Libertad de Expresión
5 - Chapter IV - Evaluation of the Situation of Freedom of Expression in the Hemisphere (continued)
Other Forms of Harassment
1. In addition to arrests and detentions, other means have been used to harass journalists and prevent them from releasing information that is objectionable to the government. On August 9, two presumed State Security agents posed as journalists and gained entry to an apartment where Cuba Press had been operating. According to information received, they took documents, books, magazines and office equipment, which have never been recovered. [1]
2. According to Amnesty International, “[s]ometimes dissidents are told not to leave their homes and threatened with punishment if they do so. The tactic of house arrest is often used when the government wishes to keep a large number of dissidents away from events such as international meetings, public events or trials[.]”[2]
3. There have been numerous reports of physical assaults of journalists by unidentified attackers. These attacks are often presumed to have been carried out by members of the Department of State Security. Amnesty International reported the following:
4. These are organized by government officials using mass organizations that support the government and which involve being verbally abused and sometimes physically assaulted by government supporters for being a “counter-revolutionary.” Government supporters are given certain rights to intimidate, threaten, or even attack those seen to be counter-revolutionaries. According to Article 3 of the Constitution, “All citizens have the right to fight using all means, including armed struggle, when no other resort remains, anyone who tries to damage the political, social and economic order established by the Constitution.”[3]
5. Sometimes journalists and dissidents or their families are denied permits to exit or enter the country. For example, in April 2000, Ohalys Victores, a reporter with Cuba Voz, was denied an exit permit for “unspecified reasons of state.” The brother of independent journalist Raúl Rivero, of Cuba Press, was prevented from entering the country in May when he tried to visit his elderly mother. Rivero’s wife was also refused permission to travel to Miami to visit her daughter.
6. Other harassment tactics that have been reported include eviction, dismissal from jobs, smear campaigns by the official media and forced exile.
Conclusions and Recommendations
7. In Cuba, there is a climate of hostility and fear with respect to the exercise of the right to freedom of expression. The Special Rapporteur urges the authorities to respect the independent press organizations in order to allow for a plurality of voices in the media. Additionally, he asks that the government end censorship of the printed, electronic and broadcast media and repeal laws restricting freedom of expression. The Special Rapporteur urges the authorities to stop the harassment and intimidation of dissidents and independent journalists as well as the destruction of materials produced by communications media. Finally, the Special Rapporteur exhorts the Cuban government to recognize its citizens’ right to the full enjoyment of freedom of expression and information, as established under international human rights standards.
3. Countries with serious limitations on freedom of expression
8. Although the status of freedom of expression in some member States continues to be of serious concern to the Special Rapporteur, in 2000 this office considered that, despite the existing problems with the exercise of that right, there is no State in which freedom of expression is seriously restricted through the use of a state policy aimed at controlling the free expression of ideas and opinions in a broad and systematic manner.
4. Countries that Merit Special Attention
9. This section cites other incidents of concern for the Special Rapporteur that have occurred during 2000. In one form or another, problems exist in every state in the hemisphere with respect to the exercise of freedom of expression. However, in this section, states which merit greater attention by the Special Rapporteur are mentioned, due to the seriousness of the information received, which indicates a significant limitation in the exercise of the right to freedom of expression.
a. Chile
Overview
10. Chile celebrated its return to democracy in 1989, after a plebiscite held in 1988, in which the “NO” vote by citizens removed then dictator Augusto Pinochet Ugarte. The first democratic president took office in 1990. Despite the previous negotiation of amendments to the Political Constitution of the Republic, which represented a definite step towards greater human rights protection, sections of the Constitution and the laws still reflect a certain authoritarian tradition, which must be changed.
11. The progress Chile made by ending the persecution and harassment of journalists, so common during the dictatorship, is clearly a major step. However, the Special Rapporteur observes with concern that more than 11 years after the return to democracy, legislation and practices that are clearly restrictive of freedom of expression continue to exist. The advances made have resulted in the repeal of some administrative measures, such as the requirement of authorization to publish print media, and the gradual elimination of prior censorship (according to information received by the Special Rapporteur, the last time a film was censored in Chile was in 1994). These measures have been inadequate, however. Chilean legislation continues to be some of the most restrictive in the hemisphere in terms of freedom of expression.
12. Among the most serious problems are the contempt, or desacato, laws and the legislation on prior censorship in force in the country.[4] The Special Rapporteur has received numerous reports of the use of these standards to limit freedom of expression. This report focuses on these two issues. However, the Special Rapporteur has been informed of a growing concern about other limitations on the exercise of this right.[5]
13. For example, the Special Rapporteur views with concern the existence of criminal libel and slander laws. The laws regarding the protection of individuals’ honor should be revised to create a distinction between public and private persons. The Declaration of Principles on Freedom of Expression establishes in its Principle 10 that: “Privacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.”
14. The Special Rapporteur has received a number of troublesome complaints regarding the use of these norms as a means to restrict citizens’ freedom of expression. Among these, he has received the following information: on January 8 of 1998, Fernando Paulsen, director of the newspaper La Tercera, and a journalist from the same newspaper, José Ale, were charged with libel and slander. The charges were based on a complaint submitted by the Minister of the Supreme Court, Servando Jordán, alleging a violation of the State Security Law. In another case, on August 20, 1991, retired General Sergio Arellano Stark filed a complaint for slander against the journalist Patricia Verdugo, author of the book Los Zarpazos del Puma, which describes the so-called “caravan of death.”[6] The same year, Augusto Pinochet filed a complaint for libel and slander against the Director of the magazine Punto Final because of an article published in the periodical.
15. The Special Rapporteur visited Chile in June of 1999, invited to participate in two seminars on freedom of expression and information, related to the censorship of El Libro Negro de la Justicia Chilena (The Black Book of Chilean Justice).
16. As a result of this visit and acting on the mandate received from the IACHR, he expressed concern in his 1999 annual report about the existence of anachronistic legislation on freedom of expression in Chile. During his visit, the Special Rapporteur received a commitment from a number of authorities that they would introduce bills to modify or repeal the existing legislation on freedom of expression and information that is incompatible with the American Convention and other international human rights instruments.
17. During the Commission’s recent visit to Chile for its 111th Extraordinary Sessions, the Commission received information regarding several bills that may be approved within a short period of time, which would repeal Article 6b of the State Security Law and Article 19 of the Constitution, which refers to the prior censorship of films. In the final stages of drafting this report, the Office of the Special Rapporteur received word of the approval by the House of Representatives of the previously mentioned Press Law, which, among other important reforms regarding freedom of expression that will be analyzed by the Special Rapporteur, modifies Article 6(b) of the State Security Law. The Special Rapporteur expresses his satisfaction with these initiatives, which in the event that they are passed, would represent an important step towards bringing domestic legislation into conformity with Article 13 of the American Convention on Human Rights.
18. Notwithstanding other standards that limit freedom of expression, this report focuses on the urgent need to amend contempt laws and those that authorize prior censorship. These laws are especially serious because they have been used on numerous occasions by the Chilean authorities to restrict freedom of expression, which seriously limits the work of social communicators.
1. Prior Censorship
Political Constitution
19. The Political Constitution of the Republic of Chile establishes freedom of expression as a general principle:
Article 19 Nº 12
First subsection: [All persons are guaranteed] “The freedom to utter opinions and impart information, without prior censorship, in any form or by any means, without prejudice to the right of response to those offenses and abuses committed in the exercise of that freedom, in accordance with the law …”
20. However, the final subsection of this article establishes: “The law shall establish a system of censorship for the screening and advertising of film productions.”
21. This article made it possible to create the Film Rating Council (Consejo de Calificación Cinematográfico), which has censored many films, including The Last Temptation of Christ[7]. The Film Rating Council was created by Decree Law No. 679 of October 1, 1974. This law empowers it to set guidelines for the screening of films in Chile and to rate films. The regulations for implementing that law are contained in Supreme Decree on Education No. 376 of April 30, 1975. The Film Rating Council is part of the Ministry of Education.
The Council is composed of:
1 director of Libraries, Archives, and Museums
3 members of the judiciary
3 representatives of the Board of University Rectors
1 representative of each one of the armed forces and police (4 in all)
3 representatives of the Ministry of Education
2 representatives of the public and private school centers for parents and guardians
3 representatives of the Professional Association of Journalists
Among the Council’s tasks is that of rating films and videotapes in one of four categories:
a) Approved for the general public
b) Approved for persons at least 14 or 18 years of age
c) Approved for educational purposes
d) Rejected
Rejected films fall into four categories:
a) Films that promote or propagate doctrines or ideas contrary to the foundations of the nation or nationality, such as Marxism, etc.
b) Those that offend states with which Chile has international relations
c) Those that are contrary to public order, morality or good manners
d) Those that incite people to commit antisocial or criminal acts
22. Similarly, the approval of any film may be “temporarily or permanently” suspended by a joint decision of the Minister of the Interior, Minister of Defense and Minister of Education “if the circumstances so warrant.”
23. Article 63 of the Regulations of the Council expressly regards videotapes as films and Law 18.853 established a regime for the inspection of videos.
24. The Special Rapporteur has learned that all film reels or videos, even for private use, upon clearing customs, are sent to the Council for rating. Once a film is rated, if it is approved by the Council, it is returned, and if it is rejected, it is confiscated. All film reels or video cassettes must go through this process. The Rapporteur has learned of a number of cases where individuals have made purchases on the Internet and by other means and have been subjected to censorship or bureaucratic red tape to recover their purchase once it is approved by the Council.
25. Prior censorship is expressly prohibited by the American Convention. The aforementioned standards are therefore in clear violation of this international instrument. The Rapporteur’s Report urges the Chilean Government to adopt immediate measures to conform its laws with international standards.
26. Additionally, the Special Rapporteur recalls that which is established in Principle 5 of the Declaration of Principles on Freedom of Expression with respect to prior censorship:
Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.
27. On prior censorship, the Inter-American Court, in its judgment of February 5, 2001, indicated:[8]
72. This Court considers that a state can incur international liability for acts or omissions by any branch or agency of government in violation of the American Convention, irrespective of its rank. In other words, the state is internationally liable for any act or omission imputed to the state, in violation of the rules of international human rights law. In this case, said liability was incurred by virtue of Article 19.12 of the Constitution [of Chile], which establishes prior censorship of film production and, therefore, determines the acts of the executive, legislative, and judicial branches.
28. The Rapporteur’s Report expresses serious concern about the existence of numerous censored films in Chile during the democratic period. According to information received, 11 films have been censored since 1990 and many others were censored before then and still cannot be shown. These figures do not include all the censored videos, which would make the violation even worse, because the government is censoring what citizens may or may not view in private.
2. Contempt, or desacato, laws[9]
29. Law 12.927 of the State Security Law is the legal text embodying the contempt provisions that are most frequently used in Chile.[10] This law was passed in 1958 for the purpose of protecting the democratic system of government. However, as the Inter-American Commission has indicated:
The use of laws to protect the honor of public functionaries acting in their official capacities unjustifiably grants a right to protection to public officials that is not available to other members of society. This distinction indirectly inverts the fundamental principle in a democratic system that holds the government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. If we consider that public functionaries acting in their official capacity are the government for all intents and purposes, then it must be the individual’s and the public's right to criticize and scrutinize the officials' actions and attitudes in so far as they relate to the public office.”[11]
30. The Commission’s opinion is reaffirmed by what happened in Chile during the military dictatorship when such provisions were systematically used to silence criticism of the government. During that period, moreover, punishable acts were broadened and sentences substantially increased, especially for crimes against public order. The reforms during the transition to democracy—known as the Leyes Cumplido—merely involved the elimination of most of the aggravating factors introduced during the dictatorship, but the current law closely resembles the one in force prior to the military dictatorship.
31. The preservation of these laws, which are contrary to the fundamental principles of democracy, has made it possible for them to be used against social communicators and persons critical of the authorities during the eleven years of democratic government. Among other cases, the Special Rapporteur has received information regarding the following judicial proceedings under the State Security Law: In February 2001, Hernan Gabrielli, Commander in Chief of the Chilean Air Force brought a complaint against Carlos Bau, Hector Vera and Juan Ruz. The complaint was based on a supposed violation of the State Security Law when Bau, Vera and Ruz accused Gabrielli of having committed acts of torture against Eugenio Ruiz-Tagle in 1973 at the air base of Cerro Moreno; on February 15, 2000, José Ale of the newspaper La Tercera, was sentenced by the Second Chamber of the Supreme Court to 541 days in prison, based on a complaint filed against him under Article 6(b) of the State Security Act by Servando Jordán, the ex-president of that tribunal, in January of 1998. Jordán felt that he had been insulted by a note written by the journalist and accused him of defamation of a public authority. Ale had been absolved in July of 1999 by the minister of the interior Alejandro Solis and later by a unanimous decision of the Court of Appeals of Santiago; on April 14, 1999, El Libro Negro de la Justicia Chilena by the journalist Alejandra Matus was requisitioned due to a complaint brought by the judge Servando Jordán, Minister of the Supreme Court. This complaint was based on the State Security Law. On April 20 of the same year, the Court of Appeals rejected two petitions for protection filed by the author; On June 17, 1999, the editors Carlos Orellana and Bartolo Ortiz of Editorial Planeta were charged with defamation and detained in connection with the publication of the El Libro Negro de la Justicia Chilena. Two days later, they were released on bond. On July 29, 1999, the Fifth Chamber of the Court of Appeals of Santiago revoked the indictment.
32. The existence of these norms and their use by the authorities constitutes a clear transgression of the right of all persons to express themselves freely and to receive information. The Special Rapporteur has confidence that the bills currently under consideration will be approved shortly in order that the internal legislation will begin to be brought into conformity with Article 13 of the American Convention.
[1] RSF
[2] Amnesty International, “Cuba: Short Term Detention and Harassment of Dissidents,” April 2000, available at http://www.web.amnesty.org.
[3] Id.
[4] The Inter-American Court of Human Rights stated that the State of Chile had failed to honor its general obligation to respect and guarantee the rights protected by the Convention and to adapt its domestic laws to the provisions thereof, as established in Articles 1.1 and 2 of the American Convention on Human Rights. See Inter-American Court of Human Rights, Case: The Last Temptation of Christ, Judgment of February 5, 2001, supra note 2, paragraph 90.
[5] See La Invisible Mordaza, El Mercado contra la Prensa (The Invisible Gag: the Market vs the Press), by Hernan Uribe, Editorial Cuarto Propio, Santiago, Chile. First edition, September 1999; Working Documents, Freedom of Expression Program, School of Journalism, University of de Chile, issues 1,2,3, and 4; “Los límites de la Tolerancia: libertad de expresión y debate público en Chile” [Limits on Tolerance: Freedom of Expression and Public Debate in Chile], Human Rights Watch, Lom Ediciones, Santiago, Chile, 1998.
[6] Information based on Documento de Trabajo No. 3, Cronologia de la Libertad de Expression en Chile, 1999-2000, Claudia Lagos and Marcela Ravanal. May 2000. School of Journalism, University of Chile; Documento de Trabajo No. 2, Los Usos de la Libertad de Expression, Felipe Gonzalez, Diego Portales, Rafael Otano. November 18, 1999. School of Journalism, University of Chile.
[7]The Inter-American Court of Human Rights has established that: “the [Chilean] State has failed to comply with the general obligations to respect and guarantee the rights protected by the Convention and to adapt its domestic laws to the provisions of the Convention, enshrined in Articles 1.1 and 2 of the American Convention on Human Rights.” The Last Temptation of Christ, supra note, 2, paragraph 90.
[8] The Last Temptation of Christ. Supra note 2, para 88.
[9] See text and analysis of the desacato laws in Chile in the section of this report dedicated to desacato laws in the member States.
[10] See Working Document Nº 2, Los usos de la Libertad de Expresion, Felipe Gonzalez, Diego Portales y Rafael Otano. November 18, 1999, School of Journalism, University of Chile. Article “Leyes de Desacato y Libertad de Expresion”, page 17.
[11] IACHR, Annual Report 1994, Report on the Compatibility of Desacato Laws With the American Convention on Human Rights, page 218.