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Fundamedios and AEDEP challenge constitutionality of amendments to Democracy Code

(Fundamedios/IFEX) - 7 February 2012 - César Ricaurte Pérez, Executive Director of Fundamedios; Diego Cornejo Menacho, Executive Director of the Ecuadorian Association of Newspaper Editors (AEDEP); and journalists Juan Carlos Calderón and Christian Zurita, accompanied by group of attorneys and law students, presented today before the Constitutional Tribunal, an action to challenge the constitutionality of the articles that amend the so-called Democracy Code. These establish preemptive censorship of journalists' and communicators' work during electoral periods.

They requested that the Constitutional Tribunal declare as unconstitutional, based on their contents, articles 203 and 207, item 5, of the Electoral and Political Organisations Organic Law of the Republic of Ecuador, the "Democracy Code", published in the Official Registry's supplement on 6 February 2012. They also requested the provisional suspension of the challenged regulations, arguing that allowing them to come into force would constitute a continued affront towards the provisions of the Constitution and international treaties concerning human rights that are currently in force in Ecuador.

In terms of unconstitutionality, the group argues that the Democracy Code's amended articles – 203 and 207 – which came into force yesterday after they were published in the Official Registry, contravene the Constitution and international human rights treaties signed by Ecuador. It considers the amendments to be in conflict with the rights to the freedom of expression and opinion, communication and information, and to infringe on the principle of equality.

The writ points out that the regulations violate article 66, item6, of the Constitution, which recognizes and guarantees the “right to express thoughts and opinions freely and in all their forms and manifestations”. This right is also established in article 13 of the American Convention on Human Rights, which also points out that “the right to expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions”. It is worth noting also that on this matter the Inter American Court on Human Rights, in Advisory Opinion OC-5/85 directly relates democracy to freedom of expression, pointing out that this is “fundamental to the existence of a democratic society [...] It is also a 'conditio sine qua non' for the development of political parties, [...]and in general, those who want to influence the public”.

It also points out that the regulations in force infringe on the right to communication established in item 1 of article 16 of the Constitution, which recognizes people's right to "communication that is free, [...]inclusive, diverse and participatory, in all areas of social interaction, by any means and form [...]”. The Inter American Court, in the Ricardo Canese vs. Paraguay case, has stated that the effective exercise of the right to communication requires an adequate social dimension, i.e. “a medium for exchange of ideas and information among people, [which] includes the right to try and communicate to others their views, but also implies the right to receive opinions, reports and news expressed by third parties”.

Articles 203 and 207 establish prohibitions that attempt against the right to information by forcing the media to abstain from broadcasting, both direct and indirectly, any information concerning issues related to the electoral process. Item 1 of article 18 of the Constitution establishes that people have the right to “seek, receive, exchange, produce and disseminate truthful, verified, opportune, contextualized and plural information without preemptive censorship”. It is clear that the regulations that are being challenged, by preventing information to be disseminated about “certain candidate, postulate, options, electoral preferences or political theses”, would be promoting disinformation about electoral options among the general public.

Article 13 of the American Convention recognizes “freedom to seek, receive, and impart information and ideas by any medium”, meaning that citizens should not be limited to receiving the information established by the State in a regulation. It is worth pointing out that the right to information includes the freedom to generate and receive information, guaranteeing that citizens may express their ideas and that others may know about them.

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