OEA/Ser.L/V/II. Doc. 49/15 31 December 2015 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Criminalization of the Work of Human Rights Defenders 2015 www.iachr.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Criminalization of the Work of Human Rights Defenders / Inter-American Commission on Human Rights. v. ; cm. (OAS. Documentos oficiales ; OEA/Ser.L) ISBN I. Title. II. Series. OAS. Documentos oficiales ; OEA/Ser.L. OEA/Ser.L/V/II.Doc. 49/15 Document published thanks to the financial support of the Open Society Foundations and the Swedish International Development Cooperation Agency, (Sida). The positions herein expressed are those of the Inter-American Commission on Human Rights (IACHR) and do not reflect the views of the Open Society Foundations, or the Swedish International Development Cooperation Agency, (Sida). INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Rose-Marie Belle Antoine James L. Cavallaro José de Jesús Orozco Henríquez Felipe González Rosa María Ortiz Tracy Robinson Paulo Vannuchi Executive Secretary Emilio Álvarez-Icaza Longoria Assistant Executive Secretary Elizabeth Abi-Mershed Approved by the Inter-American Commission on Human Rights on December 31, 2015. TABLE OF CONTENTS EXECUTIVE SUMMARY 11 CHAPTER 1 | INTRODUCTION 15 A. Objective of the report 15 B. The importance of human rights defenders and recognition of the right to defend human rights 18 C. Link between democracy and the role of human rights defenders 20 D. Methodology and structure of the report 21 CHAPTER 2 | MISUSE OF CRIMINAL LAW TO CRIMINALIZE THE WORK OF HUMAN RIGHTS DEFENDERS 27 A. Contexts in which the misuse of criminal law is observed and groups most affected by this practice 28 B. Actors involved in the misuse of criminal law 35 CHAPTER 3 | MAIN FORMS OF CRIMINALIZATION OF THE WORK OF HUMAN RIGHTS DEFENDERS 45 A. Statements by government officials who accuse defenders of crimes in the absence of court decisions 46 B. The criminalization of speeches denouncing human rights violations and the right to peaceful social protest 52 1. Criminal offenses that protect the honor of public officials 53 a. “Desacato” laws 55 b. Other criminal offenses such as defamation, libel, and slander 56 2. Laws that criminalize social protest 60 3. Criminal offenses that prioritize the right to freedom of movement over other rights 63 4. Criminal offenses that punish the lack of authorization to carry out public demonstrations 66 C. Criminal offenses that punish the receipt of foreign funding in the framework of international cooperation agreements 68 D. Misuse of counter-terrorism laws and other laws relating to national security against defenders 71 E. The criminalization of human rights defenders for the causes they promote 81 1. Misuse of criminal offenses to stigmatize defenders and criminalize the promotion and protection of the rights of LGBT persons 82 2. Misuse of criminal law to criminalize the promotion and protection of sexual and reproductive rights 86 F. The subjection to distorted and unreasonably lengthy criminal proceedings and false allegations and accusations based on grave criminal offenses 88 G. Illegal and arbitrary detentions 93 H. Use of precautionary measures in order to criminalize the work of human rights defenders 97 1. Pretrial Detention 98 2. The provision of an economic bond and other precautionary measures 102 CHAPTER 4 | EFFECTS OF CRIMINALIZATION ON HUMAN RIGHTS DEFENDERS 107 A. Physical effects and impacts on personal integrity 107 B. Impact on family life 109 C. Social effects 111 D. Long-term effects on the defense of human rights and other consequences 114 E. Economic effects 116 CHAPTER 5 | PRINCIPLE OF LEGALITY AND MEASURES TO PREVENT THE MISUSE OF CRIMINAL LAW AND PROTECT THE RIGHT TO DEFEND RIGHTS 121 A. The formulation of offenses under the principle of legality 121 B. Performance of justice operators under the principle of legality 125 C. Assessing elements of crimes in accordance with international law standards 126 D. Guidelines for the work of justice operators 129 E. Judicial decisions 131 F. Recognizing the importance of the work of human rights defenders 135 CHAPTER 6 | RECOMMENDATIONS 143 A. Recognize of the work of human rights defenders and their role in democratic societies 143 B. Prevent the adoption and implementation of laws and policies whose formulation is contrary to international law standards 145 C. Ensure the proper performance of justice operators in accordance with international human rights standards in the domestic justice system 146 D. Avoid criminal proceedings of an unreasonable length 148 E. Ensure that any detention is carried out with strict adherence to the right of personal liberty 148 F. Eradicate the misuse of precautionary measures 149 G. Adopt immediate responses to processes of criminalization 150 EXECUTIVE SUMMARY Executive Summary | 11 EXECUTIVE SUMMARY 1. This report addresses the problem of the misuse of criminal law by State and non- State actors with the aim to criminalize the work of human rights defenders. The Inter-American Commission on Human Rights (IACHR or “the Commission”) has continued to receive alarming reports of a trend indicating that human rights defenders in various contexts are systematically subjected to unfounded criminal proceedings in order to paralyze or delegitimize their causes. This situation is of great concern to the IACHR because the misuse of the State criminal justice apparatus against human rights defenders not only interferes with their work in defending and promoting human rights, but also affects the leading role they have in the consolidation of democracy and the rule of law. 2. This report conceptualizes the phenomenon of criminalization and identifies the contexts and groups of defenders who are most affected by this practice, as well as the actors who usually participate in the processes of criminalization through the misuse of criminal law. Additionally, the IACHR identifies the main forms of criminalization against human rights defenders and the obligations that States must observe in criminal proceedings to prevent them from becoming tools to hinder the defense of human rights. The report also analyzes the diverse effects of criminalization on defense activities, the personal and professional lives of human rights defenders, as well as their social environment. Finally, it refers to initiatives taken by States to address the misuse of criminal law, identifying appropriate practices under international law standards to eliminate and prevent the misuse of criminal law against human rights defenders. 3. The IACHR focuses primarily in this report on the ways in which criminal law may be used improperly to hamper the defense of human rights and not on administrative or civil obstacles that also interfere with this work. In this regard, the Commission understands that the criminalization of human rights defenders through the misuse of criminal law involves the manipulation of the State’s punitive power by State and non-State actors in order to hinder their advocacy work, thereby preventing the legitimate exercise of their right to defend human rights. 4. According to information received, the misuse of criminal law most often occurs in contexts where there are tensions or conflicts of interest with State and non-State actors. One example is the case of communities occupying lands of interest for the development of mega-projects and the exploitation of natural resources, where criminal law can be improperly applied to impede the advancement of causes contrary to the economic interests involved. This can also occur in contexts of social protest during or after the demonstration, blockade, sit-down, or mobilization for the simple fact of having peacefully participated in it. The IACHR Inter-American Commission on Human Rights | IACHR 12 | Criminalization of the Work of Human Rights Defenders has also received information regarding the misuse of criminal law against defenders who have filed complaints against public officials. 5. The IACHR has also noted that there are certain groups of defenders who have been more frequently the target of these forms of criminalization due to the causes they advance or the content of their demands, including those who defend rights concerning territories and the environment, the defense of labor rights by union leaders, the defense of sexual and reproductive rights, and the work to advance the rights of LGBT persons (Lesbian, Gay, Bisexual and Trans). 6. Therefore, the Commission has found that criminalization processes usually begins with the filing of baseless allegations or complaints based on criminal offenses that do not conform to the principle of legality or criminal offenses that do not meet inter-American standards. These criminal offenses are often linked to punishable conduct such as "incitement to rebellion", "terrorism", "sabotage", "incitement to crime" and "attack or resistance to public authority," and tend to be arbitrarily applied by the authorities. Often, the misuse of criminal law is preceded by statements made by public officials in which human rights defenders are accused of committing crimes and there is no ongoing proceeding or judicial decision to confirm these allegations. Such statements can motivate the opening of unjustified criminal processes against human rights defenders, solely for being singled out by a high-level official or public authority. 7. Another way in which criminal law is used improperly is by subjecting