OAS » IACHR » Special Rapporteurship for Freedom of Expression » Chile

Freedom of Expression

Chile

22.        The Special Rapporteur for Freedom of Expression, Eduardo A. Bertoni, visited Chile on December 16 to 17, 2002, at the invitation of the Chilean government.  He observed some progress by the State in adapting its domestic legislation to the international standards that guarantee the observance of the exercise of the freedom of expression.  In that respect, it is important to emphasize that the Cinematographic Rating Law was recently passed, abolishing censorship in the constitutional framework, a significant step forward in the observance of freedom of expression in Chile.

 

23.        However, the Special Rapporteur expresses his concern regarding certain judicial decisions that harm the right to freedom of expression.  The Special Rapporteur was briefed on cases that concern journalists and individuals that had criticized government officials or public people.  The Special Rapporteur will carefully follow up on those and other cases, and points out that one of the main concerns of the Rapporteurship for Freedom of Expression is the use of the judicial system in many countries of the hemisphere as tools for intimidation, so that in practice it becomes an instrument to restrict freedom of expression.

 

24.        During his visit, the Special Rapporteur also gathered information on a bill sent by the Executive to the Congress about the abolition of the desacato (contempt) laws that are included in the Criminal Code and the Code of Military Justice of Chile.  The Special Rapporteur recommends that the Congress discuss this promising initiative and promptly pass the law, to finish the process that started with the abolition of Section 6 b of the State Security Law.  As long as this bill is not passed, Chile will continue to have legislation on contempt, thus, contravening the international standards universally established, as the Rapporteurship has noted in its previous reports.

 

Judicial actions

 

25.        On January 15, 2002, Carlos Pinto, journalist and host of the program El día menos pensado of Televisión Nacional, and René Cortázar, Executive Director of the television station, were charged by Carmen Garay, Judge of the 19^th Criminal Court of Santiago with the crime of "serious libel."  El día menos pensado is a popular program that presents stories about paranormal phenomena in the format of dramatic reenactments.  The charges stemmed from a dramatization presented on Mr. Pinto's program in which a psychic had a "vision" that a woman who had allegedly committed suicide had actually been murdered by her husband.  Although the real names of the parties involved were not used, businessman Alejo Véliz Palma realized that the story was based on a psychic's reported "vision" of his wife's death.  Mr. Véliz filed the complaint for "serious libel."[1] 

 

26.        On January 18, 2002, the Consejo de Defensa del Estado (CDE) appealed a favorable decision in the case of journalist Paula Afani of La Tercera, calling for a sentence of 5 years and one day.  Ms. Afani had been charged in 1999 in connection with the publication of reports in La Tercera and La Hora about an investigation of drug trafficking and money laundering known as "Operación Océano."  The reports were published during the indictment phase of the investigation, when judicial proceedings are secret.  The objective of the complaint against Ms. Afani was to force her to reveal her journalistic sources, which she refused to do.  As a result, she was jailed on January 15, 1999.  She was released a few days later, but the process against her continued.  On December 13, 2001, she was absolved by the judge of the Sexto Juzgado del Crimen del Valparaíso, a decision which is currently under appeal by the CDE.[2] 

 

27.        On September 30, 2002, lawyer Jorge Balmaceda filed a legal action for libel against Víctor Gutiérrez of the daily La Nación.  The journalist had written a series of articles about the trials of military members and former military members for human rights violations committed during of the dictatorship of Augusto Pinochet.  In one of the articles, Mr. Gutiérrez reported an interview with a former official of the Armed Forces, who stated that Mr. Balmaceda had engaged in irregular practices in the context of his representation of the defendants in the human rights trials, to the benefit of those who had participated in the violations.  In addition to the lawsuit, Mr. Gutiérrez suffered death threats as a result of his reports on the trials.[3]

 

28.        On October 15, 2002, Colonel Patricio Provoste, counter-intelligence sub-director for the Chilean Air Force, filed a criminal action for libel and associated damages against La Nación director Alberto Luengo.  Like the action against Víctor Gutiérrez, the action against Mr. Luengo arose out of the circumstances of the trials for human rights violations of former officials of the Pinochet dictatorship.  Mr. Luengo wrote an article about a group of military officers who were allegedly working to impede judicial investigations of the human rights violations.  According to the journalist's sources, Colonel Provoste was part of this group, an allegation denied by the Colonel.[4]

                                                                                       

29.        In 2002, the proceedings against businessman Eduardo Yañez for the crime of desacato, or disrespect against authority, continued.  As reported in the 2001 Annual Report of the Office of the Special Rapporteur, Mr. Yáñez appeared as a panelist on the Chilevisión television channel’s El Termómetro program on November 28, 2001.  During the program, he criticized the Chilean Supreme Court for the mistakes it had committed in two cases.  As a result of Yáñez’s statements, the Court filed suit under the disrespect provisions of Article 263 of the Criminal Code.  On January 15, 2002, Mr. Yáñez was arrested and charged in the Court of Appeals of Santiago.  The next day, Mr. Yáñez was able to make bail and was provisionally released.  Mr. Yáñez appealed the charges to a higher court, but the appeal was denied on October 29, 2002.[5]  The decision was appealed again, but the appeal was again rejected on December 18, 2002.[6]  Beatriz Pedralds, Prosecutor for the Court of Appeals recommended that Yañez be sentenced with 541 days’ fine.[7]  If convicted of the charges against him, he could be sentenced to up to five years in prison.  The Office of the Special Rapporteur has repeatedly expressed its concern about these proceedings and has recommended that the State of Chile repeal the provisions of Article 263 of its Criminal Code that establish the crime of disrespect of authority.

 

Censorship

 

30.        On December 3, 2002, the First Criminal Court of Santiago ordered the seizure of all copies of the book "Cecilia, la vida en llamas."  The order was in response to a complaint by Cecilia, a popular singer, against Cristóbal Peña, the author of the unauthorized biography about her.  The singer presented a complaint against Mr. Peña for libel, stating that the contents of the work damaged her honor.[8]  In a letter dated December 18, 2002, the Inter-American Commission on Human Rights requested that the government of Chile provide the Commission with information regarding this case within a period of 15 days.  At the State's request, the Commission extended the deadline until January 25, 2003.  As of this writing, the Commission has not received any further response from the Chilean government.  On January 13, 2003, the Second Chamber of the Court of Appeals of Santiago affirmed the order for seizure of the book.[9]

 

Others

 

31.        In October 2002, the Commission received information about attempts to prevent the exhibition of "Prat," a play by Manuela Infante about Arturo Prat, a Chilean hero of the War of the Pacific.  First, the president of the Corporacion 11 de septiembre brought a complaint under the State Security Law, which was rejected by the court for procedural reasons.  A private citizen brought another action, a recurso de protección, complaining that the work caused injury to the honor and image of Prat.  Additionally, five members of Congress asked the Minister of Education to suspend the play's debut, arguing that the play violates Article 19(10) of the Constitution, which requires the State to protect the cultural patrimony of the nation.  The same five members of Congress submitted a resolution (proyecto de acuerdo) to Congress to impede the exhibition of the play because they considered that it portrays Prat as "cowardly, irrational, drunk, and homosexual."[10]  The Special Rapporteur for Freedom of Expression expressed his concern about the possible use of prior censorship and asked the Chilean government to provide additional information relating to this situation in a letter dated October 16, 2002.  The State replied in a letter dated October 21, 2002.  The State noted that the motion presented to Congress was defeated by a vote of 43 to 40, and that, even if it had passed, it would have had the character of a recommendation rather than a legally binding instrument.  The State affirmed that the action filed by the Corporacion 11 de septiembre had been rejected by the Courts.  The State did not have any information about the legal actions instituted by private individuals, but noted that the play had been performed in a theater festival on October 18, 2002.

 

Positive developments

 

32.        In April 2002, the Court of Appeals of Santiago ruled that Chilean television stations must provide sign language interpretation during one of their most watched newscasts.  This decision was the result of a protection remedy (recurso de protección) presented by two deaf individuals, who argued that sign language is the sole means of communication of 90% of the deaf population of Chile.  Without sign language interpretation, this large sector of the population would not have access to news.[11]

 

33.        On May 3, 2002, World Press Freedom Day, the government of Chile announced that it would present a bill to the House of Deputies to repeal the desacato laws and to decriminalize defamation.[12]  Also in May 2002, Deputy Victor Barrueto, a member of the House of Deputies, introduced Bill 2929-07, legislation that would eliminate Chile's remaining desacato laws.[13]  In September 2002, President Ricardo Lagos introduced Presidential Bill 212-347, which, like Bill 2929-07, would eliminate all remaining desacato provisions from Chilean law.[14]

 

34.        On October 30, 2002, the Chilean Senate passed the Law on Film Rating (Ley de Calificacion Cinematografica).  The law will replace the system of prior censorship of films with a film rating system, based on the age of moviegoers.  The Inter-American Commission on Human Rights has been observing the progress of this legislation since it was proposed by President Ricardo Lagos on March 5, 2001, in the context of the sentence of the Inter-American Court of Human Rights against the government of Chile in the case of the Last Temptation of Christ.  The IACHR and the Office of the Special Rapporteur have previously expressed satisfaction with the system of film ratings to protect minors from entering films that are inappropriate for their age level.[15]  The law was enacted by the President at the end of 2002, and entered into force upon its publication on January 5, 2003.

 

1889 F St. N.W. Washington, DC, U.S.A. 20006 / E-mail: [email protected] / Phone: (202) 370-9000 / Fax: (202) 458-3650