Venice Forum: consultation from the Constitutional Court of Romania
Response from the Electoral Court of the Federal Judiciary of Mexico
In order to clarify the terms that will be used in this document, it is important to
define two terms: criminalisation and insult.

Criminalizing is a conjugation of the verb “criminalize”, which means:
“relating to, involving, or being a crime”1, i.e., in relation to the participation in or
intervention on a crime2. In this sense it should be clear if it is not only asked to
if to punish said behavior in its wide meaning or also if it is to penalize as a
crime as it is a fact of our criminal code that there are different forma of criminal
penalties, a bodily and a material, meaning the first mentioned criminal
penalties which are referred to in the text.

Insult: “It is used to describe an affront or indignity to a person’s selfrespect that could warrant the awarding of damages.” 3 Meaning this a term
used to describe an offense to or humiliation of a person´s self-respect (dignity)
which justifies -the claim for damage and injury”. To the extent that the used
term is not only for insult, but also for the extended use of a damaged psyche or
dignity, which our legal system would consider, among others, as insult,
invective, impropriety or offense meaning that essentially anything involved to
harm a person’s feelings, beliefs, sentiments, decency, honor, reputation,
privacy, physical configuration and aspects or the image they consider other
people have of themselves.4
In that vein, it is considered that the purpose of the inquiry is to determine if the
Mexican legal system penalizes the violation of moral rights and, if not, which
alternative corresponds in this case. Here are the answers submitted from the
Electoral Court of the Federal Judiciary of Mexico.
1
Dictionary of Law, Merriam-Webster, Incorporated, Springfield, Massachusetts, United States
of America, 1996, p 115,
2 Crime is not to be confused with offense. Luis Rodríguez Manzanera states that crime and
offense are different since “Crime is an anti-social conduct. Properly speaking, it means an
episode that has a beginning, an evolution and a purpose […]. Offense is a violation of a
criminal law which means that not all offense is equivalent to crime and not all crime to offense”,
so that “The Latin-American tradition of criminology has the peculiarity of having used for a long
time the term ‘offense’ instead of ‘crime’. However, the evolution of the universal theory of
criminology is likely to use both concepts without distinction…” Mexican Law Dictionary, Porrúa
Editorial and Autonomous University of Mexico, México, 2009. pp. 928-929.
3 Black´s Law Dictionary http://thelawdictionary.org/insult/.
4 Art. 1916, Federal Civil Code.
1
1. Does your legal system protect honour and dignity by criminalising
acts of insult and calumny? Does the concept of “evidence of the
truthfulness” exist? If so, please send us the relevant provisions.
Electoral legislation
With regard to legislation specifically related to the Electoral Court of the
Federal Judiciary, there is a reference to the topic in the first paragraph of
section C, fraction III, article 41 of the Mexican Constitution:
“Section C. In the political and election campaign advertising, the political
parties cannot use terms or expressions that denigrate or insult institutions or
political parties, or that slander people.”
Also, in the Mexican electoral law, several articles of the Federal Code of
Electoral Institutions and Procedures (COFIPE) establish limits to observers,
political parties, coalitions, candidates and the media, in order to prevent
calumny, offence or denigrating expressions. These references include:
Fraction III, subparagraph e), numeral 4, article 5, COFIPE:
4. Is an exclusive right for the Mexican citizens to participate as observer of the
preparation acts and electoral process course, as on the election day, on the
way and terms established by the Institute General Council for each electoral
process, according to the following basis:
(…)
e) The observers will abstain from:
(…)
III. To express any offence, slander or calumny against the institutions, electoral
authorities, political parties or candidates; and”
Article 38 COFIPE:
1. The responsibilities of the national political parties are:
2
(…)
p) To abstain from any expression which denigrates the institutions and parties
or to slander the persons during the political or electoral propaganda. The
complaints regarding this matter will be presented to the Institute Executive
Secretary, which will prepare an investigation procedure on the established
terms on the Seventh Book of this Code. In case the complaint is approved it
will be followed the established on the first paragraph of article 6th from the
Constitution;
Article 233 COFIPE:
(…)
2. In the electoral or political propaganda made by the political parties, the
coalitions and the candidates should abstain from expressions that denigrate
the institutions and the political parties, or to slander the persons. The General
Council of the Institute has the right to suspend immediately the messages in
radio or television that do not fulfill this regulation, as the suspension of any
other propaganda.
Article 342 COFIPE:
1. Constitute violations of the political parties to this Code:
(…)
j) The diffusion of political propaganda or electoral containing expressions that
denigrate the institutions and the parties, or to slander people;
Subparagraph d, numeral 1, article 350, COFIPE:
“1. Constitute violation of this Code of concessionaire or official agents of radio
and television:
(…)
d) The handling or overlap of the electoral propaganda or the programs of the
political parties in order to alter or distort their original sense or denigrate the
institutions, the own parties, or to slander the candidates; and”
3
Article 368, COFIPE:
2. The procedures related to the diffusion of propaganda that denigrates or
slanders may only be starting at the request of the affected part.
Other regulations (non specific to the electoral realm)
More broadly, the Mexican Criminal Justice System at the federal level only
indirectly refers to the protection of honor and its legal protection, in case of
discrimination (art. 149 Federal Criminal Code)5 or threats to harm a person’s
honor or rights or someone linked to them by any bond (Mexican Federal
Criminal Code Article 282 6).
Furthermore, at the local level, there are still States7 that contemplate a chapter
on the defense of honor in their criminal legislation, and provide penal types for
insult, defamation and slander, among which are Colima and Baja California.
These criminal laws conceptualize such offenses as crimes as follows:
Defamation: “Consists in telling intentionally one or more persons the
imputation on another individual or legal entity provided by law on a real or false
fact which may cause discredit, damage or exposure to someone’s contempt.”
“ARTICLE 149 third.- the sanction applied is a prison sentence from one to three years or
community work of three hundred days and a fine of up to two hundred days of salary for the
person who attempts for reasons of ethnic, nationalism, race, skin color, language, gender,
sexual preference, age, marital status, national or social origin, social and economic conditions,
health condition, pregnancy and political or other beliefs against human dignity or overrides or
undermines the rights and freedoms of an individual by the following behaviors:
I. Denying a person a Service or a benefit they are entitled to.
II. Denying or restricting labor rights, basically for the reason of gender or pregnancy; or limiting
health Service, especially to pregnant women; or
III. Denying or restricting education rights.
The public official who for the reasons mentioned in the first paragraph of this article denies or
delays a person’s application, Service or benefit they are entitled to the penalty shall be
increased by half of prescribed in the first paragraph of the present Article and additionally the
shall be removed from office and disqualified for any public office and commission for the same
period of time as the imposed prison sentence is to last.
The means for the protection of social disadvantaged groups are not considered discriminatory.
When the conducts referred to in this Article are performed by persons the victim is
subordinated to at work the penalty shall augment by half.
Also, penalty shall be augmented in case of discrimination by restricting access to legal
guarantees indispensable for the protection of the human rights.
This offense shall be prosecuted by a complaint.”
5
“Article 282, Threats. Penalization by prison from three days to one year or 180 – 360 days fine:
I.-Whoever threatens in any manner someone by causing personal or material damage, someone’s honor
or rights or persons linked to them by some bond…”
7
All federal States have legislative autonomy in crime legislation in virtue of the provisions of Articles 73
and 116 of the Political Constitution of the United States of Mexico.
6
4
It shall be penalized with three days to two years in prison or one hundred day
fines, or both, depending on the verdict of the judge. 8
Slander: “I. To impute another person a certain act which by law is stipulated a
crime, but the fact is false or the alleged offender is innocent; II.-To sue,
demand or accuse defamatorily a specific person knowingly that they have not
committed the offense or are not guilty III.-To make the innocent appear as
guilty of crime, put on the slandered person at home or other suitable place for
that purpose a hint that might give evidence or presumption of liability.” Such
behavior is punished with imprisonment from six months to two years and a fine
of two to three hundred pesos while in the case of the two last fractions the
slandered if convicted by irrevocable sentence shall be liable to the same
punishment as the slandered.” (Article 191). The sanction shall be a prison
sentence from six months to two years or a fine up to one hundred days, both
penalties depending on the verdict of the judge.
Primarily, it should be emphasized that these conducts, have in common to
harm a person morally, thus the protection of the dignity of the individual turns
out to be the legal interest.
Legal grounds for the protection of human rights are provided by the American
Convention on Human Rights, “Pact of San José”, Costa Rica, signed by
Mexico in November of 1969, especially by Art. 5 with the following wording:
Article 5
Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral integrity
respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person.
The right to respect the dignity and therefore the physical and moral integrity,
regulated by the quoted international principle, is preserved in Article 1 of the
Constitution of the United Mexican States, which entails to promote, respect,
protect, and fulfill all authorities in their areas of competence in accordance with
the
principles
of
universality,
interdependence,
indivisibility
and
progressiveness.
In that sense, the defamation and insult referred to in the query submitted to the
Venice Forum, are behaviors that affect moral and psychological integrity of
individuals, thus the protection in our legal system is not limited to these two
forms, but are expressed generally by any act which affects the invisible
8
Art. 218 Criminal Code of Colima.
5
immaterial domain related to the victim’s inner-self , protected by the Political
Constitution of the United States of Mexico in the Articles defined by civil
legislation as following:
Constitution of the United Mexican States
“Article 6o - Expression of ideas shall not be submitted to judicial or
administrative inquiry, except for the cases when such expression of ideas goes
against the moral or third party’s rights, or causes perpetration of a felony, or
disturb law and order. The right of reply shall be exercised according to law.
The State shall guarantee the right to information.”
“Article 7- Freedom to write and publish texts on any topic is unrestricted. No
law or authority can previously censor the press, or ask for a bail to authors or
printers, or restrict freedom of the press, which has its limits in respect to private
live, morality and public peace. In no case, printing press can be seized as the
instrument of a crime.
Organic laws shall establish all the necessary provisions to prevent that, on the
pretext of accusations, sellers, newsboys, paper industry workers, printers and
any other employees of the workshop that published the reported publication
was jailed, unless their liability is previously demonstrated.”
Federal Civil Code:
“Article 1916. Moral damage is the harm of an individual’s sentiments, feelings,
beliefs, propriety, honor, reputation, privacy, physical configuration and
appearance or whatever the individual may considers their image to be. Moral
damage is presumed whenever freedom or physical or psychological integrity of
the individual is legitimately violated or undermined…”
With regard to the concept of "evidence of truthfulness" in Anglo-Saxon
Common Law, it is of significant importance due to the judicial system for
resolution of cases in which evidence or the means of evidence assessment, as
it is called in our justice system, are valued according to case precedents, which
is why the evidence or probative value of the conviction means shall depend on
the subjective assessment linked to particular circumstances in relevant
precedents, in order to achieve truthful and irrefutable evidence.
This does not happen in Mexico, due to the fact that proceedings are
predominately normative, so that when some evidence is appraised, it must be
analyzed according to the circumstances of the case, which stems from an
exclusive assessment of the judge and the analysis of evidence submitted by
the parties or, where applicable, requested by the judge in order o reach
certainty on the actualization of the constitutional elements of the suggested
proceeding.
In view of the above, the concept of "evidence of truthfulness" is not covered in
our legal system. Thus, in the case of damaging dignity and honor, the
incriminating elements are basically the unlawful act itself, the damage and the
causal link between the two.
6
2. If acts of insult and calumny are not criminalised, what are the legal
forms for protecting honour and dignity?
Mainly, honor and dignity are protected by civil legislation in Chapter V, About
responsibilities as a result of unlawful acts , in Article 1916 , under which the
damage on moral assets of an individual binds the offender to reparation in
form of monetary compensation and it can be derived from any unlawful act
interpreted as origin of responsibilities and may consist in any act contrary to
legal duties covered by law or contract.
As to moral damage there are considered all acts against law or agreed tacitly
or expressly under a contract where it should be considered that all exercising
of freedom of expression and press finds the limits where the damage of honor,
reputation or decency of others begins.
This moral damage may be defined as a doctrine on the following expression of
Gutierrez y González: “… IT IS THE DETERMINED AND REAL PAIN
SUFFERED BY AN INDIVIDUAL OR THE DISCREDTING OF AN INVIDUAL
OR SOCIAL GROUP OR THE SMEARING OF AN INDIVIDUAL, ENTITY OR
SOCIAL GROUP ON THEIR RIGHTS TO PERSONALITY BY COMMITTING
AN UNLAWFUL OR LAWFUL ACTMAKING THE OFFENDER LIABLE BY
LAW.”
7
3. If such acts were considered crimes in the past and were then
decriminalised, please tell us when and for what reasons.
The Federal Criminal Code used to cover, in the Twentieth Chapter, the
offenses of honour and, within those, the definitions of defamation and slander
were covered under Chapter II and at the same time the offense of slander for
which offenses the following content and sanction were covered:
Defamation: “Telling intentionally one or more persons the imputation on
another individual or legal entity provided by law on a real or false fact which
may cause discredit, damage or exposure to someone’s contempt” and it shall
be penalized with a prison sentence of up to two years and a three-hundredand-fifty pesos fine, but when the victim was one the relatives or the persons
referred to by the Articles 343 second and 343 third and these persons also live
in the same home with the victim, the penalty is to increase by a third (Article
350).
Slander: “I. To impute another person a certain act which by law is stipulated a
crime, but the fact is false or the alleged offender is innocent; II.- To sue,
demand or accuse defamatorily a specific person knowingly that they have not
committed the offense or are not guilty III.- To make the innocent appear as
guilty of crime, put on the slandered person at home or other suitable place for
that purpose a hint that might give evidence or presumption of liability.” Such
behaviour is punished with imprisonment from six months to two years and a
fine of two to three hundred pesos while in the case of the two last fractions the
slandered if convicted by irrevocable sentence shall be condemned with to the
same punishment as the slandered.
However, these Articles classifying such conducts have been derogated by the
amendment on the legal system commented on which was published on 13
April, 2007, in the Official Journal of the Federation.
The reasons leading to the derogation of mentioned Articles and taken into
account by the House of Representatives for the decriminalization of
defamation and slander were the setting up of international standards towards
freedom of expression established by the Inter-American Commission for
Human Rights, a body reporting to the Organization of American States when
the “Declaration of the Principles of Freedom of Expression” (108th session
period, October of 2000).
Declaration on Article 10 provides:
“Privacy laws should not inhibit or restrict investigation and dissemination of
information of public interest. The protection of a person’s reputation should
only be guaranteed through civil sanctions in those cases in which the person
offended is a public official, a public person or a private person who has
voluntarily become involved in matters of public interest.”
(emphasis added)
In turn, other countries were asked to adequate their criminal legislations in
order to remove custodial sentences concerning the offenses of slander and
defamation based on the following two main reasons:
a)
Freedom of expression may not have greater limits than the established
international standards regarding this subject.
8
b)
Defamation and slander were used as instruments of pressure to coax
freedom of expression and not as control for the protection of third party rights
such as dignity and honour.
Accordingly, the Inter-American Commission for Human Rights considered that
the criminal penalties inhibit the freedom of expression and that any type of
penalization on expression only may be applied under exceptional
circumstances.
Also, it is pertinent to note that Criminal Law constitutes the intense legal
reaction facing the behaviours that cause the most offense to the protected
legal interests by regulatory order. Moreover, the offense of insult was also
discharged from penalty since our legislators considered that not all behaviours
should be penalized criminally for there are other conducts followed by different
penalty means such as financial sanctions.
9
4. Does your Court have any relevant constitutional case-law on the regulation
governing insult and calumny?
There are several pertinent cases on the issue of moral damages worth
mentioning, that the decisions issued by the Supreme Court of Justice of the
Nation identified in the following data:

AMPARO BY 2411/2012, COMPLAINANTS AND APPELLANTS:
MILENIO DIARIO, VARIABLE CAPITAL CORPORATION AND CARLOS
MARIN MARTINEZ.
It was resolved by the First Chamber on December 5 th, 2012, and resulted
in the following item and jurisprudential standards:
"RIGHT TO HONOR AND PROFESSIONAL REPUTATION. The First Chamber
of the Supreme Court of Justice of the Nation, thesis 1a. XX/2011 (10a.), under
the heading of "FUNDAMENTAL RIGHT TO HONOR ITS SUBJECTIVE AND
OBJECTIVE DIMENSION", alleged that the right to honor has an objective or
external dimension according to which it may be defined as the right to not be
conditioned negatively by others to an image of oneself which other people
should perceive of oneself. In this dimension, the right to honor protects the
good reputation of an individual’s moral and professional qualities shielding it
against expressions or messages which cause being discredited and
disregarded in others’ eyes. On those grounds, the First Chamber considers
that in certain cases and under certain circumstances, the judgment or the
information disclosed about the professional conduct of a person or business
can be a real outbreak to one’s honor. On these assumptions, the absolutely
degrading messages of a person are addressed to the behavior in relation to
work and occupation able to detract someone’s image with the same intensity
and damage as if the disqualification was addressed directly to the person itself
or their moral qualities. This is so because the professional activity happens to
be the most prominent ways to manifest externally one’s personality and
relationship with the rest of the community, to the extent that the offensive and
unnecessary disqualification of such conduct reaches a special and intense
effect on such relationship and on what others come to think about the image
others would get about a person, damaging the assets of their activity as well
as the personal image others might have got. However, the First Chamber of
the Supreme Court of Justice of the Nation holds the simple criticizing the
professional skills should not be simply confused with damaging the honor
since the fact that of not being considered by a third party as a well-skilled
professional and the best qualified for a certain job does not constitute per se
an attempt against one’s honor. Criticizing someone’s professional competence
may harm the right to honor without being protected by the freedom of
expression or the right to information whenever this act constitutes: (i) a
disqualification of the professional probity of an individual which may damage in
a serious, unjustified or unfounded manner their public image or (ii) criticism
which in spite of being addressed formally to the professional performance of
an individual implies in the background a personal disqualification through the
fact of affecting directly a person’s being considered for the job and dignity.”9
9
Tenth period; Register: 2002742, Separate Thesis; Source: Journal of the Federal Judiciary and its
Gazette; found: Book XVII, February of 2013, Volume 1; Field(s): Constitution; Thesis: 1a LXII/2013
(10a.), p 798.
10
AMPARO BY 2806/2012, RESULTING FROM A
BETWEEN JOURNALISTS OF PUEBLA.
DISPUTE ARISING
In which it is claimed that the terms “maricón”10 and “puñal”11 are homophobic.
The First Chamber of the Supreme Court of the Nation, ruled by a majority of
three votes in a session on March 6th, that "homophobic expressions that infer
that homosexuality is not a valid sexual option, but a condition of inferiority,
constitute discriminatory statements, even when they are stated in a mockery
sense, since through them it encourages, promotes and justifies intolerance
towards homosexuality "and that such expressions are in the field of speech
hatred, seeing as they tend to look down on those who are part of this social
group and generates a deal of hostility towards them.
Despite these expressions are strongly entrenched in the Mexican society,
these words cannot authenticate human rights violations of individuals,
therefore usage may lead to demands for moral damages.
Also, another transcendental issue was solved on November 23, 2011, by the
Supreme Court of Justice, concerning an appeal on the grounds of
unconstitutionality 28/2010, filed by Demos, Desarrollo de Medios, S.A. against
the definite ruling on April 7, 2010, by the Tenth Civil Court of the Superior
Justice Court of the Federal District which derived in the following Supreme
Court theses: “FUNDAMENTAL RIGHT TO HONOUR OF THE LEGAL
PERSON”, “FREEDOM OF SPEECH AND RIGHT TO HONOUR.
EXPRESSIONS
PROTECTED
BY
THE
CONSTITUTION”
and
“FUNDAMENTAL RIGHT TO HONOUR. ITS SUBJECTIVE AND OBJECTIVE
DIMENSION”12
The background of the case is as follows: a journalistic column titled “Cómplices
del terror”13 was published in the magazine Letras Libres; Demos, Desarrollo de
Medios, S.A. de C.V. to which the newspaper “La Jornada” belongs, sued
Editorial Vuelta, S.A. de C.V (owner of “Letras Libres”) and Fernando García
Ramírez (author of the column) through civil proceedings. “La Jornada”
considered that the content and tone of the news story constituted attacks
against the named newspaper and pointed out that the magazine “Letras
Libres” had accused it of criminal acts without evidence to uphold their sayings.
Furthermore, the company Demos (to which “La Jornada” belongs), requested
the Supreme Court to establish if the freedom of speech exercised in the
column “Cómplices del terror” constituted or not a violation to the right to the
honour of “La Jornada”.
The content of the news story is the following:
10
11
12
13
Maricón is a slang term used in Spanish to refer to a homosexual person in a harsh and offensive manner.
Puñal is a slang term used in Spanish to refer to a homosexual person in a harsh and offensive manner.
These are not the official translations of the theses.
In English: Accomplices to terror
11
“ACCOMPLICES OF TERROR
BY FE RNANDO GARCÍ A RAMÍ RE Z
In October 2002, La Jornada signed an agreement- that included the
collaboration in informative projects of mutual interest- with the ultranationalist
journal GARA, newspaper belonging to the political wing of ETA, which
substituted the extinct Egin. Why didn’t La Jornada inform its readers of this
agreement? It should be recalled that Egin was closed by orders of Baltazar
Garzón for its complicity with the terrorist organization, and the same judge has
accused Gara of the same crime.
This agreement explains that La Jornada invariably calls “separatist group” the
Basque terrorist organization. It explains, too, the campaign initiated since then
against Garzón “characterized by chasing Basques”, according to that journal´s
editorial. (What a contrast with the enthusiast treatment the same judge
received, a few years before, when he requested Pinochet´s extradition,
detained in London.)
The last –sad, embarrassing- episode of the agreement between La
Jornada/Gara happened by the end of January, when the Mexican journal
helped to prevent, by an scandalous informative manipulation, the ill
accomplished presence of Garzón in the west detention center, in the moment
he tried- in compliance of the Mutual and Legal Assistance Treaty between
Mexico and Spain- to be present in the interrogation of six suspect Basques
imprisoned in our country. Complaining of this “journalistic” distortions, the
Spanish judge sent a letter to Carmen Lira, newsletter editor of that journal
(although he should had sent it to Josetxo Zaldúa, editorial general coordinator
and accelerated proetarra), pointing out, among other things, that “it hasn’t
been casual… the information and opinion that you have given this days…
manipulated in a rude way, with the clear intention to mislead public opinion, of
what has been an act of legal assistance”.
No, the aversion of La Jornada against judge Garzón is not casual. We should
understand it as part of the agreement with Gara. We should understand it as it
is: a written variable of the terrorist fight against the law. La Jornada at the
service of an assassins hyper-nationalist group. This is how the journalism is
practiced in Mexico, I hope that not for long.”
The First Instance Court Judge exonerated the co-defendants, ruling that was
appealed by both parties that concluded with the conviction, in second instance,
of the co-defendants for the alleged moral damages caused to La Jornada for
the publication of the column under analysis.
Both parties promoted a direct amparo trial against the sentence, amparo that
was granted to Letras Libres and Mr. García Ramírez, with the effect that the
First Chamber of the Supreme Court of Justice would analyze de evidence
offered by the co-defendants. The Chamber ruled and confirmed the conviction.
In disagreement, the parties promoted, for the second time, a direct amparo
trial. Both were resolved in favor of the co-defendants, granting the amparo for
the following effects: the Chamber would dictate a new ruling, taking into
consideration the evidence offered by the co-defendants and evaluating, if
12
under it, the exception contained in the article 5 of the Law about Printing
Crimes could be applied and if it could be considered that the word
“accomplice” was used in the sense of creating sympathy of La Jornada for the
organization E.T.A. The Chamber dictated a third ruling absolving the codefendants and condemning the plaintiff to pay the costs of both instances.
In disagreement, the plaintiff promoted a third direct amparo trial against the
sentence of the Chamber, alleging that the objections to the evidence offered
by the co-defendants were not taken into consideration and that the Law about
Printing Crimes is unconstitutional. The Collegiate Court granted the amparo to
La Jornada: the effect was that the Chamber had to evaluate the objections
made to the evidence by the plaintiff and upheld the constitutionality of the Law
about Printing Crimes.
In disagreement with the decision regarding the constitutionality of the law, La
Jornada filed an appeal. The First Chamber of the Supreme Court of Justice
analyzed the case and sustained the constitutionality of the Law about Printing
Crimes, but for different reasons than the Collegiate.
The Superior Justice Court of the Federal District did not wait for the Supreme
Court resolution on the appeal and ruled a fourth sentence absolving the codefendants. La Jornada filed another direct amparo trial; however, because the
Supreme Court resolution the fourth sentence was declared groundless and a
new ruling, containing the guidelines given by the Supreme Court was dictated.
It also caused the direct amparo trial to be dismissed.
La Jornada filed another direct amparo trial and the First Chamber of the
Supreme Court ruled a fifth sentence. The amparo was attracted by the First
Chamber of the Supreme Court of Justice by proposal of the Justice Sánchez
Cordero and was identified by the number 28/2010.
In the above mentioned ruling, that resolves the direct amparo trial 28/2010, the
First Chamber of the Supreme Court of Justice considered that the expressions
used in the column “Cómplices del terror” were protected by the freedom of
speech protected in the Constitution and, therefore, declared unfounded the
violations reviewed.
All the above because in a democratic system, freedom of speech has a special
position above the right of honour, but this does not mean that freedom of
speech is absolute or prevails in all conflicts.
It was said in this ruling that the column “Cómplices del terror” was used by its
author to manifest his opinion regarding the editorial line of La Jornada and
about the position of the newspaper during Baltazar Garzón’s visit to Mexico in
2004.
Furthermore, it was determined that the theme of the column “Cómplices del
terror” was relevant for the public and that the critique laid on a public figure, a
communication media, and with that the requirements needed for the
application of the real malice standard, characteristic of the dual protection
system used by the Mexican legal system.
About the alleged excessive tone of the column “Cómplices del terror”, the First
Chamber of the Supreme Court observed that the article used disparaging and
13
disrespectful expressions that could evidently bother, annoy and upset La
Jornada as its recipient. It was also considered that exaggeration was used
through out the column, especially when it concluded that the editorial line of
the plaintiff was equivalent to be “at the service of an assassins hypernationalist group”, which could be very unpleasant.
But the sentence concluded that, no matter the above, and in the understanding
that the First Chamber of the Court did not share the assertions contained in the
article, the tone used was justified by the purpose of causing impact among its
readers, in a way that a conviction would inhibit the open debate about subjects
that, as in this case, were of public interest.
Moreover, it was said that the allegedly insulting expressions did keep a relation
with the ideas that the note pretended to transmit.
On the other hand, it was considered that the critically severe comments were
proportional to the degree of indignation by the referred issues, while it was
important to point out that the liberty of speech not only protects the information
and the ideas, but also the manner and tone in which they are expressed.
Al last, regarding the argument of the plaintiff “La Jornada” leaning toward
probing that Letras Libres unfoundedly accused it of a commission of a crime,
the Court uphold that the fact that an article made reference to behaviors that
could be considered crimes did not necessarily translate in the accusation of a
crime, because it was relevant to consider the main objective of the note, that
was precisely to critique the editorial line of La Jornada and mainly, its behavior
during the visit of the Spanish official to our country, and not to charge La
Jornada for any crime.
It was also considered in the sentence that this case had a symmetrical relation
between two written communication media, through which, both competitors
had an increased margin of liberty for emitting opinions, because they were
equals. This implied that written communication media, unlike any other person,
could refute from its pages the opinions they do not agree with.
JURISPRUDENCE RELATED WITH THE CONSULTATION OF THE VENICE
COMMISSION ABOUT SLANDER
Criminal protection of honour and dignity against insults, offenses, aggression,
improperness or slander.
First of all, the Supreme Court of Justice has established many criteria related
with the subject of honour protection and dignity, concluding essentially that
every natural person is entitled to honour, because its recognition is a
consequence of the affirmation of human dignity and, it also upheld that the
right to honour of natural persons can also be damaged through the disclosure
of facts concerning their being when another person slanders it or makes it
loose others consideration.
Accordingly, it has been considered that the relation between freedom of
speech and the personality rights, such as the honour, are complicated when
the exercise of the first is used to criticize a person, in such a way that she feels
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aggravated. The complexity lies in that any given State can not privilege a
determinate criteria of decency, aesthetic or decorum over the expressions that
could be widely welcomed because there are no uniform accepted parameters
that could outline the content of these categories, therefore, they constitute too
vague limitations of freedom of speech to be constitutionally admissible.
On the other hand, the Supreme Court also defined honour as the concept a
person has of itself or that others have formed of it, because of its acting or
expression of its ethical and social quality, and therefore every individual, by
living in a society, has the right to be respected and considered and
correspondingly, has to respect those that surround him.
Such criteria was established in the following theses:
1. – Tenth époque, Registry 2000082, First Courtroom, Isolated Thesis, Book
IV, January 2012, Tomo 3. Thesis 1a. XXI/2011 (10a.), p. 2905.
FUNDAMENTAL RIGHT OF LEGAL PERSONS TO HONOUR
2.- Tenth époque, Registry 2000104, First Courtroom, Isolated Thesis, Book IV,
January 2012, Tomo 3. Thesis 1a. XXI/2011 (10a.), p. 2912
FREEDOM OF EXPRESSION AND RIGHT TO HONOUR. EXPRESSIONS
THAT ARE CONSTITUTIONALLY PROTECTED
3.-Tenth époque, Registry 2000083, First Courtroom, Isolated Thesis, Book IV,
January 2012, Tomo 3. Thesis 1a. XXI/2011 (10a.), p. 2906.
FUNDAMENTAL RIGHT TO HONOUR. ITS SUBJECTIVE AND OBJECTIVE
DIMENSIONS.
Moreover, in the thesis identified with the number 1a. CXLVIII/2007, the
Supreme Court of Justice essentially upheld that the honour is damaged with a
malicious manifestation or expression and with it its private life is affected, and
that the article 1 of the Law about Printing Crimes, to protect the honour or
reputation of a person against freedom of speech of another, does not exceeds
the limit of the right to a private life established in the article 7 of the Political
Constitution of the United Mexican States, related to the freedom of print,
because honour and reputation are a part of it.
The reference and title is follows:
4. – Ninth époque, Registry 171882, First Courtroom, Isolated Thesis, Volume
XXVI, July 2007, Thesis 1a. CXLVIII/2007, p. 272.
PRIVATE LIFE. ARTICLE 1ST OF THE LAW ON PRINTING CRIMES, WHEN
PROTECTING HONOR AND REPUTATION IN FRONT OF ANY MALICIOUS
MANIFESTATION OR EXPRESSION, IT DOES NOT EXCEED THE LIMIT
ESTABLISHED BY ARTICLE 7 OF THE FEDERAL CONSTITUTION.
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On the other hand, the Supreme Court of Justice has also upheld that when the
damage of legally protected assets has been disseminated in any
communication media, the judge will order an extract of the sentence to be
published in the communication media esteemed convenient with the
particularity that this publication should receive the same relevance of the one
that caused the moral damage, which does not implies that the communication
media has to be exactly the same as the one used for the original statement.
Such criterion is upheld in the thesis 1a. XLVI/2010 of the First Chamber of the
Supreme Court, which headline and reference are as follows:
5. – Ninth époque, Registry 164922, First Courtroom, Isolated Thesis, Volume
XXXI, March 2010, Thesis 1a XLVI/2010, p. 940
REDRESS OF MORAL DAMAGE WHEN THE HONOR OF A PERSON IS
AFFECTED. THE DETERMINATION OF THE MEDIA WHERE AN EXTRACT
OF A SENTENCE SHOULD BE PUBLISHED, WITH THE SAME RELEVANCE
THAT ORIGINAL DIFUSSION HAD, IT REMAINS TO THE CAREFUL
DISCRETION OF THE JUDGE (INTERPRETATION OF ARTICLE 1916 OF
THE CIVIL CODE FOR THE FEDERAL DISTRICT, VALID IN 2005)
Furthermore, the Supreme Court upheld in the thesis 1a. XLI/2010 that public
figures must resist a greater level of interference in its intimacy than private
persons, because of a legitimate interest of society and the media to receive
and disseminate information about public figures, in favor of free public debate.
The abovementioned criteria is established in the following thesis:
6. – Ninth époque, Registry 165050, First Courtroom, Isolated Thesis, Volume
XXXI, March 2010, Thesis 1a XLVI/2010, p. 923
PRIVACY RIGHTS, TO INTIMACY AND HONOR. ITS PROTECTION IS LESS
EXTENSE IN PUBLIC PERSONS THAN PRIVATE OR PARTICULAR
PERSONS.
It was also upheld that persons with public responsibilities maintained the
protection of the right of honour even when they are not acting as individuals,
but the implications of this protection shall be pondered with the ones deriving
from the interest in an open debate of public affairs.
Such criteria was established in the following thesis:
7. – Ninth époque, Registry 165820, First Courtroom, Isolated Thesis, Volume
XXX, December 2009, Thesis 1a CCXIX/2009, p. 278
Finally, the Supreme Court of Justice established that for determining when a
violation of the right of honour exists, the difference between public figures and
individuals with out public projections, must be understand inside the dual
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system of protection, and the qualification of the subject as general interest
must be studied in each case.
This was established in thesis CLXXXV/2012 (10a.) whose title and reference
are the following:
8. – Tenth époque, Registry 2001675, First Courtroom, Isolated Thesis, Book
XII, September 2012, Volume I, Thesis 1a CLXXXV/2012 (10a), p. 510.
FREEDOM OF INFORMATION. THE STANDARD OF CONSTITUTIONALITY
IN ITS EXERCISE IS PUBLIC RELEVANCE (LAW OF CIVIL RESPONSIBILITY
FOR THE PROTECTION OF THE RIGHT TO PRIVATE LIFE, HONOUR, AND
SELF IMAGE IN THE FEDERAL DISTRICT.
On the other hand, the Electoral Tribunal of the Federal Judiciary has upheld
that the right to honour and dignity constitutes a limit to the expressions,
speech, interferences or attacks of individuals, groups and the State, and that
this criteria is consistent with the prohibitions established in the Political
Constitution of the United Mexican States regarding that the electoral
stakeholders must abstain of expressing insults, libel and slander against
institutions, electoral authorities, political parties, coalition and candidates, and
the obligation of political obligations to abstain, during political campaigns, of
expressing anything that implies diatribe, slander, libel, defamation or that it
denigrates the citizens, public institutions, and other political parties or its
candidates.
The above mentioned constitutes an imperative of the Mexican democratic
system, because the fundamental right of every person is the respect to its
dignity, to avoid being subject to wrongful attacks to its honour and reputation,
and from conducts that have as a goal to cancel or undermine the rights and
liberties of the persons, according to article 1, paragraph fifth, of the Federal
Constitution, 17 or the International Covenant on Civil and Political Rights, and
the 11 of the American Convention on Human Rights.
The above mentioned is confirmed in the jurisprudences 11/2008 y 14/2007,
from the Superior Chamber of the Electoral Tribunal, titled: "FREEDOM OF
EXPRESSION AND INFORMATION, ITS MAXIMIZATION IN THE CONTEXT
OF POLITICAL DEBATE". AND "HONOR AND REPUTATION. ITS
PROTECTION DURING THE DEVELOPMENT OF AN ELECTORAL
PROCESS IS JUSTIFIED BECAUSE THEY ARE FUNDAMENTAL RIGHTS
ACKNOWLEDGED IN THE EXERCISE OF FREEDOM OF EXPRESSION”
In this context, the conclusion is that the restrictions, duties or limitations to the
freedom of speech, with its correlated affectation to the right to information, are
expressly stated in the Political Constitution of the United Mexican States and
the above mentioned international instruments, among others, careers of the
fundamental human rights, which are the “Supreme Law of all the Union”
according to the article 133 of the Constitution.
On the other hand, the Electoral Tribunal has also upheld that, regarding the
exercise of freedom of speech in relation to the political propaganda
widespread by the political parties through electronic communication media,
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that the possibilities of critique should be expanded in the curse of the political
debates or when its about public interest matters.
It has been considered that in such cases, the tolerance margin must be higher
faced to judgmental, appreciations or assertions in the electoral debates or
when public or general interest issues are involved.
Such criteria was adopted from the clear conception that in a constitutional
democracy an disinhibited, vigorous and completely open debate on political
affairs is required, and therefore vehement, casuistic, hot spots about the
government an public servants performance must not be excluded or
discriminated, provided necessarily, that the constitutional and legal limits are
not trespassed due to this fundamental right.
Finally, the thesis XXIII/2008, titled “POLITICAL AND ELECTORAL
PROPAGANDA. IT SHOULD NOT CONTAIN EXPRESSIONS THAT INDUCE
TO VIOLENCE (LAW OF THE STATE OF TAMAULIPAS AND SIMILAR
ONES)” it was established that political and electoral propaganda must
incentivize public debate, with the aim of presenting before the citizens the
registered candidates, to encourage the presentation, development and
discussion of the programs and actions proposed by the political parties in its
basic documents and particularly in the political platform that they registered for
the corresponding election, and therefore political parties must abstain of using
violence or any other mean that have as a goal or result to disturb public order,
and to manifest expressions that contain diatribe, slander, libel, defamation or
that it denigrates the citizens, public institutions, and other political parties or its
candidates in the political and electoral propaganda they choose to use,
because that would transcend the limits of freedom of speech.
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