Freedom of Expression
3 - Chapter II – Assessment of the Situation of Freedom of Expression in the Hemisphere
c. Other cases
As mentioned earlier, attacks on and threats to freedom of expression and information are present in all the member States. The cases presented here are hardly representative of all the problems in the hemisphere. Only the most disturbing of the cases reported to the Rapporteur are mentioned here.
In Colombia there are cases of journalists being murdered, kidnapped, assaulted and threatened. In Chile, a restrictive law is on the books that some authorities use, as happened with the censorship of a book in 1999. In the Dominican Republic, there are laws that require an identification card for journalist activities. In Venezuela, the concept of truthful information was introduced in the Constitution. These governments have repeatedly emphasized their commitment to making every effort possible to recognize and protect the right to freedom of expression. There are bills before the Chilean legislature, introduced by the executive branch and by members of the legislature, to amend some of the laws now on the books that effectively abridge freedom of expression.
Colombia
As the armed conflict escalated in Colombia in 1999, so did there the violence and intimidation against journalists and the media.
The violence targeted against journalists and the media left five journalists dead, killed while practicing their profession. Others have been kidnapped and/or threatened by members of armed dissident groups. According to reports received, fifteen journalists working for major media outlets were forced to flee the country in fear for their lives. But this figure is compounded by the number of journalists who leave the country or move, but file no complaint with the Office of the Rapporteur.
While at home in March 1999, Plinio Mendoza, a columnist for the newspaper El Espectador, received a package containing a bomb, which was quickly deactivated. The armed dissident group called Ejército de Liberación Nacional (ELN) claimed responsibility for the attempt and described Mendoza as a propaganda machine for State and paramilitary violence.
In March and August 1999, journalist Jaime Orlando Aristizabal was arrested, threatened with death and stripped of his journalism material by the Audodefensas Unidas de Colombia (AUC), because of his journalistic work for the RCN chain. In 1994, the journalist was the target of similar acts of violence and was forced to resign from his job at the Notipacifico television news. Aristizabal had reported these acts of violence to State security agencies, but got no response.
On April 11, 1999, Hernando Rangel Moreno, director of the newspaper Sur 30 Días and a radio broadcaster, was killed. Jaime Garzón, a popular journalist and humorist, was killed on August 13. Guzmán Quintero Torres, editor-in-chief of the regional paper El Pilón and a news correspondent for Tele Caribe, was killed on September 16. Rodolfo Luis Torres, correspondent for Radio Fuentes in Sincelejo, was killed on October 21 and Pablo Emilio Medina Motta, a television cameraman, on December 4.[1]
In August 1999, flyers began to circulate in Bogota, Cali, and Medellín. In those flyers, the Ejército Rebelde Colombiano named three journalists and 21 intellectuals as enemies of the peace process in Colombia. The journalists mentioned were Alfredo Molano and Arturo Alape, columnists with El Espectador, and Patricia Lara, former owner of the weekly publication Cambio and a columnist for the Bogota newspaper El Tiempo. In early 1999, Molano had to leave the country after his wife was threatened by a leader of one of Colombia’s armed dissident groups.
In September 1999, the National Television Commission censored the program Hechos y personajes, done by journalist Ramón Jimeno, on the grounds that the journalist’s profiles constituted a defense of criminal conduct.
On October 26, 1999, Henry Romero, reporter/photographer for the Reuters news agency, was abducted by the armed dissident group that calls itself Ejército de Liberación Nacional (ELN), as he was covering the release of a group of people from the Church of María de Cali who had been abducted since May 31, 1999. He was abducted immediately and held in order to explain why he published photographs showing the face of various ELN members. He was finally released the city of Suárez, on November 3, after nine days in captivity.
On October 29, 1999, seven journalists and a cameraman were abducted by an armed dissident group in the department of Bolívar. They were Wilson Lozano from Radio Caracol, Idamis Acero and Reynaldo Patiño of RCN Television, Blanca Isabel Herrera and John Jairo León of CM Noticias, Ademir Luna from Vanguardia Liberal, and Franklin Chaguala from Noticiero de las siete. One of the kidnappers spoke with the media to report the kidnapping and said that the journalists would not be released until they reported the real truth about the atrocities that paramilitary forces had committed against peasants in that region. The group was finally released on November 2.
On November 12, 1999, seven journalists and their driver were abducted by armed dissident groups in the department of Cesar. They were David Sierra and Isabel Ballesteros from RCN Televisión, José Urbano Céspedes and Aldemar Cárdenas of Caraco Televisión, Pablo Camargo Alí from the newspaper El Pilón, Libar Gregorio Maestra from CM news and Edgar de la Hoz from the Bucaramanga newspaper Vanguardia Liberal.[2] After being held by their abductors for five days, the journalists were released.
On November 14, 1999, a bomb containing six kilograms of dynamite exploded at a bus stop, close to the offices of the Cali newspaper El Tiempo. Three employees of the newspapers were wounded in the explosion, which did considerable property damage as well. The identity of the parties responsible for the attack is not known.
In June 1999, an armed dissident group abducted Jorge Rivera Serna, a journalist with Cartagena’s newspaper Universal, and held him for one week. He was beaten and pressured to denounce other armed groups in his reporting. Later, Mr. Rivera Serna decided to leave Colombia, saying that he was retiring from the profession because there were no guarantees of professional growth.
Similarly, journalist Juan Carlos Aguilar, television cameraman Javier Jaramillo, investigative journalist and columnist for the newspaper El Tiempo Alejandro Reyes Reyes and the deputy director of Noticiero de las Siete and columnist for El Tiempo Hernando Corral, left Colombia in 1999 after receiving numerous threats to their lives and/or their families.
The Office of the Rapporteur received information indicating that the Office of the Attorney General of the Nation would create a special unit to investigate the murders of journalists. The Special Rapporteur urges the Colombian authorities to move forward with this important initiative, which can help see to it that the murders of journalists are investigated.
Venezuela
The Special Rapporteur is concerned about Article 58 of the new Venezuelan Constitution. It provides that “Everyone has the right to timely, truthful, impartial and uncensored information.” As explained earlier in this report, information is not susceptible of preconditions or qualifiers. Requiring that information be truthful, timely, and so on is a kind of prior censorship expressly prohibited in the American Convention on Human Rights.
Chile
In June 1999, the Special Rapporteur visited Chile in response to an invitation to participate in several seminars on freedom of expression and information, in connection with the censorship of the book titled El Libro Negro de la Justicia Chilena by Chilean journalist Alejandra Matus.
During his stay in Chile, the Special Rapporteur met with various officials, journalists, representatives of civil society and professors and found that some laws on freedom of expression were anachronistic. The Constitution still allows for film censorship and although prior censorship is prohibited in the Constitution, lesser laws allow it and are applied by the Chilean courts. The law also still criminalizes expression disrespectful of authority. These and other laws are incompatible with Article 13 of the American Convention and inconsistent with one of the objectives of a democratic and pluralistic society, which is to encourage public debate.
During his visit to Chile, the Special Rapporteur got a commitment from a number of Chilean authorities that they would introduce bills to amend or repeal the existing legislation on freedom of expression and information that is restrictive and incompatible with the American Convention and other international human rights instruments.
The laws that need to be repealed or made compatible with the American Convention owing to their frequent use are:[3]
1. Article 6(b) of Law 12.927 on Internal State Security
This law establishes penalties for violations of public order and stipulates that these offenses occur whenever the president of the Republic, ministers of state, senators, deputies, members of the courts, the comptroller general, commanders-in-chief of the armed forces or the director general of the Carabineros is insulted, irrespective of whether the defamation, libel or slander is related to the offended party’s performance of his official duties.[4]
2. Articles 16 and 30 of the State Security Law
Article 16 of the State Security Law is very akin to Article 6(b). It reads as follows: “If the press, radio or television are used to commit any crime against State security,” in other words, if it is perceived as violating or harming the public order, the court hearing the case may suspend publication of up to ten editions of the newspaper or magazine and up to ten days of broadcasting of the radio or television station. In serious cases, the court can order immediate confiscation of any edition in which an abuse of freedom of expression punishable under this law is apparent.
This article gives very broad discretionary authority to the examining judge. He need only assert “some apparent abuse of freedom of expression” to order confiscation of publications or temporary shutdown of other media of expression. Judges are thus able to ban circulation of books before deciding whether the law itself has been violated. The law is, therefore, authorizing or allowing judges to engage in prior censorship of a publication. The Rapporteur was informed of some concrete cases in which this law was used.[5]
Article 30 states that in any proceeding instituted pursuant to the State Security Law, “the examining judge shall first order that the printed materials, books, pamphlets, records, films, tapes, and any other object that may have been used to commit the crime be immediately compiled and turned over to the court.”
The Rapporteur is of the view that a law of this nature would have the same legal consequences as those described in the case of Article 16 of the State Security Law, i.e., authorizing judges to engage in prior censorship of publications.
Other laws that need to be repealed or made to conform to the American Convention on Human Rights are Articles 263 and 264 of the Penal Code and Article 284 of the Code of Military Justice, which also recognize and establish penalties for the crime of desacato (expression offensive to authority).
Some public officials are indeed using this anachronistic legislation. A case in point: an episode occurred in Chile in 1999 that was a regretable setback for freedom of expression and information in that country, and so disproportionate that it became international news.
On April 13, 1999, the book titled El Libro Negro de Justicia Chilena, written by journalist Alejandra Matus and published by Editorial Planeta, was banned in Chile. Police confiscated the book in question from Chilean bookstores and the warehouses of Editorial Planeta. Its circulation was banned in Chile by order of Judge Ismael Huerta, in response to a court action brought by a sitting justice of the Chilean Supreme Court and its former chief justice, Servando Jordán. The latter invoked article 6(b) of the State Security Law and other laws to request that the book be confiscated and its circulation banned throughout Chile.
In addition to the court-ordered confiscation and ban of the book, journalist Alejandra Matus and Editorial Planeta were charged with defamation under the State Security Law. When Matus learned of her imminent arrest, she left for Buenos Aires and then the United States. The latter granted her political asylum in June 1999. Charges were also brought against Bartolo Ortíz, manager of Editorial Planeta, and Carlos Orellana, editor of Planeta. The Police arrested them on June 16 and held them for two days. Both were then released.
As of this writing, El Libro Negro de la Justicia Chilena is still banned and its author is under indictment.
In April 1999, a group of Chilean congressmen introduced a bill to amend the State Security Law. The most important changes were to eliminate desacato from Article 6(b) and to amend Article 16, which the judges use to ban publications. The executive branch later proposed some additional amendments. These legislative initiatives are still in Congress.
Finally, the Chilean Constitution still contains a clause allowing film censorship. It stipulates that “the law shall establish a censorship system for the screening and advertising of films.” This clause is contrary to Article 13 of the American Convention, which states that the right to freedom of expression and information cannot be subject to prior censorship but shall be subject to subsequent imposition of liability. The only exception is for the purpose of regulating children’s access to public entertainments.[6]
The Special Rapporteur urges the Chilean authorities to act swiftly on those initiatives aimed at repealing contempt laws that penalize expression offensive to public officials [desacato], laws that allow film censorship, and any other law on freedom of expression and information that is contrary to the American Convention.
Dominican Republic
Rule 824 on the operation of the National Entertainment and Radio Commission authorizes the Commission to suspend entertainment containing portions the Commission has not approved; while Article 71 requires organizers to submit librettos to the Commission for review. These provisions could result in prior censorship, which is a violation of Article 13 of the American Convention.
According to reports received, some individuals have been barred from speaking on radio and television. By analogy to Advisory Opinion OC-5/85, issued by the Inter-American Court of Human Rights, one could argue that this rule is contrary to Article 13 of the Convention, since it denies those who do not have the identification card issued by the Commission their right to exercise their freedom to speak on radio or television.
The Court has held that:
76. The Court concludes, therefore, that reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the right to make full use of the rights that Article 13 of the Convention grants to each individual. Hence, it would violate the basic principles of a democratic public order on which the Convention itself is based.
77. The argument that licensing is a way to guarantee society objective and truthful information by means of codes of professional responsibility and ethics, is based on considerations of general welfare. But, in truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare. In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it. Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large. A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violate the right to information that this same society has.
…
80. The Court also recognizes the need for the establishment of a code that would assure the professional responsibility and ethics of journalists and impose penalties for infringement of such a code. The Court also believes that it may be entirely proper for a State to delegate, by law, authority to impose sanctions for infringement of the code of professional responsibility and ethics. But, when dealing with journalists, the restrictions contained in Article 13(2) and the character of the profession, to which reference has been made (supra 72-75), must be taken into account.
81. It follows from what has been said that a law licensing journalists, which does not allow those who are not members of the “colegio” to practice journalism and limits access to the “colegio” to university graduates who have specialized in certain fields, is not compatible with the Convention. Such a law would contain restrictions to freedom of expression that are not authorized by Article 13(2) of the Convention and would consequently be in violation not only of the right of each individual to seek and impart information and ideas through any means of his choice, but also the right of the public at large to receive information without any interference.[7]
F. Assassination of journalists
The Office of the Rapporteur has received information on the journalists killed in 1999. Given the various stories received and after investigating the veracity of the information, it has decided to refer to those cases in which there are reasons to suppose that the motive behind the murders was related to the victims’ practice of journalism.
Argentina
May – Ricardo Gangeme (56). This journalist was killed on May 13, in the city of Trelew, province of Chubut. He was director of the weekly El Informador Chubutense and was killed as he was parking his car in front of his home. Gangeme had previously reported irregularities and corruption in the provincial government and by some local businessmen. Five days before he was killed, the journalist had filed a complaint of death threats, allegedly from Argentine businessman Héctor Fernándes. On June 23, 1999, the judge hearing the case ordered that the businessman be indicted and, as the record shows, some days before Gangeme’s death, the businessman had told him: “You’re going to die for the things you’re writing.” In November 1999, preventive detention was ordered for six people charged in Gangeme’s death and according to the sentencing arguments, the journalist was most likely killed for his investigative journalism.
Colombia
April – Hernando Rangel (44). This journalist was killed on April 11, 1999, in Plato, Magdalena. Rangel was director of the local publication Sur 30 Días and was attacked at the home of a friend. An unknown assailant shot him four times in the head. The journalist was also working independently and had a reputation for reporting corruption in government. The investigations conducted by the Prosecutor’s Office found that the suspected intellectual author of the crime was Fidias Zeider Ospino, a mayor of that municipality who had been suspended. He was arrested on December 7, 1999.
August – Jaime Garzón (36). This journalist was killed on August 13, 1999, in Bogota. He was both a journalist and humorist with Radionet and Caracol Televisión and was assaulted by two men on a motorcycle, as he was listening to the radio. At the outset, a man who spoke on behalf of the Autodefensas Unidas de Colombia (AUC) claimed responsibility for the murder; later, however, this group denied the information in a fax sent to the Radionet station. The journalist was known for his role in the peace negotiations to obtain the release of persons abducted by guerrilla movements. He had also lobbied to get the authorities to begin talks with the Ejército de Liberación Nacional (ELN).
September – Guzmán Quintero Torres (34). This journalist was killed on September 16, 1999, in Valledupar, capital of the department of Cesar. He was editor-in-chief of the newspaper El Pilón. An armed man approached him and shot him several times in the head and in the chest. He then fled the scene on a motorcycle. Two El Pilón journalists who were with Quntero Torres that night were witnesses to the event. Quintero was respected in journalistic circles. He was founder and vice president of the Valledupar Journalists’ Club and a correspondent for Televista, a news program carried by Telecaribe, a regional television chain. He was also coordinator of the program to train communicators for community participation, conducted by the Universidad Nacional Abierta y a Distancia.
The motive for the killing has not yet been determined. According to his colleagues, Quintero had not received threats in the days leading up to the killing, although some years back he had received threats for publishing a note in the newspaper El Heraldo about the Autodefensas Unidas de Colombia (AUC), a paramilitary group fighting other guerrilla groups. After these threats, the journalist stopped reporting on political matters and devoted himself exclusively to the finance area. However, Quintero Torres had been investigating the murder of journalist Amparo Leonor Jiménez , which was on August 11, 1998.
October – Rodolfo Luis Torres (38). Torres was killed on October 21, 1999, in the city of San Onofre in the department of Sucre. The body of the journalist, a correspondent for Radio Fuentes of Sincelejo, was found along a highway with three bullet holes to the head. According to witnesses, very early that morning four men had forcibly dragged him from his home.
Torres was also working as a mayor’s press secretary. He had once been a correspondent for Radio Caracol and the newspaper Meridiano in Sincelejo. Torres’ colleagues were certain that the journalist was killed in retaliation for his published articles. One year later, a series of anonymous pamphlets distributed in the city accused him of belonging to an armed dissident group called the Ejército de Liberación Nacional (ELN).
December – Pablo Emilio Medina Motta (21). This journalist was killed on December 4, 1999, between the cities of Gigante and Garzón, in the department of Huila. According to the first police report, Pablo Emilio Medina, a television cameraman for TV Garzón, was believed to have been killed by an armed dissident group called the Fuerzas Revolucionarias de Colombia (FARC) while covering the group’s offensive on the city of Gigante. Members of FARC allegedly fired on Pablo Emilio Medina as he, riding in a police motorcycle at the time, was filming the attack. Local journalists said that the FARC members fired because they mistook him for the police.
[1] See press communiqués in appendices.
[2] See press communiqué from the Rapporteur for Freedom of Expression No. 16/99, dated November 12, 1999.
[3] Article 2 of the American Convention on Human Rights provides that “where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions,” the States have an obligation to “adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms." The Court has held that the State has a legal obligation to adopt the measures necessary to comply with its obligations under the treaty, whether those measures be legislative or of some other kind.
[4] The Rapporteur has been told that this article has been used on various occasions and by a number of public officials as a means to silence critics or to remove them from the political debate. The Special Rapporteur received reports of multiple legal actions brought against journalists or politicians under Article 6(b) of the State Security Law. The following cases of legal proceedings instituted against journalists are mentioned merely by way of example: Juan Andrés Lagos, director of El Siglo; Francisco Herreros, director of Pluma y Pincel; Juan Pablo Cárdenas, director of the journal Análisis; Osvaldo Muray, of Fortín Mapocho; Guillermo Torres, director of El Siglo; Alberto Luengo and Mónica González, of La Nación; Manuel Cabieses, director of Punto Final; Roberto Pulido and Paula Couddu, of the magazine Cosas; and Fernando Paulsen and José Ale, from the newspaper La Tercera, and others. Among the political leaders charged under this article of the State Security Law are the following: Mario Palestro, Socialist Party deputy; Jorge Schaulsohn and Nelson Avila, deputies from the Partido por la Democracia; Gladys Marín, Secretary General of the Communist Party, and José Antonio Viera Gallo, Socialist Party deputy. Mention should also be made of the suit recently brought against Alejandra Matus.
[5] See Inter-American Commission on Human Rights, Report 11/96, Case No. 11,230 of May 3, 1996, Francisco Martorell v. Chile, in the Commission’s 1996 Annual Report.
[6] Article 19(2) of the Chilean Constitution provides, inter alia, that “the law shall establish a censorship system for the screening and advertising of film productions.
[7] See Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/95 of November 13, 1985, Series A No. 5.