48
veritatis. Since the truth test is “not a feature of the [criminal] classification,
the person making the accusation does not have to prove it;”
r)
Norms should be drafted so clearly that there is no need to make an
effort to interpret them. In this respect, when acquitting Mr. Canese, the
Supreme Court of Justice of Paraguay stated that “it should be understood
from the text of the law that [the truth test] inverts the onus probandi against
the accused; this evidently conflicts with the accusatory system of criminal
procedure embodied in the Constitution itself and in the new Code of Criminal
Procedure”;
s)
The said judgment absolving Mr. Canese, delivered by the Supreme
Court of Justice of Paraguay, states that no one can be criminally convicted
for statements on matters of public interest that involve public individuals or
officials, even though such statements may affect the honor or reputation of
such individuals. However, the provisions of this judgment constitute a legal
interpretation. In application of Article 30 of the Convention, restrictions and,
“a contrario sensu, non-restrictions must be applicable in accordance with the
laws enacted in the general interest.” The Supreme Court’s interpretation
cannot be equated with a law, because its effects are not of a general nature
and can be modified;
t)
Despite the existence of new legislation and the decision of the
Supreme Court of Justice of Paraguay, criminal proceedings have been filed
as a result of statements relating to matters of public interest;
u)
It is necessary to establish, without any doubts open to interpretation,
that statements on matters of public interest cannot and must not be
penalized. The reformed Code, which maintains offenses against honor,
continues to be used as an instrument to create an intimidating environment
that inhibits statements of public interest. In its brief with final arguments, it
requested the Court to order the State to “adapt fully the legislation on
offenses against honor included in the Penal Code;” and
v)
The State violated Article 13 of the Convention in relation to Article
1(1) thereof.
Arguments of the representatives of the alleged victim
73.
In relation to Articles 13 and 2 of the Convention, the representatives of the
alleged victim argued that:
a)
Mr. Canese’s case illustrates a series of grave violations of freedom of
expression in the context of the political debate on matters of public interest.
These violations occurred owing to the application of improper restrictions to
the right, and to the use of indirect means of restriction;
b)
Article 30 of the American Convention embodies a guarantee of the
legality of restrictions to freedom of expression;
c)
The penalization of offenses against honor, even though it has the
legitimate aim of protecting the right to honor or reputation, and is
established in the Penal Code of Paraguay, is unsustainable in the Inter-
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