68. On February 28, 2005, pursuant to a complaint filed by the then-President of the National Assembly, Willian Lara, petitioner Tulio Alberto Álvarez was convicted of the criminal offense of ongoing aggravated defamation, provided for and punishable under the sole paragraph of Article 444 of the Criminal Code currently in force, in relation to Article 99 thereof.82 Article 444 states: Article 444.- Defamation: A person who, in communication with several others, either together or separately, accuses an individual of a given act that could expose him to public scorn or hatred, or that is offensive to his honor or reputation, shall receive a punishment of between three and eighteen months in prison. Should the crime be committed in a public document or in writings or drawings displayed or exposed to the public, or through other public means, the punishment shall be a prison term of between six and thirty months.83 69. In its report on the Case of Néstor José and Luís Uzcátegui, et al., the IACHR had occasion to examine the compatibility of this type of criminal offense with the requirements of Articles 13 and 9 of the Convention, in relation to Articles 1.1 and 2 thereof. The IACHR found that, as noted in Kimel,84 cited in the Cases of Tristán Donoso85 and Usón Ramírez,86 the verb used to define the actus reus in the definition of the crime is so ambiguous that it is impossible to have certainty and foreseeability with regard to conduct that is prohibited versus conduct that is protected by the right to freedom of expression. In this regard, it found that the ambiguity and breadth of the provision allows for any complaint, criticism, or objection to the actions of government authorities to give rise to lengthy criminal proceedings—such as the one against Luis Uzcátegui—that are in and of themselves a psychological, social, and economic burden that the person should not have to bear given the ambiguous nature of the underlying provision.87 Consequently, the IACHR reiterated that, “Should the State decide to keep laws that penalize defamation, it must draft them specifically enough that they do not affect free expression about the actions of government entities and their members.”88 70. To use the expression of the Inter-American Court from a case in which the principle of strict legality was also applied, these types of provisions should establish “a clear definition of the incriminatory behavior, setting its elements, and defining the behaviors that are not punishable (…).”89 71. The IACHR reiterates the opinion expressed in the Case of Néstor José and Luís Uzcátegui et al., and underscores that Article 444 of the Criminal Code is incompatible with the principle of strict legality and the right to freedom of expression because it fails to establish clear parameters to anticipate prohibited conduct and its elements. The provision in question conditions the definition of the unlawful conduct on the verification of hypothetical damages (“that could expose him”) and on the determination of subjective criteria 82 Annex 2. Seventh Trial Court of the Criminal Judicial Circuit of the Caracas Metropolitan Area. Judgment of Conviction in Case No.7-246-2004, Case File IV. February 28, 2005. Communication from the petitioner received on September 7, 2006. Article 99 refers to continuity as an aggravating factor. Article 99.- Several violations of the same legal provision are considered a single punishable act even if they were committed on different dates, provided that they were carried out through acts stemming from a single decision; but the penalty shall increase by one-sixth to one-half. 83 Criminal Code of Venezuela. Published in Official Gazette No. 36.920 of March 28, 2000. Available in Spanish at: http://www.oas.org/juridico/spanish/mesicic3_ven_anexo6.pdf 84 I/A Court H.R., Case of Kimel v. Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008 Series C No. 177. 85 I/A Court H.R., Case of Tristán Donoso v. Panama. Preliminary Objection, Merits, Reparations and Costs. Judgment of January 27, 2009. Series C No. 193. 86 I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207. 87 IACHR, Report No. 88/10, Case 12.661, Merits, Néstor José and Luís Uzcátegui et al., Venezuela, July 14, 2010, para. 279. Arguments of the Inter-American Commission in the Case of Kimel v. Argentina, I/A Court H.R., Case of Kimel v. Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008 Series C No. 177. para. 29. 88 89 I/A Court H.R.. Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207, para. 55; Cfr. I/A Court H.R., Case of Baena Ricardo et al. v. Panama. Merits, Reparations and Costs. Judgment of February 2, 2001. Series C No. 72, paras. 105-107.