84
has been established in the instant case that Mr. Canese was tried and condemned
under the 1914 Penal Code. However, after delivery of the judgment of second
instance on November 4, 1997, which declared that he was responsible for the
offense of slander, a new Penal Code entered into force on November 26, 1998.
Article 370 of the 1914 Penal Code, which regulated the offense of slander,
established that the person guilty of this offense “shall be punished with from two to
twenty-two months’ imprisonment and a fine of up to two thousand pesos”;
consequently, the fine could not be imposed as the sole sanction, but had to be
accompanied by imprisonment. Based on this norm, when deciding the remedies of
appeal and annulment filed by Mr. Canese and by the complainants against the
judgment of first instance, the Third Chamber of the Court of Criminal Appeal
convicted him on November 4, 1997, for the offense of slander to the principal
sanction of two months’ imprisonment and to the additional sanction of payment of a
fine of two million nine hundred and nine thousand and ninety guaranis.
183. As has been established, one year and twenty-two days after the delivery of
this judgment of second instance, a new Penal Code entered into force, which, inter
alia, modified the sanctions that the judge could impose for the offense of slander.
The new Code reduced the minimum and maximum sanctions for the offense of
slander and established a fine as an alternative sanction to the penalty of
imprisonment. The new Code established that “[w]hen the act is carried out before
a multitude or by dissemination in publications [...], or repeatedly over an extended
period, the penalty c[ould] be increased to imprisonment for up to one year or a
fine.” This change signified that the legislator wished to reduce the penalty for the
offense of slander.
184. As has been indicated above (supra paras. 70 and 71), the Court
acknowledges the importance of the ruling of the Criminal Chamber of the Supreme
Court of Justice of Paraguay on December 11, 2002, admitting the appeal for review
filed on August 12, 2002, by Mr. Canese and his lawyers, annulling the sentences
and absolving Mr. Canese from guilt and pardoning him. However, in order to
consider the alleged violation of the principle of retroactivity, it is necessary to
examine the period from November 26, 1998 to December 11, 2002, during which
Ricardo Canese and his lawyers filed several appeals for review, requesting, inter
alia, the annulment of the sentences and the review of the judgment, and basing
these petitions on the entry into force of the new Penal Code in 1998. During this
period, the Criminal Chamber of the Supreme Court of Justice of Paraguay declared
that these appeals for review were inadmissible, one of them on the basis that it did
not “offer ‘any evidence or indicate new facts’ that would justify applying a more
favorable norm to the convicted person.”158 (supra para. 69(46)).
185. However, in decision and judgment No. 1362 delivered by the Criminal
Chamber of the Supreme Court of Justice of Paraguay on December 11, 2002, which
absolved Canese, it indicated that:
The appeal for review filed should prosper, because, in the first place, the legitimate
cause for review (Art. 481, para. 4, of the Code of Criminal Procedure), which
establishes that: “when, subsequent to the judgment, new facts supervene ... makes it
evident that ... the act committed is not punishable or a more favorable norm should be
158
Decision and judgment No. 374 issued by the Criminal Chamber of the Supreme Court of Justice
of Paraguay on May 6, 2002 (copy of the file of the criminal proceeding against Ricardo Canese for the
offenses of slander and injuria before the First Criminal Trial Court, file of attachments to the brief
answering the application, and with observations on the brief with requests and arguments, tome II,
attachment 4, folio 1200).
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