What is so special about Venezuela?Media outlets from around the world have been reporting about the threats posed by Hugo Chavez to journalists and freedom of speech in Venezuela. Among other things, these reports have resulted from the arrest of the owner of Globovisión, a Venezuelan TV-news network.
The arrest of Guillermo Zuloaga was ordered by the Venezuelan Attorney General Luisa Ortega, after Zuloaga made the following
public statements to the Inter-American Press Association, in relation to the failed coup attempt against President Hugo Chávez, in April 2002:
“There was a demonstration without precedents against the president. There were around one million people in this demonstration. The president ordered to shoot at them, to ‘throw lead’ at them. That night, he terminated the General in Chief. It was the first time there was a General in Chief in 50 years, named by President Chávez. This General declared publicly that they had asked President Chávez to resign, to which he accepted... There were a series of circumstances that enabled him to return to power, and that is another story... We... are also against what was done at that time, because if they had done it right, we would probably have a different Venezuela today”.
What really happened on April 11th 2002This statement contrasts sharply with the April 2009 verdict of the judge of the 4th Court of Aragua and three aldermen, a verdict which was
ratified by the Court of Appeals of Aragua in April 2010. The verdict was based on 230 audiences, 265 expert testimonies, around 5,700 photos, 20 videos and 198 witnesses. It concerned the accusation of three commissaries, six officials and one employee, all members of the Caracas Metropolitan Police. They were all thought to have been involved in the murders of 2 demonstrators, and the attempted homicide and injury of other demonstrators, during the events of April 11th 2002. These murders were a part of the plot that led to the coup attempt against President Chávez. The three commissaries and three of the officials were convicted and are to serve 30 years in prison. Meanwhile, two of the officials in trial were sentenced to serve 17 years in prison. The two other defendants were considered not guilty and were set free.
According to the demonstrators’ prosecutor, Antonio Molina, the Caracas Metropolitan Police acted as
"the armed wing of the opposition” on April 11th 2002, by directly shooting at demonstrators. This provoked a response from the government forces, many of whom were not wearing uniforms. This would provide the images that the opposition channels needed to incriminate the President. They edited pictures of wounded civilians, together with the footage of loyal forces to President Chávez returning fire to the snipers of the Caracas Metropolitan Police. The forces loyal to President Chávez were actually attempting to defend the civilians under attack. But TV-channels made it seem as if the President’s supporters were the ones attacking the civilians. Venezuelan courts have just recently begun to convict the material perpetrators of these acts.
Prosecutor Molina said recently in an
interview with Noticias24 that there are indications that the intellectual authors of the coup include the newspaper El Nacional, the TV-news network Globovisión and Channel 4. He thinks that Globovisión is yet to explain the Venezuelan society why the TV-channel concealed footage from Puente Llaguno and Baralt Avenue, which could have been used as proof to incriminate the material perpetrators of the A-11 events. There were nineteen deaths and more than a hundred injuries related to these confrontations.
The verdict of 2009 followed a pardon issued by president Chávez in 2007 to 60 people who signed the Carmona-decree. This decree had ordered the illegal dissolution of President Chávez’s government, on April 12th 2002, as a result of the incidents of the preceding day. This pardon came three years after prosecutor Danilo Anderson was murdered, in November 2004.
Anderson was responsible for processing 400 people who allegedly participated in the coup attempt against President Chávez. A Supreme Court Ruling in March 2005 made it possible for high-ranking Venezuelan officials to stand trial for their role in the April 2002 events. Three former police officers were convicted in 2005 for conducting Anderson’s murder.
It has also been proven that President Chávez never resigned voluntarily in April 2002. He was rather held illegally and was also life threatened by high ranking-officials. Evidence of this are a fax to the then Attorney General Isaias Rodríguez, communication with his daughter and phone calls to Cuban television, which the President managed to make while he was held captive.
Zuloaga's comments and Venezuelan lawNot surprisingly, many Venezuelans know that Zuloaga’s comments are not supported by the existing evidence. Thus, they feel that these comments constitute a baseless attack to the President. This is actually the argument used by the Attorney General Luisa Ortega when she decided to arrest Zuloaga before he attempted to leave the country. It was not that Zuloaga “was critical of the president”, as Globovisión and countless other networks (who are very often critical of the president) have reported, but rather that he made a false public remark about the President, accusing him of being a murderer and indirectly invited to attempt a better coup against him in the future. For this, he was accused on the basis of article
147 and 296 of the Venezuelan Penal Code. He was arrested, because authorities feared that he would leave the country.
Most reports also forget to mention that what has happened in Venezuela is not a result of the President’s sudden whims. Actually, things are often presented as if President Chávez has all of a sudden arbitrarily decided to suppress critical journalists in the country. The fact is that the actions of the police and the Attorney General respond to an application of specific articles in the
Venezuelan Penal Code. Reforms to these criminal laws were passed by the National Legislative Commission and National Assembly of the Bolivarian Republic of Venezuela in March 2000 and April 2005, respectively. The reforms were made through formal democratic processes. This was even before the rightist parties decided to boycott the parliamentary elections of December 2005. Therefore, they still had considerable representation in the Venezuelan National Assembly. The opposition in this assembly was mostly represented by some parties in the “Bloque por El Cambio” (Alliance for Change) and “Bloque por la Autonomía Parlamentaria” (Alliance for Parliamentary Autonomy).
However, despite this, articles 147, 296 and Title III, Chapter VIII, of the Venezuelan Criminal Laws (articles 222 – 228) of 2005 might have been influenced by fears of a generalized environment of conspiracy against the President. These fears were not groundless. This is more evident if we take in consideration the coup attempt of 2002 and among other things, the rightist election boycott of December 2005. Additionally, it has been repeatedly pointed out that rightist media channels played a critical role in these sabotage attempts. There have also been yet-to-be-proven indications of cooperation in the Americas to perform similar sabotage actions against leftist governments in Haiti, Bolivia, Ecuador, and Guatemala, during the past years. A probable corroboration of these fears was the successful coup d’état in Honduras, June 28th 2009. A legal conflict: Liberty or libertinage?Regardless of this context, there is every reason to be critical of the theoretical existence of the defamation laws gathered in articles 147, 296 and Title III, Chapter VIII, of the Venezuelan Penal Code, entitled: “About offenses and other crimes against people that are invested with public authority”. Mainly because these laws can be misused in practice, by allowing political leaders to groundlessly curtail the freedom of speech of political opponents. However, this does not mean that there cannot also be reasonable arguments for the existence of such questionable laws and their application in Venezuela. This might prove to be discouraging for the champions of a black and white world. But sometimes there are more nuances. Things are not that simple. In certain cases, there is not necessarily a contradiction between defamation laws and freedom of speech, even in otherwise undemocratic conditions. A remarkable historical example is the Zenger trial in the colony of New York in 1935. John Peter Zenger was accused of slander on the charge of publishing “seditious libels” against William Cosby, the Governor of the colony. Even though the jury had been carefully selected by Governor Cosby, the verdict was “not guilty”. The jurors considered that although Zenger’s articles had been insulting, all statements were based on fact. For some, this trial set precedent and established factual argumentation as the basis of the American democracy.
Further, it showed that freedom of speech and defamation laws can coexist in an acceptable manner, just as long as the Judicial operates on the basis of provable evidence. This coexistence can serve to assert liberty instead of libertinage.
Such a historic case highlights why high quality critical journalism cannot just focus on one of the problematic aspects of a legal conflict. It should take in consideration as many aspects as possible, as well as the context in which the conflict occurs. It is not enough to focus on just one side of the coin of the issue of freedom of speech, forgetting that this liberty is often limited (formally or informally) by conventions that attempt to prevent injuries, or the violation of the integrity of other individuals and institutions. This is even more important when we consider that in exceptional occasions, the people with freedom to express themselves amass large amounts of power and control mass media. Therefore, they have a greater responsibility to use their freedom in a constructive manner. Just as well, it is not much useful to be critical of the application of laws in Venezuela using the same political framework employed to analyze the application of law in the United States or Western Europe.
Not just in VenezuelaEven so, it is important to remember that these laws are by no means a Venezuelan phenomenon, to say the least; they are not the result of Chávez’s fancy. The crime that Venezuelans call vilipendio (contempt) of public authorities has historically been considered an offense against the law in many countries, and not just when directed to public authorities.
For example, in Argentina, similar legislation is specified in articles 109 - 111 and 209 of the Argentinean
Penal Code. In Spain it is regulated by articles 205 – 216 of the
Penal Code. There is another related article: numeral 3 of article 490, which specifies punishments for contempt of the King or his family. In France, similar legislation is known under the headings of diffamation, injure and outrage.
Articles 30 and 31 of the law of July 29th 1881 (entry under Diffamation) contemplate the defamation of a public body or agent. In Italy, it has been specified in
articles 341 to 345 of the Codice Penale (Oltraggio a un pubblico ufficiale, Oltraggio a un Corpo politico, amministrativo o giudiziario, Oltraggio a un magistrato in udienza, Oltraggio a un pubblico impiegato and Offesa all'Autorita' mediante danneggiamento di affissioni).
There are similar legal concepts in use in the United States. For example, the notions of “contempt of courts and/or congress” are theoretically related to the notion of vilipendio of public officials in Venezuela. Many states also have what is known as “libel or slander law” (defamation law), although there is indeed no federal defamation law. It is reasonable to think that this has to do with a possible contradiction between these laws and the First Amendment, but the Supreme Court rulings on cases of libel and slander have not relied on the First Amendment consistently. However, in the
Sullivan vs. New York Times Co. ruling of 1964, the Supreme Court established that public officials/individuals cannot sue for slander, unless it is on the basis of “actual malice”. This is defined as knowledge that the published/uttered information was false. (Read more on this issue in an article by legal advisor Steven Pressman, published online by the U.S. Diplomatic Mission in Germany
here)
There are other countries in Europe that also have similar legislation regarding defamation. For example, in Belgium it is found in articles 443 to 453 of the Criminal Code (
TITRE VIII. Chapitre V Des atteintes portes a l’honneur ou la consideration des personnes) . In Denmark, similar legislation is found in Chapter 27 of the Penal Law, more clearly in § 267 (
Kapitel 27, Freds- og ærekrænkelser). Danish criminal laws include a prohibition to insult the royal authorities in § 115. In Finland, it is found in the
Penal Code, Chapter 24 (entitled ‘Offences against privacy, public peace and personal reputation’). Actually, in Germany, it seems like these sorts of crimes are on the rise, according to the
Bundeskriminalamt, Police Crime Statistics of
2006 -
2008. In 2005, the recorded cases of insults, malicious gossip and defamation with false statements totaled 179 721. This number grew to 187 527 in 2006, 193 092 in 2007 and 193 617 in 2008.
As in article 147 of the Venezuelan Penal Code, Germany considers disparagement of the Federal President (§90 in the
Strafgesetzbuch or Criminal Code) as a crime, as well as other sorts of defamation. These are specified in Criminal Laws: §90a and b, which criminalize the disparagement of the organs of the State, its Symbols, the Constitution and the Constitutional organs; §185, which forbids insults; §186, which forbids malicious gossip; §187, which criminalizes defamation with false statements; §188, which penalizes malicious gossip and political defamation against persons in the political life; §189, which criminalizes the disparagement of the memory deceased person; §192, which forbids insults, despite the existence of true statements in them; §193, which specifies that even critical judgments in the pursuit of legitimate interests will be punished if they result in insults, depending on the form of utterance; §194, which regulates the criminal prosecution under these articles, and §199, which specifies what sort of mutual insult is allowed to be left unpunished.
In Norway, the Penal Law specifies in
Chapter 23 Æreskrenkelser § 246 - 254 that defamation is a crime that can be punished with fines or incarceration for up to three years, in certain cases. According to
§ 135 of the same Penal Law, people that put the general peace in danger by deriding or inciting hatred towards the Constitution or by provoking any part of the public against another, will be punished with fines or with detention or incarceration of up to one year.
Article § 101 specifies that mobilizing to violent actions against the King is punishable with incarceration for at least two years and up to twenty one years. Insulting the King is punishable with up to five years in jail.
"Respect for the rights of others is peace"The list of similar legislation in other countries can of course be longer. It should also be noted that the United Nations International Covenant on Civil and Political Rights states that:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.” (Article 17).
This same covenant establishes in article 19 that:
“1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: a) For respect of the rights or reputations of others; b) for the protection of national security or of public order (ordre public), or of public health or morals”.
The important questionsWhat is so special then about Venezuelan laws and their application in the Zuloaga arrest? Why are these laws so relevant in Venezuela, while they remain unreported in many other countries that also have them? Most of the media reports can tell us little to answer these very important questions. It is however interesting to see how much relative and partial attention this temporary legal arrest of a news network owner has received. Comparably, the
"radical increase in violence against journalists in Honduras" has been less prominent. According to the Committee to Protect Journalists, in 1992, two journalists were murdered in Honduras. There were no more journalists murdered in the country, until one reported case in 2003. This number grew to two journalists killed during 2009 and five during January - March, 2010. Actually, all five of them, killed in the month of
March. Perhaps looking into this very fact is a step forward into achieving a better understanding of what might be at stake in Venezuela.
Alberto Valiente Thoresen
