Issue : The issue on This case is whether the arrest, conviction, and sentencing of opposition leader Leopoldo Lopez on "instigation" charges complied With The Provisions of the International Covenant on Civil and Political Rights (hereinafter, the "ICCPR") With regards to permissible cumulative conditions for the legitimate restriction of the right to freedom of opinion and expression.
Rule : Under international law, the following six elements need to be complied With for a prosecution on grounds of incitement to Comply with the state's obligation to respect freedom of expression:
- Legality: Restrictions must be provided by law and the law must be Formulated with sufficient precision,
- Legitimate grounds: Rights of others, national security, or public order;
- Necessity: Restrictions must be Necessary for a legitimate purpose and must be the only They way to Achieve protection;
- Proportionality: Restriction on expression shouldnt be overbroad, ITS must be the Least intrusive instrument amongst Those Which Might Achieve Their protective function, and must be proportionate to the interest to be protected;
- Intent: It must be PROVED That the defendant Had the intent to incite discrimination, hostility, or violence When the case falls Within the Provisions of article 20 (2) of the ICCPR;
- Causation: When a state party invokes a legitimate ground for the restriction of freedom of expression, it must Demonstrate in specific and individualized fashion the required nature of the threat and the necessity of the specific action taken, in particular, by Establishing a "direct and immediate Between the connection expression and the threat. "
Analysis / Application : In this case, Leopoldo Lopez was arrested, charged, Convicted, Sentenced and is currently are serving long prison term to Criticizing the government for openly of Venezuela and for calling for change in the country. At a series of peaceful protests in 2014, Lopez gave speeches calling for non-violent, democratic change in Venezuela, in Accordance With its Constitution. Repeated emphasis on DESPITE His Urging to transition through non-violence and adherence to the Constitution, on February 12, 2014, the government issued a warrant for His arrest claiming His goal was to That overthrow the government through violent means. The charges Against Lopez Were for "conspiracy," "incitement to commit crimes," "public intimidation," "setting fire to a public building," "damage to public property," "Causing serious injury," "premeditated aggravated homicide," "attempted premeditated aggravated homicide," and "terrorism." Given the serious charges Against him and the violent political climate, Lopez Went into temporary hiding. Later, on February 18, Lopez himself for arrest peacefully Submitted to Venezuelan military Authorities and the charges for murder and terrorism Eventually Were dropped. In September 2015, Lopez was Sentenced to 13 years and nine months in jail for "arson," "damages to public property," "incitement to commit a crime," and "conspiracy."
The Criminal Code of Venezuela define "incitement to commit a crime" as Follows:
Penal Code. Article 283. Whoever publicly or by any means incites another or others to perform acts in violation of laws , by the mere fact of incitement will be punished:
- If incitement to induce it may commit crimes for which imprisonment has been established, with imprisonment of one third of instigating crime.
- In all other cases, with fines of one hundred fifty tax units (150 UT), according to the entity instigating done.
The actions of the state on This case - in particular the decision of the Venezuelan court That determined to the criminal charges Against Lopez and his conviction on grounds of "incitement to commit a crime," among other charges - do not meet the compatibility test WITH the standard in September forth in article 19 of the ICCPR in that:
- Legality: It could be, Although Argued That the interference was "prescribed by law," Lopez Could not have reasonably foreseen That the consequence for exercising freedom of expression His Could have Carried With It a lengthy prison sentence. THEREFORE, the fact it was Deemed That That López was Violating owners article of the criminal code does not mean That the violation to freedom of expression was His Cleary prescribed by law. Furthermore, I Could have not foreseen That His criticism of the government on issues of public interest in His capacity as an opposition politician Could Be Considered an act of "incitement to commit a crime." Consequently, it May be Considered That the interference With Lopez's freedom of expression exerted by the State of Venezuela, stipulated in its the, Although legal code, does not meet international standards since its scope Could not have been foreseen by Lopez.
- Legitimate grounds: Even though Venezuela has not expressively Stated the aim Pursued With the aforementioned law - Which led to the conviction of Lopez - it Appears to be related to the protection of "national security," since ACCORDING TO Venezuela Lopez was arrested for attempting to overthrow the government through violent means. In Accordance to international human rights law, it is permitted to ban speech on grounds of "national security" only if the speech conveys a "perceived threat" to said "national security" (for example, a "violent" overthrow of the constitutional order ). In the case at hand, it would be preposterous to equate protected speech, Such as peaceful political discourse of legitimate public interest That the speaker and the public are Entitled to, as a "threat" to national security in the form of a "violent" overthrow of the constitutional order - specially When Lopez's criticism of the government and calls for political change in Venezuela Were peaceful and democratic change Expressly called on in Accordance With the country's Constitution. THEREFORE, the reference to the protection of national security as specified by Venezuela does not Have any justification. The unclear character of the "national security" Invoked by the state can not be Considered a "legitimate aim."
- Necessity: Even if it Could Be Argued That the interference In This case was prescribed by law and in pursuit of legitimate grounds, the actions of the Venezuelan Authorities Were neither a) Necessary for a legitimate purpose nor b) the only way to Achieve the protection of national security in Venezuela. First, Lopez's ongoing detention is not only unjustified on grounds of "national security," as seen above, but Cleary is a punishment for exercising basic rights and freedom His. Even if the Venezuelan government would Have Argued That the upheaved political climate in the country was further agitated by Lopez's calls for non-violent, democratic change, RESULTING in further unrest and even Deaths, the violation of the basic rights and freedoms of the MOST prominent opposition figure and serious political contender for the government to Prevent him from further Criticizing the government, Cleary is not a Necessary mean in order to Achieve the protection of national security in Venezuela. Further, the government HAD MOST Certainly other ways to Achieve protection, Which Could have bee Achieved without Violating a person's basic rights.
- Proportionality: Lopez's ongoing detention is not only unjustified, but Cleary is a punishment for exercising His rights to freedoms of opinion and expression, peaceful assembly, and to be Elected and take part in political affairs. In Addition, His detention has Also failed to meet international standards for due process of law, treats including the right to be tried before an independent and Impartial judiciary, the right to be Presumed Innocent until proven guilty, the right to Have confidential attorney-client communications , and the right to present evidence in one's own defense. Lopez has spent most of it His time in jail in complete isolation With no access to His family. Extended solitary confinement under the Convention constitutes torture Against Torture, to Which Venezuela is a party. The Measures taken by the Authorities are not proportionate to the interest to be protected, They are not the Least intrusive instruments Among Those That Might Achieve a protective function, and They did not take into account the form of expression at hand, Which In This particularly case is legitimate political discourse to Which Both Lopez and the Venezuelan Citizens are Entitled to.
- Intent: Lopez's always called for interventions Have non-violent, democratic change in Venezuela, in Accordance With the Constitution. I've made an effort on Emphasizing That Should any transition happen through non-violence and adherence to the Constitution. There is no evidence to support That was Lopez's intention to incite discrimination, hostility, or violence Among the Venezuelan Citizens.
- Causation: Venezuela has failed to specify what part of the actions Carried out by Lopez Threatened National Security and why, Especially since I was exercising basic rights and freedoms His in a peaceful and non-violent manner.
Conclusion : The actions of the organs of the state in the case of Lopez violate the universal standard on freedom of expression, Specifically the requirements for the legitimate restriction of the right to freedom of opinion and expression under international law. In other words, Venezuela is responsible for the violation of the universal standard of freedom of expression That it is required under article to Comply with 19 of the ICCPR.