Freedom of Expression
Mexico
188. The Special Rapporteur for Freedom of Expression visited the Republic of Mexico from August 18 to 26, 2003. During the visit, he met with federal authorities from the three branches of government, and local authorities from various states. In addition, he received information and testimony from journalists, human rights defenders, representatives and owners of media, and representatives of journalists’ trade unions. He also met with other representatives of civil society, both national and local.
189. Mexico has made some strides in carrying out the recommendations related to freedom of expression proposed by the IACHR in its 1998 Report on the Situation of Human Rights in Mexico. Nonetheless, important aspects remain to be addressed to fully implement those recommendations. Many of these aspects are within the purview of the local authorities. Accordingly, the full exercise of the freedom of expression faces greater obstacles in the interior of the country than in Mexico City.
190. On concluding its visit, the Rapporteurship issued a press release[1] setting forth a series of preliminary observations and thoughts. The Rapporteur informed the Commission of his visit to Mexico during the 118th regular session of the IACHR. What follows is a summary of some of the information received before, during, and after the visit, and some recommendations are made.
191. In addition, the Rapporteurship notes that some of the observations highlighted below have already been noted in the Diagnóstico sobre la situación de los derechos humanos en México produced by the Office of the United Nations High Commissioner for Human Rights in Mexico in 2003.
Threats and attacks
192. Threats and attacks aimed at silencing journalists critical of the public administration have diminished compared to previous years. Despite this encouraging sign, information was received during the visit indicating that some incidents involving acts of intimidation and threats persist.[2] This situation is all the more worrisome in the interior of the country, where one continues to find threats, acts of intimidation, and indirect means of restricting the freedom of expression of journalists, photographers, human rights defenders[3] and media outlets.
193. In the states of Guerrero[4] and Chihuahua, acts of aggression and threats appear to be aimed at silencing reports and investigations related to violations of fundamental rights. In Chihuahua in particular, information was received about forms of intimidation in response to reports related to the homicides of women in Ciudad Juárez, and investigations related to drug-trafficking or politically sensitive matters.
194. The Rapporteurship also received worrisome information on some of the acts of intimidation, which include assaults on investigative journalists and photographers in areas near military checkpoints in Guerrero, when the communication workers sought to document irregular actions by Army personnel. The information describes the existence of Army checkpoints with mixed operational brigades that include the participation of different police corps and the Public Ministry, in order to implement the federal law on firearms and explosives and to fight terrorism. It was reported that during such operations persons who appear to become uncomfortable during the check are intimidated, and no one is allowed to photograph or film such operations. According to the reports, these agents argue with their weapons in hand that it is prohibited to film or report on their work or actions. Any reporter or cameraman who does so runs the risk of being detained or having his or her camera taken away. Even though complaints have been lodged with the competent authorities as to the existence of the checkpoints that are operating without any legal basis, as of the publication of this report, no action had been taken to determine their legality or to investigate the abuses reported.
195. The Rapporteurship recommends that the persons responsible for the acts of intimidation noted here and those reported to the competent entities by the persons whose right to freedom of expression is affected be investigated and punished. The failure to investigate acts of intimidation helps to create a climate of fear of exercising the freedom of expression and investigation in the states indicated, discouraging reports on violations of human rights, or leading to self-censorship. At the same time, it has a direct effect on freedom of expression, sending a message of encouragement to the perpetrators of such crimes, who are protected by the failure to investigate or the sluggish pace of investigations, enabling them to continue these acts.
196. The Rapporteur is also concerned to see that investigations related to the assassination of journalists continue to be held up. Nonetheless, he values the fact that during a hearing before the IACHR held in October at the request of the Inter-American Press Association (IAPA), the State expressed its openness to going forward with the judicial investigations into the deaths of journalists Héctor Félix Miranda and Víctor Manuel Oropeza, assassinated in 1988 and 1991, respectively.
Judicial actions
197. While the physical attacks have diminished, it is worrisome to see harassment, through the arbitrary or abusive use of legitimately enacted laws and regulations, such as laws on criminal defamation, or laws that permit subpoenas of journalists to demand that they reveal their sources.
198. Practically all the criminal codes of the states of Mexico include criminal defamation laws (statutes on difamación, calumnia, and injuria). The Rapporteur was concerned by information according to which in some states these laws are used to persecute, harass, and/or jail journalists for expressing their opinions on matters of public interest or for criticizing the public administration.
199. The Rapporteurship considers that to ensure the adequate defense of freedom of expression, the Mexican State, at both the federal and local levels, should amend its defamation laws such that only civil penalties could be applied in cases of insults of public officials related to the performance of their functions, public figures, or private figures involved voluntarily in matters of public interest. In this regard, the Rapporteurship recommends that the State review and modify the Press Law (Ley de Imprenta), which dates from 1917, and the criminal legislation, bearing in mind the relevant international standards. The Rapporteurship was encouraged to hear from federal officials that they intend to study initiatives along these lines, thus the Rapporteurship will continue to encourage and observe this process.
200. In the course of this year, the Rapporteurship twice spoke out, through press releases,[5] to condemn the detention of Mexican journalists due to criminal actions initiated against them for the crime of defamation. According to testimony provided to the Rapporteurship, this situation is more intense in local jurisdictions, i.e. in the states of the interior of the country.
201. The following are among the cases of defamation brought against journalists and reported to the Rapporteurship: Ángel Mario Ksheratto Flores, columnist with the newspaper Cuarto Poder of Chiapas;[6] Luciano Campos Garzam, correspondent for the magazine Proceso in Monterrey, Nuevo León; Humberto Pacheco Guardado[7] and Humberto Pacheco Gómez, both of the newspaper Última Hora of Aguascalientes; Juan Lozano Trejo director of the Hidalgo-based newspaper El Huarache; journalists Alejandro Gutiérrez and Jesusa Cervantes, correspondents for Proceso magazine in Chihuahua; Oscar Cantú Murguía, director of the newspaper El Norte of Ciudad Juárez, Chihuahua; Armando Delgado, Manuel Aguirre, Guadalupe Salcido, Rosa Icela Pérez, Francisco Lujan, Antonio Flores Schroeder, and Carlos Huerta, reporters with the newspaper El Norte, of Ciudad Juárez;[8] Francisco Barradas, of the newspaper Imagen of the state of Zacatecas;[9] Silvia Venegas, María del Refugio Hernández, and Dinora Bañuelos, all of the newspaper Imagen of Zacatecas; Irma Mejía and Genaro Romo, of the magazine Bi of Zacatecas; Diana Villagrama, of Página 24 of Zacatecas; Diana Ponce and Hermelio Camarillo, of El Sol of Zacatecas;[10] Alejandro Humberto López Lena Cruz, director general of the Corporación radiofónica of Oaxaca;[11] Eduardo López Betancourt;[12] Isabel Arvide Limón;[13] Javier Hernández Alpízar, reporter and columnist and political cartoonist Marcos Cruz, both of Xalapa, Veracruz.[14]
202. In the state of Chihuahua, journalists critical of the government administration who work in the Federal District and in the state of Chihuahua have been subject to criminal actions or detained under defamation charges brought by public officials, political leaders, or private persons involved in public matters. In particular, the Rapporteur has noted with concern that it may be that the criminal action for defamation is being used in the state of Chiapas to muzzle and intimidate critical and investigative journalism, which is to be found mostly in Ciudad Juárez. It is also of concern that in connection with the criminal investigations, the state Attorney General’s office uses wide discretion when carrying out arrest warrants, which could give rise to self-censorship on the part of journalists, who cannot know with any degree of certainty when they may be detained. The practices related to the criminalization of defamation in certain cases may represent a clear limit on freedom of expression.
Access to information
203. Among the positive developments in Mexico in relation to freedom of expression is the process to bring into existence tools for public access to information at the federal level and in some states.
204. In Mexico, as of the promulgation of the Federal Law on Transparency and Access to Public Government Information, an interesting process has been initiated in some sectors of society acknowledging the importance of guaranteeing this right as a tool needed to attain greater transparency of government acts, and to fight corruption.
205. The Federal Institute of Access to Public Information (IFAI), an entity which, among other functions, renders administrative interpretations of the Transparency Law and reviews criteria for classifying and declassifying secret and confidential information, indicated that in July and August approximately 12,000 requests were lodged with the various branches of the federal government, approximately 130 of which were being reviewed by the IFAI at the time of the visit. On August 18, 2003, the General Guidelines for Classifying and Declassifying Information of the Offices and Entities of the Federal Public Administration were published in the Diario Oficial. In drawing up these guidelines, IFAI held a consultation and workshops with officials from various federal government offices.
206. It is important to highlight that Article 14 of the Transparency Law excludes from the classification of “reserved” (“reservado”) any information on investigations related to gross violations of fundamental rights or crimes against humanity.
207. Caring for and preserving information contained in government archives are also important for guaranteeing the right to information. Accordingly, it is recommended that all necessary actions be taken to preserve the documentation in the hands of the State.[15]
208. On concluding its visit, the Rapporteurship expressed its concern over the policy of secrecy in relation to providing public information that persists in some entities of the public administration, at both the federal and local levels.
209. According to the information received by the Rapporteurship during the visit, in the legislative branch, the judicial branch, and certain autonomous constitutional organs such as the National Human Rights Commission, access to information for those who request it is being hindered, even though, pursuant to Article 61 of the Law on Transparency and Access to Public Information, it is up to the federal legislature and the federal judiciary, through the Supreme Court, and the autonomous constitutional organs, to establish, by their own regulations, “the institutional criteria and procedures for providing private persons access to information, in keeping with the principles and time periods established by law.”
210. In the judiciary, by decision No. 9/2003 of the Supreme Court, certain provisions were established to regulate access to information. During and after the visit, the Rapporteurship received information according to which a culture of secrecy persists in the Supreme Court that has impaired access to public information.[16] One of the main objectives when promulgating access-to-information laws and their regulations has been to eliminate the secrecy and obscurity in the administration of justice. Secrecy during the investigations, the failure to publicize judgments and other judicial actions, among other practices and regulations, have blocked the democratization of the justice system, which results in the isolation of the institution and its members from the rest of society.
211. The failure to produce information directed to the population—and the sectors that specifically demand such information—significantly impacts not only the judicial systems (which continue operating behind closed doors), but also the perception of the population that the administration of justice is not a public service from which one can demand information and results, with the consequent possible impact on its legitimacy. In other words, the changes made within the judiciary are not perceived by the citizenry, and there is little in the way of incentives to keep tabs on the functioning of the judiciary. Accordingly, the Rapporteurship encourages all actions aimed at doing away with the culture of secrecy that still exists in the judiciary.
212. In terms of the legislative branch, it has been found that there are different regulations for the Chamber of Deputies and for the Senate. Each chamber issued its own regulations.
213. It should be noted that Article 13 of the Regulation for Transparency and Access to Public Information of the Chamber of Deputies establishes that the failure to respond to a request is to be understood as a positive response, authorizing access to the requested information. Nonetheless, the Rapporteurship is concerned that the Regulation decreed on April 30, 2003 does not clearly stipulate the guidelines concerning what type of information is considered classified, reserved, or confidential. In the 2001 Annual Report, the Rapporteurship for Freedom of Expression indicated that the criteria for keeping information under seal should be established in clear and precise terms to make it possible for judicial entities to review both the legality and the reasonableness of negative resolutions in light of the interests affected.[17]
214. As regards the autonomous constitutional organs, the Rapporteurship learned of a dispute in relation to the refusal of the National Human Rights Commission (CNDH) to provide information.[18] The Rapporteurship is concerned that this organ for the protection of human rights might be interpreting the law in such a manner as to ignore the very principles of the Federal Law on Transparency in force in Mexico and the international instruments related to the matter.[19] Even if that is the case, the Regulation on Transparency and Access to Information of the CNDH establishes, in Article 10, that the 12-year period for keeping information under seal would not apply in the case of gross human rights violations, but would be published once the respective Recommendation or report is published.
215. In view of the foregoing, it is recommended that the restrictions imposed by the autonomous constitutional organs must be expressly defined by law and must “be necessary to ensure: (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.”[20] This means that the restriction must not only be related to one of these objectives, but also that a showing must be made that disclosure threatens “threatens to cause substantial harm to that aim”[21] and that “the harm to the aim must be greater than the public interest in having the information.”[22] This is essentially the test of proportionality. Whenever information is refused on the basis of the foregoing analysis, there should be an opportunity for independent review of the decision.[23]
216. In relation to the situation of the various states of the union, while laws on access to information have not been promulgated, bills have been introduced in their legislatures. It is recommended that progress be made in promulgating and implementing these laws and complementary provisions that regulate access to public information in all states of the Republic, mindful of the relevant international standards, and with broad citizen consultation. In addition, and in relation to the situation in the Federal District, it was found that due to a political clash, the law on access to information has yet to be enacted. It is recommended that the Federal Districtovercome these disputes so that it can quickly have an expeditious and effective tool.
217. Another aspect of access to information is press access to public events. On several occasions journalists in Guerrero have been denied access to public events or have had their cameras taken away to prevent them from providing coverage.[24] For example, the newspaper El Sur of Guerrero reported that since September 2002, it had been excluded from the list of newspapers invited to the official activities of the governor, with no explanation whatsoever. In addition, it said it had stopped receiving the bulletins distributed by the Office of Communication. During the Rapporteur’s visit to Chihuahua, information was received according to which several offices of the state government have refused to provide public information, without giving any justification.[25] In both states, concern was expressed over the existence, in the various state offices, of a culture of secrecy with respect to information related to human rights violations.
218. The Rapporteurship considers that the culture of secrecy that persists in certain sectors of the states’ organs should be forcefully rejected to guarantee real transparency of the public administration, both federal and local.
219. Finally, during the visit, both state officials and sectors of civil society expressed the need to guarantee the protection of personal information in public and private records, through a regulation on habeas data that is more precise than the Federal Law on Transparency and Access to Governmental Public Information. This right to access and control of personal information is a fundamental right in many areas of life, as the lack of judicial mechanisms to rectify, update, or expunge information would impact on the right to privacy, honor, personal identity, property, and oversight of the compilation of the data obtained. Given the importance for individuals of protecting their personal information in public and private records, the Rapporteurship recommends that the initiatives of which it was informed to promulgate a statute that provides for and regulates the right of habeas data be continued.
On the journalists’ right to protect the confidentiality of their sources
220. Freedom of expression is understood to encompass journalists’ right to keep their sources confidential. It is the journalist’s right not to reveal information or documentation that has been received in confidence or in the course of an investigation. The main foundation of the right to confidentiality is that within the scope of their work, and in order to provide the public with the information needed to satisfy the right to information, journalists are performing an important public service when collecting and disseminating information that would not be divulged were the confidentiality of sources not protected. This journalistic privilege involves providing legal guarantees to ensure anonymity and to avoid possible reprisals for disseminating certain information. Confidentiality, therefore, is essential to journalists' work, and to the role that society has conferred upon them to report on matters of public interest.[26]
221. In Mexico, the Rapporteurship observed a wide-ranging debate on the need to guarantee and protect journalists’ right to protect the confidentiality of their sources. In the press release published at the end of his visit, the Rapporteur voiced concern over information received according to which, since 2002, investigative journalists had been subpoenaed to appear before the Public Ministry to reveal their sources of information. At the time, the Rapporteur indicated that such actions could have a harmful impact on investigative journalism, which in some cases leads to disclosure of matters related to administrative corruption or illegal activities that are of great public interest. The Rapporteurship verified the existence of such subpoenas, both federal and local. The persons so subpoenaed include: journalist Adriana Varillas[27] of Cancún; Maribel Gutiérrez,[28] reporter and editor of the Guerrero section of the newspaper El Sur; Daniel Morelos,[29] journalist and director of information of El Universal; Enrique Méndez, Gustavo Castillo,[30] Rubén Villalpando, Andrea Becerril, Ciro Pérez, and Roberto Garduño, all of the daily newspaper La Jornada;[31] Francisco Guerrero Garro and Fabiola Escobar, director and reporter of La Jornada in Morelos;[32] Javier Juárez Mejía,[33] correspondent for La Jornada in Baja California; Daniel Valdés Romo[34], reporter in Coahuila; Alejandro Mendoza Pastrana,[35] correspondent for El Financiero in Guerrero; Carlos Huerta[36] of the newspaper El Norte of Ciudad Juárez, Chihuahua; and Agustín Pérez and Said Betanzos, both reporters for the daily Frontera.[37] In many of the cases reported, it was indicated that when a given criminal act is reported, some judicial officers seek to have the short-cut of getting information from journalists take the place of their own activity, which would involve getting it by other means. The Rapporteurship observed that it is important that the Public Ministry, either federal or local, develop clear rules that prevent the use of such mechanisms to harass journalists.
222. The subpoenas from the Office of the Attorney General of the Republic (PGR) to the journalists of La Jornada are a special case. The Rapporteurship received information according to which after a complaint was submitted to the CNDH by the six reporters, the PGR brought administrative and criminal proceedings, the first of which resulted in one of the Public Ministry agents being sanctioned. Through that proceeding, the Public Ministry recognized that some of the questions put to the journalists by their agents were aimed exclusively at harassing them.
223. The National Human Rights Commission presented an initiative to amend the Federal Code of Criminal Procedure in order to protect the right to journalistic privilege, among other things. Afterwards the Rapporteurship learned that federal deputies from different political parties would be fostering that reform to protect journalists’ sources of information.[38]
224. In addition, it should be noted that the Office of the Attorney General of the Republic sent the IACHR a proposal for internal regulations for Federal Public Ministry agents for subpoenaing journalists and protecting reporters’ journalistic privilege. The Rapporteurship sent a letter dated October 20 to the Office of the Attorney General of the Republic making preliminary observations, suggesting the need to clarify some concepts in the proposal, and requesting some information related to certain aspects of it, such as the means offered by the Mexican legislation to question the Attorney General's decision to subpoena a journalist. On December 11, 2003, the Official Journal published the internal regulations. Without prejudice to the observations made by the Rapporteurship in its letter, it is important to note that in the considerations at the beginning of the regulations, various international norms and recommendations currently in force, among them Article 13 of the American Convention on Human Rights, the Declaration of Principles on Freedom of Expression, and the Declaration of Chapultepec, were adequately cited. These citations are adequate to provide a framework for the regulations, the application of which the Rapporteurship will continue to monitor.
225. While all these initiatives are auspicious, the Rapporteurship recommends that guidelines be included in Mexican law that establish in clear terms the right of journalists to keep their sources confidential.
On the placement of official advertising
226. In the states visited (Chihuahua and Guerrero), it appears that official advertising is being placed with wide discretion, without clear parameters, and with some signs of arbitrariness. The Rapporteurship found this situation with respect to the newspapers El Sur of Guerrero[39] and El Norte of Ciudad Juárez,[40] both openly critical of the public administration. The Rapporteurship was especially concerned by statements made during a meeting with local authorities in Chihuahua in which questions were asked about official advertising guidelines in the mass media, in response to which the Secretary General of the government of Chihuahua said that “at times there are some media that criticize the government a lot, and I must tell you that perhaps those media are limited a bit.”
227. It should be recalled that Principle 13 of the Declaration of Principles on Freedom of Expression notes that the arbitrary and discriminatory placement of official advertising for the purpose of pressuring or punishing, or rewarding and privileging journalists based on how they report the news is at odds with the freedom of expression, and should be prohibited by law. The media have the right to do their work independently. Direct or indirect pressures aimed at silencing the informational work of journalists are incompatible with the freedom of expression.
228. Using the media to broadcast information is important and useful for states, at the same time as they provide the media substantial guarantees. Although there is no inherent right of the media to receive official advertising, and the states, in turn, can make decisions when it comes to placing advertising based on the percentage of the population that can be reached by the information outlet, the strength of the frequency, and similar factors, deciding where to place government advertising based on editorial line or criticism of public officials is contrary to the standards for protecting human rights and freedom of expression.
229. The rights enshrined by the international human rights instruments clearly establish non-discrimination as a criterion. Any measure that discriminates against a particular media enterprise in terms of placement of official advertising based on editorial line or criticism of the public administration would be an indirect means of limiting freedom of expression.[41] Such a policy could have the adverse effect of self-censorship given that the assignment of official advertising, fundamental for the operation of some media, could stand in the way of reports on abuses of authority or news aimed at providing a critical perspective of the conduct of public affairs. The Special Rapporteur recommends that all government agencies modify such practices and establish clear, fair, objective, and non-discriminatory criteria for determining the distribution of official advertising. The Rapporteurship, therefore, is of the view that in no case may official advertising be used to prejudice or favor any particular media outlet over any other because of editorial line or criticism of the conduct of public affairs.
Assignment of frequencies and regulation of the electronic media
230. In Mexico, one of the most hotly debated issues in the area of legislation on electronic media has to do with the need to limit discretion in the issuing of concessions and permits for radio and television, taking into account the cultural diversity within Mexico. The Rapporteurship heard any number of complaints related to the assignment of frequencies and permits for community and indigenous radio stations to operate legally. In addition, in order to learn in more detail about the initiatives to amend the laws related to the assignment of frequencies and permits, the Rapporteur had the opportunity to meet with the Under Secretary for Regulatory Policy and the Media and the Director of Print Media of the Secretariat of the Interior; representatives from the regulatory sector for communication, television, and cinematography; the Director for Radio, Television, and Cinematography of the Secretariat of the Interior (SEGOB, by its Spanish acronym); the President of the National Commission for the Development of the Indigenous Peoples; and the Under Secretary for Radio and Television of the Secretariat of Communication and Transportation (SCT, by its Spanish acronym).
231. According to the information received, of 100 projects for community radio in Mexico, the State has only granted six permits to civic associations and social organizations, four of which belong to low-power stations that operate in homes for indigenous children in Yucatán, and which are projects under the Instituto Nacional Indigenista. The National Commission for the Development of the Indigenous Peoples has a network of 21 indigenous radio stations in the country that have been taking the steps needed to obtain permits. Nonetheless, most of these have been denied the possibility of obtaining any kind of permit, whether by omission, because the authorities do not answer the petitions, or because requirements have been imposed which in practice have been identified by some radio stations as unattainable for most of them.
232. The current legal framework has left it to the discretion of the authorities under the Executive to set the requirements for obtaining a permit. In doing so, the SCT has set requirements far beyond the possibilities of some social groups.
233. During the visit, it was learned that the SCT has decided to postpone, through the issuance of form letters, any decisions on granting permits and licenses until the results are in from the Dialogue for the Comprehensive Review of the Legislation on Electronic Media. This has meant that since it has not been possible to obtain permits, many organizations and collectives have decided to broadcast without them. In 2003, some of the civil society groups that are participating in the Dialogue delivered to the senior officers of the SCT, the Deputy Minister for Communication, and the Human Rights Unit of the Secretariat of the Interior information on 20 community radio stations under review for the issuance of permits. The groups indicated that most of those radio stations are located in indigenous and rural areas. Eighteen of these radio stations began to seek permits in 2000. More than half received negative responses from the SCT, through form letters that indicated that these determinations would be made based on the results of the negotiations at the aforementioned Dialogue.
234. The Rapporteurship notes that in view of the importance of such community channels of communication for exercising freedom of expression, it is unacceptable to establish discriminatory legal frameworks or means of delay that hinder the awarding of frequencies to community radio stations. In addition, practices that involve unwarranted threats to close down media or to seize equipment arbitrarily, even when they occur legally, are worrisome.
235. During conversations with both the Office of the Deputy Minister for Media Regulation of the Interior Ministry and with the National Commission for the Development
of the Indigenous Peoples,[42] it was reported that several proposed amendments to the Law on Radio and Television are before the legislature. These include the citizen proposal drawn up by several civil groups with the objective of promoting the consideration of democratic and plural criteria in the distribution of permits and frequencies and the right to reply, among other objectives. The Rapporteurship recognizes the complexity of this issue, and values the initiatives aimed at solving the problems posed, mindful of the international standards in this area. Principle 12 of the Declaration of Principles on Freedom of Expression notes that assignments of radio and television frequencies should consider democratic criteria that ensure equal opportunities for all persons to gain access to them. The Rapporteurship will continue to monitor the situation, and reiterates its willingness to cooperate, which it expressed to the authorities and members of civil society.
[1] Office of the Rapporteur for Freedom of Expression, Press Release PREN/89/03, <http://www.cidh.org/ Relatoria/Spanish/Compren2003/ComPren8903.htm>.
[2] The National Human Rights Commission delivered a document to the Rapporteurship indicating that as of August 2003, there were 36 reports of actions against journalists. The breakdown is as follows: intimidation (12), injuries (8), threats (4), censorship (2), homicides (1), robberies (2), arbitrary detentions (3), unwarranted dismissals (2), unlawful exercise of public functions (1), harm to the property of others (0), searches and visits (0), and disappearances (1).
[3] Examples: The organization Christian Action Against Torture (ACAT) reported that since October 2002 attorney Samuel Castellanos Piñón and a legal intern formally assumed the defense of the detainees in the Agua Fría case after having received testimony of torture and arbitrary detentions. On February 26, 2003, attorney Castellanos told the local press that the trials of 10 prisoners were marked by many irregularities and violations of individual guarantees. On March 1, 2003, anonymous mail was received at the offices of ACAT-Oaxaca threatening to kill Castellanos if he didn’t withdraw from the defense of the detainees in the Agua Fría case. On March 31, a second mail was received at the offices of ACAT-Oaxaca directed to Castellanos and his team, warning them to withdraw from the defense of the detainees from Teojomulco within one month, and naming other persons. The organization mentions having presented a complaint for harassment to the Office of the Attorney General. On April 8, 2003, the IACHR decided to grant precautionary measures. Information provided by CMDPDH, August 2003.
Amnesty International reported threats and harassment aimed at silencing Mrs. Evangelina Arce, a member of the Comité Independiente de Derechos Humanos and the mother of Silvia Arce, who was disappeared March 11, 1998 in Ciudad Juárez. According to the information, Mrs. Arce has been receiving anonymous threats since early 2003 for having made a statement to the National Human Rights Commission, reporting on the “failure of the authorities to carry out an effective investigation into the disappearance of her daughter.” The CMDPDH noted that the victims’ family members as well as human rights defenders in Ciudad Juárez and the city of Chihuahua have been harassed for their public statements. Information provided by the CMDPDH, August 2003.
[4] The Commission for the Defense of Human Rights of the State of Guerrero reported that since the creation of its program to uphold journalists’ rights in 2001, 57 complaints have been lodged, 25 of which correspond to threats, harassment, and intimidation. In the state of Guerrero information was received related to the labor situation of communication workers who allegedly have been dismissed as a result of government pressures on media owners. They reported that these pressures worked as indirect means of restricting the freedom of expression of such workers. Information provided by the Asociación de Periodistas del Estado de Guerrero, August 20, 2003.
[5] Press Releases from the Office of the Special Rapporteur for Freedom of Expression PREN/70/03 and PREN/75/03, at <www.cidh.org/relatoria>.
[6] In January 2003, journalist Ángel Mario Ksheratto, author of the column “Fichero Político,” published daily in the newspaper Cuarto Poder, was criminally indicted for the crime of defamation by the press officer of that state agency, María del Pilar Fernández, presumably for having denounced acts of corruption in the School Construction Committee of Chiapas. Ksheratto also reported having received phone calls with death threats, and that on several occasions vehicles without license plates have followed him. In October 2003 the Attorney General for the state of Chiapas provided a document to the Rapporteur at the headquarters of the IACHR summarizing the status of the cases of journalists in his office. With respect to journalist Ksheratto, in the defamation case brought by Edgar Valente de León Gallegos on September 11, 2003, the preliminary inquiry was assigned to the Bureau of Special and Important Matters. With respect to the defamation case brought by Jorge Cruz Pineda, it was reported that official notes were sent to have the complainants present witnesses, but to date none has come forward. With respect to the defamation case brought by Guilmar Sarmiento Gutiérrez, the Office of the Attorney General has only the complaint and the publication. On the defamation case brought by Ramiro de la Rosa Bejarano, it was proposed that the criminal action not be brought; it is currently before the Office of the Deputy Attorney General for Criminal Proceedings, for study and decision.
The document provided by the Attorney General for the state of Chiapas documents, in addition to the defamation cases against journalist Ksheratto, 13 other cases against journalists for crimes of defamation from the following media: Diario de Chiapas, Cuarto Poder, La República de Chiapas, El Orbe, Diario del Sur, and Record. Most of these cases are in the preliminary inquiry stage. In the cases against journalists Rosario González Chay and Ida Guizar García of the newspaper El Sur and journalists Álvaro Islas Hernández and Enrique Zamora Cruz of the newspaper El Orbe, the Rapporteur was informed of the proposal that no criminal action be brought.
[7] According to the information received, Humberto Pacheco Guardado, director of the newspaper Ultima Hora of the city of Aguascalientes, faced criminal defamation charges related to a report published February 2 and March 1, 2003, revealing acts of corruption that allegedly involved a federal judge and the governor of Aguascalientes. Information provided by the CMDPDH.
[8] In September 2002 the editorial director and seven reporters from the newspaper El Norte of Ciudad Juárez appeared before the Office of the Deputy Attorney General of the state in relation to criminal defamation charges. The complaint was lodged by former mayor Manuel Quevedo Reyes, after a series of publications on alleged acts of corruption in recent years in the state of Chihuahua. In October 2002 Judge Catalina Ruiz placed the preliminary inquiry under criminal case 425/02, and called for the detention of editor Oscar Cantú and the seven reporters of El Norte. In late October 2002, the National Human Rights Commission sent an inspector from the Program on Attacks on Journalists and Civil Defenders to document and analyze the causes of action brought against the reporters from El Norte.
[9] On September 2, 2003, journalist Francisco Barradas, director of the magazine Bi of Zacatecas, was notified of an arrest warrant for him issued by the fourth judge for criminal matters in the city of Zacatecas. In addition, his political rights were suspended, and he was required to come forward each week to sign the registry of persons accused. Barradas is being tried for the crime of calumnia allegedly committed to the detriment of the municipal comptroller (síndico municipal), Rafael Medina Briones. He had already been detained for five hours by administrative order on August 26, 2003, for the same case. That day he was released on bond, and remained free on bond until, on November 25, the Superior Court of Justice of Zacatecas revoked the resolution ordering preventive detention. The resolution confirmed that the facts described in the published information that led to the cause of action was not false. Information submitted by the Inter-American Press Association.
[10] The newspaper La Jornada reported on August 31, 2003, that seven reporters and one editor from Zacatecas were facing criminal defamation charges or have been called as witnesses. Among the reporters called to appear before the Public Ministry of Zacatecas are: Silvia Venegas, María del Refugio Hernández, and Dinora Bañuelos, of the newspaper Imagen; Irma Mejía and Genaro Romo, of the Revista Bi; Diana Villagrama of Página 24; Diana Ponce Morales, reporter with El Sol and president of the Asociación de Mujeres Periodistas de Zacatecas (Association of Women Journalists of Zacatecas); and Hermelio Camarillo of El Sol.
[11] On April 4, 2003, agents of the Judicial Police of the state of Oaxaca detained the director of the newspaper Expresión, Humberto López Lena, as the result of a suit against him for calumnia and defamation brought by Juan Díaz Pimentel, president of the Chamber of Deputies of the state of Oaxaca. Pimentel accuses López Lena of publishing allegedly “inflammatory” accusations against him.
[12] Law professor Eduardo López Betancourt of the Universidad Autónoma de México reported having been the subject of 17 defamation complaints for which he could be given prison terms of up to two years each. In addition, he reported having received several death threats. During his visit to Mexico the Rapporteur met with Betancourt’s wife.
[13] Journalist Isabel Arvide Limón was detained for the second time on March 5, 2003, in the state of Chihuahua, accused of defamation to the detriment of the state attorney general, Jesús José Solís Silva. She was jailed in the San Guillermo prison, where she remained until last night. She was detained by some 15 agents, and they put her in a vehicle with “rifles, machine-guns, and goats’ horns.” Attorney Bernardo Pérez said that Isabel Arvide Limón was detained because of the accusations published in an article referring to the attorney general, who was accused of maintaining ties with drug-traffickers. She was released after posting bond. El Norte, March 3, 2003.
[14] In August 2003, reporter and columnist Javier Hernández Alpízar was criminally sued for the crime of calumnia and cartoonist Marcos Cruz was criminally sued for inciting violence by the mayor of Xalapa, Veracruz. According to the information received, the article published in the newspaper Política on June 24, 2003, and the caricature in question were related to protests by the population in Chiltoyac, municipality of Veracruz, over the dump that the official ordered be installed in the cloud forest that surrounds the town, without the town’s consent. It was reported that on April 28, the Office of the Federal Prosecutor for Environmental Protection had shut down the El Tronconal sanitary landfill, which was kept operating under a supposed amparo granted by a federal court. Later, it was learned that the suit against the cartoonist was withdrawn. Information provided to the Rapporteur in August 2003.
[15] IACHR, 1999 Annual Report, Volume III, Report of the Special Rapporteur for Freedom of Expression, Annex 6: Article XIX: The Public’s Right to Know: Principles on Freedom of Information Legislation.
[16] “Transparencia: Restringen en la Corte el acceso a la información,” in La Jornada, September 24, 2003. The Rapporteur received expressions of concern on one of the regulatory provisions for access to information in the Supreme Court that establishes a 12-year period before one can have access to the records in criminal trials. Miguel Carbonell, an academic with the Instituto de Investigaciones Jurídicas of the UNAM, states: “If a trial lasts three years, one must add to those three another 12 years (the period during which the record is under seal), we’re talking about 15 years to find out the information. What happens with this case? This is a negative feature that is hardly reasonable.” See “Transparencia: Obstruyen juzgados apertura informativa,” November 10, 2003, visited at <www.atlatl.com.mx/articulo.php?a=20699>, on November 17, 2003.
[17] In the Public Interest: Security Services in a Constitutional Democracy. Helsinki Foundation for Human Rights and Center for Security Studies, Bulletin 1, June 1998. And: A Model Freedom of Information Law. Article XIX, London, July 2001, in: Annual Report of the Inter-American Commission on Human Rights 2001, Volume II Report of the Office of the Special Rapporteur for Freedom of Expression, OEA/Ser.L/V/II.114, Doc. 5 rev. 1, April 16, 2002, p. 80, para. 24.
[18] The Rapporteurship learned that a recurso de amparo was filed by Mr. Miguel Sarre Iguíñez before the Administrative Court of the Federal District in which it is noted that pursuant to Articles 4 and 48 of the Law on the National Human Rights Commission and Articles 9 and 10 of the Regulation on Transparency and Access to Information of that same organ, information was withheld. In the amparo motion it is argued that Articles 4 and 48 of the Law on the CNDH violate Articles 6, 14, 16, and 133 of the Constitution, insofar as, among other things, Article 4 “does not distinguish between information contained in concluded and continuing matters” and Article 48 “restricts access to information on conferring on the organ established for the protection of human rights broad powers to refuse access to its evidence, even when allowing such access would not affect the rights of third persons, national security, public order, and other similar values.” In addition, the motion filed pursuant to Article 10 of the Regulation on Transparency and Access to Information of the CNDH “provides that all information regarding matters under the purview of the National Human Rights Commission is reserved, independent of the characteristics of that information; and therefore, the governors’ access to it is prohibited, the sole exception being in the event that the information has been under seal for 12 years. The above-cited articles read:
Law on the CNDH:
Article 4: ... The staff of the National Commission shall keep confidential the information or documentation regarding the matters under its purview.
Article 48: The National Commission shall not be required to provide any of its evidence to the authority to which it has directed a Recommendation or to any private person. If such evidence is requested, it will determine, within its discretion, whether to provide it.
Regulation on Transparency and Access to Information of the CNDH
Article 9: In keeping with Article 4 of the Law on the National Human Rights Commission, and in keeping with the provision in section I of Article 14 of the law, reserved information is considered to be that information or documentation in the records of complaints, orientations, remittances, monitoring of recommendations, and challenges being processed in the Commission.
Article 10: Information that is reserved in terms of the foregoing article shall be such for a period of 12 years counted from the date on which the Commission resolves the respective matter.
[19] Article 133 of the Constitution provides: “This Constitution, the statutes of the Congress of the Union that emanate from it, and all International Treaties that are in agreement with it, entered into and that may be entered into by the president of the Republic, with the approval of the Senate, shall be the Supreme Law of the Union....”.
[20] American Convention on Human Rights, Article 13(2).
[21] Principles on Freedom of Information, note 212 supra, Principle 4.
[22] Id.
[23] Id., Principle 5.
[24] On February 11, 2003, reporter Zacarías Cervantes of El Sur and other reporters trying to cover a public act related to fighting forest fires, to which the media had been invited by the National Forestry Commission of the federal government, were denied access to the official residence of the governor of Guerrero.
On July 2, 2003, a group of soldiers took away the photographic gear of Jesús Guerrero, correspondent of the newspaper Reforma at the main entry to Military Zone 35 of Chilpancingo to prevent him from photographing the arrival of the state comptroller to verify the health of the president of the Committee on Governmental Affairs of the state congress, who had been in an accident. That same day a group of officials from the government physically assaulted journalists Abel Miranda Atala, photojournalist with the newspaper El Sur, and Alejandro González Reyes, photographer with the agency Notimex when they attempted to photograph the chairman of the Committee on Government of the state congress as he was being taken to a hospital.
On June 18, 2003, the Third Judge for Criminal Matters of Chilpancingo kept reporters Rogelio Agustín of El Sol of Acapulco, Jesús Guerrero, correspondent for Reforma, Alejandrino González Reyes of the news agency Notimex, Elizabeth Patrón of the radio news program Al Tanto, and Jaime Irra of the agency IRZA from covering a public hearing taking place in that court. The judge ordered state police to remove the correspondent of El Sol of Acapulco. Information provided by the Asociación de Periodistas del Estado de Guerrero, August 20, 2003.
[25] Red Ciudadana of Chihuahua has indicated that they have forwarded to Congress 70 requests for information, for the Congress to demand of the various offices of the State and of the Office of the Attorney General access to public information. It was indicated that less than 50% of those requests have been answered, most of them denials without justification. The Network indicated that among the information that has not been provided is the information on the use of state resources, especially on the state government’s project to remodel the historic downtown area, in which the Red says millions of pesos have been invested, without any official information being provided on the scope of the works or the cost. In addition, information has been requested on the investigations related to the homicides of women in Ciudad Juárez.
[26] IACHR, Annual Report 2000, Vol. III, Report of the Office of the Special Rapporteur on Freedom of Expression [hereinafter Report of the Special Rapporteur 2000], OEA/Ser.L/V/II.114, Doc. 20 rev., p. 24. See also Felipe Fierro Alvidez, El derecho y la libertad de expresión en México, debates y reflexiones. REVISTA LATINA DE COMUNICACIÓN SOCIAL, DEC. 2000, available at: <http://www.ull.es/publicaciones/latina/04fierro.htm>.
[27] On March 10, 2003, the Judicial Police of the state of Quintana Roo brought journalist Adriana Varillas of the newspaper La Voz del Caribe, of Cancún, before the Public Ministry to reveal her sources of information regarding a published report in which she described alleged irregularities and the complicity of a municipal official of Cancún with local and foreign investors. Information provided by Comision Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH).
[28] On June 12, 2002, Maribel Gutiérrez, reporter and editor of the Guerrero section of the newspaper El Sur, published in the city of Acapulco, Guerrero, was questioned by an agent from the Public Ministry of Acapulco in the context of an investigation related to the Digna Ochoa case. The journalist has covered issues related to human rights since 1996. The cases she has covered include the massacre of indigenous peasant farmers on June 28, 1996, at Aguas Blancas, and at El Charco, on June 7, 1997; the militarization resulting from the appearance of the Ejército Popular Revolucionario, June 28, 1998; the sterilization of indigenous women, in 1998; and the Digna Ochoa case.
The subpoena came after the publication in El Sur, on June 5, 6, 7, and 8, 2002, in which information was provided from witnesses from the region of Petatlán, Guerrero, in the Digna Ochoa case. Of the four articles published by Maribel Gutiérrez in El Sur, two in particular stand out, one with the headline that says: “A gunman from the Petatlán highland killed Digna Ochoa,” and another, “Rogaciano Alba, said to be one of a group of armed civilians who carry out repression in the highlands.” Both reports provide a detailed narrative of events with dates, names, and places where the events took place, to back up the information published. During her appearance, she was asked 95 questions to get her to reveal the names and addresses of the persons she interviewed. In addition, according to the information, on June 27 of the same year, former mayor of Petatlán, Rogaciano Alba Alvarez, presented a criminal complaint against Maribel Gutiérrez, recorded under the number 059/2002, in the General Bureau for Preliminary Inquiries of the Office of the Attorney General for the state of Guerrero. Information provided by Comision Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH).
[29] On December 3, 2002, Daniel Morelos, journalist and director of information for the daily El Universal was subpoenaed by the judicial authorities to reveal his sources for a report published June 16, 2002, on alleged acts of corruption in Petróleos Mexicanos. Information provided by Comision Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH).
[30] On September 4, 2003, agents presumably from the Office of the Attorney General of the Republic subpoenaed reporter Gustavo Castillo García from the daily La Jornada to reveal his sources for an article he published on June 19, 2003, on the seizure of a cocaine shipment in Culiacán. According to the information reported, two agents of the Federal Investigative Agency of the Office of the Attorney General of the Republic came forward, without a judicial order, and without wanting to identify themselves, at the offices of La Jornada, to question the reporter. Information from El Universal and La Jornada, September 5, 2003.
[31] On November 18, 2002, the daily La Jornada reported on the judicial harassment of journalists Enrique Méndez, Gustavo Castillo, Rubén Villalpando (correspondent for La Jornada in Ciudad Juárez), Andrea Becerril, Ciro Pérez, and Roberto Garduño, all reporters with La Jornada, in response to the recurrent judicial subpoenas they have received from the Office of the Attorney General of the Republic. The events arise from publications by La Jornada in January concerning the Operación Crudo and which today is known as Pemexgate. After the publications mentioned, going back to March 2002, the reporters began to receive subpoenas from Public Ministry agent Isabel Hernández Bargas, principal of the ninth panel of the Office of the Special Prosecutor for Crimes Against Public Servants. That prosecutorial office required, by official note 1219 to the director general of La Jornada, that she present two reporters to the authorities; some had already been subpoenaed on more than one occasion. One of the subpoenas was received Thursday, November 14, 2002. According to the information provided, the PGR has sought to learn the exact names of the sources in the Pemexgate and Raúl Salinas de Gortari cases. The investigations contain the notes and reports that appeared in this paper in both cases. During his appearance, Gustavo Castillo was asked about the Raúl Salinas de Gortari case; he was repeatedly asked who his sources were; he was warned that the questions should be answered without invoking journalistic privilege because he was being subpoenaed as a witness. Finally, according to La Jornada, during the proceeding the right to a copy of the record from the Public Ministry was denied, and it refused to provide any information about the main purpose of the appearance. The reporters from La Jornada lodged a complaint with the National Human Rights Commission over these incidents against the Attorney General of the Republic, Rafael Macedo de La Concha, the Special Prosecutor on Organized Crime (UEDO), José Luis Santiago Vasconcelos, and the principal of the Office of the Special Prosecutor for Crimes Against Public Servants of the PGR, among other officials. On February 20, 2003, the PGR opened an inquest based on one of the subpoenas, and imposed sanctions on one of the two Public Ministry agents involved and recognized the validity of journalistic privilege. Information provided by the Comision Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH).
[32] Francisco Guerrero Garro and Fabiola Escobar, director and reporter for La Jornada in Morelos (which shares a border with Guerrero) were subpoenaed to testify as witnesses before the state Attorney General’s office to reveal their sources on corruption issues.
[33] Pedro Juárez Mejía, Baja California correspondent for La Jornada, was subpoenaed by the PGR in that state in November 2002 to reveal sources of information for an article that appeared in the local daily El Forjador on drug-trafficking and the alleged involvement of agents from the municipality of Guerrero Negro.
[34] In September 2003, a delegation from the PGR in Saltillo, Coahuila, subpoenaed reporter Daniel Valdés Romo to reveal his sources of information for an article he published on alleged corruption involving agents of that entity. La Jornada, September 25, 2003.
[35] On April 21, 2003, El Financiero correspondent and host of the news program La Explosiva de Guerrero, Alejandro Mendoza Pastrana, was subpoenaed by the Guerrero Attorney General’s office to reveal his sources of information on alleged acts of corruption by state authorities in building a public work. That article was published in the column Palabras Punzantes in the newspaper El Sol of Chipancingo on March 25, 2003. La Jornada, April 25, 2003.
[36] In June 2003, reporter Carlos Huerta of the daily El Norte of Ciudad Juárez received a subpoena in which he was asked to come before the Federal Public Ministry as part of a criminal investigation to state where his information came from. A complaint was lodged with the National Human Rights Commission, which sent an inspector to investigate the complaint. According to the information received, the CNDH later forwarded the complaint to the Federal Judicial Council.
[37] The PGR subpoenaed the Frontera reporters to reveal their sources. Said Betanzos was visited on April 7, 2003 at the newspaper’s offices, in relation to an article on drug trafficking. Agustín Pérez was visited by two police officers who questioned him on a series of articles on several persons released on bond published March 17, 2003. Both were questioned by members of the Federal Investigations Agency as to their sources. La Jornada, April 18, 2003. Information provided by CMDPDH.
[38] That commitment was taken on by several legislators at a seminar on “Journalistic Privilege: The Right of Journalists to Protect their Sources,” organized by the Mexican Association of Newspaper Editors on occasion of their 19th Annual Assembly in October 2003. The keynote speaker was José Luis Durán Reveles, Deputy Minister for Media Regulation of the Interior Ministry, in representation of President Vicente Fox. The Attorney General of the Nation, Rafael Macedo de la Concha, also stated during that event that it was a decision of the Mexican State to respect journalistic privilege, specifying that it should be the national Congress of the Union that should approval the legal reform. EFE, October 17, 2003.
[39] According to the information received during the visit, as of September 2002 the government of the state of Guerrero had suspended payments to El Sur for advertising, and stopped taking out paid inserts in that newspaper.
[40] According to information received during the visit, during past administrations the daily El Norte reported that since 1999 it has been discriminated against, resulting in the total cancellation of official advertising. El Norte denounced that this situation was in response to its editorial line critical of the administration of the new governor, and to their publication of allegations of human rights violations, especially those related to the homicides of women in Ciudad Juárez.
[41]See American Convention on Human Rights, Chapter I, General Obligations: Article 1, Obligation to Respect Rights, and Chapter II, Civil and Political Rights, Article 13: Freedom of Expression.
[42] The Director of the National Commission for the Development of Indigenous Peoples informed the Rapporteurship that there is a commitment to study the issuance of permits for indigenous radio stations. She indicated that at this time the SCT and the Commission that she presides over are analyzing, case by case, to determine whether it is a community radio station, what resources it has for operating, and how it operates. She reported that at present there are 24 indigenous radio stations seeking permits.