85
applied.” And this is so, because there is a new Penal Code, which has transformed
radically the penal classification of slander.
186. It has been established that, for approximately four years during which a new
Penal Code was in force that contained more favorable norms than those applied in
the judgments convicting Mr. Canese, this more favorable normative was not taken
into account by the Criminal Chamber of the Supreme Court of Justice of Paraguay,
despite the appeals filed by Mr. Canese, requesting, inter alia, the review of his
sentence; and it was not considered, de oficio, by the competent judge. The Court
considers that, in accordance with the principle of the retroactivity of the most
favorable penal norm, those courts should have compared the most favorable
aspects of the new Code applicable to the specific case and determined whether the
sanctions imposed on Mr. Canese should be reduced, or whether only the sanction of
a fine should be imposed, since the latter had ceased to be additional to the sanction
of imprisonment for the offense of slander and had become an autonomous
alternative.
187. In view of the foregoing, the Court concludes that the State did not duly
apply the principle of the retroactivity of the most favorable penal norm in Mr.
Canese’s case for approximately four years and, therefore, violated Article 9 of the
Convention, in relation to Article 1(1) thereof, to his detriment.
XII
REPARATIONS
APPLICATION OF ARTICLE 63(1)
Arguments of the Commission
188. Regarding measures of reparation, the Commission indicated that “reparation
should be granted individually to Ricardo Canese, the person whose rights have been
violated.” It also stated that the reforms made to the section on offenses against
honor of the Penal Code and to Paraguayan legislation, which were not applied
during the proceedings against Mr. Canese, did not release the State from its
obligation to make full reparation to the latter for the “violations established in the
application.” The Commission presented the following requests for reparations and
costs to the Court:
a)
In its application brief, it requested the Court to order the State to
ensure that the reform of the legislation on offenses against honor, included
in the 1998 Penal Code, was fully and thoroughly complied with by all State
authorities;
b)
In its brief with final arguments, it requested the Court to order the
State “to reform all the legislation concerning offenses against honor included
in the Penal Code. In particular, to establish clearly, with no room for
interpretation, that statements on matters of public interest should not and
cannot be penalized.” The reformed Code, which still includes offenses against
honor, continues to be used as an instrument to create an intimidating
environment that inhibits statements of public interest. The State must
guarantee the non-repetition of situations such as those that befell Mr.
Canese;
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