Venezuelan prosecutor ‘offended’ by editorial, launches probe

August 2, 2005

TO: Isaías Rodríguez Díaz
Attorney General, Bolivarian Republic of Venezuela
Edificio sede del Ministerio Público
Caracas, Venezuela

Via facsimile: +58-212-509-8080

Dear Mr. Rodríguez:

The Committee to Protect Journalists, an independent, nonprofit organization that works to safeguard press freedom around the world, is deeply concerned about the investigation your office has opened against the Caracas-based daily El Universal after it published an editorial that criticized your office and the judiciary.

Your office has invoked anachronistic desacato (contempt) provisions that criminalize expressions deemed offensive to public officials and state institutions. We urge you to drop this investigation, which is based on provisions that stifle the fundamental democratic right to freedom of expression.

In its July 25 edition, El Universal published a front-page editorial titled "Justicia arrodillada" (Justice on its Knees), saying that the criminal justice system had become politicized, had lost its autonomy, and had grown ineffective. As a result, the editorial argued, the Attorney General's Office and Venezuelan courts were losing their legitimacy.

On July 26, the Attorney General's Office issued a press release rejecting charges of politicization of the justice system and accusing El Universal and Venezuelan media in general of engaging in unethical practices and biased coverage.

A day later, your office announced it had ordered a prosecutor to open a criminal investigation to determine whether the editorial constitutes a crime. The editorial, your office said, "offends the Attorney General's Office and the Judiciary, exposes them to public contempt, and allegedly disrespects them."

We remind you that there is a growing consensus among international bodies that public officials should be subject to a higher level of public scrutiny and should not enjoy greater protection than the rest of society. In 1994, the Washington, D.C.--based Inter-American Commission on Human Rights (IACHR) published a report concluding that desacato laws are incompatible with Article 13 of the American Convention on Human Rights, which Venezuela has ratified, because they suppress the freedom of expression necessary for the proper functioning of a democratic society. The report recommended that member countries of the Organization of American States repeal or amend such laws to bring them in line with international standards.

The IACHR's Declaration of Principles on Freedom of Expression, approved in October 2000, 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." While the Declaration of Principles is not a legally binding document, it represents the IACHR's interpretation of existing international law regarding freedom of expression.

In addition, the Costa Rica--based Inter-American Court of Human Rights found that critics of public officials must have "leeway in order for ample debate to take place on matters of public interest," according to the August 2004 ruling that overturned the criminal defamation conviction of Costa Rican journalist Mauricio Herrera Ulloa. Recently, other countries in the Americas such as Honduras and Guatemala have repealed desacato provisions in their penal codes or have suspended enforcement of those provisions.

Unfortunately, Venezuela has moved away from the international consensus. On July 15, 2003, the Venezuelan Supreme Court upheld desacato provisions in the Penal Code. After the ruling was delivered, Eduardo Bertoni, the IACHR's special rapporteur for freedom of expression, issued a communiqué decrying the ruling and saying the continued use of such laws was incompatible with democracy. CPJ, as well as other international and Venezuelan organizations, joined him in criticizing the decision.

On December 2, 2004, the government-controlled National Assembly approved reforms to 38 articles in the Venezuelan Penal Code. The amended articles broadened the categories of government officials—to include, among others, the attorney general—who are protected by the desacato provisions. The amended desacato provisions became effective in March 2005.

While the Venezuelan media have been able to criticize government institutions forcefully until now, the criminal investigation of El Universal serves to intimidate government critics. Desacato provisions infringe on the basic right of free expression in a democratic society. We urge you to reconsider your decision to open a criminal investigation against El Universal.

Thank you for your attention to this urgent matter. We await your response.

Sincerely,

Ann Cooper
Executive Director