Freedom of Expression

6 - Chapter V - Cases of Freedom of Expression in the Inter-American System


A.         Inter-American Court of Human Rights


Provisional Measures


1.                  Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser of the daily newspaper La Nación, Costa Rica. On March 28, 2001, the Inter-American Commission on Human Rights, given the State of Costa Rica's failure to comply with the precautionary measures requested on March 1, 2001, petitioned the Inter-American Court of Human Rights to apply provisional measures that would enable the Costa Rican State to safeguard the freedom of expression of Messrs. Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser.  On September 7, 2001, the Court issued a resolution whereby it decided to petition the State of Costa Rica to adopt, without delay, those measures deemed necessary to nullify Mr. Mauricio Herrera Ulloa’s registration in the Judicial Registry of Criminal Offenders until the case was definitively resolved by the bodies of the inter-American human rights system.  The State was also petitioned to stay the order to publish in the newspaper La Nación the operative provisions of the guilty verdict handed down by the Criminal Court of the First Judicial Circuit of San José on November 12, 1999, and to stay the order to establish an online "link" in the Digital La Nación between the articles cited in the complaint and the operative part of the verdict.


2.                  On October 5, 2001, the State informed the Court that it had ruled that execution of the verdict against Mr. Mauricio Herrera Ulloa should remain stayed. Likewise, it indicated that registration in the Judicial Registry of Criminal Offenders was stayed.  On November 30, 2001, the Commission addressed the Court to indicate that, in flagrant disregard for the provisional measures the Court had agreed upon, there was an affidavit certifying that an entry existed, in the Registry of Criminal Offenders, next to Mr. Mauricio Herrera Ulloa, that read: On November twelfth nineteen hundred ninety-nine, the Criminal Court of the First Judicial Circuit sentenced him to a fine of 120 days for the offenses of publishing insults in the form of defamation…."  On December 3, 2001, the Court petitioned the State to present its observations on the text by the Commission.  On December 4, the Costa Rican State reported that, due to a mistaken interpretation, there had been confusion when Mr. Mauricio Herrera Ulloa’s criminal record was certified and added that the Department of Judicial Records and Files had already taken the corresponding measures to end definitively all the uncertainty surrounding Mr. Herrera Ulloa’s situation and guaranteed that a similar situation regarding certifications that might be issued in the future would by no means recur.  On December 6, 2001, the Court decided to take note of what was expressed by the State in its document of December 4, 2001, and to petition that it continue to apply the provisional measures ordered on September 7, 2001, and, in particular, to continue to ensure nullification of Mr. Mauricio Herrera Ulloa’s registration in the Judicial Registry of Criminal Offenders.


3.                  Case of Baruch Ivcher, Peru.  On February 7, 2001, the State reported that it had abrogated the resolution that had annulled the Peruvian citizenship of Mr. Ivcher; that it had accepted the recommendations of Report 94/98 of December 9, 1998, issued by the Commission; that Mr. Ivcher, his family, and others enjoyed the protection of their physical, psychological, and moral integrity and of judicial guarantees; that Mr. Ivcher had been restored to his position as shareholder of the radio station Frecuencia Latina; and that the Peruvian State was about to reach a friendly solution in conformity with Article 53 of the Commission's Rules of Procedure.


4.                  Considering that the violations behind the issuance of the provisional measures had ended, the Court issued a resolution, on March 14, 2001, whereby it decided to lift the provisional measures that had been issued.


Follow-up of Cases


5.                  “The Last Temptation of Christ,” Chile.  The Inter-American Commission presented its observations to the Inter-American Court on the report by the Republic of Chile regarding enforcement of the sentence of the Inter-American Court of Human Rights of February 5, 2001, regarding the case in question.  The observations examine the coherence between the constitutional and legal reforms carried out by the Chilean State with regard to the showing of films and Article 13 of the American Convention.


6.                  On August 25, 2001, the Chilean State reformed its Constitution in order to eliminate prior censorship, replacing it with a system for rating film productions.  Likewise, on March 5, 2001, the President of the Republic submitted to Congress a draft Law on Rating Film Production, which governs the showing of movies on national territory.


7.                  The IACHR and the Rapporteur for Freedom of Expression view this reform as positive since it eliminates the concept of prior censorship from the text of the Constitution.  The draft law provides for the establishment of a rating system to monitor the showing of films, in all probability to control access by minors in keeping with the restrictions allowed under Article 13 of the American Convention.  Nevertheless, the new text of the Constitution has not yet entered into force, as a result of which the previous censorship system continues to apply.


8.                  The above-mentioned bill provides for a Motion Picture Rating Board of 17 members, who are in charge of rating the films and providing guidance to the population and who adopt their decisions by a majority vote.  The project envisages appeals by movie theaters for changing and overturning rating decisions.  The Board classifies all film productions into three major categories, which contain subcategories.


9.                  The Commission considers that the imprecise language used for rating movies identified as "excessively violent" may permit excessively restrictive interpretations.  The showing of movies rated as "pornographic" or "excessively violent" by the Board will be restricted to the so-called special theaters, registered for this purpose in the respective municipalities.  The Commission considers that confining the showing of a movie rated "excessively violent" to these theaters within the terms of the law, governed by a parallel set of regulations, could be beyond the restrictions permitted for the protection of minors, envisaged in Article 13(4) of the American Convention.


10.              Ideally, once the motion picture has been rated, the decision to show a movie or not by virtue of its contents should be adopted by the owner or operator of the respective theater, in keeping with the demands of the consuming public or its own interests.  The State should limit its intervention to regulating the access of minors to certain films.  It should also be underscored that Article 13 of the Law leaves to the judgment of the municipal authority the granting of permits for the establishment of "special theaters." Therefore, if a permit is not granted, the movie in question will be affected by an indirect restriction, since there are no authorized premises to show them.  Along the same lines, the possibility that a municipal authority might deny or cancel authorizations for the functioning of "special theaters" could, in fact, become a mechanism for banning certain films.  Control over the showing of films would not be in the hands of the central rating body but rather of each municipality.


B.        Inter-American Commission on Human Rights


1.         Cases Declared Admissible by the Inter-American Commission on Human Rights during 2001


11.              Case 11.571 Humberto Palamara Iribarne, Chile.  Without prejudice to the merits of the case, the Commission declared that the present case is admissible for alleged violations, among others, of Article 13 of the American Convention.  On January 16, 1996, the Commission received a complaint submitted in behalf of Mr. Humberto Palamara Iribarne, which alleges the international responsibility of the Republic of Chile for having banned publication of the book Ética y Servicios de Inteligencia [Ethics and Intelligence Services] by Mr. Palamara Iribarne and for having convicted the latter for contempt of court in a trial that did not guarantee due process of law.  


12.              The complaint indicates that Mr. Palamara Iribarne wrote and attempted to publish a book entitled Ética y Servicios de Inteligencia [Ethics and Intelligence Services], in which he addressed various issues related to intelligence and the need to bring it into line with certain ethical parameters.  The Naval Court seized the copies of the book that were available in the Ateli Limitada press, the originals of the text, a diskette containing the entire text, and the electrostatic proofs of the publication.  Likewise, the Naval Court seized the books that were in the home of Mr. Palamara and deleted the entire text of the above-mentioned book from the hard disk of his personal computer.


13.              The petitioners also reported that, on March 26, the Chief Officer of the Naval Garrison of the Naval Institute ordered Mr. Palamara Iribarne to refrain from making “public or private comments, written or spoken, that might be to the detriment of, or damage, the image of the Institution, naval authority, or whoever is in charge of conducting the legal proceedings or summary investigation against him."  Palamara Iribarne convened a press conference at his home, at which time he criticized the actions taken by the Naval Attorney's Office in the proceedings filed against him.  The Naval Military Court of Valparaíso sentenced Palamara, for the crime of contempt of court, to 61 days in a minimum-security prison, a fine equivalent to 11 minimum-wage units, and the suspension of any public post or office during the time of his sentence.  On January 9, 1997, Palamara filed a complaint in the Supreme Court against the judges of the Military Court who convicted him; this appeal was turned down on October 7, 1997, and the conviction of the Military Court was upheld.


14.              Case 11.870 Radyo Koulibwi, Saint Lucia. Without prejudice to the merits of the case, the Commission declared that the present case was admissible because of alleged violations, among others, of Article 13 of the American Convention.  The complaint indicates that, since 1990, Mr. Deterville has been the legal owner and operator of a radio station called Radyo Koulibwi 105.1 FM, which held a “test license” granted to it by the State of Saint Lucia.  The complainant indicates that, on November 23, 1995, an armed policeman acting as an agent of the State personally handed to him a letter signed by the Permanent Secretary of the Ministry of Communications, informing him that, at that time, the Government of Saint Lucia was not in a position to grant him a permanent radiobroadcasting license and that its broadcasts were therefore illegal and should cease immediately.  The complainant claims that he was intimidated by the police officer who brought him the letter, because “while the police officer was holding the letter in his left hand, he used his right hand to unbuckle the holster containing his revolver and attempted to use it against Mr. Deterville.”  The complainant contends that he was not armed at the time the policeman gave him the letter.


15.              The complainant claims that the program Deterville Live had telephone lines open for its listeners to express their opinions on various subjects of national interest, including criticism against the administration.


16.              Case 11.500 Tomás Eduardo Cirio, Uruguay. Without prejudice to the merits of the case, the Commission declared that the present case was admissible because of alleged violations, among others, of Article 13 of the American Convention and Article IV (right to freedom of opinion and of the expression and dissemination of ideas, by any medium whatsoever) of the American Declaration of the Rights and Duties of Man.  The complainant, a retired Army major, reports that, in July 1972, he resigned as a member of the Military Center.  The complaint indicates that, in his letter of resignation, he passed judgment on the Armed Forces for human rights violations in the framework of the fight against subversive elements. Since then, the complainant alleges, he has not stopped suffering sanctions in retaliation for having freely expressed his opinion.


17.              The complainant alleges that the Military Center did not accept his resignation and proceeded to eliminate him from its Social Register.  Afterwards, the Military Center remitted a copy of his letter of resignation to the General Command of the Army and published it in the press, indicating that Major Cirio had been eliminated from the Social Registers of the Military Center.  In November 1972, he alleges that the General Command of the Army advised Major Cirio that he was subject to the jurisdiction of the Honor Court.  The complainant alleges that he was judged by a court lacking jurisdiction, since the case involved a retired military officer, and by default (in absentia), and that he was denied the right to defend himself.  He claims that, as a result of this ruling, his honor and reputation were affected, as well as his rights to remuneration and to medical care; he was expelled from the cooperative of the Armed Forces, forbidden to hold positions in the Ministry of Defense, denied the possibility of obtaining credit, disqualified and stripped of his military status and grade as an officer, denied the right to wear the uniform, and humiliated by being publicly exhibited as a person without honor.


18.              In December 1997, the Ministry of National Defense issued a resolution (76.161), which changed the status of some military staff, including Major Cirio, from downgraded to retired personnel, who were "separated from the Armed Forces for political, ideological, or arbitrary reasons." This resolution restored Major Cirio’s rights as a retired member of the armed forces, but did not include any retroactive rights or compensation for the moral damage he sustained over 25 years as a result of his situation.


2.         Precautionary Measures


19.              Germán Arcos, Oscar Torres, Cristina Castro, Alfonso Pardo, Colombia.  On November 9, 2001, the Commission granted precautionary measures to protect the lives and physical integrity of the journalists Oscar Torres (Managing Editor of Diario Sur); Cristina Castro (correspondent for Noticiero RCN); Alfonso Pardo (correspondent for the weekly Voz and Peace Commissioner of the Department of Nariño) and Germán Arcos (cameraman for Caracol Televisión of the city of Pasto, Nariño).  The Commission’s decision was based on information received by the Office of the Rapporteur for the Freedom of Expression, claiming that the three above-mentioned journalists and cameramen received serious threats from the Bloque Libertadores del Sur de las Autodefensas Unidas de Colombia [Southern Liberators Front of the United Self-Defense Forces of Colombia].  According to the information received, they were threatened with “execution” if they did not relinquish their profession within 48 hours."  The Commission requested that the Government of Colombia urgently adopt the necessary measures to guarantee the life and integrity of the above-mentioned persons, undertake an investigation, and adopt the measures needed to put an end to the threats against the persons mentioned herein. The State extended the protective measures requested by the IACHR.[1]


20.              Mauricio Herrera Ulloa and Mr. Fernán Vargas Rohrmoser, Costa Rica. On March 1, 2001, at its 110th period of sessions, the Inter-American Commission granted precautionary measures in favor of the journalist Mauricio Herrera Ulloa and Mr. Fernán Vargas Rohrmoser, legal representative of the newspaper La Nación. According to information received, the journalist Mauricio Herrera Ulloa had been convicted in criminal proceedings in Costa Rica for his newspaper articles published in the newspaper La Nación that made reference to a controversial foreign service officer of that country.  The judgment, among other things, ordered Herrera Ulloa to pay a fine and declared that civil proceedings would be filed for damages, convicting Herrera Ulloa and the newspaper La Nación S.A., represented by Fernán Vargas Rohrmoser, as jointly and severally liable.


21.              The Commission, supported by the recommendation of the Special Rapporteur for Freedom of Expression, requested the State of Costa Rica to stay the execution of the sentence until the Commission examined the case; to refrain from taking any action aimed at adding the name of the journalist Herrera Ulloa to the Judicial Registry of Criminal Offenders of Costa Rica; and to abstain from any act or action that might affect the right to freedom of expression of the above-mentioned journalist and the newspaper La Nación.  On March 21, the Costa Rican court responsible for reviewing the case in this jurisdiction rejected a petition to revoke the order of execution of the sentence, precisely on the basis of the petition for precautionary measures issued by the Commission.  The ineffectiveness of the State in safeguarding the freedom of expression of the journalist Mauricio Herrera Ulloa and Mr. Vargas Rohrmoser, combined with the fact that the Costa Rican courts did not carry out the required precautionary measures on a timely basis, led the Commission to request provisional measures from the Inter-American Court of Human Rights.


22.              Claudy Gassant, Haiti.  On June 20, 2001, the Commission requested the Haitian State to adopt precautionary measures to safeguard the rights of Judge Claudy Gassant.  This decision was based on information received according to which Claudy Gassant had been the target of various death threats since he took over the investigation of the murder of the journalist Jean Dominique. According to information received, the investigation was assigned to Judge Claudy Gassant after two other judges gave up the case after receiving death threats. Judge Gassant has conducted a series of investigations of political leaders and other Haitian citizens, in spite of having received direct death threats.  According to the information received, on June 8, 2001, a plot was discovered to assassinate Judge Claudy Gassant and Senator Prince Pierre Sonson, a member of the Fanmi Lavalas Party, who had been demanding justice since the death of the journalist Jean Dominique.  The absence of effective protective measures to ensure the personal safety of Judge Gassant has led him to leave the country.


23.              Pablo López Ulacio, Venezuela.  On February 7, 2001 the Commission requested the State of Venezuela to adopt precautionary measures in favor of the journalist Pablo López Ulacio, editor and owner of the weekly La Razón. According to information provided in November 1999, López Ulacio was sued by the president of the insurance company Multinacional de Seguros, Tobías Carrero Nacar, owner of the largest insurance company of the State, who was singled out by the newspaper as being a financial backer of the presidential campaign of Hugo Chávez Frías and was accused of benefiting from State insurance contracts.  As a result, trial judge 25 of Caracas ordered that any reference to this businessman be prohibited and that the journalist be arrested.  On July 3, 2001, trial judge 14 of Caracas decided to issue an arrest warrant against López Ulacio, ignoring the request for precautionary measures made by the Commission.


24.              The IACHR requested the following precautionary measures in favor of Pablo López Ulacio: (1) to lift the previous censorship measures against Mr. López Ulacio and the weekly La Razón; (2) to guarantee the full exercise of Mr. López Ulacio's right to defend himself; (3) to ensure that Mr. López Ulacio can exercise personal freedom, freedom of expression, and the right to due process of law.  The State reported that, on July 26, 2001, the court of first instance issued a resolution upholding the arrest warrant against the alleged victim, according to which "the measures requested by the IACHR correspond to what was related by (Mr. López Ulacio) to this organization, ignoring the procedural reality that led to the measure restricting his freedom." The State has alleged that the file has been reviewed by 35 judges and that, in Venezuela, trials in absentia do not exist; therefore the failure to comply with the precautionary measures is not due to the lack of diligence on the part of the Venezuelan State, but rather to procedural delays, most of which were initiated by Mr. López Ulacio, who obstructed their execution.  The State also said that the precautionary measure of deprivation of liberty was issued against Mr. López Ulacio because of his refusal to appear for his trial on seven occasions, which is provided for in Article 271 of the Procedural Code.


25.                          It should be noted that on March 11, 2002, the Venezuelan State notified the IACHR that the temporary detention order (medida de Privación Judicial Preventiva de Libertad) issued on January 23, 2001 by the Fourteenth Trial Court of the Criminal Justice Circuit of Metropolitan Caracas had been replaced by a conditional release precautionary measure (Medida Cautelar Sustitutiva de Libertad), which involves appearing before the court every 30 days from the date on which Mr. López Ulacio acknowledges notification of the aforementioned decision.



[1]. For further information, please see Chapter II of the present report.