press Law of 1917


Article 3. It shall constitute an attack against public order o peace:


 . . . 


II.          Any manifestation or expression made publicly by any of the means listed in the previous section, with which . . .  one insults the authorities of the country for the purposes of causing hatred, scorn or ridicule of them; or for the same purpose, attacks professional public bodies, the Army or the National Guard, or the members of those groups by reason of their functions; insults friendly nations, their sovereigns, their leaders or their legitimate representatives in the country . . . [.]


2.                  Article 33, Sections IV through VIII establish the penalties for violations of Article 3.  Depending on the position of the person insulted, penalties range from a maximum of one year-and-a-half in prison for insults to the president to a maximum of three months and a fine for insults minor public officials.


Article 34. Whenever the slander of an individual or a public official is perpetrated in a covert or unclear manner and the defendant refuses to give a satisfactory explanation in the view of the judge, he shall be subject to the penalty corresponding to the offense having not been committed in such circumstances. If a satisfactory explanation is given, there shall be no penalty whatsoever.




Penal Code


Article 347.  The following persons shall be in contempt of authority:


1.         Those who . . . libel, slander or insult by word or deed, threaten a public official in the course of his duties or as a result of them, in his presence or in a notification or message they send him.[3]


3.                  Article 348 states that violations of Article 347 carry a penalty of six-months’ to four-years’ imprisonment.




4.                  The legality of desacato laws and other forms of enhanced protection for public officials is established in Panama’s Political Constitution.  Article 33 provides:


The following can impose punishment without a prior trial, in the cases and within the precise terms of the law:


1.         Public servants who exercise command and jurisdiction, who may impose fines on or arrest whoever offends or disrespects them in the carrying out of their duties or in attempting to carry out these duties. . . .[4]


The Penal Code contains the following provisions relating to desacato:[5]


Article 307. Persons who publicly offend or insult the President of the Republic or the person replacing him in his functions shall be punished by imprisonment of 6 months to 10 months and a 20 to 50 days’ fine.


Article 308. Persons who publicly denigrate a government body shall be punished with a prison term of 6 months to one year, and a 50 to 100 days’ fine.


5.                  In addition to the Penal Code, desacato provisions appear in several other codes.  Article 202 of the Judicial Code allows magistrates and judges to arrest someone who offends or disrespects them for up to five days.  Article 386 of the Judicial Code provides that agents of the Public Ministry can arrest those who disobey or disrespect them.   This section also allows the Attorney General and the Solicitor General to fine individuals up to 50 balboas or put them in jail for up to eight days for disobedience or disrespect.


6.                  Article 45 of the Administrative Code allows mayors to arrest those who disobey or disrespect them.  Article 827 of the same code permits the President of the Republic, the Provincial Governors or the District Mayors to punish those who disobey or disrespect them with detention for five days to two months.  Finally, Article 922 establishes that anyone who injures or mocks a government Minister, although the act may not constitute a crime, shall be punished with six to eighteen days in jail.


7.                  At the outset of the administration of President Mireya Moscoso, there were great hopes that these laws would be reformed; however, a year and a half later, these hopes have not materialized.  On December 20, 1999, Laws 11 and 68, known as the “gag laws,” were repealed by Law 55.  At the same time, the government announced prompt reform of laws which restrict press freedom.  Law 55 included a requirement that the government submit a comprehensive press-law reform bill by June 2000.  Bill 56 was submitted to the Commission on Human Rights of the Legislative Assembly in June of 2000, by the Human Rights Ombudsman.  The bill would have repealed Articles 307 and 308 of the Penal Code, Articles 202(2) and 386 of the Judicial Code and Articles 45(12) and 827 of the Administrative Code.  The bill was presented to the full legislature and the Commission on Government, Justice and Constitutional Issues accepted it for the first of three debates, as required under Panamanian law.  After a debate of less than 24 hours, however, the bill was rejected by this Commission by an overwhelming majority.  The Special Rapporteur is concerned to hear of this failed effort to repeal these laws, commends the Human Rights Ombudsman for his commitment to their repeal in the face of such adversity and urges continued efforts to reintroduce bills similar to Bill 56.




Penal Code


Article 374. Anyone who threatens, insults or in any way offends the dignity and decorum of a public official as a result of the exercise of his functions or when he is performing them, shall be subject to incarceration of no more than three (3) years.


If the offended party is the President of one of the Branches of Government, the penalty shall be no less than two and no more than four years.[6]


8.                  With reference to the crime of defamation, set forth in Article 132 of the Penal Code, the Penal Code allows for a defense of truth when the defamed individual is a public official.[7]


Dominican Republic


9.                  The Law on Expression and Propagation of Ideas regulates contempt and other offenses that are committed through the use of the media. If the offense is not perpetrated through the media, the Penal Code governs. 


Law on Expression and Propagation of Ideas


Article 26. An offense directed at the President of the Republic by any of the media listed in Article 23 shall be punishable by a prison term of three months to one year, plus a fine of RD$100 to RD$1,000, or with only one of the two sanctions.


The sanctions established in this same article apply to offenses directed at the person who exercises all or part of the prerogatives of the President of the Republic.


10.              Article 30 provides that defamation of the courts, armed forces, national police, legislative chambers, city halls and other institutions are punishable with prison terms of one month to one year, plus fines of RD$50 to RD$500.  Article 34 punishes defamation against cabinet members, members of the legislative chambers, public officials, law enforcement agents, private individuals charged with public duties or witnesses, who testify with six days to three months in prison and a fine of RD$6.00 to RD$60.  The defense of truth is available when the aggrieved person is in the public sector.[8]


Penal Code


Article 368. Public defamation or libel against the Head of State shall be punished by a sentence ranging from three months to one year in prison, and a fine of ten to one hundred pesos and accessory or additional punishment during a period of time equal to the sentence, complete suspension of the civil and political rights set forth in Article 42.


Article 369. Acts of defamation or libel against deputies or representatives to Congress, State Secretaries, magistrates of the Supreme Court or trial courts, or heads or sovereigns of friendly countries shall be punished by imprisonment of one to six months and a fine of fifty pesos.








Penal Code


Article 138. (Attacks against life, physical integrity, freedom or honor of foreign Heads of State or Diplomatic Representatives)

One who, within the territory of the State, by direct acts, attacks the life, personal integrity, freedom or honor of a foreign head of state or a diplomatic representative will be punished with four to 10 years imprisonment in case of an attempt on life and two to nine years imprisonment for other offenses.


If death results from the event, the punishment will be 15 to 30 years imprisonment.


Article 173. (Desacato)


Insult, impairing the authority of officials, is committed in any of the following ways: 1. By means of real written or verbal offenses carried out in the presence of the official or in the place where the latter carries out his duties, or outside his location and presence, but in these two latter cases with regard to or by reason of his duties. 2. By means of open disobedience to the orders of the official. Regarded as real offenses are armed entry into the place where the officials carry out their duties, violent behavior, and offensive words and gestures, even when not directed against them. The offense is punishable by three to 18 months’ imprisonment.


Article 174. (Aggravating circumstances)

The aggravating factors listed in paragraphs 2, 4 and 5 of Article 172 of this code are applicable to this crime.


Article 175. (Definition of Public Official)


For purposes of this Code, officials consist of all who exercise a duty or perform a function, paid or unpaid, permanent or temporary, of a legislative, administrative or judicial character, in the State, in a municipality or in any public entity.


11.              Article 366 allows for a defense of truth or the notoriety of the alleged facts when the offended person is a public official and the facts or characteristics attributed to him refer to the carrying out of his duties and which are such that they could give rise to legal or disciplinary proceedings against him. 




Penal Code


Article 223. Whoever offends in any way, by word or deed, the honor, reputation or decorum of a member of Congress or other public official shall be punished as follows, provided the offense took place in the presence of the offended and was motivated by his position:


1.         For an offense against a law enforcement officer, one to three months in prison;


2.         For an offense against a member of Congress or a public official, one month to one year in prison, determined by the rank of the offended party.


Article 225. If an offense is committed against a public official not because of his functions but while he is performing them, the same penalties, reduced by one-third to one-half, apply.


Article 226. Whoever offends in any way, by word or deed, the honor, reputation, decorum or dignity of any judicial body, political or administrative, shall be liable to punishment. If the offense is committed while the body is in session or against a magistrate during hearings, the sentence will be three months to two years in prison.…


Article 227. In the cases stipulated in the preceding articles, the offending party may not present any proof as to the truth or the notoriety of the acts or errors with which the party is charged.


Article 228. The provisions established in the preceding articles shall not apply if the public official has given cause for the act by arbitrarily exceeding the confines of his powers.


Article 229. In all other cases not covered by a special provision of the law, persons who commit any crime against a member of Congress or any public official by reason of his functions shall be liable for the punishment established for the crime committed, plus an enhancement of one-sixth to one-third.


Code of Military Justice[9]


Article 502. One who threatens or offends with words or gestures a sentinel, shall be punished with detention of six months to one year.  If the act occurs during a military campaign, the penalty shall be one to two years in prison.


Article 505. One who in any form insults, offends or shows contempt for the National Armed Forces or one of its units shall incur a penalty of three to eight years in prison.


b.         Violations of the Right to Freedom of Expression through the Use of Desacato and Criminal Defamation Laws


12.              Throughout the region in 2000, desacato and criminal defamation laws were used to protect public officials and deter speech critical of governments.  While each violation of the right to freedom of expression is problematic in and of itself, the more serious problem is the effect that these incidents may have on public discourse.  Each incident sends the message that those who exercise their right to criticize the government will be punished, causing many potential critics to remain silent.  The following pages make note of a number of prominent examples from the region.


13.              In Chile, journalist José Ale Arevena, of the daily La Tercera, was convicted in February 2000 of “insulting” the former president of the Supreme Court of Chile, Servando Jordán.  The charges stemmed from a 1998 article in which Ale commented on the reasons that Jordán had left his former position.  Ale was convicted under Article 6(b) of the State Security Law and received a suspended sentence of 541 days in prison, which requires him to report to the authorities regularly.  Charges were also brought against Fernando Paulsen, the director of La Tercera, but he was later acquitted by the Supreme Court. 


14.              Another ongoing case is that of Alejandra Matus, who left Chile in April 1999 in order to avoid being arrested for the publication of her book, The Black Book of Chilean Justice.  Matus continues to live in exile in the United States, where she has been granted political asylum.  The book criticized the Chilean judiciary for its lack of independence and for the corruption of judges during the regime of General Augusto Pinochet.  Charges were filed against Matus under Article 6(b) of the State Security Law by Supreme Court Judge Servando Jordán because of accusations directed at him.  On December 19, 2000, a ruling by Santiago Appeals Court Judge Jaime Rodríguez “temporarily halted legal proceedings . . ., thus upholding an order for Matus’ arrest issued in November, which implies that with no further recourse to appeal she may not return to her homeland until a statute of limitations expires in 13 years’ time.”[10]


15.              On January 24, 2001, the Third Chamber of the Costa Rican Supreme Court upheld a lower court ruling against journalist Mauricio Herrera Ulloa and the daily La Nación for defamation.  The charges were filed by the former Costa Rican Honorary Ambassador to the International Atomic Energy Organization, whom Herrera had linked to financial scandals in articles he wrote for La Nación.  These allegations had been previously printed in a number of well-known and respected European publications, but the court held against Herrera because the reports were not adequately verified. The Inter-American Press Association denounced this ruling, calling it “a form of insult or contempt law seeking to protect public servants in an unprecedented fashion through punishment. . . . Rather than reparation, the sentence seeks to set a deterrent penalty aimed at intimidating and promoting self-censorship.”[11]


16.              In Cuba, Angel Moya Acosta, a member of the Movimiento Opción Alternativa,  and Julia Cecilia Delgado, director of the Gertrudis Gomez de Arellaneda Library and president of the Asociación por la Reconciliación Nacional y el Rescate de los Valores Humanos, were tried for “disrespect” and both were sentenced to a year in prison.  Angel Moya Acosta was also banned from travelling to Havana, where his wife and children live, for ten years.  They were arrested in connection with the mass detentions of dissidents that took place leading up to December 10, 2000, Human Rights Day, in order to prevent them from organizing peaceful protests. 


17.              In July 2000, Nestor Rodríguez Lobaina, president of the Movimiento de Jóvenes Cubanos por la Democracia (Cuban Youth Movement for Democracy), was convicted of descato, public disorder and damages and sentenced to 6 years and 2 months in prison.  Eddy Alfredo Mena y González, a member of the same movement, was convicted on the same counts for 5 years and 1 month. 


18.              In addition to the convictions of the past year, two journalists remained in prison throughout 2000, serving prison sentences for descato.  Journalist Manuel Antonio González Castellanos, a correspondent for the independent news agency Cuba Press, is currently serving two years and seven months in  prison for showing “disrespect” to President Fidel Castro.  He was arrested on October 1, 1998 for criticizing Castro to State Security Agents who had stopped him and insulted him on the street.  Bernardo Arévalo Padrón, founder of the independent news agency Línea Sur Press, is currently serving a six-year prison sentence for “disrespect” to Fidel Castro and Carlos Lage, a Cuban State Council member.  He was convicted on October 31, 1997, after publishing an article on the privileges granted to Cuba’s political leaders.


19.              On September 19, Jesús Antonio Pinedo Cornejo, editor of the magazine Seminario in Ciudad Juárez, Mexico, was arrested on charges of defamation.  A complaint was filed by then-Commissioner of Public Security, Javier Benavides González, against Pinedo and journalist Luis Villagrana.  The complaint arose out of an article written by Villagrana and published in Seminario that alleged that Benavides and other local police chiefs had helped to protect drug traffickers.  Pinedo stayed in prison for one night and was released on a 15,000 peso (US$1.590) bond.  Villagrana appeared voluntarily before the court and was also ordered to pay a 15,000 peso bond.  Benavides withdrew the petition on October 2.  Had the case gone forward, the two journalists would have faced possible sentences of two years in prison.


20.              In November 2000, the Special Rapporteur received word that Juan Manuel Handal, director of La Carta de Panama had been sentenced to 18 months in prison for “libel and slander.”  The complaint was brought against him by the mayor of Panama, because of an opinion article Handal had written about him during his campaign.  The sentence was later replaced with a fine of 400 balboas.


21.              On August 8, Gustavo Gorriti, the associate director of La Prensa, and three journalists from the newspaper, Miren Gutiérrez, Mónica Palm and Rolando Rodríguez received a summons to testify in the case against them for “libel and slander.”  The complaint was brought against them by Attorney General José Antonio Sossa, because of articles they had published in La Prensa in which they alleged that Sossa had protected a US businessman who was suspected of drug trafficking.  The complaint is brought under Article 175 of the Penal Code, which provides, “Any person who publishes or reproduces information harmful to an individual’s reputation in any media may be sentenced to 18 to 24 months in prison.”  The trial was set for November 2000.


22.              Jean Marcel Chéry, a journalist with the newspaper El Panamá América, was sentenced to 18 months in prison on July 14, 2000 for the crime of “libel and slander”.  The charges stemmed from an article he published in 1996 in El Siglo.  The sentence is currently being appealed to the Second Superior Court of Justice.  


23.              On June 22, 2000, Carlos Singares, director of the daily newspaper El Siglo,  was sentenced to eight days in prison for desacato by Attorney General José Antonio Sossa, under Article 386 of the Judicial Code. Singares had published an article containing sexual allegations against Sossa.  Article 386 gives the Attorney General summary power to jail anyone who offends him for up to eight days, without allowing an opportunity for defense.  Singares appealed this conviction by writ of habeas corpus to the Supreme Court, which found that Article 386 was constitutional, according to Article 33 of the Constitution.  Singares was imprisoned from July 28 through August 4.  Additionally, on August 2, the Second Superior Tribunal of Justice upheld a 20-month sentence against Singares in a case against him for allegedly defaming former president Pérez Balladares. The sentence was commuted to a fine of US $ 1,875 and is currently on appeal before the Supreme Court. 


24.              In addition to these cases, according to one report published by the non-governmental organization Reporters Without Borders, there are currently as many as 40 journalists who are being prosecuted in Panama for “insults” or “defamation.”[12]


25.              In December 2000, James Beuzeville Zumaeta, the director of the radio program La Razón in Peru, was sentenced to a one-year suspended prison term and civil damages in the amount of 8,000 new soles (approximately  US $2,300) for insult and aggravated defamation against José Tomás Gonzales Reátegui, former president of the Consejo Transitorio de Adminstración Regional (CTAR) (Provisional Council of Regional Administration) of Loreto and former minister of the Presidency.  Beuzeville had made allegations on his program of irregularities and acts of corruption committed by Gonzales during his leadership of CTAR. 


26.              On October 31, 2000, Adrián Aguilar Reyes, director of the radio program Huandoy Noticias, received a one-year conditional prison sentence and was ordered to pay monetary damages of 1500 soles (about US $430).  Aguilar was convicted of defamation of Mayor Pedro Crisólogo Castillo Flores as a result of a report in which he told of some serious irregularities during an election on April 9.  After these statements, the signal was suddenly cut, and Aguilar accused Mayor Castillo of having done this in order to prevent more information about election irregularities from reaching the public. 


27.              On August 9, 2000, a defamation complaint was filed against Alfredo del Carpio Linares, director of a radio program entitled Veredicto: La Voz del Pueblo (Verdict: The Voice of the People).  The provincial mayor of Camaná, Enrique Guttiérez Sousa, brought the complaint based on an interview of Oficialista Party Congressman Rubén Terán Adriazola, in which del Carpio asked about some irregularities in the public expenditures of the municipality of Camaná.  At last report, the mayor was seeking a sentence of three years in prison and the maximum fine allowable by law, approximately US $28,000.  In August 2000, proceedings were launched against the newspaper Liberación for the alleged aggravated defamation of Juan Miguel Ramos Lorenzo, a member of the Superior Court of Lima. 


28.              In Venezuela, attorney and university professor Pablo Aure was detained by the military authorities on January 8, 2001, because of the publication of an article in which he made fun of the supposedly submissive attitude of the military towards president Hugo Chávez.  He was released on January 10, but he continues to face charges under the military’s jurisdiction for violating Article 505 of the Code of Military Justice. 




29.              As the cases above indicate, desacato laws and criminal defamation laws are used throughout the region in order to punish journalists and others for reporting on information that the public has a legitimate right to know in a democratic society.


30.              Regardless of the frequency with which these are invoked or enforced, their existence produces a chilling effect on speech that is critical of the government.  For this reason, the Special Rapporteur urges the immediate repeal of all the desacato laws cited in this report. For the same reason, states should take steps to eliminate criminal defamation, libel and slander laws, particularly in cases in which the offended party is a public official, and to incorporate the doctrine of actual malice into their laws regarding offenses against honor and reputation.

[1] In a letter to the Office of the Special Rapporteur dated January 12, 2000, the Government of Mexico stated that “there do not exist any so-called desacato laws in Mexico.”  It stated that Mexico’s Constitution strongly protects freedom in numerous articles.  Article 6 establishes that “the manifestation of ideas cannot be the object of a judicial or administrative inquiry, except in the cases of an attack against morals, the rights of a third party, a provocation to commit a crime, or the public order.”  Article 7 establishes that “the right to write and publish on any topic is inviolable.”  Again, according to this article, the only possible limitations on this right are those that ensure respect for privacy and protection of morals or public order.  Article 70 “provides mechanisms to protect free expression from the ideological currents of the Chamber of Deputies.”  Article 109 states that “there can be no political trial (juicio politico) for the mere expression of ideas.”  The government also noted some examples from the jurisprudence of the Supreme Court that strongly support the right to freedom of expression.  In one statement, the Court asserted that “[a]mong the rights of man is the power to judge public officials[.]”  (Pleno, Quinta Época Seminario Judicial de la Federación, Tomo X, página 452, Martinez H. Alberto.-21 de febrero de 1922.-Seis votos).  The Court later stated that public officials “carrying out a function in the interest of society, are subject to the criticism of the governed, who have the right in accordance with Articles 6 and 7 of the constitution that the free expression of their ideas will not be the subject of any judicial or administrative inquiry, except in the limited cases which constitute attacks against morals, the right of a third person or disturb the public order[.]”  (Primera Sala, Quinta Época, Semanario Judicial de la Federación, Tomo XLV, página 3810, Arriola Valadez Agustín.-28 de agosto de 1935.-Cuatro votos).  The government asserts that the provisions of Article 189 of the Penal Code and Article 3 of the Ley sobre Delito de Imprenta (Law on Press Crimes) are secondary legislation that must be interpreted within the context of the constitution.  These provisions, the government asserts, are subject to the principles of the Constitution and the interpretation given to them by the judiciary, which applies jurisprudential tests described above that “in the spirit of the Magna Carta” assure the governed the full exercise of individual rights in the area of freedom of expression.

[2] Article 351 (I) of the Penal Code of Mexico.

[3] It should be noted that Article 176 of the Penal Code states: “Criticism of issues of a political nature, of acts of the Government, of its institutions or organs, or of the philosophy of laws or the actions of public officials does not constitute injury (injuria).” 

[4]According to the Human Rights Ombudsman of Panama (Defensor del Pueblo de la República de Panamá), this section of the Constitution would have no effect if the desacato laws were to be repealed because the language of the section with regard to “the precise terms of the law” implies the need for supporting legislation.  However, the section is still cause for concern as it provides a legal basis for desacato laws.  

[5] In criminal provisions for ordinary libel, slander and defamation, the truth is accepted as absolute defense in cases of libel, however, for slander, proof of truth is only accepted in cases involving public officials and public or private corporations (Article 176).  Article 178 provides that “no crime against good reputation is committed through discussion, criticism and opinion about actions or omissions by civil servants.”

[6]   But see Penal Code, Article 133, which states that slander or defamation is not committed in the case of commentaries or information that contain unfavorable opinions about a public official in the performance of his obligations.

[7] See Penal Code, Article 134.

[8] Article 37 of the Law of Expression and Propagation of Ideas.

[9]Civilians who violate this law are subject to prosecution in a military tribunal.

[10]Inter-American Press Association, “IAPA Reiterates Call for Repeal of Insult Laws, Court Upholds Journalist’s Conviction on Contempt Charges,” December 27, 2000.              

[11]Inter-American Press Association, “IAPA Condemns Ruling Against Journalist and Daily “La Nación,” January 29, 2001.

[12]Reporters Sans Frontières (Reporters without Borders) (RSF).