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were not shared by most of the community, they merited the utmost
protection;”
k)
The mere fact of subjecting Ricardo Canese to criminal proceedings to
decide on the possible harm to the right to honor of the complainants violated
the right to freedom of expression protected by the American Convention.
And, when applied, criminal sanctions constitute an unlawful means of
restricting freedom of expression;
l)
The criminal proceedings to which Mr. Canese was subjected “was
plagued with arbitrary acts and irregularities.” It became a means of
inhibiting his participation in the public debate and sanctioning him in
advance for his charges. Each step in the proceedings became an opportunity
“for arbitrariness and injustice;”
m)
“The right to freedom of expression is violated if the person accused of
having made false statements that could be proved, is not allowed to prove
their truth;”
n)
The 1914 Penal Code applied to Ricardo Canese, was based on the
presumption of the author’s dolus. This made it useless to prove the truth of
the facts, because it was a case of “objective liability” based on the
presumption of guilt. The impossibility for Mr. Canese to prove the facts that
he had reported was one more arbitrary factor added to those perpetrated
during the criminal proceedings, to the detriment of his freedom of
expression;
o)
The duration of the criminal proceedings to which Mr. Canese was
subjected was evidently disproportionate in comparison with the penalty
established for the offenses he was accused of, should he be convicted. In
view of the foregoing, the whole process was “manipulated to dissuade Mr.
Canese from playing an active part in the public debate and sanctioning him
in advance for his charges regarding the corrupt practices of the Paraguayan
political sector;”
p)
The new Constitution and the new Paraguayan Penal Code and Code of
Criminal Procedure substituted the previous “ancient codes,” but can still be
improved;
q)
Some progress has been made in the measures of reparation
requested for Ricardo Canese, because on December 11, 2002, the Supreme
Court of Justice of Paraguay revoked his sentence. However, owing to the
application of the penal laws classifying the offenses of libel, injuria and
slander, debate is discouraged and journalists who report incidents of
corruption in Paraguay are criminally prosecuted;
r)
An interpretation on the possibility of filing civil actions for the abusive
exercise of freedom of expression adapted to the provisions of the
Convention requires that a distinction be established between public and
private individuals. Moreover, it is necessary to take into account whether the
actual malice or evident negligence of the individual who made the
statements has been proved. According to the Inter-American Commission, in
cases involving public officials, “it must be proved that, when disseminating
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