Convictions of Lawmaker, Union Members Undermine Free Speech
October 10, 2013

President Correa has long made it clear that he’s willing to go after anyone who criticizes him, from civil society leaders to media critics. But with his most recent targeting of an opposition legislator, his abuse of power to suppress those he sees as his enemies has reached new and alarming heights.

José Miguel Vivanco, Americas director.

(Washington, D.C.) – Ecuador’s President Rafael Correa should end the use of criminal defamation laws to target his critics, Human Rights Watch said today.

The prosecution and convictions of the opposition legislator José Cléver Jiménez Cabrera and two union members for slandering the president violates their right to freedom of expression under international human rights law, Human Rights Watch said.

“President Correa has long made it clear that he’s willing to go after anyone who criticizes him, from civil society leaders to media critics,” said José Miguel Vivanco, Americas director at Human Rights Watch. “But with his most recent targeting of an opposition legislator, his abuse of power to suppress those he sees as his enemies has reached new and alarming heights.”

On September 27, 2013, the National Court of Justice notified Jiménez, a member of the indigenous Pachakutik opposition political party, that it had upheld his slander conviction and sentence of 18 months in prison. The court also ordered him to issue a public apology to the president and pay him approximately US$140,000. A second appeal by Jiménez, filed on October 1, is pending. The court also upheld the convictions of the two union members, though one of them was convicted to six months.

Jiménez told Human Rights Watch that he cannot pay Correa the compensation mandated by the court, and that he will not make a public apology.

In August 2011, Jiménez, together with the union members Carlos Eduardo Figueroa Figueroa and Fernando Alcíbiades Villavicencio Valencia, had asked the attorney general to investigate Correa’s responsibility for the violent incidents on September 30, 2010. On that day, law enforcement officers protesting a law that diminished their benefits held Correa in a police hospital for several hours. A shootout broke out when members of the military rescued Correa, resulting in at least five deaths. The Correa administration characterized the police action as an attempted coup.

Jiménez and the union members, in their request for an investigation, accused Correa of “promoting political chaos, promoting civil disobedience, altering constitutional order, and promoting rebellion of public force,” as well as “perpetrating crimes against humanity,” by ordering an armed assault on a hospital where there were civilians.

The attorney general, who was Correa’s personal lawyer for part of his first term in office, found that there was not sufficient evidence to open an investigation into the president. Under the Ecuadorian Criminal Procedural Code, though, the attorney general should have recused himself if he had served at any time as the lawyer of one of the parties. In May 2012, a judge dismissed the case and ruled that the complaint filed by Jiménez and others was “malicious and reckless.”

In August 2012, Correa filed a complaint before the National Court of Justice, accusing Jiménez and the others of slander (injuria calumniosa). Under article 494 of Ecuador’s criminal code, those who “make a judicial accusation, or present a complaint, that is not proven during a trial” are subject to prison sentences of up to three years. In this case, a judge pre-emptively dismissed the allegations filed by Jiménez and the others without the trial required by Ecuadorian law.

Under Ecuadorian law, before a court can criminally prosecute a legislator, the National Assembly must lift the legislator’s parliamentary immunity. However, in this case the National Court of Justice decided that because Jiménez’s actions were unrelated to his official duties, it did not need to seek the Assembly’s permission to prosecute him, and proceeded with the criminal case even though his immunity had not been revoked.

Human Rights Watch opposes all criminal defamation laws as a disproportionate and unnecessary response to the need to protect reputations, and they chill freedom of expression. 

A proposal to reform the Ecuadorian Criminal Code, which is currently under debate in the National Assembly, would eliminate several defamation provisions from the current code. However, under the proposed reform, “the person who, by any means, falsely accuses another of committing a crime, will be sanctioned with prison sentences of six months to two years.”

The president of the assembly’s Justice Commission, in describing the proposal, said that, “the individual who falsely accuses someone of committing a crime can be sanctioned in general terms... One person can undermine the right of another one through a radio, through TV, in public, in social gatherings, [or] through social networks.”

Ecuador is party to the American Convention on Human Rights and the International Covenant on Civil and Political Rights, which protect the right to free expression. In the interest of promoting the vibrant public debate necessary in a democratic society, international human rights bodies have long criticized the use of criminal defamation laws, particularly in response to allegations involving public officials.

The Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights in 2000 assert that protection of the reputation of public officials should be guaranteed only by civil sanctions, and not criminal ones.

The Inter-American Court of Human Rights has held that public officials “who have voluntarily exposed themselves to greater public scrutiny are subject to greater risks of being criticized, since their activities are ... part of the public debate.” The honor of public officials or public people must be legally protected, the court says, but that must be balanced “in accordance with principles of democratic pluralism.” The use of criminal proceedings for defamation should be limited to cases of “extreme gravity” as a “truly exceptional measure” where its “absolute necessity” has been demonstrated, and that in any such case the burden of proof must rest with the accuser, according to the court.

The Ecuadorian Constitution states that rights protected under international law, such as the right to freedom of expression, are directly enforceable by the courts. By setting aside these convictions, the National Court of Justice would be ruling in accordance with Ecuador’s international human rights commitments, Human Rights Watch said.