deliberative mechanisms on equal terms, but also by the adoption of the required
measures to guarantee its full exercise, taking into consideration the situation of
vulnerability of the members of some social groups or sectors.” 25 In this case, it is
not about minority sectors or social groups, but rather the one who is in a situation
of vulnerability is no less than the main political opposition force.
IV
ALLEGATIONS BY THE APPLICANTS
IV.1. Legality of the criminal code
IV.1.a. The code in force at the time
93.
The proceedings against the journalist and the editors and which, according
to the highly respectable opinion of the majority of the Court, constituted a ‘jus
humano’ offense, were based on a criminal code that, in the singular acknowledgment
of State responsibility, is accepted and takes it for granted that it violated the
principle of criminal legality.
94.
The State admits, therefore, that the category of criminal offense applied to
the case and in force in Ecuadorian positive law at that time, would have violated the
requirement of strict criminal legality. By admitting this acknowledgment, the Court
also indirectly admits the violation of criminal law.
95.
The elementary criminal guarantee of strict legality, which dates back to the
Enlightenment of the eighteenth century and the liberals of the following century,
synthesized by Anselm Ritter von Feuerbach in the formula nullum penal sine lege,
now universally recognized in all legislation respectful of public liberties , requires the
legislator to specify as accurately as possible the category (assumption in fact or legal
Tatbestand) of the punishable conduct.
96.
In this case, it referred to Articles 489 to 493 of the criminal code in force at
that time, which was applied by enacting the criminal offense categorized in Article
493, which referred to the definition of Article 489. The basic typical behavior was
clearly the false accusation of a crime, as stated in Article 489, calling it slanderous
insult.
97.
It should be clarified that Ecuador has had the terrible legislative custom of
publishing official editions of the criminal code rearranging the numbering of the
articles, but reproducing them verbatim. The devices numbered 489 to 493 that are
examined are exactly the same ones that remained in the Ecuadorian criminal code
since its authorization in 1938, only numbered as articles 465 to 469.
98.
It is interesting to note that in Ecuadorian criminal law the false accusation of
a crime has always been slander, although its distinction from insult was not always
clear, which could lead to problems of legality. This has been the case since the
curious and cumbersome wording of article 498 of the 1837 code, which followed
article 699 of the Spanish code of 1822, although foreseeing penalties even more
unusual and enormous than this 26: Slanderers are those who voluntarily and
knowingly accuse another person of some false fact, which if true, would expose the
person against whom the accusation was made, to criminal proceedings, and
I/A Court HR, Case of Manuel Cepeda Vargas v. Colombia, Judgment of May 26, 2010, Preliminary
Objections, Merits, Reparations and Costs. Series C No. 213, par. 173.
25
26
The Spanish Code of 1822 imposed sentences of up to six years, the Ecuadorian Code of 1837 up
to ten years (cf. Spanish Criminal Code decreed by the Courts on June 8, approved by the King and
enacted on July 9, 1822, Madrid, in the Government Press, 1822, p. 143).
15
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