47
reputation of unnamed third parties is not an imperative social need” and “the
imperative social interest was more important than the prejudices that could
have justified a restriction to freedom of expression;”
l)
In this case, the means chosen to protect an alleged legitimate
purpose was a disproportionate instrument restricting freedom of expression,
because there were other less restrictive means by which Mr. Wasmosy, the
only person directly named by Mr. Canese, could have defended his
reputation, such as a rebuttal in the media or through a civil proceeding. By
convicting Ricardo Canese for expressing his ideas, Paraguay violated the
freedom of expression embodied in Article 13 of the Convention. This is true,
whether the criminal conviction is considered an indirect restriction of
freedom of expression, due to its intimidating nature, or a direct restriction,
because it was unnecessary;
m)
The sentencing of Mr. Canese constitutes, per se, a violation of Article
13 of the Convention, whether or not the procedure that led to this
constituted a violation of this Article;
n)
After the Commission’s application had been filed before the InterAmerican Court, the Supreme Court of Justice of Paraguay revoked the
criminal conviction against Ricardo Canese, when deciding an appeal for
review that he had filed;
o)
The State took an important step towards adapting its legislation to
international standards for the protection of human rights, when it modified
its penal legislation and criminal procedure at the end of the 1990s.
However, the chapter on offenses against honor of the Penal Code of
Paraguay continues to be used as an instrument to generate an “intimidating
environment that inhibits statements on matters of public interest.” Article
151, paragraph 4, of the Paraguayan Penal Code, which establishes an
exemption from liability, does not respond to the Commission’s
recommendation, because: it is not applicable to all types of expression; its
wording is not clear and incorporates a weighting between the obligation to
investigate and the defense of public interest that does not clearly define the
cases in which the exemption described will be applied; the truth test
corresponds to the accused, and is only applied to offenses of slander and
injuria, but not to libel. The weighting established in Article 151 of the
Paraguayan Penal Code does not allow an open, robust and uninhibited
debate in a democratic society;”
p)
According to the regulation of the offense of slander established in
Article 151 of the Penal Code of Paraguay, the author’s affirmation must be
false and the author must know that it is false. The impossibility of
determining with certainty whether an affirmation is false could result in
individuals who wish to emit an opinion being inhibited to do so. In practice, it
is the accused who must prove why he believed what he said to be true; and
this affects public debate;
q)
Article 151, paragraph 5, of the Penal Code of Paraguay establishes
that the test of the truth of the affirmation or disclosure is only admitted in
certain cases, which is characteristic of the legal doctrine known as exceptio
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