Ecuador’s new penal code could limit right to freedom of expression, report says

At least 15 articles of Ecuador's new Organic Penal Code, partially approved by the National Assembly, could limit freedom of expression and turn into a tool to persecute citizens critical of the government, according to a report published by NGO Fundamedios.

The attorneys consulted for the report agreed that the new penal code contains criminal categories that are open to interpretation, which can be dangerous in a judicial system of questionable independence, the report pointed out.

"There are many criminal categories that, because of their vagueness, could lead to persecution of opinions, ideas and expressions of thought," international law and human rights attorney Juan Pablo Albán told Fundamedios. "It has to be asked whether justice operators applying these provisions will have the sufficient autonomy to say no, or if they will be influenced by what the executive branch thinks."

According to Fundamedios, the provisions that could limit freedom of expression include crimes against the right to equality; against the right to personal and family intimacy; against honor and good name; economic crimes against the financial system; against rights to participation; and against public safety and terrorism.

Discrimination is an example of crimes against the right to equality that could imprison a person for expressing their beliefs. "If I write an opinion article in which my position is in opposition to gay marriage, it could be considered a crime and I would go to jail for exposing my point of view," Albán said.

Regarding the category of crimes against honor and good name, the experts highlighted as a positive development that injury that is not slanderous has been decriminalized. However, they questioned that the new code still categorizes slander and establishes a penalty of six months to two years in prison for "the person that, by any means, falsely accuses another person of having committed an offense."

The section describing the sanctions for creating an economic panic - which imposes a penalty of seven to 10 years and a fine of 200 minimum wages - could limit the opinion of economy analysts. "Every analyst that appears in the media tomorrow giving an opinion against the economic policies of the Ecuadorian government will incur in this crime," said Juan Pablo Piedra, an international law professor. "No one will want to offer an opinion. It is necessary to include this type of crime, but it is a crime with an extremely high penalty and there are already other laws that regulate this type of activity."

The report points out other ambiguities regarding crimes against rights of participation, in which any information about the electoral process could be considered an obstacle, as well as crimes against public safety and terrorism, in which any type of information could be considered terrorism.

The first three books of the new penal code were approved on Oct. 13 by the National Assembly. In addition to the criticism of the possible limitations to freedom of expression, the Assembly was questioned about the speed with which it passed. 

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.