According to our Political Constitution, “public officials are simple custodians of authority.” In a democracy, power resides with the people, who delegate it to their representatives and public officials. Therefore, these officials can only exercise the powers granted to them by law. This democratic principle implies that public officials are subject to the scrutiny of society, which has the right to oversee and criticize their work.
However, criticism of public officials and state institutions is not always well-received. This explains why many laws have specific crimes that severely punish such expressions. These laws have been justified by arguing that the state and public officials need to enjoy public trust and must be protected from potential attacks on their honor. Obviously, citizen criticism is not expressed in neutral terms; it often contains subjective elements and can include offensive remarks.
From a legal perspective, the question is whether the honor of public officials should have enhanced criminal protection. Going deeper, the question is whether the mechanism for protecting their honor should be criminal or civil. The organs of the Inter-American Human Rights System have been very clear on this matter.
First, the Inter-American Commission issued a report declaring that “desacato” (contempt) crimes are contrary to the American Convention on Human Rights (ACHR). Desacato criminally protects the honor of public officials who are attacked because of their position. For the Inter-American Commission, this “directly inverts the fundamental principle of a democratic system that makes the government subject to checks, including scrutiny by citizens, to prevent or control the abuse of its coercive power.” The public official should not be shielded from criticism but rather exposed to it.
Recently, the Inter-American Court of Human Rights dealt a definitive blow to criminal law on this matter in its ruling in Álvarez Ramos vs. Venezuela. In its decision, the Court affirmed that criticism of public officials on issues of public interest “cannot be considered conduct typified by criminal law.” In these cases, “criminal typification is excluded and, therefore, the possibility of it being considered a crime and subject to penalties,” leaving open “liability in another legal sphere, such as civil, or for rectification or public apologies, for example, in cases of eventual abuses or excesses in bad faith.”
This obliges the Costa Rican state—and the other states subject to Inter-American jurisdiction—to take note in two ways. First, to decriminalize the criticism of public officials, adjusting our law to Inter-American standards. Second, by establishing a mechanism for protecting the right to honor in these cases, since all people, including public officials, have the right to protect their honor from unjustified attacks. Maintaining the current state of affairs means leaving public officials unprotected, which is also not in compliance with the ACHR.
This is a timely opportunity to rethink our system for protecting the right to honor. Is it a good idea to move to a purely civil liability regime in all cases? Can the right of rectification and reply be improved? Should we establish specific mechanisms to protect the presumption of innocence that would allow, for example, forcing a publication when an acquittal is handed down in a case covered by the press? Similarly, a comprehensive reflection on this matter should include self-regulation mechanisms, promoting the adoption of ethical codes in the media, the establishment of reader’s advocates, or reconciliation and mediation mechanisms. When dealing with fundamental rights, which are essential in any democratic society, a serious and deep reflection on these issues is more than just convenient—it is imperative.