proportionate remedies that do not inhibit the vigor of the debate on topics of high public relevance, or that
may silence criticism or dissent.
105.
The African Court of Human and Peoples' Rights has considered that "freedom of expression
in a democratic society should be subject to a lower degree of interference when it originates in the context of
public debate regarding public persons". It has mentioned that "people who assume a highly visible public role
must necessarily face a greater degree of criticism than private citizens, otherwise the public debate can be
completely stifled”132. In the ruling issued in the Lohé Issa Konaté case v. Burkina Faso, the African Court
considered as contrary to the right to freedom of expression recognized in article 9 of the African Charter, the
prison sentence imposed on the general editor of a weekly for the publication of an article denouncing the
counterfeiting and laundering of counterfeit bills by judicial authorities133. The African Court held that "except
in serious and very exceptional cases, such as incitement to international crimes, public incitement to hatred,
discrimination or violence or threats against a person or group of people, due to specific criteria such as race,
color, religion or nationality, infractions of the laws on freedom of expression and the press cannot be punished
with prison sentences”134.
106.
In a similar vein, the UN Human Rights Committee indicated in its General Comment No. 34
on Article 19 Freedom of opinion and freedom of expression, that States parties should consider the
decriminalization of defamation and, in any case, the application of the criminal law should only be
countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is
impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial
expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of
expression of the person concerned and others”135.
107.
In the present case, we are facing a prison sentence imposed in the context of political speech
of evident public interest, properly, on the manner in which a public official handled a situation of high public
relevance as, in effect, were the events of September 30, 2010. As explained below, the IACHR considers that
the State has not demonstrated compliance with the requirement of necessity of the measure imposed in this
type of circumstances.
108.
On the one hand, journalist Emilio Palacio, in his usual column in the newspaper El Universo,
expressed his opinion, under his name, on a strike or protest involving a section of the police and the decisions
taken by the President of the Republic to deal with that situation, a matter without doubt of high public
relevance. While some of his expressions may be considered, unfair, controversial, or even not shared, they
were in no way expressions of incitement to violence. All of which, in accordance with the standards mentioned
above, does not enter into the hypotheses that make the use of criminal law and prison sentences necessary.
109.
In this regard, the IACHR notes that the column published by Palacio is basically an opinion,
which falls within the sphere of public debate. In effect, the columnist describes the government as a
"dictatorship", in charge of a "dictator", and believes that during the episodes of September 30 the government
acted "product of an improvised script, in the midst of running, to hide the irresponsibility of the Dictator to go
into rebellious barracks, to open his shirt and scream out to be killed (...)". He also understands that "the `proofs'
to accuse the 'coup leaders' have been unraveled."
110.
The Commission does not enter to assess the fairness of write’s opinions, but considers that
these are opinions and interpretation about a series of events that occurred and that were part of the
democratic debate on episodes that moved the country. As inter-American jurisprudence has indicated, when
pondering the value judgments of the Argentinean journalist Eduardo Kimel on the actions of a judge who was
in charge of a massacre that took place during the dictatorship in Argentina, "opinions cannot be considered
African Court on Human Rights and Peoples´ Rights. In the Matter of Lohé Issa Konaté v. Burkina Faso. Application No. 004/2013.
Judgment December 5, 2014. Para. 155.
132
African Court on Human Rights and Peoples´ Rights. In the Matter of Lohé Issa Konaté v. Burkina Faso. Application No. 004/2013.
Judgment December 5, 2014. Para. 164.
133
African Court on Human Rights and Peoples´ Rights. In the Matter of Lohé Issa Konaté v. Burkina Faso. Application No. 004/2013.
Judgment December 5, 2014. Para. 165.
134
UN, Human Rights Committee. General Comment No. 34: Article 19 Freedom of opinion and freedom of expression. September 12, 2011.
Para. 47.
135
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