The line lies in how the Law defines insult. Article 125 of the Criminal Code names two acts: attributing a concrete act or fact and reviling. Criticism, as a rule, is a value judgment that falls outside both.
The provision: Article 125
“A person who attributes a concrete act or fact to another capable of harming their honour, reputation and dignity, or who attacks a person’s honour, reputation and dignity by reviling, shall be punished with imprisonment from three months to two years or a judicial fine. For insult in the absence of the victim to be punishable, the act must be committed by communicating with at least three persons.”
Under Article 125/4 the sentence is increased by one sixth where the insult is committed publicly. Publication carries publicity.
Attribution of fact versus value judgment
| Value judgment (criticism) | Attribution of fact (insult risk) |
|---|---|
| “In our view this decision is wrong and indefensible” | “He took a bribe to give this decision” |
| “The management performed poorly” | “The management embezzled the institution’s funds” |
| “The explanation was not found convincing” | “It has been documented that he lied” (where there is no document) |
| “The policy is inconsistent” | “He is engaged in smuggling” |
The distinction comes from this: a value judgment cannot be proved true or false; an attribution of fact can. The Law has established the institution of proof only for attribution (Article 127).
The protective provision: Article 218
The last sentence of Article 218 is the foundation for journalism: “However, expressions of opinion that do not exceed the limits of reporting and are made for the purpose of criticism shall not constitute an offence.” The same article also provides that where the offences are committed through the press and media the sentence is increased by up to one half.
Proof of an attribution: Article 127
“Where an attributed act which constitutes an offence is proved, no penalty shall be imposed on the person. Where a final judgment of conviction is given in respect of the person insulted on account of that offence, the attribution shall be deemed proved. In other cases, acceptance of a request to prove the attribution depends on there being a public interest in ascertaining whether the attributed act is true, or on the complainant consenting to proof.”
The name need not be given
Article 126: “Even where the name of the victim is not expressly stated in the commission of the offence of insult, or the attribution is covertly passed over, if there is a situation in which no doubt can arise as to its character and its being directed at the person of the victim, both the name shall be deemed stated and the insult explained.”
A formulation along the lines of “I am not naming him, but everyone knows” therefore affords no protection.
A pre-publication filter
- Does the sentence assert a fact or make an assessment?
- If it asserts a fact, what is the basis and can it be documented?
- Does the expression go beyond attribution into reviling?
- Even without a name, is the person identifiable beyond doubt (Art. 126)?
- Could the same view be expressed without asserting a fact?
Complaint and time limits
Article 131/1: “Save where committed against a public official on account of their duty, the investigation and prosecution of the offence of insult depend on the complaint of the victim.” Under Article 26 of Law No. 5187, for offences whose prosecution depends on a complaint, the period for bringing proceedings runs from the date on which commission of the offence was learned, without exceeding the period of limitation laid down by law.
Reciprocal insult and reaction to an unlawful act
Article 129 provides two grounds of reduction: where insult is committed in reaction to an unlawful act the sentence may be reduced by up to one third or no penalty imposed at all; the same possibility applies where insults are reciprocal.
Criticism of public officials is covered in the politicians guide and the institution of proof in the proof guide.