I/A Court HR admits case from newspaper El Universo against the State of Ecuador after criminal sentence for defamation in 2012

The Inter-American Court of Human Rights (I/A Court HR) decided to admit the case of newspaper El Universo against the State of Ecuador. After the publication was sued by then-President Rafael Correa based on a 2011 opinion column, a columnist and three executives received criminal sentences.

In 2012, opinion columnist Emilio Palacio Urrutia and three executives from the newspaper Carlos Pérez, César Pérez and Nicolás Pérez were sentenced, as contributing authors, to three years in prison and ordered to pay US $40 million in compensation, according to the Committee to Protect Journalists (CPJ). The Ecuadorian justice prosecuted them judicially for the suit for injurias (defamation) that Correa filed based on Palacio’s opinion column, "No a las mentiras” (No to lies), published on Feb. 6, 2011.

In the column, Palacio referred to Correa's actions in an alleged coup attempt by police forces that occurred on Sept. 30, 2010, which unleashed chaos and a series of protests and clashes in the country, according to the Andean Foundation for the Observation and Study of Media (Fundamedios).

Regarding the for the lawsuit for injurias, César Pérez Barriga, deputy director of El Universo, told the Knight Center that this "was a process plagued by irregularities in which there was government political interference on the courts." "In the first instance, the judge never explained how he could write a 156-page sentence in a few hours," Pérez said.

“The Rapporteurship understood that the process was irregular, that criminal law was used to sanction an opinion against a president who is precisely one of the highest public officials and that freedom of expression protects such criticism and opinions,” Edison Lanza, Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), told the Knight Center.

“In a democratic society, desacato or offense against a president for his actions or for the decisions he makes should not be subject to criminal sanctions. And that the economic sanction was absolutely unnecessary and disproportionate, both for him and for the media outlet, ”he added.

The case was admitted by the Court because the Ecuadorian State did not comply within the regulatory deadline with the recommendations that the IACHR sent in 2019 in its merits report, Lanza explained. The recommendations, Lanza added, asked the State of Ecuador to annul the sentence against the executives and the journalist from El Universo, to pay them reparation for the damage committed and to carry out a series of legal reforms in their justice system such as decriminalization of the crimes of desacato and injuria.

Regarding the admission of the case by the I/A Court HR, the deputy director of the newspaper emphasized that this is a very important step in the search for justice in the case of El Universo but that “there is still a long way to go.”

"There is still a long way to go at the Court, and it will take a few years, until a final decision of the Court is reached that can reverse the absurdity that is embodied in this sentence that Correa achieved here in Ecuador," Pérez said.

In late February 2012, Correa announced forgiveness of the journalist and executives of El Universo with the remission of their sentences, as reported by CNN en Español. "There is forgiveness, but I do not forget," the leader said.

“Rafael Correa forgave the sentence. That is, the sentence is still alive but he forgave the execution of the sentence, which meant jail and the payment of these 40 million dollars,” Pérez said.

“The sentence is still in force and so much so that when they ask me if I have a criminal record, I have to report that this sentence exists in Ecuador, where I have been sentenced. So, of course, what we want is it to be repaired more than anything by the precedent that this leaves, for the future exercise of freedom of expression in Ecuador. That this can be reversed and that this sentence is not there as a reference so that any other judge can take it to commit this barbarity again, right?” Perez emphasized.

For the Rapporteur of the IACHR, the case of El Universo going to the Court implies that it is an emblematic case.

“As the government of Rafael Correa was one of the governments that pressured the press in different ways, using, among others, the criminal route, using a judiciary that did not have guarantees of independence of autonomy and restrictive legal norms, since the case goes beyond the specific anecdote and it will have repercussions, I think it is immense, for all journalism in the region,” Lanza said.

"The Inter-American Court of Human Rights’ decision to hear the El Universo case is an important step toward long-overdue justice in this affair, which was one of the most extreme examples of the abuses committed against the press under the Correa administration," said CPJ Central and South America Program Coordinator Natalie Southwick. "This case can also serve to highlight how Ecuador's outdated criminal defamation provisions were systematically used to punish critical journalists."

César Ricaurte, director of Fundamedios, told the Knight Center that for Ecuador as well as for countries throughout the region, it is very significant that the case has reached the Inter-American Court. “For us it really is a milestone. It is the first case of freedom of expression in which the Ecuadorian State is a defendant and must be held accountable. For us it really sets an extremely important precedent,” he said.

“[At the national and regional level] it can mark just very clear limits to the abuse of power, to how political power pressures and even manipulates the judiciary, as happened in this case, to finally obtain sentences in its favor. This happened in Ecuador, but we see that it is the same modus operandi that has been spreading in recent years in many countries of the region,” Ricaurte said.

Regarding the current state of freedom of expression in Ecuador, with the government of Lenín Moreno, Pérez said that the president has given a very clear message of wanting to change things by leading the process of modifying the controversial Communication Law created by Correa, and the elimination of the Superintendence of Communication (Secom), the entity in charge of issuing “exorbitant fines” against the media.

“You have to recognize that. There is a greater free exercise in journalism in Ecuador, but there is also [a ways] to go. There are still other remnant laws, articles of very specific laws that prohibit, for example, any type of information that favors or disadvantages any candidate from being published at the time of elections,” Pérez said.

However, Ricaurte said that things have not changed so much with the new government.

The Moreno government has proposed a judicial reform regarding the sanction for those who commit the crime of injuria or against the honor of a person, published El Universo. The Executive proposes that this crime not be punished with a prison sentence but with hours of community work, fine or jail for a maximum of 30 days, El Universo published.

With this reform, "defamation is no longer a crime per se but it became a violation," said Ricaurte, who lamented that it is now being used against any critical voice, not only against journalists.

“With the violation, you have maximum sentences of 30 days in jail, but instead, what we have seen as the process is more expedited–basically it is resolved in a police station and very quickly, in a matter of hours– then, you can quickly be put in jail for insulting someone and it is used more frequently,” he explained.