Criminalization of Offending Speech Violates Freedom of Expression
July 14, 2011
The conviction of Álvarez Paz is a major blow to free speech. It shows how the laws put in place by Chávez and his supporters to regulate public debate can be used to punish his critics.
José Miguel Vivanco, Americas director at Human Rights Watch

(Washington, DC) - The conviction of Oswaldo Álvarez Paz for disseminating "false information" - on the basis of his criticism of the Chávez government - is a move against free speech in Venezuela, Human Rights Watch said today. Venezuela should revoke its law that criminalizes disseminating "false information," Human Rights Watch said.

On July 13, 2011, Álvarez Paz, a former governor of the state of Zulia and member of an opposition political party, was sentenced to two years in prison for criticizing the Chávez administration on TV. The judge allowed Álvarez Paz to serve his sentence on "conditional liberty," meaning that he will not be taken into custody, but forbade him to leave the country without judicial authorization.

"The conviction of Álvarez Paz is a major blow to free speech," said José Miguel Vivanco, Americas director at Human Rights Watch. "It shows how the laws put in place by Chávez and his supporters to regulate public debate can be used to punish his critics."

On March 8, 2010, Álvarez Paz criticized the government in the show "Aló Ciudadano," on Globovisión, a station that has been critical of the government. Álvarez Paz said Chávez was not a democrat and had a "subversive personality," and that the Venezuelan government had links with "subversive and terrorist movements of the world." "Venezuela has turned into a center of operations that facilitates the business of drug trafficking," he said in the broadcast.

The next day, President Hugo Chávez said that Álvarez Paz's statements were "very grave" and "could not be permitted." Two legislators from Chávez's political party subsequently asked the Attorney General's Office to open a criminal investigation. A prosecutor then accused Álvarez Paz of conspiracy, "public incitement [to violate laws] endangering public tranquility," and disseminating "false information."

Álvarez Paz was held in pretrial detention for almost two months. During the rest of his trial, Álvarez Paz had to present himself before the court every 15 days, remain in Venezuela, and refrain from publicly commenting on the case.

Álvarez Paz was convicted only on a charge of disseminating "false information" - a crime incorporated in the Venezuelan Criminal Code by Chávez's allies in the National Assembly in 2005. Article 296-A states that, "[a]nyone who, through false information disseminated via any media including written press, radio, television, telephone, email or pamphlets, causes panic in the collectivity or causes fear, will be sanctioned with prison sentences of two to five years." Other changes to the criminal code in 2005 increased the number of public officials benefiting from the protection of laws against insulting them and greatly increased penalties, including prison terms, for criminal defamation.

Convicting someone for expressing a critical opinion considered "false" violates international norms on freedom of expression, including article 13 of the American Convention on Human Rights to which Venezuela is party. The Inter-American Court of Human Rights has stated that: "One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor."

The Inter-American Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights in 2000, states that: "Prior conditioning of expressions, such as truthfulness, timeliness or impartiality is incompatible with the right to freedom of expression recognized in international instruments."

Similarly, in the "Statement Regarding Key Issues and Challenges in Freedom of Expression," the OAS special rapporteur on freedom of expression, the OSCE representative on freedom of the media, and UN special rapporteur on freedom of opinion and expression held in February 2000 that, "Expression should not be criminalized unless it poses a clear risk of serious harm. . . . Examples of this are laws prohibiting the publication of false news and sedition laws. . . . These laws should be repealed."

Álvarez Paz was convicted by a criminal court in Caracas. Human Rights Watch documented Venezuela's lack of judicial independence in 2008 in "A Decade Under Chávez," a report that describes how Chávez and his supporters in the National Assembly carried out a political takeover of the Supreme Court in 2004. This takeover effectively neutralized the judiciary as an independent branch of government. Since then, the court has repeatedly failed to fulfill its role as a check on arbitrary state action and a guardian of fundamental rights.

"Laws that purport to police the truth are dangerous under any circumstances, but all the more so in a country like Venezuela that lacks an independent judiciary," Vivanco said.