COSTA RICA: Illegitimate Restrictions on Freedom of Expression Commentary
COSTA RICA: Illegitimate Restrictions on Freedom of Expression
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Ekaterina Sivolobova, student at the Law Faculty of the University of Buenos Aires and legal intern at the Center for Justice and International Law in Buenos Aires, recently interviewed Costa Rican journalist Mauricio Herrera-Ulloa about his experiences appearing before the Inter-American Court of Human Rights…

Freedom of expression is a fundamental right of all people, regardless of their socioeconomic class, ethnicity, nationality, gender, age, or beliefs. This right is of a truly universal nature. The importance of freedom of expression, including the right to information, is an essential characteristic of democracy and a tool to protect other human rights.

Yet the right to freedom of expression is not absolute, and in certain cases, it is restricted. One of these restrictions can be found in Article 13.2 of the American Convention of Human Rights (CADH), which defines the requirements needed to determine the legitimacy of a limitation to the right of individual freedom of expression. To further determine the legitimacy of such limitations, the Inter-American Court (IAC) issued Advisory Opinion OC-5/83, in which the Court held that it is the duty of all states to respect and guarantee that any such limitations of this fundamental right comply with international instruments, are provided by law, are enacted to purse a legitimate goal and are necessary to secure that legitimate goal. Such limitations of the right to freedom of expression are usually accompanied by some form of punishment or sanction, and the IAC also held that any punishment for a violation of such limitation or restriction must be compatible with the preservation and development of democratic states as noted in Article 32 of the CADH.

In Costa Rica, criminal defamation laws are used to penalize libel (defined as a false published statement), and slander (defined as a spoken false statement), in an attempt to reverse the perceived damage done to the victim's reputation, honor and prestige. Penalties for conviction can include registration of the offender in the Judicial Registry of Criminal Offenders, a fine or a prison sentence up to three years. The use of these punitive measures to protect the reputation of others cannot be justified as necessary or adequate.

Mauricio Herrera Ulloa is a Costa Rican journalist, and a former member of the investigative unit of the newspaper La Nacion. He gained national recognition for his role in the reporting of political corruption cases that led to the arrest and charging of two former Costa Rican presidents in 2004. In 1998, Felix Przedborski, Costa Rica's former Honorary Ambassador to the Atomic Energy Commission, brought a criminal complaint against him in a Costa Rican court. Przedborksi based his complaint on seven articles Herrera wrote reporting on concerns posed by four reputable European publications concerning Przedborski's involvement in certain illegal activities. Herrera's articles, "Felix Przedborski: van gangster tot diplomat" and "L étrange monsieur," were published in De Morgen and Le Soir Illistre, respectively, and were based on investigations by the Belgian Financieel-Ekonomische Tijd (FET) and by La Libre Belgique. The original reporting concerned Przedborksi's alleged involvement with Leon Deferm, who was closely linked to the alleged payment of secret commissions for the sale of Italian military helicopters to Belgium.

In November 1999 a Costa Rican criminal court convicted Herrera of defamation. Herrera was sentenced to pay a fine equivalent to 120 days of his wages, his sentence was published in the newspaper La Nacion, and his name was added into the Judicial Registry of Criminal Offenders. This inclusion in the Registry prevents that person from, among other things, obtaining a driver's license, receiving a pension, adopting a minor child, and restricts the individual's ability to work both in Costa Rica and overseas. This disproportional sentence threatened not only Herrera's credibility, reputation and career as a respectable journalist, but also the freedom of all Costa Ricans to speak openly about politicians and government officials who hold positions of public trust.

Herrera appealed the Costa Rican court's ruling and sentence to the Inter-American Court and Commission of Human Rights. On July 2, 2004, the Court concluded that Costa Rica had violated the CADH Article 13, concerning the freedom of thought and expression, by imposing unnecessary and disproportional sanctions in an attempt to protect individual dignity and reputation. The Court voided Herrera's sentence and ordered the removal of his name from the Registry of Criminal Offenders. The Court also ordered Costa Rica to reform its national legal system according to the standards established by CADH Article 8.2.h, and to pay Herrera US$20,000 in reparations. Costa Rica has so far complied with all of the Court's orders, except for the overhaul of its national court system.

This past August, I had the opportunity to interview Herrera. During the interview, at an outdoor Argentinean cafe by the Rio de la Plata River, he said that the most difficult part of the 1999 Costa Rican trial was not the fact that his right to freedom of expression was being suppressed. More importantly, his actions were investigated and penalized under criminal laws discouraging people from voicing their opinions and limiting the ability of the free press to inform Costa Ricans on matters of public importance. Herrera added that he believed that his case before the Inter-American Court was an important step in the promotion of the freedom of expression among Costa Ricans. He also shared his frustrations during the trial, insights on his experience as a victim before the Inter-American Court, and his hopes for the abolition of criminal defamation laws in the Americas.

Herrera argued that the Costa Rican law under which he was convicted breaches the right to freedom of expression. According to Herrera, since such laws have no place in a democratic state, they violate the requirements of necessity, which is the need to satisfy a "public interest." He also explained how the law violates the requirements of proportionality because the law limits the right to freedom of expression "more than strictly necessary" and indirectly restricts the right to freedom of expression. The use of criminal defamation laws to punish journalists, especially when they are engaged in sharing information on the actions of government officials, undermines their right to freedom of expression and the public's right to know. It is fundamental that a democratic state allow its people to live in a society where information flows freely, a situation contingent upon open debate about public interest matters. Without this freedom, democracy would deteriorate and become a mere formality.

The Inter-American Court stated, in Herrera's case, that criminal sanc
tions must be proportional to the law's objective, and should not limit the particular right involved in the law any more than necessary. According to Herrera, the application of criminal sanctions in a democratic state constitutes the harshest and worst possible option to investigate, adjudicate and punish conduct of any kind. There are other less intrusive and more proportional means of protection for the reputation of others.

Herrera also addressed the public policy concerns inherent in the fight against criminal defamation laws. Such laws, he reflected, deter journalists and citizens from contributing to public discussion of issues affecting the life of society and the community. By their very nature, these laws create a dissuasive, frightening and inhibiting environment in which the right to freedom of thought, opinion and expression are restricted by the state. Journalists especially need this right to carry out their professional journalistic duties -the fundamental and irreplaceable tool needed to inform society and contribute to the "development of every man."

At the end of our discussion, I asked Herrera, "After what you have been through, and knowing what you know now, would you do it again?" Without hesitation, he replied "Yes, it is a matter of your ethical and professional duty, it is part of your work to inform the public, it is part of my obligations." He added, "Besides this experience has made me a better journalist."

Although the Inter-American Court's ruling in Herrera Ulloa vs. Costa Rica has been a small stepping stone towards the further protection of the rights of freedom of thought, opinion and expression in the Americas, there still remains a long way to go. Many countries throughout the world still have criminal defamation laws, and the abuse of those laws is prevalent. In the Americas alone, Bolivia, Brazil, Colombia, Cuba, Ecuador, Haiti, Uruguay and Venezuela are among the countries that still enforce criminal defamation laws. In a positive step towards the protection of the freedoms of thought, opinion, and expression last September, Argentinean President Cristina Kirchner presented Congress with a bill that would decriminalize libel and slander.

Criminalization of libel and slander to control the right to freedom of expression requires the state to closely watch over and restrain society. These laws do not represent a true characteristic of democratic states and should be abolished. In their place, balanced civil defamation laws should be enacted to ensure that citizens are free to express themselves and have their voices heard. There is no legitimate justification for a society to live in fear and not be sufficiently informed, since a society that is not well informed is not a society that is truly free.

Mentioned in the article:

Portion of Costa Rican judgment convicting Herrera-Ulloa of libel and slander [in Spanish]

Inter-American Court of Human Rights, Case of Herrera-Ulloa v. Costa Rica, Judgment of July 2, 2004

Inter-American Court of Human Rights, Case of Herrera-Ulloa v. Costa Rica, Monitoring Compliance with Judgment, July 9, 2009 [in Spanish]

Argentine Presidential press release concerning President Kirchner's presentation of bill to Congress to decriminalize libel and slander [in Spanish]

Photo Credits: Ekaterina Sivolobova

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