Re: Harassment of environmental defenders by means of legal proceedings
To: Laura Chinchilla Miranda, Presidente de la República; Fernando Ferraro Castro; Ministro de Justicia y Paz
From: Gail Davidson, Executive Director, LRWC; Marion Caussanel, LRWC
Date: Novemeber 8. 2012
We write on behalf of Lawyers Rights Watch Canada (LRWC), a committee of Canadian lawyers who promote human rights and the rule of law internationally. LRWC also provides support to lawyers and other human rights defenders in danger because of their advocacy.
On 24 November 2010, the Administrative Tribunal of San José ruled in favor of nullifying the decree 34801-MINAET that had approved the mining project of Industrias Infinito S.A. in the region of Las Crucitas (the “Infinito project”).
Since that date, Industrias Infinito S.A. has initiated criminal defamation and civil damage suits against a number of people who had publicly expressed criticism of the Infinito project. Damages of between 200 and 500 million Colones are claimed in these suits. Claims have been brought by Infinito against Edgardo Vinicio Araya Sibaja, a lawyer with the Union Norte por la Vida (UNOVIDA); Nicolas Boeglin, a professor of law at the University of Costa Rica; Jorge Arturo Lobo Segura, a professor of biology at the University of Costa Rica; Claudio Monge, Deputy of Partido Accion Ciudadana and former president of Comisiona de ambient del Poder Legislativo (Parliamentary Environmental Commission); and, Manrique Oviedo, Deputy of Partido Accion Ciudadana. Edgardo Vinicio Araya Sibaja and Jorge Arturo Lobo Segura were counsel in the proceedings before the Administrative tribunal that nullified the decree 34801-MINAET. These legal and environmental specialists had communicated their criticism of the mining project to the media, as well as to the Administrative Tribunal ruling on the MINAET decree.
The decree declared the Infinito project a matter of “public interest”. Consequently, according to the decree itself, now void, special protection should be afforded to freedom of expression on this topic of public interest. In retaliation for their involvement, Industrias Infinito S.A. has brought these persons before the Court under the claim of “defamation against a juridical person.”
It appears evident that, through use of defamation suits, Industrias Infinito S.A. seeks to inhibit freedom of expression for these human rights defenders by preventing them from exercising their right to oppose actions they believe to be contrary to the public interest. Costa Rica has a duty, arising from domestic and international law, to ensure that its legislation governing defamation cannot be used as a means of hindering freedom of expression.
Freedom of expression is a core value and a necessary component of democracy, and is protected by, among other instruments, the American Convention on Human Rights (Article 13) and the International Covenant on Civil and Political Rights (Article 19). Costa Rica is a party to both of these instruments.
The United Nations Human Rights Committee (the “Committee”) has determined that freedom of expression, even when applied in a deeply offensive fashion, must be protected (General Comment No. 34). In the present case, and contrary to the claims of Industria Infinito S.A., the environmental defenders did not express any offensive opinion but rather reported official, scientifically established facts. The Committee also stated that harassing a person for holding an opinion through the use of legal proceedings constitutes a violation of freedom of expression.
We note that the Third Summit of the Americas, attended by Costa Rica, declared the necessity of national legislation ensuring that “journalists and opinion leaders are free to investigate and publish without fear of reprisals, harassment or retaliatory actions, including the misuse of anti-defamation laws.”
The American Convention on Human Rights specifically prohibits the restriction of freedom of expression by indirect methods or means, such as private regulation that tends to impede the communication and circulation of ideas and opinion (Article 13(3)). Considering the recent report that the Administrative Tribunal’s draft decision was leaked by magistrate Moisés Fachler to representatives of Industrias Infinito S.A. prior to the release of the official decision on 24 November 2010, there is serious cause for concern that Costa Rica is not adhering to this prohibition.
The Inter-American Declaration of Principles on Freedom of Expression prohibits the use of criminal sanctions to protect reputation in relation to public interest issues:
…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. (Principle 10)
In the present case, Infinito Industria SA. has been able to initiate a penal action against three environmental defenders for speaking out on a matter of public interest. Costa Rica must ensure that its national legislation does not allow such proceedings and order that the current penal action against the environmental defenders be terminated.
Finally, the Inter-American Court of Human Rights has ruled that freedom of expression not only entails the right to express one’s own thoughts, but also the right and freedom to seek, receive, and impart information and ideas of all kinds. The Court has held that a wrongful restriction affects both the societal right to receive information as well as individual rights of expression:
…hence, when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to ‘receive’ information and ideas” (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism).
The suits against the above-named advocates also endanger the right of Costa Ricans to information about the impugned mining project. As required by the Inter-American Declaration of Principles on Freedom of Expression, national legislation “should not inhibit or restrict investigation and dissemination of information of public interest” (Principle 10). Costa Rica has the duty to ensure that its people are equally, fairly, and freely informed about the Infinito Industrias S.A. mining project. That duty entails safeguarding the right of lawyers, environmentalists, and others to disseminate information, to invoke the law, and to stimulate public debate.
LRWC urges the president to take appropriate measures to guarantee the rights and security of the above-named people, who have been wrongly targeted by retaliatory legal proceedings.
Thank you for your attention to this matter. We look forward to your reply.